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Tag: youth criminal records

Unlock and Nottinghamshire Youth Justice Service collaborate on resource for young people with convictions

We are pleased to publish a new resource we’ve created in collaboration with Nottinghamshire Youth Justice Service. The booklet, produced for young people and the professionals supporting them, is designed to help a young person understand when they need to disclose their convictions, and how to do so.

Download the booklet

Christopher Stacey, Co-director of Unlock, said:

“We were delighted to partner with Nottinghamshire Youth Justice Service to develop this resource. It’s crucial that organisations supporting individuals with a criminal record have good understanding on if, what, when and how their clients will need to tell employers and others about their criminal record. We have delivered our ‘Advising with Conviction’ training to a range of youth offending teams and we were pleased to follow this up by producing this information booklet for the young people that Nottinghamshire Youth Justice Service work with.” 

Laura Moore from Nottinghamshire Youth Justice Service said: 

“The fair disclosure of any criminal convictions is paramount to individuals in order for them to successfully move on from their past. The rules can be very confusing, and we have found that, particularly for young people they have little confidence in disclosing the right information or challenging unfair judgements. By working with Unlock we have been able to jointly produce a comprehensive and accurate booklet for young people to give them all the information they need. They can choose to use it now or refer to it the future. It has also proved very useful in encouraging employers and educational organisations to consider their polices around people with criminal records.  Unlock have been a valued partner and source of training and support in this area of expertise.”

Find out more about Unlock’s training for professionals

Government responds to Supreme Court ruling with plans to change criminal records disclosure regime

Responding to government plans to change the criminal records disclosure regime to address the Supreme Court judgment in the case of P and Others v SSHD & SSJ (the ruling on the filtering system and the disclosure of criminal records), Christopher Stacey said:

“We welcome the government’s intention to fully comply with the Supreme Court ruling on filtering. Unlock intervened in that vital case because we know thousands of people are unnecessarily anchored to their past due to an arbitrary regime which forces the disclosure of old and irrelevant information. The changes announced today are a crucial first step towards achieving a fair system that takes a more balanced approach towards disclosing criminal records.

 

“However, we are still left with a criminal records system where many people with old and minor criminal records are shut out of jobs that they are qualified to do. Reviews by the Law Commission, Justice Select Committee, Charlie Taylor and David Lammy MP have all stressed the need to look at the wider disclosure system. The government’s plan for jobs should include a wider review of the criminal records disclosure system to ensure all law-abiding people with criminal records are able to move on into employment and contribute to our economic recovery.”

 

Background

On 30 January 2019, the Supreme Court directed the Government to fix the broken Disclosure and Barring Service (DBS) system. Four claimants had challenged the blunt and punitive rules, that require them to disclose multiple offences, no matter how historic or minor, and to disclose cautions received in childhood. Every year about 25,000 youth cautions are disclosed in criminal record checks, around 75% of those cautions were for incidents that happened over 5 years ago.

The Court, agreeing with two lower courts whose judgments the Government had challenged, said the Government needed to fix the rules to allow people to move on from past mistakes.

Planned changes 

This change affects spent convictions that may continue to be disclosed on standard and enhanced checks. It does not affect unspent convictions which will continue to be disclosed.  

A Statutory Instrument is a way of amending existing law. It means changes can be made in a shorter timeframe than passing new primary legislation. The planned changes to the filtering rules are set out in Statutory Instruments relating to the Police Act 1997 and Rehabilitation of Offenders Act 1974 (Exceptions) Order 1975. 

The Statutory Instrument’s remove the automatic disclosure of: 

  • youth cautions, reprimands and warnings (an out of court disposal issued to young offenders that were replaced by youth cautions in 2013); and 
  • all spent convictions where the individual has more than one conviction (except where disclosed under the other rules) 

What will not change 

Convictions resulting in a custodial or suspended sentence will still be disclosed.

Convictions or adult cautions for an offence that can ‘never be filtered’ will still be disclosed. 

The time that must pass before filtering applies remains the same – 11 years for a conviction (5.5 years for convictions under the age of 18) and 6 years for adult cautions (youth cautions will no longer be disclosed). 

In addition, enhanced criminal records certificates may also include any information which a chief officer of police reasonably believes to be relevant and in the chief officer’s opinion ought to be included in the certificate.

What does this mean for you? 

It’s important to note that these changes are not yet law.

You will no longer have to disclose reprimands, final warnings or cautions received under the age of 18 on application forms for regulated jobs or university courses. These will no longer be disclosed on a standard or enhanced DBS certificate. 

Multiple childhood convictions will be filtered after 5.5 years unless they are for a specified offence and did not result in a custodial or suspended sentence. 

Multiple convictions acquired after the age of 18 will be filtered after 11 years, unless they are for a specified offence or resulted in a custodial or suspended sentence. Adult cautions have not changed. 

Find out more about the impact of these planned changes.

Useful links

  1. The government announcement can be found here.
  2. The letter to Unlock from Victoria Atkins explaining the changes
  3. Unlock’s response to the judgment on 30th January 2019, including case studies and a background to the case, is available here.
  4. More information about our policy work on the DBS filtering system is available here
  5. #FairChecks movement – calling for a fresh start for the criminal records system

Notes

  • Press & media
  • Unlock is an independent national charity that provides a voice and support for people who are facing stigma and obstacles because of their criminal record, often long after they have served their sentence.

