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For people with criminal records
For people with criminal records

Author: Unlock Admin

Taxi! New guidance for licensing authorities recommends exclusions for even minor convictions

In July 2020 the Department for Transport published new guidance for statutory taxi and private hire vehicles licensing authorities. This followed a consultation in April 2019 to gather views on the recommendations and draft statutory guidance. Recommendations included that licensees undergo enhanced DBS and barring list checks and minimum exclusion periods by offence category and our response focused on those exclusions.

Passengers getting into a taxi or PHV are placing themselves in the hands of the driver and it’s right that licensing decisions take into account all relevant information. The problem is, the draft guidance didn’t advise taking into account all relevant information. Instead, it proposed a blanket approach based on broad offence categories.  The guidance was based on the Institute of Licensing’s 2018 recommendations which emphasised the need to consider individual circumstances but then went on to propose blanket exclusions based on broad offence categories, along with lengthy exclusion periods.

Unfortunately, the final version of the guidance includes the same offence categories and exclusion periods recommended in 2018. The long exclusion periods are not scaled to the circumstances or gravity of an offence – a person convicted of possession of a firearm will be refused a licence for seven years, the same as a person who over-claimed benefits. An applicant with a conviction for common assault where the victim sustained no injuries would be treated the same as a serious assault in which a victim required surgery and refused a licence for at least 10 years.

Department for Transport has published a summary of responses to the consultation and acknowledged that

The proportionality of some of the baseline exclusion periods was questioned by some respondents, as was the range of offences that would fall under a particular heading.

However, they went on to say that:

The final version provides additional clarity and reinforces that the decision as to whether a person who has convictions should be licensed is and will remain dependent on the individual circumstance of each case.

Licensing authorities are not bound by the guidance but it would be a brave authority that would strike out on its own. Indeed, the president of the Institute of Licensing, James Button, is keen for the guidance to become law. In a comment to the Daily Mirror, he said:

In most authorities, when someone has previous convictions which fall outside that council’s policy, the decision is made by councillors. They can be swayed by sob stories. It has always surprised me why there is acceptance of a level of criminality among a significant minority of the taxi trade.

We can’t be sure what Mr Button would consider ‘a sob story’ but the proposed exclusions would mean a woman with childhood convictions for soliciting, as a result of child sexual exploitation would be treated the same as a man with a recent conviction for rape, and prevented from ever obtaining a licence. That same woman, if she had convictions for possession of a weapon or affray, would be refused a licence for a minimum of 7 to 10 years after the conviction, regardless of the circumstances. One such woman, Sammy Woodhouse, bravely waived her right to anonymity and spoke out on behalf of others still having to disclose criminal records acquired as a result of their abuse. Ironically, the guidance also recommends that drivers are trained in safeguarding and spotting signs of criminal or sexual exploitation.

In principle, a national framework can help with consistency – and let applicants know what to expect. We support clear guidelines to assist licensing authorities. This guidance, if taken up by local authorities, means law abiding people with convictions are likely to be unnecessarily excluded from the trade for years, or indefinitely. That has a ripple effect, reinforcing the idea that everyone with a conviction is a danger to the public. Thankfully this is not true – there 11 million people in the UK with a criminal record – about 1 in 6 of the population. Most want to move on positively with their lives, and they deserve a fair chance to do that.

Written by Rachel Tynan, Policy and practice lead at Unlock

New report highlights potentially hundreds of unlawful criminal record checks by employers each year

Unlock, a national advocacy charity for people with criminal records, has today published Checked out?, a report on so-called ‘ineligible’ criminal record checks, submitted by employers and processed by the Disclosure and Barring Service (DBS).

The Rehabilitation of Offenders Act 1974 allows some criminal records to become spent after a crime-free period. This means they are no longer disclosable – for example to employers – enabling people to move on and positively and contribute to society. For jobs working with children and vulnerable adults, spent criminal records must still be disclosed.

In 2019/20, the DBS carried out more than 4 million checks at the higher levels of enhanced or standard. Unlike basic checks, these disclose cautions and spent convictions and are legally permitted only for specified jobs and professions such as teaching, social work, accountancy or law. Carrying out a check at a higher level than permitted can be a criminal offence and a breach of data protection laws – exposing employers to financial and reputational risk. It unnecessarily prevents people with spent criminal records from gaining employment.

Despite the introduction of basic checks in 2018, Unlock’s helpline has seen a 25% increase in calls about ineligible checks. The report highlights the significant impact ineligible checks have on the lives of law-abiding people with criminal records – it estimates that over 2,000 people a year have to deal with the consequences of a caution or conviction unlawfully disclosed to an employer.

