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For people with criminal records

Story Type: News

Help us to scrap ‘disqualification by association’: The government are consulting on changes to the childcare disqualification arrangements

Ever since ‘disqualification by association’ (DbA) hit the headlines about 18 months ago, we have been working to try and scrap the regulations that have had a significant and unnecessary impact on the partners of those with a criminal record.

Earlier this month, the Department for Education (DfE) published a consultation with proposals for change. The deadline for responses to the consultation is 1st July 2016.

Find out more about the consultation, details of what we’re doing and how you can help on our information site.

 

 

US judge expunges criminal record

 

The article below was originally published in The New York Times and we thought it would be of interest to people with convictions in considering how the US deal with old convictions.

 

How to get around a criminal record 

In May 2015, a federal judge in Brooklyn, USA, took the extraordinary step of expunging the conviction of a woman he had sentenced to five years of probation more than a decade earlier for her involvement in an insurance fraud scheme that netted her $2,500.

Calling her “a minor participant in a non-violent crime”, Federal District Court Judge, John Gleeson, decried the “dramatic adverse impact” the woman’s conviction has had on her ability to get a job to support her four children. “There’s no justification for continuing to impose this disability on her” Judge Gleeson wrote. “I sentenced her to five years of probation supervision, not a lifetime of unemployment”.

The move was significant because there is no federal law that allows for expungement – the permanent sealing of a criminal record to the general public. In fact it appears to be the first time that a federal judge has expunged a conviction for this reason. It should not be the last.

Some 70 to 100 million people in the United States – more than a quarter of all adults – have a criminal record, and as a result they are subject to tens of thousands of federal and state laws and rules that restrict or prohibit their access to the most basic rights and privileges – from voting, employment and housing to business licensing and parental rights.

Some of these collateral consequences make sense – like preventing people convicted of molesting children from working in schools. But many have no relation at all to the original offence.

The woman whose record Judge Gleeson expunged was hired repeatedly for social-work or healthcare jobs, and then fired after employers ran a background check. As the judge wrote, it is “random and senseless” that her “ancient and minor offence should disqualify her from work as a home health aide”.

The federal government lags far behind in reducing the burdens of a conviction. About half the states allow some convictions to be expunged; almost all allow expungement for arrest records and other non-conviction records. Some expungements are automatic, while others require a petition to the court.

Of course, expungement is not a cure-all. The vast majority of employers now run background checks, many using error strewn databases that often fail to delete sealed records.

A better, increasingly popular approach is a “certificate of rehabilitation”, which State Judges issue as a way of removing certain restrictions and encouraging employers and others to take a chance on someone despite his or her record.

Another solution is the executive pardon, which restores rights lost after a conviction. Pardons were once a common method of relief from injustice, and some state governors still use it vigorously. Gov. Jack Markell of Delaware has issued almost 1600 pardons in six years. But President Obama, like his recent predecessors, has almost entirely abandoned the practice.

Mr Obama’s former attorney general, Eric Holder understood the importance of giving people with criminal records a better chance at finding jobs and regaining their foothold in society. And yet the Justice Department is reflexively fighting Judge Gleesons’s expungement order, calling it “judicial editing of history”.

If the White House or Congress made a real effort to alleviate the crippling consequences of criminal records – by increasing pardons, or passing laws to give courts more options to lessen or remove those burdens – there would be no need for judges to play the role of editors.

 

 

This content originated from: The New York Times 
Available at http://www.nytimes.com/2015/10/19/opinion/how-to-get-around-a-criminal-record.html?_r=0 (last accessed April 2016)

 

 

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Japan recognises ‘right to be forgotten’

This was originally published in The Guardian and reports on how a Court in Japan have ordered Google to remove links to the criminal record of a Japanese man stating that ‘criminals are entitled to have their private lives respected and rehabilitation unhindered’. 

