PCSC has passed – but people with criminal records still face a long wait

The Police, Crime, Sentencing and Courts Bill (PCSC) has received royal assent, and some positive changes that Unlock has been campaigning for are now written into the law. We should have been celebrating as thousands of people see their convictions become spent sooner. And yet, we have learned that the rules determining spending periods have not actually changed and DBS certificates will continue using the old ones for at least another year. This is because other pieces of regulation need to be written to put the new legislation into practice, and – we are told – it takes time to update the IT systems at the DBS.

Thousands of people will continue to be impacted by criminal record disclosure for a year longer than the law says they should. Parliament has already decided that their spending periods are unjust, and yet people must continue to disclose until the bureaucracy catches up. Over 100,000 people who were supposed to see their opportunities increased and discrimination lessened by PCSC will continue having to disclose their record.

About 60,000 people were supposed to see their record for a community order immediately become spent when PCSC was passed; almost all of those will now be forced to wait the full 12-month disclosure period, as if PCSC had never happened. Around 40,000 people who completed short prison sentences in 2020/21 will also have wait out the whole original disclosure period. Thousands more who served four or more years for non-violent crimes before 2015 will have to keep waiting another year for the first opportunity for their convictions to be spent. This delay hurts real people, who will continue to face stigma and discrimination, and have their privacy invaded in an unjust way.

Perhaps it was optimistic to think that the PCSC changes would happen immediately. Especially where government IT systems are involved there will inevitably be delays. But spending is not a complicated system. The change from two years to one, or 12 months to six is a trivial one. If you know the sentence, the new rules can be applied instantly. The overwhelming majority of criminal records can be updated with the flick of a switch.

Of course systems need to be accurate and need to be tested, but this change in disclosure periods has been well known about since 2020. There haven’t been any major changes to the legislation since the government’s white paper, and broad cross-party support for reduced disclosure periods means that even an unexpected change of government was unlikely to derail this legislation.

Most shockingly, this change is being implemented outside the DBS’s ongoing technological evolution, which is planned to continue until at least 2026. Even though PCSC was known about years in advance at the Ministry of Justice, the DBS were not able to plan it into their digital strategy. This lack of joined up thinking means that changes will be made on whatever systems are live today, without considering that whole new systems may only be weeks behind them.

Sadly this pattern of poor planning and long delays is all too familiar. After the last major change to spending periods in 2012, and our landmark supreme court case in 2018 securing changes to filtering, it took 18 months or more to actually change the system in practice. Even when the government is making positive changes to criminal records, they still do not seem to understand that thousands of people are being impacted every day by bad laws that should be changed.

All the evidence feeding into PCSC showed that reducing disclosure periods had zero public cost and would help to reduce reoffending. Given the ongoing harms that the existing law inflicts, we hoped that there would be more urgency in bringing in the new law, but it seems that delivering these changes sits further down the government’s agenda.

What this delay does do is give us time to reflect on the changes that PCSC did not make. One possible cause of delay is the complex aspects of the spending regime, including ‘drag-through’ and the impact of ancillary orders.

A good number of people currently impacted by drag-through will suddenly cease to be affected when spending periods change, but it’s hard to know how the DBS system will interpret and handle them. Testing is surely required. But drag-through is an inherently unjust part of the law that deliberately aims to be punitive. PCSC should have abolished this rule and allowed each offence to be treated individually, which in turn would have made implementing the legislation much easier.

The same goes for ancillary orders, which can result in minor convictions staying unspent for many years, or even for life. The new rules will of course have to be tested to ensure that this still works properly. However, PCSC never asked whether it should work like this, or whether excluding ancillary orders from spending would work better. This is odd, since PCSC’s rationale is that longer spending periods are harmful and shorter ones are more positive.

These are all issues that we will continue working on going forward, but the delays really do highlight how far we have to go before government really understands the reality of living with a criminal record. We are glad that they have taken on board the idea that shorter disclosure periods help people to move on, but structuring these changes so that almost no-one who is impacted today will actually benefit shows a baffling lack of connection to people with criminal records. A year is a long time for anyone who is trying to get a job, find a house, or buy car insurance.

We will keep fighting, and keep carrying your voices to the top of government, until they really understand how the laws they make impact people.