May 2020 update on research understanding the influence of an early life criminal record on adult life courses

Nicola Collett, a PhD student at Keele University, is currently researching the potential influence of a criminal record acquired between the ages of 10-25, later on in adulthood. Following on from her last update in September 2019, Nicola writes here about how her research is progressing.

I am delighted to be sharing another update on my PhD research exploring the potential influence of an early life criminal record later on in adulthood.

Since my last update in 2019 I have been incredibly busy thinking about the information shared with me in the interviews and drawing together the key ideas and arguments I wish to make in my thesis. I have been busy writing draft chapters and getting essential feedback from supervisors – a very long and reflective process. I would like to again thank those who took part for sharing so many personal experiences and thoughts with me. I look forward to sharing some more detailed thesis ideas with you at a later date.

Nicola presenting at the conference in Ghent

In September 2019 I presented some preliminary findings and reflections at the European Society of Criminology conference in Ghent. I highlighted four themes emerging from my work that highlight the complexities of living with a criminal record from youth – anchoring, everlasting, uncertainty and resilience. You can read more about these by downloading these slides.  

At the event I also drew on the interviews I had conducted, emphasising the diverse range of experiences shared with me. I shared some powerful quotes* taken from my transcripts  and explained to the audience that each person I spoke to shared something unique and personal to them. No two individuals experienced the same challenges in the same way. People were surprised to hear that in England and Wales a historical youth record can be disclosed later in adulthood in such a wide range of instances. They were keen to ask further questions about the experiences of those I had spoken to and it was a real privilege to be able to share this with them.

A third important update to share is that I successfully encouraged Keele University to sign up to the Fair Chance for Students with Convictions pledge designed to improve access and participation to UK universities. Given the research I am conducting I felt it was important to ensure my institution was engaging with this and challenging their admissions policy. Keele is now one of 16 universities which have signed up to this pledge.

What’s next?

Despite the disruption caused by the coronavirus I have been fortunate enough to continue working from home, albeit at a slower pace. I am pressing on with my writing whilst continually reflecting upon the work I have produced so far having video calls with supervisors where possible. As circumstances continue to change it is unclear when this project will be finished but I will continue to provide updates along the way. 

I hope everyone is keeping safe and well in these challenging times.

Written by Nicola Collett

* Direct quotes have only been used where permission has been granted via a signed consent form. Where participants did not want direct quotes used, paraphrasing has been used instead.

 

 

Rights groups condemn government’s failure to fix broken DBS system

  • Supreme Court ruled one year ago that disclosure and barring service rules breach rights
  • DBS system continues to unlawfully breach rights of people with multiple minor convictions and childhood cautions.

A year after the UK’s highest court found current rules on criminal records checks breach human rights laws, Unlock, Liberty and Just for Kids Law have denounced the Government for failing to fix this broken system.

On 30 January 2019, the Supreme Court directed the Government to fix the broken Disclosure and Barring Service (DBS) system. Four claimants had challenged the blunt and punitive rules, that require them to disclose multiple offences, no matter how historic or minor, and to disclose cautions received in childhood.

The Court, agreeing with two lower courts whose judgments the Government had challenged, said the Government needed to fix the rules to allow people to move on from past mistakes.

A year later, the Government has done nothing, and this injustice continues.

Christopher Stacey, Co-director of Unlock, said:

“Thousands of people with old and minor criminal records have had their cautions or convictions disclosed in the last year because of the government’s delay to reform the system. Unlock intervened in the Supreme Court case because we know people are unnecessarily anchored to their past due to an arbitrary regime which forces the disclosure of irrelevant information. We strongly urge the government to put an end to this unfair lifelong sentence by immediately mending the broken filtering rules alongside committing to carrying out a root and branch review of the criminal record disclosure regime. It’s time for a fresh start for the criminal records system.”

Sam Grant, Policy and Campaigns Manager at Liberty, said:

“It is a disgrace that after years of failed wrangling in the courts, the Government continues to drag its feet and refuses to fix a clearly broken system. A blunt bureaucratic system continues to subject people to unfair treatment for mistakes they made long ago. If you make a few mistakes, you should be able to move on without it tarnishing you for the rest of your life. The Government must finally put this right.”

Enver Solomon, CEO of Just for Kids Law, said:

“There is no excuse for the delay in implementing the landmark judgement. Every year about 25,000 youth cautions are disclosed in criminal record checks, most of which are for incidents that happened over 5 years ago. All these people are being unlawfully stigmatised by the government dragging its feet and failing to change the law. It must now act immediately to ensure no child who is given a caution ends up with a lifelong criminal record that robs them of the chance to be fully rehabilitated.”

“P” and “G”

Liberty’s client, known only as “P”, committed two minor offences in 1999 – stealing a 99p book, then missing her hearing at a Magistrate’s Court. She had an undiagnosed mental illness. P has committed no crime since these convictions. She aspires to be a teaching assistant, to make the most of her previous teaching experience.

Under current Disclosure and Barring Service (DBS) rules, P is required to disclose her convictions when applying for jobs and voluntary positions. This leads to conversations about her medical history, and she has been frustrated in her attempts to work.

Just for Kids Law’s client, known as “G” received two reprimands when he was 13 years old. These reprimands appear on standard and enhanced DBS checks until he is 100 years old. The Supreme Court found that disclosing such reprimands to employers is directly contradictory to their purpose. Just for Kids Law argued that reprimands (now called youth cautions) are designed as a rehabilitative measure, and not a punishment for life.

