The filtering system should, principally, be an automatic process that gives clarity and certainty. We have made recommendations on how automatic filtering rules should be amended. However, any automatic rules, without review, will affect people on the margins, which is why a discretionary process to establish a more nuanced approach needs to be built into the system.
The National Police Chiefs Council (NPCC) support chief officers having responsibility for applying tests of relevance and proportionality as they do with non-conviction information. Building on the existing quality assurance framework for enhanced checks, the police could assess individual DBS applications and apply a discretionary filtering process, determining whether unfiltered convictions/cautions are relevant to the role (and disclosed) or not relevant (and not disclosed)
The discretionary filtering process should be subject to independent review by the Independent Monitor, receiving appeals from applicants that believe information is no longer relevant and so shouldn’t be disclosed – decisions could apply to future disclosures, or just the current disclosure.
The Home Office would need to undertake an assessment of the costs of introducing a discretionary filtering process, which it has yet to do. The current DBS system is financed by employers – who may pass the cost on to applicants. In addition to the fixed fee charged by the DBS (£23 for standard, £40 for enhanced), employers pay an additional cost if they use the services of an umbrella body, usually between £10 and £25. A small increase in the fixed cost of DBS checks could cover the additional resources of an expanded role for the Independent Monitor.
The DBS filtering rules are just one element of the broader disclosure regime which, in our view, needs fundamental reform – including overhaul of the Rehabilitation of Offenders Act 1974, including changes to the length of time after which convictions can become spent (for example, enabling sentences of over 4 years in prison to become spent).
Examples of review mechanisms already operating in the UK
In September 2015, the Scottish Government introduced a filtering system for old/minor convictions that allows those with a spent conviction for an offence on the ‘rules list’ to apply to have this information removed from their disclosure certificate.
In March 2016, the Department for Justice in Northern Ireland introduced an opportunity for independent review. The Independent Reviewer is also the Independent Monitor in England and Wales.
The Independent Monitor could also consider applications to have records ‘sealed’ from disclosure. Sealing processes exist in several jurisdictions and have been advocated by David Lammy in his 2017 review of disproportionality in the criminal justice system.
As part of our policy and campaigning work, we see strategic litigation as an important way of pushing for change. This page looks at our involvement in a legal case that went all the way to the Supreme Court.
Background
People with a criminal record often face stigma and barriers which can sometimes last for decades after they have been convicted or served their sentence.
In 2018, Unlock had the opportunity to try a different tactic: it intervened in a case in the Supreme Court for the first time in the organisation’s 18-year history. The case started when several individuals in England, Wales and Northern Ireland brought a challenge against the government’s harsh system of criminal record checks, known as the Disclosure and Barring Service (DBS). This system requires past offences to be revealed in a number of circumstances, for example, when applying for a job. The individuals bringing the case claimed that the regime hinders the possibilities for rehabilitation. The government which was defending the current regime lost in the High Court and the Court of Appeal. The Court of Appeal said the scheme – in relation to multiple convictions and certain specified offences – breached individuals’ right to private and family life under Article 8 of the European Convention on Human Rights. The government appealed this decision to the Supreme Court.
At this point, Unlock decided to step in. Christopher Stacey, a co-director of Unlock, says it made sense to intervene because the issues in the case are core to the mission of what Unlock is trying to achieve. Christopher pointed back to 2013 when the government had brought in some changes that Unlock thought were positive but knew didn’t go far enough. At that time, Unlock began to collect examples and case studies of people who were not benefiting or still being harmed by the system. Christopher says, “We were thinking at that point that we would either bring our own legal challenge or support one that was ongoing.” Having a public law solicitor on the charity’s trustee board was helpful in that it allowed the organisation to have “ongoing understanding” of the risks and opportunities of legal intervention.
What we did
When the case reached the Supreme Court, Unlock instructed Caoilfhionn Gallagher QC to act on their behalf and offer the evidence they had collected. Although the organisation hadn’t had a long-standing relationship with her, Christopher knew Caoilfhionn had been involved in a similar recent case and connected with Caoilfhionn after seeing her speaking at an event. Christopher notes that “We were able to develop those relationships in a fairly short space of time in a way that worked for what we were trying to do.”