 

Japan recognises ‘right to be forgotten’ of man convicted of child sex offences

Japan has taken another step towards recognising “the right to be forgotten” of individuals online after a court ordered Google to remove news reports about the arrest of a man who, according to the judge, deserved the chance to rebuild his life “unhindered” by records of his criminal past.

While Japanese courts have demanded the removal of information strictly for privacy reasons, the recent ruling by Saitama district court is the first in the country to cite the right to be forgotten – something that has been enshrined in law in the European Union – in demanding the removal of personal information online, according to legal experts.

The decision in December, which was only revealed in recently unearthed court documents, is expected to ignite a debate in Japan over whether authorities can reconcile an individual’s right to have expunged details of, say, a crime committed in the distant past with freedom of information and the public’s right to know.

In handing down the ruling the judge, Hisaki Kobayashi, said that, depending on the nature of the crime, individuals should be able to undergo rehabilitation with a clean online sheet after a certain period of time has elapsed.

“Criminals who were exposed to the public due to media reports of their arrest are entitled to the benefit of having their private life respected and their rehabilitation unhindered”, Kobayashi said, according to the Kyodo news agency.

Kobayashi added that it was difficult to live a normal life “once information is posted and shared on the internet”, which should be considered when determining whether (the information) should be deleted”.

The man, who has not been named, had demanded that Google remove reports posted online more than three years ago detailing his arrest and conviction for breaking child prostitution and pornography laws, for which he was fined 500,000 yen (£3,165). He complained that the case appeared whenever his name and address were entered into Google search.

Google has appealed against the decision in the high court, although media reports say that the man’s criminal record no longer appears in its search results.

The Saitama case is not the only ruling to suggest that Japan is following the lead set by the EU, where residents can request the removal of search results that they feel link to outdated or irrelevant information about themselves on a country-by-country basis.

In November, a court in Tokyo became the first in Japan to issue a temporary injunction ordering Google to delete search results relating to the arrest of a dentist who had been arrested for illegal dental practices.

A month earlier, the same court issued an injunction ordering Google to remove search results that revealed the identity of a man who complained that articles implicating him in past criminal activity were violating his right to privacy and harming his reputation.

Yahoo Japan, meanwhile, said last year it would comply with requests to remove information from search results if they included an individual’s address or telephone number, or referred to minor crimes committed years earlier.

Google has been resisting attempts to widen the application of the right to be forgotten since the EU’s court of justice ruled in May 2014 that Google must delete “inadequate, irrelevant or no longer relevant” data from its results when a member of the public requests it.

That decision came after a Spanish man, Mario Costeja Gonzalez, took Google Spain to court after he failed to secure the deletion of his debt records dating back to the late 1990’s.

This content originated from: The Guardian (http://www.theguardian.com/uk)
Available at http://www.theguardian.com/technology/2016/mar/01/japan-recognises-right-to-be-forgotten-of-man-convicted-of-child-sex-offences (last accessed 2nd March 2016)

 

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New York Times Editorial – A Criminal Record and a Fair Shot at a Job

This was originally published by the New York Times on the 13th November and we thought it would be of interest to people with convictions.

A Criminal Record and a Fair Shot at a Job

Nineteen states and 100 cities and counties forbid public agencies — and in some cases, private businesses — to ask job applicants about criminal convictions until later in the application process, when they have had a fair chance to prove their qualifications. Last week, President Obama added the weight of the federal government to this movement when he ordered federal agencies to stop asking most people about convictions at the outset.

He should not stop there. The president could send another powerful message by issuing an executive order that extends the fair-chance requirement to government contractors and that uses the approach that has been laid out by the federal Equal Employment Opportunity Commission. Without employment, after all, people who have served time in jail will remain trapped at the margins of society.

Seventy million Americans have criminal histories that can limit their job opportunities or shut them out of work altogether. This sometimes means they had an arrest that never led to conviction, faced charges that were eventually dismissed or committed minor crimes in the distant past.