Unlock, which campaigns on behalf of people with criminal records, intervened in the case.

Unlock estimates that between 2007 and 2017, over 1.7 million people received a minor conviction that was not their first offence. All of these will now be spent but will still appear on DBS checks.

Going by records from previous years, Unlock estimates that around 25,000 standard or enhanced DBS checks will have resulted in the disclosure of cautions received in childhood since the Supreme Court ruled this to be unlawful.

Earlier this month, Unlock and Transform Justice launched the #FairChecks movement. People make mistakes, particularly when young. A criminal record should not hold people back from fulfilling their potential. Join the movement if you think we need a fresh start for the criminal records system.

Notes

  • Unlock’s response to the judgment on 30th January 2019, including case studies and a background to the case, is available here.
  • More information about our policy work on the DBS filtering system is available here
  • Unlock is an independent national charity that provides a voice and support for people with convictions who are facing stigma and obstacles because of their criminal record, often long after they have served their sentence.
  • Liberty challenges injustice, defends freedom and campaigns for everyone in the UK to be treated fairly, with dignity and respect. We’re an independent membership organisation, and our principles are guided by evidence and expertise – not political agenda, profit or popular opinion. We use our voice in courtrooms, in the news, on the streets and in politics to demand and deliver lasting change to benefit the many and most vulnerable. Since 1934 we’ve inspired and empowered people to defend their rights, and the rights of their family, friends and communities. Join us. Stand up to power.
  • Just for Kids Law is a UK charity that works with and for children and young people to hold those with power to account and fight for wider reform by providing legal representation and advice, direct advocacy and support, and campaigning to ensure children and young people in the UK have their legal rights and entitlements respected and promoted and their voices heard and valued.

Update on research – The right to a fair future: understanding the influence of an early life criminal record on adult life courses

Nicola Collett, a PhD student at Keele University, is currently researching the potential influence of a criminal record acquired between the ages of 10-25, later on in adulthood. Following a request for participants in February of this year, Nicola writes here about how her research is progressing.

I would first like to thank everyone who has contacted me wanting to take part in my research. I have received such a positive response to my call for participants and it has been a great source of encouragement highlighting just how important this topic is. Following my call for participants in February, I am excited to share with you an update on my PhD research exploring the potential influence of an early life criminal record later on in adulthood.

What have I done?

I have been travelling around the Midlands and North West conducting interviews with adult men and women living in the UK with a criminal record attained when aged twenty-five or under. Overall, I have met with fourteen people twice, in order to hear about their experiences with the criminal justice system, and how they feel their criminal record has influenced them later on in life. Of these fourteen, eight identified as female and six as male. Four had served custodial sentences and most had at least two non-custodial convictions. There was an age range from twenty-five to sixty-six.

Whilst often the conversations have been of a difficult nature, the interviews have been incredibly informative with people being able to reflect on both the positive and negative influences their experiences have had. People have discussed the barriers they have faced with regards to travel and visa applications, and access to employment and volunteering opportunities. More personally, people have shared the difficulties they have had establishing a new life and identity whilst having a criminal record ‘pulling them back to the past’. Disclosure can be incredibly disruptive and people have discussed anxiety and stress over people ‘finding out’ and how this might change people’s opinions of them. Some of the more positive reflections people have made include being able to understand and empathise with those in difficult circumstances and having the ability to help them either via a professional role or through being a positive role model

I would like to thank everyone who has taken part and shared their personal experiences with me.

What’s next?

In September I am travelling to Ghent to present some preliminary findings and reflections at the European Society of Criminology conference. At this event I will be putting forward the experiences of those who I have spoken to highlighting the current state of things in the UK. By doing so, I will be making people aware of the difficulties faced and putting forwards the voices of those who have taken part.  This will help to inform the research of a new European research working group looking to challenge some of the so-called ‘collateral consequences’ arising from criminal records.

I am currently working through all the interview material I have collected to identify the main themes and arguments I wish to make in my thesis. Writing has already begun and I aim to be near-completion by September 2020. After this, I will be developing a summary report to be shared with Unlock highlighting the key findings of the research.

I look forward to providing another update in the New Year.

 

Written by Nicola Collett

Blog – Westminster Hall debate on the disclosure of youth criminal records

The 28th March saw a Westminster Hall debate on the disclosure of youth criminal records (read here or watch here). This followed the publication of the Justice Select Committee’s report on the subject, back in 2017. The report itself was a result of the Committee’s inquiry into disclosure of youth criminal records, launched in 2016, and in some ways a follow-up to their inquiry on the treatment of young adults in the justice system.

Bob Neill MP, Chair of the Committee, introduced the debate and thanked Unlock and the Standing Committee for Youth Justice for the evidence we provided. As part of the inquiry, we had arranged a seminar for Committee members and people with convictions to meet and discuss the impact of disclosing criminal records from childhood.

The government had committed to considering the Committee’s recommendations following the Supreme Court’s ruling on the filtering rules.

The debate was well informed and MPs highlighted the effects of disclosure on employment, education, housing, travel and insurance. Key points included:

John Spellar: “Is not there also an overall, macroeconomic issue, particularly as a number of employers are expressing concerns about shortfalls in labour either leading up to or following Brexit? Artificially restricting people from working and, indeed, from advancing is not just bad for those individuals, shocking though that is, but very bad for society and the economy.”