At the Supreme Court stage, a number of charities were involved including Liberty and Just for Kids Law, who were representing two of the individuals, and Clan Childlaw from Scotland. Unlock worked closely with their solicitor and barrister in developing the legal intervention and was careful in making sure that their submissions added value. Unlock argued in their written submissions that people with relatively minor convictions and cautions “face stigma and obstacles because of their criminal records often many decades after they have been sentenced or cautioned and often throughout their adult lives despite their criminal records dating from childhood.” The submission also used Unlock’s extensive research to argue that children in care are more likely to commit childhood crimes as a result of their circumstances, and therefore as a group they are disproportionately criminalised by DBS. The submission suggested that children can become known to police as a result of aspects of their home life that are largely out of their control: “behaviour which is normal or common in a family home environment (teenage door-slamming, threats during an argument with adults) attracts police attention.”
Christopher attended the three-day Supreme Court hearing in June 2018, and notes that Unlock’s submission had a real impact, saying it was “good to see that information provided by us came up a number of times.” The organisation also launched a research report that was based on data that they had collected from Freedom of Information requests to coincide with their submission to the Court.
Unlock relied on crowdfunding through Crowdjustice to cover the organisation’s legal costs. The organisation received overwhelming support and raised £17,000 — enough to cover costs and provide a little bit of support to the campaign work around the case.
Christopher remarks that the case was “not something we could do every day,” and that Unlock was able to draw on the fact that they’d never undertaken this level of legal intervention before in order to appeal to donors.
The crowdfunding campaign was useful in raising awareness of the issue and the legal case amongst individuals and stakeholders. Christopher notes that “it allowed people to connect with something that we were doing. It was a very clear activity.” However, he also recognises the enormous amount of effort that had to go into the campaign’s launch and promotion.
Crowdfunding allowed people to connect with something that we were doing. It was a very clear activity. It was a very clear cost that we had. This wasn’t just an ongoing fundraising initiative. It was to allow us to do something at a moment in time.
The result
The Supreme Court judgment was announced in January 2019. The Court found that two aspects of the criminal records disclosure scheme are disproportionate and in breach of Article 8 of the European Convention on Human Rights. The first is the blanket rules that require the automatic disclosure of all convictions where a person has more than one conviction; the second is the requirement that some childhood cautions be disclosed indefinitely.
Unlock’s Christopher Stacey (centre) alongside Jennifer Twite (left) and Alex Temple (right) from the charity Just for Kids Law
The ruling has the potential to affect many thousands of people with old and minor criminal records.
There was a significant delay between the Supreme Court ruling and implementation of changes. We worked in a number of ways to keep the pressure up.
Finally, in November 2020 the government confirmed that the planned changes to filtering rules would take effect from 28 November 2020.
What’s next?
Despite the positive impact of these changes, 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 because of a mistake they made years ago
Barriers to employment for people with different convictions
Unlock and Prison Reform Trust investigated employers attitudes to people with different conviction types. We know that people with sexual offence or arson convictions find it more difficult to secure employment. While some convictions may make someone unsuitable for certain jobs, there are many more jobs where conviction type is irrelevant. We worked with employers and others to find out what measures could increase opportunities for employment for different groups, and test the idea that stigma can be reduced by raising awareness of the facts.
We have all made mistakes and most of us have been fortunate enough not to be held back by them. But, not everyone is so lucky; where past mistakes are made in the sphere of criminal law they can – and do – haunt people for the rest of their lives. This can be the case even if the outcome at the time was just a ‘slap on the wrist’ from the police, such as a warning or a caution.
Take 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.
Then there’s 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.
Under the current system, Michael & Anita’s criminal record will be disclosed for the rest of their lives. That’s what we’re trying to change.