Responsibility for ensuring eligibility rests with the employer and the DBS trusts employers to request the right checks. The law is complicated, employers are rarely trained, and many show a blatant disregard for selecting the appropriate level of check. There is almost no chance of accountability and law-abiding people with criminal records are needlessly kept out of the workplace.

The report makes recommendations for government, the DBS and employers to prevent ineligible checks. These include amendments to the Police Act so employers and the DBS share liability for ineligible checks, legal protection for spent convictions and an urgent review of DBS processes for preventing ineligible checks.

Commenting on the report, Rachel Tynan, Unlock’s policy and practice lead and co-author of the report, said:

“Law abiding people with criminal records are struggling to find work as some employers are breaking the law to find out whether potential employees have ever broken the law. Ineligible checks are usually only carried out after offer, meaning the candidate has been chosen as the best person for the job, only to be rejected for an old or minor criminal record they are entitled to withhold.

“That’s bad news for them, their families and the economy – it’s got to change. This report sets out a number of recommendations to government, the DBS and employers that would turn the tide, prevent ineligible checks and improve compliance.”

For more information about the report, please contact Rachel Tynan. Email rachel.tynan@unlock.org.uk.

Notes

  1. Unlock is an independent national advocacy charity for people who are facing obstacles, stigma and discrimination because of their criminal record
  2. There are over 11 million people in the UK that have a criminal record.
  3. Unlock’s main website is unlock.devchd.com.
  4. Download the report here: Checked out?
  5. The report has been published as part of Unlock’s fair access to employment project.

Background

  • In 2019/20, the DBS carried out 5.9 million criminal record checks – 3.86 million enhanced and 326,000 standard checks, along with more than 1.7 million basic checks. Basic checks are available to any employer (provided they set out their lawful basis for checking). Standard and enhanced checks are only available for professions or roles exempt from the Rehabilitation of Offenders Act 1974.
  • A basic criminal record check reveals convictions and cautions that are unspent under the Rehabilitation of Offenders Act 1974. A conviction or caution is unspent for a period of time, determined by the sentence. Once a conviction or caution is spent, it no longer appears on a basic check. However, higher levels of checks (standard and enhanced checks) continue to disclose spent convictions and spent cautions. Only when a conviction or caution meets an additional set of strict technical rules can a conviction or caution be removed from a higher level of check, in line with the ‘filtering rules’.
  • The term ‘ineligible check’ refers to checks carried out at a higher level than permitted in law. This could mean an enhanced check where only standard is permitted, but the more common problem is requesting a standard or enhanced check where only a basic is permitted.

Case studies

Darren

Darren’s minor convictions were from 30 years ago and long spent but, as there was more than one conviction, they were not eligible to be removed (or ‘filtered’) from his enhanced check. He contacted us for advice when a job offer from his local council was withdrawn following what he believed to be an ineligible enhanced DBS check.

During our correspondence with the council it became clear that there was a misunderstanding of the type of work that would be eligible for an enhanced check. They said:

“Although the DBS is saying we only need a basic check, there may be opportunities that the team may have contact with children or vulnerable adults in their work and the fact that the majority of the team currently have enhanced DBS checks, then it may be a good idea to stay at this level. For example, a car parking officer may have to approach a car where a young child has been left alone”.

We went back to the council to confirm that approaching a car which has young children in wouldn’t make this type of role eligible for an enhanced check and explained the purpose of these checks. The council reviewed the role and agreed that a basic check was more appropriate but by the time the review was complete, Darren had taken another job.

Darren said: “Had the correct level of check been done in the first place, I would have been able to start the job. It took so long for them to acknowledge their mistake and I couldn’t keep waiting without a job. It’s disappointing that a big organisation like the council didn’t understand what type of checks they could do.”

Dennis

Dennis was a driver for an out of hours doctor’s service, driving doctors to appointments and waiting whilst they attended to a patient. Rarely, he chaperoned whilst the doctor carried out a procedure on the patient – this had only happened twice in the previous year.

After several months in the job, the employer decided to carry out an enhanced DBS check for his job. Dennis did not believe the job was eligible but felt he had no choice but to agree. Before the check was submitted, Dennis disclosed details of his criminal record and was suspended by his employer.

On reading the job description, we agreed that his job would not appear be eligible for an enhanced DBS check. To be eligible, he would need to be performing chaperone duties once a week or more, or at least four days in a 30 day period. In any event, Dennis was always accompanied by a medical professional who had been DBS checked and had overall responsibility for the patient. We provided Dennis with information and advice on challenging the check and offered to speak with his employer.