Bob Neill: “Low-paid and unsatisfactory jobs create burdens at every level, so the point is entirely true”.

David Lammy: “Trident – They were the ones who said to me, “Could you put this [criminal records] into your review? We are aware of a group of offenders who reach about 25 or 26 years old and want to move away from their criminal past but continue to reoffend because, as they grow up, they cannot get a job due to the [disclosure] regime that we have.”

This, in particular, resonates at a time when serious youth violence is dominating the headlines. What hope is there of reducing violence if young people with even minor criminal records see that it is impossible for them to get into legitimate, sustainable employment? This has an impact on these young men, their communities and wider society. As Victoria Prentis said:

“Does ruining their lives serve any real, practical purpose for the rest of society?”

The fundamental issue is the purpose of ongoing disclosure, and whether the existing regime delivers on that purpose – or actually hampers other good work going on in the justice system.

As David Lammy said, the Supreme Court judgment provides an opportunity:

“The Supreme Court decision could be interpreted narrowly by the Government, but from reading the report, the Committee’s mood suggests that it is an opportunity, notwithstanding all that is going on in Parliament, for the Government to take a broader view and to review our criminal records regime.

“My view is that there should be a balance between a rules-based system, which is largely what we have, and which is clearly cheaper—that is effectively why we have it, because there is time and one makes a judgment about spent convictions and disclosure—and a system that is slightly more sophisticated and might cost slightly more. There is a question about who pays. In the Canadian jurisdiction, the individuals seeking to get their criminal records looked at again pay for the system. In my view, a parole board, a magistrate or a judge could make the assessment.”

David Hanson has recently published his review into prison education provision in Wales. In the debate, he said:

“We focus in the report on training, employment and through-the-gate services, including prison and youth offender institution training and community rehabilitation companies in adult prisons and elsewhere…but whatever the system does with that training, someone ultimately has to get a job with a public sector body or an employer.”

Ban the Box was supported by all contributors – it’s not a silver bullet, said Bob Neill, but a base on which to build.

The Civil Service has now rolled out Ban the Box across all departments, and Liz Savile Roberts MP asked how many people with criminal records were employed in the Ministry of Justice – more on this later.

David Hanson is a keen advocate for Ban the Box. As he put it:

“The simple idea…is that disclosure happens after the job interview and job offer. The right to refuse is still there, but the judgments are made on the merits of the application and the individual in front of the employer—not on a conviction that may have happened some years ago.”

This is exactly the approach Unlock advocates: ask about criminal records only after an offer has been made (although we know not all Ban the Box employers do it this way).

As David Lammy highlighted, it’s important to understand where Ban the Box sits within reform of criminal records disclosure:

“…the problem with that initiative is, first, that it is voluntary and, secondly, that it is about the recruitment stage? The fundamental point about the work by the Select Committee and others who have raised this issue is that, beyond recruitment, there are questions about whether things should be disclosed to employers in the first place. It would be important for the Government not to lose that principle.”

There were many other excellent points made but I want to turn now to the responses from Edward Argar, Parliamentary Under-Secretary of State for Justice, on behalf of the government. The government has yet to formally respond to the Supreme Court’s judgment in the cases of P and others. No formal response was forthcoming here either, instead the Minister said:

“We work closely with the Home Office to give these things proper consideration. Although that judgment has been handed down, the order behind it has not yet been sent over to us. We await that order. When it is received, it is important that we are speedy and timely in addressing it.”

The Minister agreed that employment is a crucial factor in reducing reoffending – which costs 15bn a year on some estimates.

“…employers should not regard the disclosure of a criminal record as an automatic barrier to employment. A balanced judgment should be exercised, having regard to factors such as a person’s age at the time of the offence, how long ago it was, and the relevance to the application or post in question.”

Unfortunately, all the evidence shows that employers do regard a criminal record as a barrier to employment. This point was made several times during the debate, and also by Lord Kerr in the Supreme Court judgment. Given the government’s efforts to get prisoners into work on release, and their manifesto commitment to incentivising employers to recruit people with convictions, it seems odd to not acknowledge the real difficulties people face in gaining employment.

Perhaps the Minister’s perception is skewed by the apparently impressively inclusive approach of his own department. In response to Liz Savile Roberts’ question on the number of people with convictions employed at the Ministry of Justice, he said:

“My understanding is that of those people with a previous conviction who applied through the approach that has been taken in the civil service since 2016, 92% subsequently secured employment, which is a positive outcome.”

That certainly seems like a positive outcome. However, there doesn’t appear to be an official source for that figure, and we would welcome publication of the data because it’s important to understand this is context, such as the numbers it involves, what types of criminal records, how long ago, and why the 8% were refused.

I was pleased to see that the Minister agreed that the judgment – and the actions that must follow – creates an opportunity to consider the Committee’s recommendations for reform of the criminal records system. I hope this will mean that the Ministry of Justice (along with the Home Office) taken an holistic view of the current regime, its aims and the evidence, and look to make changes that benefit individuals with convictions, their communities and wider society.

 

Written by Christopher Stacey

Find out the latest on reform of the criminal records regime in our policy section on DBS filtering.

Request for participants (now closed) – Understanding the influence of an early life criminal record on adult life courses

Update – The request for participants is now closed. See the message below from Nicola, the researcher:

“Thank you to everyone who has been in contact with me with their generous offer to take part in my PhD research. I have been overwhelmed with responses and now have enough participants that fit the criteria, so the call for participants is now closed. This closure is based entirely on my capacity as a postgraduate researcher working alone on this project. I would like to thank everyone who has responded so positively and I will be working with Unlock to provide updates on the research as it progresses.”

