There are over 11 million people in England & Wales with a criminal record, and many find themselves treated unfairly and unnecessarily held back in life because of their past.
Government has a role to play in finding solutions. The last Conservative government talked about stepping in to help those who had been ignored for too long. They also talked about “a country that works for everyone”, one where government supported and, where necessary, enforced the responsibilities we have to each other.
The solution to some of the problems that people with criminal records face require changes in legislation. Other problems require changes in attitudes and practices.
Here are details about the top four priorities that we would like to see the government take forward.
- Supporting business – Pilot tax incentives to encourage employers to recruit people leaving prison, people on probation and people with unspent convictions
- Challenging business – Put ‘ban the box’ on a legislative footing
- Fix a broken DBS filtering system
- Fundamentally review the criminal record disclosure system
1. Supporting business – Pilot tax incentives to encourage employers to recruit people leaving prison, people on probation and people with unspent convictions
Many businesses are fearful of hiring people with a criminal record. 75% of companies admit to discriminating and not offering an applicant a job on the basis of them declaring a criminal record. This is often because of long-standing beliefs about their reliability and the risks they think they pose to a company’s public image. This comes at a cost to society; around a third of people claiming job seekers allowance have a criminal record.
The government should recognise and champion those employers that are already employing people with convictions. Yet there are many more companies that need to be encouraged to change their recruitment practices to take on people with criminal convictions, and they need to be given the support to do so. So we would like to see the government pilot the use of financial incentives for those employers who actively employ people leaving prison, those on probation and those with unspent convictions.
2. Challenging business – Put ‘ban the box’ on a legislative footing
In 2016, the civil service endorsed the Ban the Box campaign and removed the criminal record disclosure section from initial job applications for the majority of civil service roles. Ban the Box does not oblige employers to hire people with criminal records, but it increases the chance that they will consider them. When applicants are able to progress to later stages in the recruitment process and meet employers, they have the opportunity to show their potential. Removing this tick-box from the application process gives people with convictions the chance to get further into the application stage before disclosing their criminal record. Since 2013, over 80 companies have joined this movement, but there’s much more to be done. In a recent survey of over 60 national companies, 75% were found to have general questions about criminal records on the application form. Employers no longer ask other discriminatory questions during recruitment and selection.
We encourage the government to extend the Ban the Box commitment beyond the civil service to all public bodies. We also believe the government should follow the lead taken in the US by introducing ‘fair chance hiring’ practices, including a statutory requirement for all employers to delay the questions about criminal records until the pre-employment stage.
3. Fix a broken DBS filtering system
Over 240,000 every year have their employment chances hindered because of the disclosure of a criminal record that is often old, minor or irrelevant to the job being sought. The Court of Appeal ruled in May 2017 that the current system of disclosing old and minor criminal records is unlawful and disproportionate.
We believe the government should take immediate steps to establish a proportionate framework that removes the unnecessary disclosure of old, minor and irrelevant records. This would mean expanding the filtering rules so that more cautions and convictions come off DBS disclosures automatically. It would also include establishing a distinct system that deals with criminal records acquired in childhood and taking a more nuanced approach to those that commit offences as young adults. We also encourage the government to introduce a discretionary filtering system with a review mechanism.
More details are set out in our briefing on the filtering of criminal records from DBS checks, which is part of our work to challenge the DBS ‘filtering’ process as it doesn’t go far enough.
4. Fundamentally review the criminal record disclosure system
The last full review of the Rehabilitation of Offenders Act 1974 (in 2002, when the CRB was introduced) made a number of recommendations that were not implemented. Significant changes to sentencing, technology and employer practices, alongside increasing evidence of abuse and ineffectiveness, means there is a need for a fundamental review of the criminal record disclosure system.
With policy responsibility for criminal record disclosure legislation straddling the Home Office and the Ministry of Justice, we believe the government needs to undertake a comprehensive independent cross-departmental review of the current system, looking at how to effectively protect people with criminal records from discrimination when they are law-abiding members of society looking to get on in life.
Such a review would include an 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) and ensuring that the legislation is not abused by employers or others.
It is also important to recognise the importance of more fundamental ‘sealing’ processes. Quasi-judicial processes – like in France – give individuals the right to “judicial rehabilitation”. Sealing processes of this type were advocated for by David Lammy MP in his 2017 review of disproportionately in the criminal justice system.
There’s a lot more that the government needs to do to ensure that people with criminal records are not being unnecessarily held back from getting on in life. This includes stopping employers from conducting illegal criminal record checks, scrapping the ‘disqualification by association’ regulations in primary schools, enabling people with convictions to become senior managers and trustees in charities, and promoting fair admissions in universities. But taking forward the priorities above would set the government off in the right direction towards a fairer and more equal society where people with criminal records are not unnecessarily anchored to their past and prevented from getting on in life.
Christopher Stacey blogged about these priorities in May 2017 as part of the run-up to the 2017 general election.
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