Since the Criminal Records Bureau (now the Disclosure and Barring Service, DBS) began in 2002, the number of jobs and volunteer roles that require a standard or enhanced check has grown significantly. In 2002, there were around 1.3 million checks. In 2015/16, there were over 4.2 million – an increase of over 300%.
Cautions and convictions are disclosed on these checks, even when they have become spent under the Rehabilitation of Offenders Act 1974. This is a problem for very many people; in 2015/16, more than 241,000 people had a caution or conviction included on an official disclosure from the DBS. In the last 5 years alone, nearly half a million childhood convictions were disclosed that were from over 30 years ago from when the person was under 18. This represents almost half of all childhood convictions disclosed. Hundreds of thousands of people are being affected well into their 40’s as a result of mistakes they made when they were a child.
A criminal record that someone gets in their youth can, in effect, be a life sentence. Due to shame and embarrassment about their earlier transgressions people will often avoid jobs which require criminal record checks. Also, employers regularly look for ‘clean’ records as part of their recruitment process meaning that even the most minor offences can rule people out.
That’s why we think the system needs to change.
What are we trying to achieve?
We are calling on the government to reform the system of disclosing old and minor criminal records. This will give many thousands of people every year a fairer opportunity in applying for work or volunteering without the stigma and shame of having to disclose a mistake that they might have made decades earlier.
Please help us to continue with this work. Donate now here. Money we raise goes towards our campaign work to get the best possible outcome for people with old and minor criminal records. We really need your support to do this!
In our priorities for government, we highlight financial incentives as a key way that government can support business and encourage employers to recruit people leaving prison or on probation and people with unspent convictions.
Many businesses are fearful of hiring people with a criminal record. 75% of companies admit to discriminating against applicants who declare a criminal record. This is often because of long-standing beliefs about their reliability and concerns over the company’s public image. This comes at a cost to society; around a third of people claiming job seekers allowance have a criminal record.
We want government to recognise and champion companies employing people with convictions. Many have seen the benefits of campaigns like Ban the Box as a way of opening up their recruitment to a wider talent pool. Yet there are many more that need incentivising to change their recruitment practices, and support to do so. Unlock is calling on government to pilot financial incentives for employers who actively recruit people leaving prison and on probation.
As a charity helping individuals with convictions overcome stigma, as well as supporting employers to take people on, we think financial incentives should be a key part of government’s strategy to encourage employers in this space.
We’ve published a briefing setting out why we think financial incentives could make a real difference.
How could it work?
We recommend a wage subsidy for relevant employees, based in selected regions, and paid in instalments at agreed intervals in the contract. This would need to be managed through specified services to monitor take-up of incentives and adherence to any conditions. The New Futures Network is a specialist part of Her Majesty’s Prison and Probation Service. They broker partnerships between prisons and employers and are now in contact with over 500 employers nationally. The New Futures Network is well placed to understand employers’ needs and ensure effective delivery of incentives to both people leaving prison and those serving sentences in the community.
It would need to encourage long-term sustainable employment, not successive short-term contracts for a single post to maximise financial benefit.
We recommend a 3-year pilot to ensure enough time to raise awareness and boost take-up as well as realise benefits. The pilot should be regionally based and designed in collaboration with businesses who have expressed an interest in recruiting from this population.
Does this replace Ban the Box?
Unlock were a founding member of Ban the Box in the UK. The campaign calls on employers to remove questions about criminal records from application forms, judging applicants on merit first.
Banning the box is only one part of the solution. While many employers are able to see past a conviction when seen in the context of an applicant’s skills and abilities, others remain reluctant – usually because of the misconceptions outlined above. Financial incentives are another tool to influence positive decisions. The two initiatives complement each other in several ways:
Both are designed to encourage employers to look at people with convictions as potential employees – judge people first on who they are now, rather than what they did in the past.
Ban the Box delays questions about criminal records until later in an application process, instead of on the initial application form – but doesn’t prevent asking before employment commences.
Financial incentives encourage employers to proactively recruit people leaving prison, those on probation and those receiving support from agencies in the community specifically supporting people with convictions. They can still consider the details later in the recruitment process as they would do with any applicant.