 

Original request for participants

Unlock is pleased to be supporting the following research.

Nicola Collett,  a PhD student at Keele University, is currently researching the potential influence of a criminal record acquired between the ages of 10-25, later on in adulthood.

She would like to talk to people aged 25 and over, to see what they have to say about their experiences of living with a criminal record relating to one or more non-custodial sentence(s) or out-of-court disposals attained between the ages of 10-25. This may include, but is not limited to, cautions, conditional cautions, fines, behaviour orders and suspended sentences. Experiences may be positive or negative. For some, it may be experiences are neutral. There is no upper age limit for this research.

Do you fit the following criteria?

  • Aged 25 or over
  • Received one or more non-custodial sentence(s) or out-of-court disposals, aged 25 or younger
  • Currently living in the Midlands or North West England

If you choose to take part, you will be interviewed by Nicola twice, for approximately 60 minutes each time. For your convenience, interviews will be conducted in your local area.

Participants will be offered a £10 voucher at the end of the second interview to thank you for your time, and for sharing your experiences with Nicola.

 

 

Unlock response to Supreme Court judgment on criminal records disclosure regime

Unlock, the leading charity for people with convictions, has today responded to the judgment of the Supreme Court on the criminal records disclosure regime. The charity provided an intervention to the court to highlight the unjust consequences of the current regime and the alternative, fairer systems available.

Commenting on the judgment, Christopher Stacey, co-director of Unlock, said:

“We welcome today’s judgment by the Supreme Court. Unlock intervened in this vital case to help the court understand the importance of the issues. We are pleased the court has ruled that two aspects of the criminal records disclosure scheme are disproportionate and in breach of Article 8 of the European Convention on Human Rights; in particular, the blanket rules which require the automatic disclosure of all convictions where a person has more than one conviction, and the requirement that some childhood cautions be disclosed indefinitely. This is an important ruling which stands to affect many thousands of people with old and minor criminal records who have been unnecessarily anchored to their past.

 

“Today is a crucial step towards achieving a fair and proportionate filtering system that takes a more calibrated and targeted approach towards disclosing criminal records. Recent reviews by the Law Commission, Justice Select Committee, Charlie Taylor and David Lammy MP have all stressed the need to look at the wider criminal records disclosure regime. It is now time for the government to act. We strongly urge the government to take prompt and considered action on the filtering system, as well as committing to carrying out a fundamental review of the wider criminal records disclosure regime.”

In the last 5 years alone, over 1 million youth criminal records were disclosed on standard or enhanced criminal record checks that related to offences from more than 30 years’ ago. The current system has multiple, harsh consequences which can have damaging effects on individuals. It deters people from applying for employment, and causes high levels of stress, anxiety and feelings of shame and stigma for those who do apply. The current regime acts as an additional sentence that often runs for life. It desperately needs reforming.

While certain offences clearly should be disclosed to employers, it is plain common sense that a fair system should not unnecessarily blight the lives of people who are trying to get on in life by disclosing old, minor and irrelevant information which holds them back and stops them from reaching their potential.

Some of the shortcomings of the current filtering system have today been recognised by the Supreme Court. The court described the rule for disclosing multiple convictions and its impact on individuals as ‘capricious’ (para 63). The inclusion of youth warnings and reprimands in the disclosure regime is described as a ‘category error’ and an ‘error of principle’ (para 64).

A fair, proportionate and flexible filtering system should be developed which protects the public without unduly harming the ability of people to move forward positively with their lives. The Supreme Court accepted that a fair system can be based on rules and pre-defined categories. We believe it is possible to develop an acceptable system which operates principally with automatic rules, but these must be the right rules with the right outcomes. There are a number of practical steps that the government can take which we would support, including:

  1. Removing the ‘multiple convictions’ rule and so enabling more than one conviction to be filtered
  2. Reducing the list of offences not eligible for filtering
  3. Creating a distinct system for the disclosure of criminal records acquired in childhood, and taking a more nuanced approach to those acquired in early adulthood.

Crucially however, we believe that the system must have a discretionary filtering process with a review mechanism which could be accessed by people whose criminal records do not benefit from the automatic filtering rules. Although the Supreme Court did not consider this to be necessary for the regime to be in accordance with the law, we believe this is vital to allow some cases to be considered on a case-by-case basis, to ensure that the rules do not operate unfairly. We urge the government to take this opportunity to look at introducing such a scheme that incorporates lessons from other similar schemes, like that in Northern Ireland.

More broadly, there is an overwhelming case for a fundamental review of the criminal records disclosure regime. Reviews by the Law Commission, Justice Select Committee, Charlie Taylor and David Lammy MP have all concluded that there is a need to look at the wider regime. The criminal records disclosure system and the Rehabilitation of Offenders Act 1974 are increasingly unfit for purpose and is open to abuse by employers and others. We encourage the government to take this opportunity to commit to carrying out a fundamental review to address these systemic issues.

Enver Solmon, CEO of Just for Kids Law, said:

“We are delighted that the Supreme Court has upheld the decision of the Court of Appeal in favour of our client and are proud to have secured a landmark judgement that will benefit thousands of children issued with cautions each year, a shocking disproportionate number of whom are from Black and Minority Ethnic backgrounds.

