Higher education providers should be asking how they can safely include, rather than how they can legitimately exclude.
The concern that everyone with a criminal record will go on to commit further crime is unfounded. In general, risk of reconviction decreases over time for most offences and in most cases will eventually become statistically lower than for people who have never been convicted of a crime before. Those who have developed some stake in society since their crime – for example, by preparing for a degree programme – are less likely to commit further crime.
“The reality is that the likelihood of reoffending spikes when individuals who have already been punished for past crimes are prevented from reintegrating into society” – David Lammy
There is no evidence that students with criminal records are more likely to commit crime on campus than any other student, or that background checks reduce crime on campus.
Applicants with serious criminal convictions applying to university will have had to turn their lives around significantly to be at the stage where higher education is a credible next step. Like all applicants, they will have worked hard to gain the relevant qualifications and qualities needed to make a successful application.
Being in a position to make an application at all can be a significant achievement and indicative of a commitment to changing their life for the better. Universities should therefore consider how they can best support them to succeed. If a provider perceives an applicant’s risk to be unmanageable, they should be transparent about this assessment. Clear reasons should be provided to the applicant, as well as any appeals processes that are available.
For people applying to higher education, the criminal justice system has a statutory responsibility to both the individual and the wider public to manage risk. Universities and colleges should be clear that it is not necessary or proportionate for them to try to duplicate this responsibility.
Those recently released from prison (as well as those still in prison), or those serving sentences in the community, will represent the minority of potential applicants that have a criminal record.
Most people with criminal records will not be supervised by statutory services. This will be because their record relates to an offence that is not sufficiently serious to warrant supervision. Or, this may be because they have already completed a period of supervision related to an offence. There are 12 million people in the UK with a criminal record – less than 10% of them have been to prison.
For this reason, providers should not assume that every applicant with a criminal record can provide a reference from a statutory professional. Some people end up with a criminal record with almost no interaction with the criminal justice system. Providers should not base decisions about criminal records primarily on information from statutory services, and should assume that where someone is not currently supervised, this likely indicates a lower level of potential risk.
Everyone who has been in prison, even for a single day, is supervised in the community for at least 12 months after they are released. Prison and probation staff are trained in risk assessments and use tools and techniques that are regularly evaluated and updated. By the time someone who has been in prison applies to university, risk assessments will have already been carried out by these professionals. These assessments will be informed by a range of information about the applicant that higher education providers would not have access to. As such, higher education providers are unlikely to be able to conduct a more informed risk assessment than has already been completed.
Where someone is monitored by the police or probation service, these professionals will determine what, if any, contact they need to make with other organisations. This might mean that providers are contacted by a relevant statutory agency in advance of, or after someone has applied for a course.
No-one can accurately predict how likely an individual is to commit a further crime. In any case, no individual has a zero risk of committing crime – that means we are all low risk, at the very least. Universities and colleges should therefore be cautious of carrying out their own risk assessments without appropriate tools or training. They should also be cautious when interpreting and making assumptions about risk assessment information shared with them by criminal justice practitioners.
What information is useful?
Good management of risk identifies any potential challenges, as well as exploring positive, protective factors that might decrease risk. Higher education providers should be asking how they can safely include, rather than how they can legitimately exclude.
If providers are asking individuals to disclose information about their criminal record, it is important to think about what information is relevant to a decision.
A criminal record should not be treated as a binary pass/fail test but the information should be considered on a case by case basis. Any staff members making these assessments should be appropriately trained.
There are certain factors that you should consider in respect of any information received.
Consider the person’s age now, age at the time the offence was committed & the length of time since the offence.
Remember: conviction dates can often be much later than when the offence was committed.
The fact that a conviction is recent does not necessarily make it more relevant.
Were there multiple offences or just one? If several, were they close together or over a long duration?
Even if there are multiple offences listed on a criminal record, they may all have been linked to a particular event or action (for example, a record could contain several counts of benefit fraud over a several-month period – each month might create a new offence, but from a provider’s perspective, link to one ‘action’)
What were the circumstances that led to the criminal record? What was happening in that moment, or in their lives more broadly at the time?
You may not need to consider the circumstances around every offence (such as minor offences dealt with by way of a caution or fine).
Remember that your job is not to judge the actions but to decide whether the offence and circumstances are relevant to the course applied for.
How are things different in the individual’s life since the offence? Is their lifestyle and support network more suited to higher education now than it was at the time of their offence/s?
Things may not be different at all in an applicant’s life since they received a conviction. Their criminal record could be the result of a one-off incident. For example, intervening in a bar fight. This doesn’t necessarily suggest an impulsiveness that needs to have ‘been addressed’ in the time since.
Has the individual engaged in any specific actions to avoid the same events occurring? Have they proactively managed future risk?
For example, engaging with a treatment programme, or disassociating from those who had a negative influence on their lives. Others may have a criminal record as a result of one-off or wrong-place-wrong-time incidents and as such did not make efforts to ‘change’.
What are the reasons they are applying for higher education? Considering that applying for higher education can be especially challenging for someone with a criminal record; what motivated them to do so? This is an opportunity to draw out the positive aspects of an application.
Does the applicant have support if they need it? This could be professional or personal support; family members, friends, partners or support workers.
A good support network can be a helpful risk-management factor. Some people with criminal records might be more isolated; this does not necessarily mean that they carry a higher level of risk. But this might indicate that your institution should be especially considerate of their needs if enrolled.
An application to university in itself can be a huge step for a person with a criminal record.
Be careful not to focus solely on the aspects of someone’s record that cause you concern. Risk management depends on balancing positive factors with potential challenges.
Remember that an assessment should focus on the relevance of any information disclosed. What will the applicant be doing once at your university? Does that relate at all to their criminal record?
Every higher education provider should be working to ensure their students’ safety. Thoughtful, innovative and effective programmes in many universities aim to do so. They focus on specialist training for staff and students, or developing and promoting simple reporting mechanisms. Some projects have focused on safe campus design. Others focus on developing a safe culture, embodied by senior leaders.
Fundamentally, promoting a safe and inclusive culture requires a holistic approach, engaging different departments and external organisations wherever possible. The manner in which incidents are handled can be as important as developing preventative measures. Blanket exclusions on certain groups of people are very much at odds with what the research suggests is good practice. There is no evidence that asking about criminal records reduces crime at university.
The uncomfortable truth of the matter is that most of those who perpetrate harm on campus will not be identified via a criminal record check. So, students are likely to be better protected when providers have taken an evidence-based, comprehensive approach to student safety.
Asking about criminal records may form a small part of a safeguarding strategy where there is a clearly identified, proportionate purpose for criminal records data. For example, when a student is engaging in regulated activity which requires an enhanced DBS check. Data of this kind may be less useful if the wider institutional approach to safeguarding is lacking.
It’s important that use of criminal records data is proportionate. Providers might consider, if relying on criminal record data for safeguarding, what other work could be done that might be a more effective means of achieving their intended purpose. For example:
- Does everyone in your institution know how to spot signs of harm or abuse?
- Does everyone know where to go to report concerns?
- Is wellbeing taken seriously as part of safeguarding?
- Is a safeguarding culture embedded in your organisation?