Employers can comfortably do both – and government should consider ways to incentivise both.
The aim of both ban the box and financial incentives is to encourage employers to give people with convictions a chance. Evidence from employers is that people with convictions make a positive contribution to their business but are often rejected before being given a chance. Financial incentives encourage employers to offer that chance, while ban the box embeds good practice – seeing people for their skills and abilities first.
We are cautiously optimistic about this policy proposal – there are some potential unintended consequences, but that’s why we think it’s important that this is taken forward as a pilot, with the aim of encouraging employers to not only actively employ people with convictions, but also to demonstrate improvements to their recruitment practices and the removal of barriers towards criminal records.
Tell us what you think
Financial incentives are used to influence all kinds of behaviours – from healthy eating to giving up smoking. Do you think they could influence employers to think differently about people with convictions? If you are a recruiter, would an incentive persuade you? Contact policy@unlock.org.uk and tell us what you think.
Changes to charity rules
This is our landing page for all things related to changes to charity rules that came into force in 2018 that affect people with criminal records and what roles they can be involved in. These have come about because of the implementation of section 9 of the Charities (Protection and Social Investment) Act 2016.
January 2018 – Charity Commission publishes guidance on disqualification rules
1st February 2018 – ‘Advance waiver’ opens. Any individual that applies for a waiver before 1st August 2018 is protected from impact of changes on 1st August until a decision has been made on their application (including any appeal). Unlock publishes guidance for charities and individuals.
February to July 2018 – Charities should follow the steps in our guidance for charities. Individuals should apply for a waiver if they will be disqualified by 1st August 2018.
1st August 2018 – New rules in force. Rules apply to all existing and new trustees and senior manager positions. Our updated guidance for charities and individuals published.
Improving the policies and practices of other organisations
Through our work, we learn about unfair (and sometimes potentially illegal) policies and practices of other organisations and their approaches towards people with convictions and criminal records.
work with the organisation to improve their policy and/or practice
raising awareness
This page provides details of case studies of organisations that we’ve worked with. Where organisations have improved their policies and practices, we normally write the case studies anonymously.
(Note: Case studies of where we’ve worked with employers are featured on our website for employers).
If you come across unfair policies or practices, please send us the details (and especially any evidence you have).
Priorities for government
For 20 years Unlock has, as an independent charity, provided 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. We believe in a society where people can thrive and are not held back by their past. This means a fair and inclusive society that removes unnecessary barriers and supports the reintegration of law-abiding people with a criminal record. Government has an important role to play in finding solutions so that no one is left behind.
We need a fair justice system – one that gives a second chance to people who have served their time and want to make a fresh start. Helping people with convictions to secure employment, support their families and contribute to the economy is one of the best ways of making communities safer. Yet the law as it stands means people are forced to disclose convictions to employers and others for many years – sometimes for the rest of their lives. While in some cases this will be necessary to protect the public, the current approach does little to make our country safer. Instead people are locked out of jobs and opportunities, unable to contribute to society or to achieve their potential because of a criminal record that is effectively a life sentence.
There are over 12 million people with a criminal record and every year we hear from thousands of people held back unnecessarily – locked out of employment, refused home insurance, excluded from higher education and professional membership.
But 2024 can be one of opportunity: to radically rethink the people who have turned their backs on crime can and should have the opportunity to unleash their potential and make a positive contribution to society.
Cases that show the need for universities and colleges to have fair admission policies and practices
Cases that show the need for reform of the Rehabilitation of Offenders Act
Consultation responses and submissions
We produce and submit written responses to proposals and consultations from policy makers and legislatures on issues which affect people with criminal records.
By providing responses and submissions to decision makers, we strengthen the voice of people with convictions and highlight the problems that they face as a result of their criminal record. In particular, we often include the voices of those that might not have the capacity to submit their own response. We regularly encourage individuals the submit their own responses too so that a broad range of perpsectives are covered.
Response to the consultation Voting rights of convicted prisoners detained within the United Kingdom (March 2007) – not available download electronically
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