The employer carried out an investigation into Dennis’s concerns and confirmed that the job was not eligible for an enhanced check and they would update their policy to reflect this.

Dennis said: “I knew the job didn’t require an enhanced check and I’m pleased that [his employer] recognised that. I wanted to share my story so other people might feel they can challenge bad practice at work too.”

Danny

Danny contacted us for advice when his employer, a company selling disability aids, requested an enhanced DBS check for his role as a driver/technician, stating that he would be required to instruct and train ‘vulnerable’ adults in the use of the equipment he was delivering. Danny hadn’t received training in using equipment and, in the few weeks he had been working there, had only delivered pillows, walking sticks and wheelchairs. He felt the job would probably only require a basic DBS check and wanted to know how he could challenge the company. He had a spent conviction which he had not disclosed when applying for the job, as he was led to believe that it was a delivery driver job which would not be eligible for an enhanced check.

Danny had no choice but to agree to the enhanced check and then raise it with the DBS. He told them other drivers doing the same job were also undergoing enhanced checks. The DBS confirmed that they had put his application on hold whilst they investigated the eligibility of the check but could not do the same for the other drivers.

The DBS told Danny that his employer had given his job title as an Outreach Support Worker. This did not match his job description, qualifications or experience. He was told that the DBS did not question job titles with requesters and, on the job description provided, the role was eligible for an enhanced check. Danny decided that the only option open to him would be to arrange to speak to his employer about his conviction – who immediately terminated his contract.

Danny said: “I wouldn’t have applied for a job as a support worker – I’ve got no experience or interest in that type of work. As far as I was concerned, it was a driving job, dropping things off at the front door. None of the other drivers trained anyone either.”

The DBS would not investigate why Danny’s employers provided a different job description to the one being performed. Had they investigated the other drivers’ roles and found all of them raising the same objections, they might have reached a different decision.

Reforming the criminal records disclosure regime – Have you a sentence of over 4 years in prison?

We’ve published an updated briefing on reforming the criminal records disclosure regime and we want to hear from you if you have a conviction that can never become spent.

The Rehabilitation of Offenders Act (ROA) means that most convictions can become spent after a period of years. Changes implemented in 2014 (through focused mainly on reducing rehabilitation periods. However, the current law means more than 8000 people every year receive sentences that mean they can never be legally rehabilitated and will have to declare them for the rest of their life – on job applications, for housing or insurance.

A never spent conviction is a lifelong barrier to moving on. We think this should change and that’s we we’re campaigning for ROA reform. As part of our campaign, we use case studies to show why reform is necessary to help law abiding people with convictions move on.

What we need from you

If you have a conviction that can never become spent (i.e. a prison sentence of over 4 years), please contact us at policy@unlock.org.uk using the subject header ‘Call for evidence: ROA reform’. Please include:

  • Your name
  • Your date of birth
  • Contact details (email and/or telephone) and how you’d like us to contact you
  • The details of all your cautions/convictions including dates and a DBS certificate if you have one
  • The difficulties you’ve faced, recently or in the past, as a result of your criminal record not becoming spent
  • If you would be willing to contribute to any media coverage on this issue in future (this is for our reference, we won’t share your details without consent)

Any information you provide will be kept in line with our confidentiality policy. Any personal information provided to us will not be shared externally without your consent.

Find out more about how we handle your data

Find out more about our work on ROA reform.

What is the rationale behind the Rehabilitation of Offenders Act 1974?

In a week where the Justice Secretary, Robert Buckland, said that he was preparing a policy that looked at making changes to the Rehabilitation of Offenders Act 1974 (ROA), we’re pleased to publish a paper by Dr Andrew Henley (Assistant Professor of Criminology at the University of Nottingham) on the rationale behind that piece of legislation.

The paper draws on the research conducted for Dr Henley’s doctoral thesis which examined the conception, passage and contestation of the ROA. Sections of this thesis were based on original archival research and Hansard records which were used to understand the rationale behind the ROA and the motivations of its sponsors.  It is revealed that whilst the architects of the ROA were mindful of the need for exemptions to its provisions, their motives were primarily compassionate and humanitarian, and concerned with the welfare of those who had successfully ‘lived down’ their convictions. They were also concerned with the fact that, in the early 1970s, the UK was out of step with international norms in not having a rehabilitation law.