Fair-chance — or “ban the box” — laws have gained traction in both liberal and conservative states as elected officials and businesses have come to understand that shutting people out of work weakens families and communities. It also leaves qualified people out of the applicant pool.

Scores of municipal governments have expressly postponed the criminal history question until the applicant has been given a conditional job offer — a policy that the federal government should follow. And giant companies like Walmart, Target and Koch Industries have removed conviction questions from job applications.

The Equal Employment Opportunity Commission gave the fair-chance movement a lift in 2012 when it reaffirmed a longstanding ruling that bars employers from automatically turning away applicants based on their arrest and conviction records. Rather, the agency said, employers should take into account the age at which a person committed the offense, the nature of the offense and whether it is directly related to the job.

The agency also made it clear that arrest alone is not proof of illegal conduct or grounds for exclusion of employment applicants. Two developments made the need for this new guidance urgent: the rise of computerized arrest and conviction records that often contain mistakes and the sharp increase in the number of people who have been arrested for minor offenses as a result of “zero tolerance” policing.

A year after that clarification, a federal commission led by then-Attorney General Eric Holder Jr. recommended making the federal government a “model employer” in the way it treats people with criminal records.

President Obama’s new directive gets the government closer to that. But an executive order that instructed federal contractors to abide by the employment commission’s guidance would fulfill that promise.

The president, who no doubt wants to avoid another dust-up with Congress over executive authority, would ideally like lawmakers to pass a pending “ban the box” bill. That would be the right thing for Congress to do. But since Congress is unlikely to act, Mr. Obama should go ahead and complete the job he has begun.

This content originated from: The New York Times
Available at http://www.nytimes.com/2015/11/11/opinion/a-criminal-record-and-a-fair-shot-at-a-job.html?_r=1 (last accessed 13th November 2015)

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  • Information – We have details of friendly UK employers on our Information Hub.
  • Policy work – Read about the work Unlock is doing on Ban the Box in the UK

Proof that there’s a rehabilitation period for restraining orders with no duration or time specified!

 

Whilst answering enquiries for Unlock’s helpline I came across the following email from a client, which typifies the type of questions we often get asked.  This one relates to relevant orders which have ‘no specified end date’.   The following exchange between our client and Disclosure Scotland clears up this point once and for all.

Question to Disclosure Scotland 

“Sadly, about 3 years ago, I got into a situation with an ex -partner which, due to a complex set of circumstances, ended with a conviction. I received a fine together with a restraining order. The restraining order had no duration or time specified.   

Due to the restraining order not having an end date, I wanted to know whether this would cause a drag through effect and stop my conviction becoming spent? Fines usually become spent 12 months from the date of conviction. The date of my conviction was December 2012.

I was wondering therefore if you could clarify the situation.  

Many thanks for your help”

Answer from Disclosure Scotland 

“Restraining orders which have no duration/or time specified have a 2 year rehabilitation period.  However, in the case where a relevant order is ‘indefinite’ it will still be considered to be live and therefore has a rehabilitation period of 100 years.  

We can confirm therefore from the information that you have provided that under new legislation introduced in March 2014, your conviction is now considered spent when applying for a Basic certificate.

Date of conviction December 2012

Fine ( 1 year rehab period) considered spent December 2013

Restraining order no duration/time specified (2 year rehab period) considered spent December 2014 (ROA under English and Welsh legislation)

I hope this information is of assistance”

While this is a success story for this particular client, we would advise you to look carefully at what duration has been placed on your order.  ‘Indefinite’ means your conviction will never be spent until such a time as you have gone back to court to have it amended.  If the order states ‘Until further notice’, again you will need to go back to court to have an end date placed on the order.

Restraining order’s with no duration or time specified will become spent automatically after two years.

By Simon

 

Help Unlock challenge employment discrimination

I wanted to post a piece to get readers of theRecord involved in a project that Unlock is running to challenge the employment discrimination faced by people with convictions.

As part of this work, alongside supporting and challenging employers to develop good practice, we’re also looking for input from people with convictions.