 

“Our client should never have been given a criminal record that stays with him for life. The judgement makes clear that the disclosure of reprimands and cautions, the legal equivalent of a slap on the wrist, is disproportionate and damaging to the future rehabilitation of children preventing them from moving on from their past. A parliamentary inquiry reached the same conclusion nearly two years ago when it stated that children were being unfairly denied a second chance. There is now an overwhelming view shared by the higher courts and MPs that the government should act immediately to ensure no child who is given a caution ends up with a criminal record that stigmatises them for life. The government should also now conduct a wide-ranging review of the entire criminal records disclosure regime for children and and young people.”

Corey Stoughton, Advocacy Director of Liberty, said: 

“P made a mistake a long time ago and has been unfairly punished ever since. Using overly broad bureaucratic rules that deny people meaningful careers by forcing them to to carry a scarlet letter for life is both cruel and pointless”

 

“Today’s court decision holds the promise of a fresh start for thousands of people who deserve a second chance. The Government must finally reform this arbitrary scheme”

 

Notes

  1. Unlock is an independent, award-winning national charity that provides a voice and support for people with convictions who are facing stigma and obstacles because of their criminal record, often long after they have served their sentence.
  2. There are over 11 million people in the UK with a criminal record.
  3. Unlock’s website is unlock.devchd.com.
  4. High-resolution images for media use are available from Unlock’s Flickr account.
  5. More information about our policy work on the DBS filtering system is available here.
  6. Unlock’s report, A life sentence for young people, was published in May 2018 and can be downloaded at https://unlock.org.uk//youth-criminal-records-report/
  7. Unlock has published a briefing on the DBS filtering process – available to download at https://unlock.org.uk//wp-content/uploads/misc/DBS-filtering-Briefing-May-2018.pdf
  8. Unlock was represented in these appeals by Salima Budhani and Theodora Middleton, Bindmans LLP, and barristers Caoilfhionn Gallagher QC and Jesse Nicholls, Doughty Street Chambers.
  9. Unlock’s intervention in the Supreme Court can be downloaded at https://unlock.org.uk//wp-content/uploads/misc/1-Gallagher-2-P-G-W-Unlock-Case.pdf
  10. The judgment was handed down on Wednesday 30th January 2019. Press summary here.
  11. Press and media coverage of the judgment can be found here.
  12. Warnings and reprimands are now known as youth cautions.

 

About the cases before the Supreme Court

These appeals consist of 4 cases: P, G, W (appeals from the Court of Appeal of England and Wales) and Gallagher (an appeal from the Court of Appeal of Northern Ireland). Unlock intervened in the case.

In all four cases, the Government appealed, having lost in the Court of Appeal. There are summaries of the cases on Unlock’s website – https://unlock.org.uk//policy-issues/specific-policy-issues/filtering/cases-challenging-dbs-filtering-system/

 

The current filtering system

The Police Act 1997 created the Disclosure and Barring Service (DBS – formerly the Criminal Records Bureau), which provides details of a job applicant’s previous convictions to prospective employers. For certain types of work, particularly work with children or vulnerable adults, the standard or enhanced certificates issued by the DBS used to list all the job applicant’s previous convictions.

However, in 2013, the Government amended this scheme following a Court of Appeal ruling (T v Chief Constable of Greater Manchester) to introduce a “filtering” process. Single convictions for non-violent, non-sexual offences that did not lead to a custodial sentence (including a suspended one) will be “filtered” (i.e. not disclosed) after 11 years (five-and-a-half years if the person was under 18 at the time of the offence).

The filtering process does not apply if a person has more than one conviction – regardless of the minor nature of the offences or the person’s circumstances at the time.

 

Support for reform

  1. The Law Commission, in its review of criminal records disclosure and non-filterable offences (published January 2017), said: “Given the vast array and magnitude of the problems identified by our provisional assessment of the disclosure system as a whole, there is a compelling case to be made in favour of a wider review. Our conclusion is that the present system raises significant concerns in relation to ECHR non-compliance and, what may be considered to be, the overly harsh outcomes stemming from a failure to incorporate either proportionality or relevance into disclosure decisions. An impenetrable legislative framework and questions of legal certainty further compound the situation. This is an area of law in dire need of thorough and expert analysis. A mere technical fix is not sufficient to tackle such interwoven and large scale problems.” See https://www.lawcom.gov.uk/project/criminal-records-disclosure/
  2. The House of Commons Justice Select Committee, in its report into the disclosure of youth criminal records (published October 2017), concluded that the aim of the youth justice system was being “undermined” by the system for disclosure of youth criminal records “which instead works to prevent children from moving on from their past and creates a barrier to rehabilitation.” See https://publications.parliament.uk/pa/cm201719/cmselect/cmjust/416/41607.htm
  3. In his review of the youth justice system (published December 2016), Charlie Taylor, who is now Chair of the Youth Justice Board, said “It remains the case that a criminal record acquired in childhood can have far-reaching effects that go well beyond the original sentence or disposal. Certain sentences will never become spent, and certain convictions or cautions will always be disclosed when an individual seeks employment in a particular field. A key principle underpinning my approach to the review is that children who break the law should be dealt with differently from adults. In my view the current system for criminal records lacks a distinct and considered approach to childhood offending.” See https://www.gov.uk/government/publications/review-of-the-youth-justice-system
  4. David Lammy MP, in his review into the treatment of, and outcomes for Black, Asian and Minority Ethnic individuals in the criminal justice system (published September 2017), said: “It must be recognised that a job is the foundation for a law-abiding life for ex-offenders, but that our criminal records regime is making work harder to find for those who need it the most. The system is there to protect the public, but is having the opposite effect if it sees ex-offenders languishing without jobs and drawn back into criminality. A more flexible system is required, which is capable of recognising when people have changed and no longer pose a significant risk to others.” See https://www.gov.uk/government/publications/lammy-review-final-report