The paper concludes that the principle of ‘spent convictions’ is now well-established and has been for nearly half a century. Any Government seeking to expanding arrangements so that more people with convictions can benefit from their record becoming ‘spent’ should face an easier task than the original proposers of the ROA given that exemptions to its effect are also well-established on safeguarding ground.  However, it would be quite wrong to reframe the original rationale of the ROA as being about ‘striking a balance’ between protecting the public or businesses from recidivist crime versus the rights of people with convictions to ‘live down’ their past offending.  Concerns with public protection played only a relatively small part in the debates which circulated around the legislation during its passage, given that there was always an intention to include exemptions to the effect of the law for these purposes.  The ROA is, therefore, better understood as motivated by humanitarian concerns and with the need for legislation in the UK to keep pace with that in other countries.

Download the paper here.

Prison philanthropist Edwina Grosvenor talks to Christopher Stacey

Prison philanthropist and prison reformer Edwina Grosvenor talks to Christopher Stacey as part of  her Justice podcast series. They discuss how people often face stigma and obstacles because of their criminal record – long after they have served their sentence. Chris explains that in the UK, I in 6 people have criminal records and how the current system of criminal record checks isn’t fit for purpose – with information being shared with potential employers that isn’t relevant and with wide-spread employment practices are too often grounded in prejudice, causing significant harm to individuals trying to get on with their lives.

You can listen to the full podcast here.

Unlock cautiously welcomes incentives for employers who take on young adults

Unlock welcomes the Chancellor’s summer statement, in particular, incentivising employers to create training placements and apprenticeships for young adults. This age group has been significantly affected by the impact of the coronavirus pandemic – by mid-June, around a third of 18-24 year olds had been furloughed or made redundant.

The ‘Kickstart’ scheme means 16-24 year olds will be able to apply for Government grants to subsidise six-month work placements. In addition, firms taking on new apprentices aged 16 to 24 will receive £2,000, and those hiring new apprentices aged 25 and over will be paid £1,500.

Unlock’s co-director Christopher Stacey said:

These incentives have the potential to set young people on the path to employment. However, government backed schemes must offer opportunities to the most vulnerable young people – care leavers, people of minoritised ethnicity and those in areas hardest hit by the economic downturn. We know from evidence and experience that these young people are more likely to be criminalised and that a criminal record acquired in adolescence can be a life sentence.

 

With that in mind, we hope the scheme will ensure that a criminal record is not a barrier and that employers who benefit from Government subsidy have in place fair recruitment practices.

 

Too often, a criminal record is a barrier to moving on. As we move towards a ‘new normal’ let’s give all young people the chance to make a contribution.

Read about our priorities for government, which includes incentivising employers to recruit people with convictions.

 

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.

MP puts #FairChecks on Boris Johnson’s radar

Boris Johnson was called out this week for “dithering” in sorting out our “damaging and discriminatory” criminal records system.

At Wednesday’s Prime Minister’s Questions, John Spellar MP, who represents Warley constituency, called for Boris Johnson to “sort out this scandal now”.

The Prime Minister conceded there are issues with the system that need looking at urgently, adding “I think that every MP will have had representations from people who feel they’ve been unfairly treated by it.” Watch the clip here.

It’s thanks to those of you that have written to your MP through the #FairChecks site that MPs like John Spellar feel compelled to bring it to the government’s attention. Your support is making all the difference!

The bigger the movement the bigger the change. Help us grow in numbers by signing up if you’ve not already done so, and encouraging your friends, family and networks to write to their own MP about #FairChecks.

What’s your experience of ban the box?

As part of our fair access to employment project, we are gathering evidence of employers’ approaches to people with criminal records. We work with employers to develop fair policies and practices and highlight good practice. Ban the box is a key part of helping people with convictions get back into the workplace, and we have called on government to place it on a statutory footing. We know this is only part of the answer though – employers need to have embedded fair recruitment practices to make ban the box effective.

We’re gathering evidence on how ban the box works in practice.

 

 

  • Did it encourage you to apply for a job you might not have otherwise?
  • Did you feel you were treated fairly?
  • Or maybe the employer claimed to support ban the box but had a blanket ban on unspent convictions?
  • Maybe it made no difference at all.

Whatever your experience, we want to hear about it.

What we need from you

If you have experience of applying to a ‘ban the box’ employer, contact us at policy@unlock.org.uk using the subject header ‘Call for evidence: ban the box’. Please include:

  • Your name
  • Contact details (email and telephone) and how you’d like us to contact you
  • Details of your experience (please include the name of the employer and of any staff you spoke to, include emails/screenshots etc if possible)
  • What you think should change
  • Whether you would be willing to take part in media coverage on this issue (this is for our reference, we won’t share your details with others).

Any information you provide will be kept in line with our confidentiality policy. Any personal information provided to us will not be shared externally without your consent.

Find out more about how we handle your data.

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