New report highlights impact of criminal records on women
While women overall are less likely to have a criminal record than men, those women who do are more likely to face barriers when accessing employment according to the report, “Angels or witches”: The impact of criminal records on women, published on International Women’s Day by Unlock.
The report, which brings together the voices and experiences of women with criminal records alongside data on employment and criminal record checks, highlights the need for dedicated strategies to address the post-conviction problems women face.
The vast majority of women surveyed as part of the research (86%) cited employment as a problem, with 63% saying it was the biggest problem they faced.One woman said:
“I’ve been struggling to get work. I can’t work in finance or admin roles for local government like I did previously as I need an enhanced DBS. I now work in low paid cleaning jobs but struggle to find cleaning work as all school cleaners, doctors surgeries need enhanced DBS checks.”
By analysing data on the number of criminal record checks that disclosed convictions, the researchers found that, although less likely than men to have a criminal record, women are almost twice as likely to have their criminal records disclosed on a DBS check. One possible explanation for this is the higher level of checks required for traditionally female-dominated roles, such as care work and education.
Over half of women surveyed felt that being a woman made their post-conviction problems worse, with many citing additional stigma face by women with convictions. One respondent said:
“Women are still treated as either angels or witches, there is no in between. Women with convictions are demonised in ways that men never have been”.
What is also clear in the report is that for many women, their convictions exist alongside significant trauma; nearly two thirds (59%) of women surveyed reported having experienced domestic abuse at some point in their lives. A tenth said they had been a sex worker at some point in their lives, and 31% had experienced addiction or substance misuse. And yet there is a dangerous lack of support or understanding to enable these women to move on positively in their lives – they are simply handed the stigma that comes with a criminal record.
Dr Rachel Tynan, Practice and Policy Lead at Unlock, said:
“These findings clearly demonstrate that women facespecific barriers and challenges because of their criminal record – and that these aren’t properly understood. That’s why we’re calling on the government to conduct a full root and branch review of the criminal records system, including the proportionality and impact on women and people with other protected characteristics.
“We also need to see a dedicated employment strategy that recognises and responds to the specific challenges faced by women leaving prison and on probation. If women are being locked out of the jobs they have trained for because of minor convictions, how are they supposed to make a positive contribution to society?”
This report was produced as part of Unlock’sUnlocking Experience project. Find out more about the project and the previous two reports, focussed on the experiences of young people and BAME people with criminal records. Our thanks to Barrow Cadbury Trust for funding this work.
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.”
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.
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 sentencewill 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 oruniversity courses. These will no longer be disclosed on a standard or enhanced DBS certificate.
Multiple childhood convictions will be filtered after 5.5 yearsunless 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.
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.
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.”
“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.
Blog – Government publishes summary of responses to call for evidence on the employment of people with convictions
Last week, more than a year since the consultation closed, the Cabinet Office published a summary of responses to their Call for Evidence (CfE) on employing people with convictions. But what does this summary of responses mean for the future? This blog looks at some of the promising signs, some areas for improvement, and questions the lack of any recommendations from government.
The report draws together responses from 76 organisations – a small sample for a national consultation, but that in itself tells us how much work there is to do. The report indicates that the public sector could do more to increase employment of people with convictions but highlights some pockets of good practice in the voluntary sector.
Firstly, the evidence is promising
The responses are promising – 76 organisations from the voluntary (46%), private (32%), and public (14%) sectors responded to the Call for Evidence. Overall, 73% of the organisations that responded said they hire people with a criminal conviction, either directly or through intermediary companies, suppliers or contractors. Over half (56%) of them ask about convictions in a later stage of the recruitment process (i.e. during interview, at the offer stage, etc.) – with 33% asking at the job offer stage. Public sector respondents were particularly poor at this – 71% ask at the initial stage. The chart below shows that the voluntary sector tends to ask the question about convictions at a later stage compared to the private and public sectors – although there is clearly much more work to do with all sectors.
Of those that ask about convictions, when in the recruitment process do they ask?
In summarising the response, the report states: “The Call for Evidence has provided very useful insights for the Civil Service and organisations in general on how to engage in activities that support people with a conviction in finding employment. Furthermore, the Call for Evidence has helped to identify barriers and challenges, both within and outside organisations, when employing people with convictions, and highlights the need for a communication strategy on the benefits of this practice.”