 

Case studies

Anita (not her real name). When she was 11, she was playing with a lighter in the girls’ bathroom at school and set a toilet roll alight causing around £100 of damage. She was arrested for Arson and told that the reprimand she was given would come off her record when she turned 19. Then after months of being bullied in secondary school, she was involved in a fight. She and the other pupil were both arrested for Actual Bodily Harm. She was encouraged by the police to accept a reprimand rather than challenge it in court and was told it would come off her record in five years. Now nearly in her thirties, she’s a qualified English teacher. However, not only was her record not removed like she was told it would be, but her two reprimands come up on enhanced DBS checks and will do under the current DBS rules for the rest of her life. The hopelessness of trying to find work has led her to working abroad and to bouts of depression and anxiety.

Michael (not his real name). When he was 17, Michael was convicted of theft of a coat from a market stall. He was fined £30. Ten months later, 23 days after turning 18, he was convicted of stealing a motor cycle and driving without insurance. He was fined £50 and sentenced to 24 hours at an attendance centre. That was 36 years ago; he’s come a long way since then. He’s now in his fifties. However, Michael’s long-forgotten past has come back to haunt him and he’s concerned about his work as a finance director. He could lose his job and a career that he’s worked hard for.

Under the current filtering system, Anita and Michael’s criminal record will be disclosed on a standard or enhanced DBS check for the rest of their lives. That’s what we’re trying to change.

More case studies can be found in our youth criminal records report and in our briefing on the DBS filtering regime.

Supreme Court to issue judgment on landmark criminal records disclosure regime case on Wednesday 30th January

On Wednesday 30th January at 9.45am, the Supreme Court will hand down its judgement in the case of R (on the application of P, G and W) and R (on the application of P) v Secretary of State for the Home Department and others.

The criminal records disclosure scheme has twice been ruled unlawful – but instead of putting in place the urgent reform that’s so desperately needed, the Government chose to fight this all the way to the Supreme Court.

The case was heard in the Supreme Court in June 2018. For the first time in Unlock’s history, we intervened in the case because we wanted to help the Supreme Court understand the importance of the issue, the failings of the current system, and how it could be changed for the better. We believe the current filtering system that applies to standard and enhanced criminal record checks doesn’t go far enough; it is blunt, restrictive and disproportionate.

We hope that the Supreme Court will reject the Government’s appeal. We stand ready to work with the Government to reform and implement a system that takes a more calibrated and targeted approach towards disclosing criminal records.

Our response to the judgment will be on our website – at unlock.devchd.com/filtering – once the judgment is published on Wednesday. We’ll also be tweeting using the hashtag #dbsfiltering.

In the meantime, you can read a blog about the Supreme Court hearing from our co-director, Christopher Stacey, which gives an interesting overview and some reflections on when the case was heard in June 2018.

And whatever the outcome on Wednesday, we will be calling on the government to fundamentally re-look at their position on the criminal record disclosure regime.

Please help us with this work by supporting our campaign to wipe DBS checks clean of old/minor criminal records.The money we raise will go towards our campaign work to make sure the government takes action. This will take our time and resources over the coming months – crucial if we are to make most of the opportunity and get the best possible outcome for people with old and minor criminal records. We really need your support to do this!
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Blog – Standing up to the government in the Supreme Court – Some reflections on last month’s landmark criminal record disclosure hearing

The latest blog by Christopher Stacey reflects on last month’s landmark criminal record disclosure hearing.  

For people with criminal records, last month was pretty significant. The Supreme Court heard the appeal of the Government, which is arguing that their current approach to disclosing old and minor cautions and convictions on standard and enhanced criminal record checks, often decades later, is fair. We disagree with the Government. And so did the High Court when in January 2016 it ruled that the current system is unlawful. Appealing against the ruling, the Government lost again at Court of Appeal in May 2017.

At that point, the Government could (and in my view should) have accepted the verdict and got on with the job of changing the system. Instead, it dug its heels in and appealed to the highest court in the country. That brings us to last month’s hearing.

Given it was the first time in Unlock’s 18-year history that we’d intervened in a legal case, it was always going to be an interesting experience, but couple that with the magnitude of the issues at stake, and the government’s approach to defending the current system, I think it is important to look back at what happened. Having spent 3 days in the Supreme Court, I wanted to take some time to reflect on what was a pretty intense experience (and don’t forget you can watch the full hearing on the Supreme Court website).

First, it’s important to recognise the huge amount of support that we’ve received. We’ve been crowdfunding to cover our legal costs and a huge thank you goes out to everyone that has donated. Now that we’ve raised enough to cover those costs, we’re continuing to raise money through CrowdJustice and everything we now raise will go directly towards our campaign work to help make sure the government takes action when the judgment is delivered.

