Andrew Henley

In the context of the recent, but limited, reforms to the 1974 Rehabilitation of Offenders Act in England and Wales it is worthwhile considering different approaches to criminal record data which have been taken across continental Europe. To this end, I recently attended the 6th Annual Lecture of the Scottish Centre for Crime and Justice Research at the University of Edinburgh, delivered this year by Professor Elena Larrauri from the Universitat Pompeu de Barcelona.

Professor Larrauri notes that the use of pre-employment criminal record screening has increased due largely to a culture of risk aversion and a desire by the public for increased security and protection from what formerly convicted people ‘might do’ in the future. Yet despite this expansion in screening, criminal records have received relatively little attention from academics, with the notable exception of the United States where the availability of conviction data is comparatively widespread.

The expansion of pre-employment screening produces an impact in three areas related to the regulation of criminal record data. Firstly, how much disclosure is acceptable? Do we, for instance, believe that all employers have the right to ask about criminal records or do we take the view that such information should be subject to some sort of privacy controls? Clearly the more risk averse a society becomes, the more likely it is to tend towards the former rather than the latter point of view. Secondly, is the issue of expungement time, or how long it takes for criminal records to become ‘spent’ or ‘sealed’. Again, it is easy to imagine how the length of this period will tend to be dependent upon the level of risk aversion in a society. The third issue relates to which jobs should be subject to pre-employment criminal record screening and formed the main basis of the lecture.

In continental Europe (as opposed to the UK), conviction-based employment screening has often been limited to the public sector and, in particular, roles in the administration of justice such as judges, police and prison officers. Until now little attention has been paid to blanket bans on the employment of people with previous convictions in public administration. But Professor Larrauri posed the question as to whether we should simply accept it as a given that people with a criminal record are automatically excluded from public sector roles. She notes, for instance, that an ‘automatic exclusion’ approach can expand to other roles in public administration including office clerks and ultimately even the gardener who works in the grounds of a public building. Additionally, she highlights the fact that a range of employment has increasingly become subject to forms of occupational licencing meaning that taxi drivers, nightclub door staff and even bingo hall callers have required ‘clean’ records in some jurisdictions.

In relation to private-sector employers, comparatively little information about the extent of criminal records checks is available in continental Europe. However, Professor Larrauri notes that EU directive 2011/92/EU on combating the sexual abuse and sexual exploitation of children may mark a shift in this position given that it will enable some private employers to ask about previous convictions. She noted, however, that the legislation does not give criminal records a ‘conclusive force’ (telling employers who they may not employ) but rather empowers them to ask about criminal records in some situations. Caution was also expressed that forms of screening brought in to combat sexual abuse can often open the door to screening for violent offences or for any employment which relates to the somewhat ill-defined and broad category of ‘vulnerable adults’.

In order to combat unnecessary discrimination against people with convictions who have served their sentences, two models currently exist. In the ‘spent model’ employers are legally prohibited from considering criminal records after a period of time has elapsed. The problems associated with this however, are in determining what are appropriate ‘expungement times’ and the fate of the ex-offender during this interim period whilst they wait for their conviction to become ‘spent’. In the ‘anti-discrimination model’ employers are advised that they can only exclude people where there is a ‘close nexus’ between the nature of the conviction and the type of employment being applied for – for instance, between fraud and work in the financial sector or between speeding convictions and driving jobs. The issue with this model is that it can often represent a delegation of the power to punish from the state to employers, since the exclusion from employment which results can be seen as a form of punishment in its own right.

Professor Larrauri suggests that, as an alternative to these models, the judicial and legal system should take ownership of criminal records and incorporate them into the process of delivering punishment at the point of sentencing. Given that the purpose in using criminal record data is supposed to be an attempt to reduce risk to the broader public (although it is not firmly established to what extent this data remains predictive of future offending in the long-term), this could mean the imposition of certain occupational disqualifications for an extended period following the end of a sentence. This would mean that certain people would be disqualified from specific occupations rather than all forms of employment. Additionally, such disqualifications would be based on individual assessment rather than blanket bans and would necessarily be time limited rather than indefinite. This is because bringing criminal records into the field of punishment, rather than seeing them as a ‘collateral consequence’ of a conviction, would mean that the usual legal and human rights safeguards associated with punishment (for example, Article 7 of the European Convention – ‘no punishment without law’) would then begin to apply, which currently they do not.

Article taken from Issue 18.