The key messages from the analysis are at the end of this blog, and the report concludes by saying the results “highlight how having specific recruitment practices and employability initiatives that reduce the barriers to employment for people with criminal records could have positive impact on the individuals involved, the organisations they are part of, and wider society as a whole in the long term.”
However, 76 responses is a very low number of employers and the proportion of private and public sectors is much lower than it should be. Most respondents were already actively engaged in recruiting from this population. It feels like this call for evidence was a missed opportunity to engage with a much wider range of employers across all sectors. How might the lessons from this call for evidence be used to engage with employers in the future?
There are positives in the analysis
Language – our response to the call for evidence explained why we use person-first language – people with convictions, not ex-offenders. We’re not taking credit for this, but the response refers to people with convictions, using the term ex-offenders only when referring to the questions asked and the initial title of the call for evidence. This alone is a really big step forward, and we hope it reflects an active decision by the Cabinet Office to use person-first language – and that it will be adopted by colleagues across Whitehall.
Highlights the variety of excellent work being done – predominantly by the third sector – in supporting people with convictions into, and during, employment.
Underlines the value to employers of recruiting people with convictions. In our experience, hearing from employers who already do this cuts through and shows other employers what can be achieved. For example, one respondent said “These staff tend to work extremely well, are productive and eager to learn. They are committed, have a good understanding and knowledge of themselves making for a supportive team member”
There are some areas for improvement
The majority of respondents ask at application stage. Even if the employer takes a proactive approach to people with convictions, there’s rarely a need to ask all applicants at this stage and the Cabinet Office should take this as an action to look at wider promotion of Ban the Box, including considering placing it on a statutory footing
The issue of enhanced checks and security vetting. This paragraph in the analysis raises some concerns – “In relation to the security clearance level needed for the role, out of the 76 organisations, only 64% responded. Of these, the large majority need to conduct a Disclosure and Barring Service (DBS) check, or an enhanced DBS. A few others indicated they required a full security clearance, vetting checks, or Criminal Records Bureau (CRB) check.” Respondents might have used DBS check/enhanced DBS check interchangeably but it’s worth thinking about the implications of this. It could be a function of the large number of voluntary organisations who proactively recruit from this population – lived experience/peer roles etc. It’s interesting that a significant majority of employers require enhanced checks, security clearance and vetting – if employers in sensitive fields can recruit people with convictions, surely mainstream employers can do more too? It’s a shame this wasn’t analysed further. It could also be a misunderstanding of the ‘need’ to conduct a basic check. And I’d be interested to see how many say they need ‘CRB checks’ – it makes you wonder how out of date their processes are (the CRB was replaced by the DBS over 6 years ago!)
No clear recommendations from government
Although publishing a summary of responses and carrying out some analysis of them is helpful, a “summary of responses” is very different to a “government response”. There are no concrete recommendations or actions that the government is taking in response to this consultation – and it’s unclear why not. In the “conclusions and next steps” section, the report states “The value of this Call for Evidence does not merely derive from the immediate actions taken as a result of it, but from inspiring further Civil Service and Government reforms in this field. The Civil Service looks forward to working with its stakeholders to be more inclusive, and promoting a culture that supports people with convictions on their path to employment.”
Yet the report makes no mention of these “immediate actions”. And what are the “further Civil Service and Government reforms”? Given the time it’s taken the publish this summary, and the lack of any further clear commitments, one wonders whether this reflects a deprioritisation of this work for the Cabinet Office?
There has been some progress since we made our own submission back in August last year, and below as an addition to this blog we’ve set out how things have progressed against the areas that we called for government action on. Given the importance of this work, the Cabinet Office had a real opportunity to set the scene by producing a detailed response to this call for evidence and making a number of commitments. Given what ended up being published, we’ll be raising this with both the Cabinet Office and the Ministry of Justice, who jointly published the initial consultation, to understand what their future plans are.
Promising signs from the civil service pilot
One thing that the summary of responses does highlight is the progress that has been made on the Civil Service pilot scheme, ‘Going Forward into Employment’ (GFiE), where people in prison and near to release have been matched to fixed-term office-based and field-based jobs in participating government departments, via a two-year recruitment exception route. We know that there has been an evaluation done of this pilot, and it seems that this Call for Evidence was initiated (at least in part) to support that project. It’s positive that the pilot is now continuing as a mainstream programme which looks at a range of other groups as well, including veterans, and I hope that the programme will be able to offer more opportunities to those people with convictions who are serving sentences in the community, as well as those near to release from prison who were the focus of the initial pilot. We hope that the evaluation of the pilot is published so that there is a better understanding of how it works and what lessons have been learnt.