What lies at the heart of this case is whether it’s right that old/minor criminal records are disclosed on standard/enhanced Disclosure and Barring Service (DBS) checks. In general terms, that’s perhaps an easier argument for the government to stand behind – they can (and often do) cite general concerns around safeguarding, and default to the position that “it’s up to employers to make a decision” as to how relevant the information is. But what’s interesting here is that the Supreme Court case involves 4 different individuals, and the government argued that, on the facts of the cases before the court, it was right to continue to disclose, effectively forever. That’s obviously consistent with their position, but when you look at the facts of the cases, it’s quite staggering that the government believes this to be the case. For example, one of the cases involves a man who over 35 years ago, when he was 16 (and so a child), was convicted of ABH and given a 2-year conditional discharge – because of the categorisation of this type of offence, under the current filtering rules it’ll never come off his standard or enhanced DBS check.

That’s one of the reasons why Unlock intervened in this case. We felt that it was important to try and help the court to understand the breadth and scale of the issue. Our recent report on youth criminal records is a good example of this, showing how the current system doesn’t just impact on a small number of people (in the last 5 years, nearly 1 million youth criminal records disclosed on standard/enhanced checks were over 30 years old), and it was good to see that information provided by us came up a number of times during the 3-day hearing.

A key argument of the government is that it’s down to employers to decide the relevance. They tried to argue that guidance available to employers (such as Nacro’s guidance) was sufficient in ensuring employers treat people fairly. However, as was made clear in court, there is nothing that requires employers to follow guidance of this type, it is not statutory, and indeed much of the evidence before the court shows that employers regularly refuse people with criminal records.

As the recent National Audit Office report into the DBS shows, there are no checks on what employers do with the information provided by the DBS. The DBS itself does not provide detailed guidance or support to employers in ensuring that they carefully assess the relevance of information they receive. In short, the government relies on employers, and employers often don’t do it. Indeed, very often our experience is that the very fact that there is information on a DBS is taken by an employer as meaning it’s relevant – otherwise, why would the DBS have disclosed it?

It was also strange to see the government seemingly argue that people with criminal records do not have many problems in finding employment. Indeed, the government used an answer that I gave to the Justice Committee (“I would be the first to say that many people with convictions do secure jobs that involve enhanced checks, having disclosed them”) to suggest that there isn’t really a problem. This is a rather mischievous use of that sentence, which was part of a longer answer to a question about the problems people face in employment, where I went on to highlight how “there is a huge problem with the way that many employers think that somebody must have a clean DBS certificate, with nothing on it…the current system often tells employers a lot of information that is irrelevant, but as they are being told it they believe it is relevant because the Government would not be giving them that information unless it was.”

The government’s approach also seems to suggest that the overwhelming majority of employers take an inclusive approach towards criminal records, yet this ignores the government’s own statistics, quoted in their own education and employment strategy, published only last month;

“A YouGov study revealed that 50% of employers would not even consider employing an ex-offender.”

This is a figure we cited in our submission the court, so it was interesting to hear the government seek to challenge this figure – when they themselves have used it in their own employment strategy. Indeed, in recognising the problem that people face as a result of their criminal records, on the Gov.uk web page that links to the strategy, the introduction starts with:

“People with a criminal conviction face several barriers on release from prison, with access to employment and education being at the forefront. Not only are many ex-offenders often unprepared for employment on release in terms of their skills and training, but there remains a stigma among some employers about hiring people with a criminal conviction.”

The government was at pains to point out in court that the regime is one of disclosure, not barring. By that, they’re trying to make the point that the current disclosure system doesn’t stop people from applying, and it’s then up to employers to make a decision. However, the government seemed to accept that because of the cautious approach they’ve taken towards the filtering rules, there’s a lot of cautions/convictions disclosed which are not relevant to most jobs that involve standard/enhanced checks, because it could be relevant for some. Lord Carnath rightly highlighted how this cautious approach results in the balance being erred towards disclosure, where there’s a lot of weight on what employers should do, rather than what the government should do.

There was much discussion about what changes might be needed to the current system. That’s something that we’ll be doing a lot of work on over the coming months, and particularly once the Supreme Court has given its judgment. There are two extremes – a completely automatic, rules-based system, and individual case-by-case judgements. Unlock’s view has always been that the answer lies in the middle – i.e. there needs to be some kind of automatic filtering process that remains – with some changes to the current rules so that more situations are filtered automatically – alongside a discretionary filtering process with a review mechanism.

Ultimately, the Ministry of Justice and Home Office need to fundamentally re-look at their position. I hope that, regardless of the outcome of the Supreme Court, the government revisits its approach to this issue and that it accepts that there’s problems with the current system. What worries me most in all of this is that the government doesn’t seem to think there’s any need for change. Perhaps that’s just the position they feel they have to take because of the legal cases. Only time will tell.

Many people are rightly keen to know when the Supreme Court will deliver its judgment. There is no date for when the judgment will be handed down, although it is not likely to be until late 2018, at the earliest.

In the meantime, please support our campaign to wipe DBS checks clean of old/minor criminal records. Donate now here: https://www.crowdjustice.com/case/clean-slate/. Any money we raise will go directly towards our campaign work to make sure the government takes action when the judgment is delivered. This will take our time and resources over the coming months – crucial if we are to make most of the opportunity and get the best possible outcome for people with old and minor criminal records. We really need your support to do this!

 

More information

To keep a track of developments:

 

  1. Sign up to our mailing list (and choose to receive “Unlock news”)
  2. Follow #dbsfiltering on Twitter
  3. Keep an eye on the DBS filtering policy page on our website.

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