In particular, there’s two questions that we’ve recently published that I’m looking for people to help us with if possible:

  1. How would you like to be treated when applying for work?
  2. Do you have evidence of bad practice from employers?

 

How would you like to be treated when applying for work? 

In particular, we’d like to know what you think is a ‘fair’ way of dealing with criminal records as part of the recruitment process.

To do this we’ve put together a short survey. You can complete the survey online survey here (you can stay anonymous if you wish).

Alternatively, you can read the questions here and email your answers to employer@unlock.org.uk.

 

Do you have evidence of bad practice from employers?

We’re also on the look-out for evidence of bad practice by employers with regards to the policies and processes that they have in place for job applicants with criminal records.

This could include employers that:

  1. Have a blanket policy of not recruiting anybody with unspent convictions
  2. Carry out DBS checks for roles not eligible for them
  3. Request applicants to provide a copy of their ‘police record’ (also known as ‘enforced subject access’)
  4. Don’t give applicants an opportunity to explain their criminal record

Find out more details here about how to send us examples and evidence of bad practice.

 

More information

There’s more information about this project on the main Unlock website.

You can sign up to receive email updates about this work by subscribing here and selecting ‘News on our work challenging employment discrimination’.

 

Retention of DNA profiles of people with convictions not illegal, supreme court rules

This was originally published in The Guardian. 

Court rules in test case involving drink driver that storing a man’s DNA profile is proportionate interference with his right to privacy

Retaining DNA profiles of convicted adults indefinitely is not an illegal breach of their privacy, the supreme court has ruled in a test case involving a Northern Ireland drink driver.

The judgment by the UK’s highest court sets a significant precedent in making a clear distinction between information that police forces may keep on those who have been convicted, as opposed to those who were merely suspects.

The claim against the Police Service of Northern Ireland (PSNI) was brought by Fergus Gaughran, 42, who was arrested for drink driving in 2008 and pleaded guilty at Newry magistrates court. He was disqualified from driving for a year.

By a majority of four to one, the supreme court justices ruled that storing his DNA profile – the information extracted from his DNA sample and held on a computer database – is a proportionate interference with his right to privacy under article 8 of the European convention on human rights.

“The potential benefit to the public of retaining the DNA profiles of those who are convicted is considerable and outweighs the interference with the right of the individual,” said Lord Clarke, who delivered the majority decision. “The retention may even benefit the individual by establishing that they did not commit an offence.”

Clarke added: “The United Kingdom has chosen recordable offences as the touchstone. Recordable offences include any offences punishable by imprisonment, together with a limited number of non-imprisonable offences.

“As the expression suggests, the police are obliged to keep records of convictions and offenders in relation to such offences on the Police national computer. I can see nothing unreasonable in the conclusion that such records ought to include any available DNA profiles.

“It is of course true that the appellant was only fined £50 and disqualified from driving for a year but driving with excess alcohol is a serious offence and can cause significant injury and damage. It may lead to up to six months’ imprisonment.”

If such a “blanket measure” is at odds with practices in some other European countries, Clarke continued, then it is nevertheless permitted because it is within the UK’s so-called “margin of appreciation” – the flexibility allowed for local differences in regulations.

The assertion of such a status reflects the intricate dialogue between the supreme court in London and the European court of human rights in Strasbourg over who should have final authority in certain categories of cases.

Gaughran’s appeal was rejected. Lord Kerr, however, who gave a dissenting judgment, said: “the stigmatising application of the indefinite retention policy, even to those whose convictions are spent, frustrates the purpose of rehabilitation”.

 

This content originated from: The Guardian (2015), Retention of offenders’ DNA profiles not illegal, supreme court rules

Available at http://www.theguardian.com/politics/2015/may/13/retention-of-offenders-dna-does-not-breach-privacy-supreme-court-rules [Last accessed 15th May 2015]

Election 2015: UKIP backs candidate with criminal record

UKIP has said it “backs entirely” one of its general election candidates, despite him having a criminal record.