Written by Christopher Stacey, Co-director at Unlock
Progress since we made our submission
Written by Rachel Tynan, Policy and practice lead at Unlock
Unlock’s submission to the consultation last year emphasised the need for fair recruitment practices, the range of issues to consider when developing employability initiatives, and evidence on what works and what needs to change so that law abiding people with convictions can secure employment. We called on the government to:
Develop a cross-government strategy on employment of people with convictions
Pilot financial incentives for employers who pro-actively recruit people with convictions
Put Ban the Box on a legislative footing
Fix the broken DBS filtering system
Develop a legal framework to ensure individuals’ right to be forgotten where convictions are spent
Support the Private Members’ Bill on amending the Rehabilitation of Offenders Act 1974
Looking at the areas we called on the government to look at, below we’ve set out how things have progressed since:
Cross government strategy
Since the CfE the government has launched the New Futures Network and a new ROTL framework. The Ministry of Justice and Department for Work and Pensions have launched a three year programme, working in partnership. By committing resources to the recruitment of people with convictions the government has signalled its intent – but as the report shows, there is a lot of work to do.
Ban the Box
Our submission stressed how putting Ban the Box on a legislative footing – or even finding ways to incentivise business to sign up – would signal government’s commitment to ensuring people with convictions have a fair chance of employment. Disappointingly, only around 30% of organisations responding to the CfE knew about Ban the Box suggesting much more needs to be to increase awareness and encourage take-up. There are 140 employers now signed up to Ban the Box but clearly a long way to go. Based on this evidence, we think the government should be more strident in its approach to employers.
Filtering
Since the CfE the Supreme Court ruled that the current filtering rules are unlawful and must be changed in two key respects – the multiple conviction rule was found to be disproportionate, and reprimands and warnings (followed by youth cautions) should not be disclosed. We have written to the government calling on them to implement changes in line with the ruling, but also to commit to carrying out a fundamental review of the wider regime. The government is yet to formally respond to the Supreme Court ruling.
Reform of the Rehabilitation of Offenders Act 1974
Looking at the range of recruitment practices reported to the CfE, most employers still ask about criminal records at application stage – echoing Unlock’s research last year which found that three-quarters of national employers do just that.
We know that this is hugely off putting to people with criminal records – over half of people with a criminal record say they would not apply for a job where they needed to disclose their criminal record. 75% of employers discriminate against an applicant with a conviction.
Not only is asking at application stage off-putting, it’s also unnecessary – and very likely a breach of the GDPR. In the absence of clear guidance or enforcement action from the Information Commissioner’s Office, employers are unlikely to change these practices, and again we call on government to take legislative steps to ensure Ban the Box becomes the norm.
This also highlights the discrimination people with convictions face. Most convictions will eventually become spent, but people can find themselves out of work, or only able to secure temporary or unskilled work in the meantime. The economic impact hits the individual, their family and wider society – can we afford that? That’s why we have and continue to call on government to reform the Rehabilitation of Offenders Act. In July the Ministry of Justice announced plans to reform the criminal records regime to improve employment prospects and we look forward to working with the new Secretary of State on this.
Key messages from the analysis
The summary of responses includes a set of “key messages from the analysis”. These were:
a. There are some indications (from the respondents to this Call for Evidence) that variations exist across the different sectors in relation to employing people with criminal records and at which stage of the recruitment this information is taken into account. Asking about criminal records should not constitute a barrier or a filtering criteria for offering employment;
b. Organisations that employ people with convictions across different roles – and responsibilities – reported having positive experiences, and affirmed that this part of the workforce constitutes an important asset thanks to their skills, commitment and experiences;
c. Attitudinal barriers across stakeholders, including customers, colleagues, and even people with criminal records themselves, are reported to be the main challenges to offering employment to someone with a conviction; consequentially cultural change is likely needed;
d. It is important to have activities that support and prepare people with convictions to be in the job market; examples are CV surgeries, mock interviews, mentoring schemes;
e. There is the need to produce and collect more robust evidence – in addition to case studies – that prove the positive impact of hiring people with convictions.
Report backs tax breaks to employers that recruit people with convictions
Commenting on a report published today by Onward, Unlocking a Better life, Christopher Stacey, co-director of Unlock, said:
“As things stand, although a prison sentence can end, the impact of a criminal conviction can be felt far beyond the conclusion of any sentence. People with convictions, and especially those leaving prison, face significant stigma and discrimination directly as a result of them having a criminal record and it frustrates access to employment long into the future. 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.”
“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. That’s why we welcome Onward’s recommendation that government should deliver on the manifesto commitment to give employers a national insurance tax break to employers who recruit people with convictions.”
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:
Removing the ‘multiple convictions’ rule and so enabling more than one conviction to be filtered
Reducing the list of offences not eligible for filtering
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.
“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
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.
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.
The judgment was handed down on Wednesday 30th January 2019. Press summary here.
Press and media coverage of the judgment can be found here.
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.
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
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/
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
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
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.
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!
Almost three-quarters of national companies continue to ask about criminal records at job application stage, new research shows
Unlock has today published new research that shows the vast majority of national companies continuing to have criminal record declarations as a core part of their initial job application forms.
Marking the 5-year anniversary of the Ban the Box campaign, the findings reveal the extent to which national employers have failed to recognise the negative consequences of criminal record tick-boxes on application forms.
Commenting on the report, A question of fairness, co-director of Unlock Christopher Stacey said:
“We’re proud to have co-founded the Ban the Box campaign and it’s really positive that over 110 companies – including Barclays, Boots, the Civil Service, and Virgin Trains – have signed up so far, but this new research shows that it remains the case that asking about criminal records at application stage is the default approach for almost three-quarters of national, big name companies. It’s also worrying that around 1 in 5 of them are asking for information they are not legally entitled to.
“These findings are unsurprising – employers are asking about criminal records at application stage as a way of deselecting applicants. We know this approach has a chilling effect on talented applicants with a criminal record, many of whom never apply because they think they don’t stand a chance. In fact, evidence from employers who do recruit people with criminal records shows that they make reliable, hardworking and loyal employees. Employers who are open about their inclusive recruitment practices report a positive impact on their reputation.
“Yet the numbers of employers removing criminal record questions from their application forms is not increasing fast enough. Earlier this month Unlock published new guidance for employers which showed that collecting criminal records data at the job application stage is unlikely to be compliant with the GDPR and data protection legislation. Government, business and charities need to seriously consider how to accelerate the changes in employer behaviour that Ban the Box encourages. Unless significant progress is made, increasingly it seems that the only way to make sure employers remove the tick-box is by looking to put Ban the Box on a statutory footing.”
“Unlock’s work to unearth the recruitment practices of some of the country’s biggest private sector employers paints a stark picture of confusion and inconsistency when it comes to managing risk around criminal convictions. This results in people being unfairly excluded from work and many more believing that no one is willing to give them a chance. Employers need to grasp the nettle and implement Ban the Box, not just because it’s the right thing to do but because it will benefit their businesses and their communities.
“Some of the employers cited in this report already work with Business in the Community and other charities to support individuals into employment. This should give them the positive evidence they need to make the business case for changing their mainstream practices. We want to work with these businesses, alongside Unlock, to support them to put robust, fair and inclusive practices into place.”
We surveyed 80 large, national employers across eight sectors – supermarkets, retail, hotels, food and drink, construction, car manufacturing, utilities and communications and found that:
77 out of 80 employers had online application forms.
Of those 77, 54 employers (70%) asked about criminal records on their application form.
80% of employers who asked about criminal records provided no guidance to applicants.
22% of employers asked about criminal records in a way that was either potentially unlawful or misleading.
Collecting criminal records data at application stage is unlikely to be compliant with data protection legislation.
None of the employers surveyed provided information to applicants on why they collect criminal records data, or for how long it will be retained. Under the GDPR, employers who fail to provide this information are likely to be in breach of the law.
None of the construction companies and only around half the car manufacturers in our survey asked about criminal records at application stage.