Peter Bush, its candidate for Aberavon, has convictions for theft and arson, which are now spent.

UKIP said Mr Bush had “paid his debt to society” and “changed his life and the lives of many around him”.

The party told BBC Wales it was aware of Mr Bush’s convictions when he was selected.

‘Ancient history’

In a statement, Nathan Gill, UKIP’s leader in Wales said: “Peter, as a young man, made mistakes, which resulted in prison.

“But since that time he has changed his life and the lives of many around him.

“So much so that he has won a series of awards for his charity work, up to being nominated for and a finalist in the ITV Local Hero awards for Wales.

“We are proud to be a party that takes people for what they are, not for mistakes of the past.

“A party though tough on crime, is able to recognise that people can always turn a new leaf.

“We, unlike the other parties in Wales look at the individual, not just on their ancient history.

“In Peter we see a man that has, through his own hard work, not merely paid his debt to society but paid that debt many times over through his work. Would that other parties had people with similar drive to improve the lives of their neighbours”.

 

This content originated from: BBC website (2015), Election 2015: UKIP backs candidate with criminal record.

Available at http://www.bbc.co.uk/news/election-2015-wales-32519606 [Last accessed 30th April 2015]

Job hunting with a criminal record – New York Times Editorial

This was originally published by The New York Times. See the bottom of this post for more information.

There is no dispute that far too many Americans carry the burden of a criminal record — at least 70 million, by recent estimates — or that the easy accessibility of these records in the information age imposes debilitating obstacles, especially when it comes to finding a job.

The harder question is what to do about it.

Employment is, after all, an important factor in keeping people out of the criminal justice system, yet, in a struggling job market, employers are often tempted to turn away anyone who appears to pose even the slightest risk. Thanks to the proliferation of companies offering instant online background checks, a vast majority of employers now run such checks on all job applicants. They can, and do, refuse to hire people on the grounds of an arrest itself — let alone a conviction.

People with criminal records often face all manner of entrenched and unjustified prejudice. Studies have found that job applicants who reported having a criminal record were 50 percent less likely to receive a callback or job offer. And, as with virtually every part of the criminal justice system, the effect was more pronounced when the job candidate was black.

Over the last five years, according to a recent report by the Vera Institute for Justice, 23 states have passed more than three dozen laws aimed at sealing or expunging criminal records for certain offenses so that low-level offenders do not continue to suffer for relatively minor transgressions. The convictions that may be sealed commonly include misdemeanors like disorderly conduct, shoplifting, or, in some cases, low-level drug possession.

The laws generally impose a waiting period of several years from the end of a sentence before a convicted person may ask a court to seal his or her record.

But record sealing, however well-intentioned, is not an optimal solution. For one thing, trying to keep anything secret in the 21st century is no sure thing. Anyway, sealing laws regularly include significant exceptions, leaving criminal records available to law enforcement and the courts, as well as to certain employers who are legally required to perform background checks.

Also, record-sealing laws do not and cannot address the underlying problem of overcriminalization. Many of the misdemeanors the laws single out should never have been prosecuted in the first place. Does it make sense that a 21-year-old who is caught, say, driving without a license will then be burdened by a criminal record that trails him and keeps him from getting jobs into middle age?

A better approach, though admittedly longer term, is to emphasize the need for a change in attitudes about people with criminal records. So-called ban-the-box laws now on the books in about a dozen states and many municipalities require employers to consider applicants more fully before asking about their criminal history. Some states offer employers tax breaks or reduce their legal liability for hiring applicants with a conviction in their past.

In the end, everyone benefits when people with criminal records are not shut out from the opportunity to be productive members of society.

This content originated from: The New York Times, Editorial Board (2015), Job Hunting with a Criminal Record

Available at http://www.nytimes.com/2015/03/19/opinion/job-hunting-with-a-criminal-record.html [Last accessed 19th March 2015]

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