The findings of this report show that there is still a long way to go in encouraging employers to stop asking about criminal records on application forms. In the conclusion we explore the broader implications of this report, but to achieve a fundamental shift in recruitment practice and seeing Ban the Box as business-as-usual, we believe there are steps that both government and employers should take. That is why we make a number of recommendations to both government and employers, which can be found on pages 4 and 5 of the report.
Notes
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.
There are over 11 million people in the UK that have a criminal record.
The report can be downloaded here. A summary of the report can be downloaded here. The full list of employers we surveyed, along with the questions they ask, can be found in the Annex.
Unlock runs the website Recruit! – providing advice and support for employers on recruiting people with convictions and dealing with criminal records fairly. Employers looking for further advice about this guidance can contact recruit@unlock.org.uk.
For employers that want to sign up as a Ban the Box employer, please see bitc.org.uk/banthebox.
New guidance published to support employers with GDPR, data protection and processing criminal records in recruitment
Today we have published new guidance to support employers to ensure that their policies and practices on collecting criminal records data during recruitment is compliant with the General Data Protection Regulation (GDPR) and the Data Protection Act 2018.
The guidance makes it clear that collecting criminal records at the initial application stage is unlikely to be necessary and therefore in breach of data protection law.
Christopher Stacey, co-director of Unlock, said:
“Too often, employers overlook skills, experience and qualifications if an applicant declares they have a criminal record. Yet over 11 million people in the UK have a criminal record. The GDPR and the Data Protection Act 2018 make it clear that asking about criminal records must be necessary – if it isn’t necessary, it isn’t compliant.
“This guidance makes it clear that the current common practice of many large employers of asking about criminal records at the initial application stage needs to change to ensure compliance with data protection law. That’s why we’re strongly encouraging employers to no longer ask about criminal records at application stage. However, fair recruitment is about more than just removing a question. Employers are required to justify why they are asking about criminal records at any stage in the process, and we recommend employers to use this as an opportunity to think about whether they need to ask about criminal records at all and, if they do, how they manage the process so they don’t miss out on talented and qualified applicants with previous convictions.
“Proactive recruiters report that employees with convictions are more productive and more loyal than average. We hope that this guidance helps employers to review their approach towards criminal records and ensure that if information is collected, it is used fairly and only where necessary.”
Jessica Rose, Ban the Box campaign manager at Business in the Community, said:
“Unlock’s straightforward and practical guide for employers collecting criminal records data makes it clear that Ban the Box is the right approach for recruitment under GDPR. We urge employers to read the guide and to move any necessary questions about criminal convictions to later in the recruitment process. Once you’ve made the change we’d be delighted to have you join the growing movement of employers demonstrating their fair approach to the recruitment of people with criminal records through signing up to Ban the Box.”
“This is useful guidance that will help employers to review their policies and practices when requesting information about criminal records in recruitment. It is crucial that employers understand their obligations to data protection law and this guidance will help them to do this.”
The guidance sets out a three-stage process for employers to follow in determining if, when and how they should ask about criminal records. Key points of the guidance are that:
Collecting criminal records at application stage is unlikely to be necessary and therefore in breach of the GDPR and the DPA18
Collecting at any stage must be justified by a link between purpose and processing.
You must identify a lawful basis for processing AND meet a condition of processing
Applicants have data subject rights that must be upheld
Explaining how you’ll uphold applicants’ rights is key to meeting the condition of processing
The full implications of the GDPR are still being embedded, but it is clear that data controllers must comply with data protection law. This guidance makes it clear what employers should be doing, and it is likely that individuals will look to challenge those organisations that operate policies and practices that do not comply.
This guidance is part of the practical guidance we provide via Recruit! – a website providing advice and support for employers on recruiting people with convictions and dealing with criminal records fairly. Employers looking for further advice about this guidance can contact recruit@unlock.org.uk.
We will shortly be publishing separate guidance for applicants on their data subject rights and how to challenge unfair or unlawful practice where they encounter it.
Notes
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.
There are over 11 million people in the UK that have a criminal record.
The guidance is for employers and voluntary organisations in England & Wales who collect, or plan to collect, criminal records data for recruitment purposes.
For more information on becoming a Ban the Box employer, please see bitc.org.uk/banthebox
Unlock are grateful for the advice and support received from the Information Commissioner’s Office in producing this guidance. Links to their guidance are embedded in the document and more information is available on their website. There is also a useful briefing produced by Nacro on data protection and the use of criminal offence data.
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