Do you deal with criminal records in your work? You might be helping people with convictions who are applying for jobs, or working in recruitment/HR and making hiring decisions or carrying out DBS checks.
If any of these apply to you, book a place and join us on Wednesday 2 December for our webinar on understanding the Rehabilitation of Offenders Act and the disclosure of criminal records.
The criminal records system in England and Wales is complex and often confusing. There are over 11 million people with a criminal record. The Rehabilitation of Offenders Act is a piece of legislation that sets out when convictions become ‘spent’, and it’s important to know the difference between unspent and spent convictions and when they need to be disclosed.
When and where?
Wednesday 2 December, 2-4pm, Online (Please join at 1.45pm to begin promptly at 2pm – thank you)
Price: £49 (if booked before 1 November, normal price £59)
Price includes a course pack with materials and useful resources which will be sent to you before the webinar.
Places are limited, so book now to guarantee your place. If you wish to be notified on any future webinars, please email admin@unlockorg.uk
Who is it for?
The webinar is aimed at anyone who deals with criminal records in their work. You might be helping people with convictions who are applying for jobs, or you might be working in recruitment/HR and making hiring decisions or carrying on DBS checks.
What it will cover
The levels of DBS criminal record check and what they disclose
How individuals can find out about their criminal record
The Rehabilitation of Offenders Act 1974 and spent convictions
The ‘filtering’ rules and protected cautions/convictions
Good practice in asking about criminal records for employment and volunteering
On the 16th September the Ministry of Justice (MoJ) published it’s much anticipated white paper “A Smarter Approach To Sentencing”. It is a mixed bag, offering ‘tough on crime’ sentencing measures along with some more positive reforms to criminal record disclosure periods.
The MoJ says that they want to improve employment prospects for people with convictions, and so reduce reoffending, which sounds great. Given that they have also announced some positive changesyou could be forgiven for thinkingthat reducing disclosure periods might actually ensure better access to employment. Unfortunately it’s a bit more complicated than that.
Seen in a vacuum the proposals are somewhat progressive. A significant number of people, 15,000 per year, wouldsee their convictions become spent more quickly, and no longer have to disclose them for most jobs. Many other people who have been living with an unspent criminal record for decades wouldfinally be able to move on, as the proposed changes would enable some sentences over four years to become spent. That’s a strong start.
Here are what the proposed disclosure periods look like in more detail:
There are three things that really jump out.
Firstly, some sentences over four years would have the opportunity to become spent. The asterisks are quite significant, with most violent, sexual and terrorist offences excluded, which means only about 30% of longer sentences are eligible. But in spite of this, it would still be a big change.At the last review in 2014, even this limited version seemed impossible.
Secondly, disclosure periods would be generally shortened, which would reduce the period people face discrimination for. This is certainly better than nothing, but the periods are still quite long even compared to other proposals from within Parliament. Lord Ramsbotham’s 2017 bill proposed cutting four year periods to two years, for example, but the MoJ has chosen to ignore this despite cross–party support.
Finally; the shortest period of disclosures would cover sentences under 12 months, instead of only six months. This is in line with the changes we saw in Scotland, with all magistrates sentences being spent at the same rate . This would result in far fewer cases where the differences between regions and judges leads to a major difference in disclosure length.
To put these changes into perspective;MoJ figures show 7,980 people were given sentences between six months and one year in 2019/20. At present they have to disclose their convictions for four years; under these proposals they would only have to disclose for one year. Around 7,500 people receive sentences of over 30 months each year, and they would only disclose for four years instead of seven after these changes.
However, while shortened disclosure periods will certainly help thousands of people get their lives back on track, the white paper still seems to have missed the point. The proposals are a general relaxation, but they do little to actually improve employment prospects.
The critical time for employment is at the beginning of the disclosure period, not the end. Finding the first job is the hardest part, when discrimination is most felt. Reducing the period of discrimination is positive, but the discrimination is still there and will still hold people back. Even while the MoJ is making the right argument about employment, they don’t offer proposals to tackle this core issue.
This can be seen in other places, especially in the rationale given for preventing most longer sentences becoming spent. The white paper justifies shortened disclosure periods by arguing that employment reduces reoffending.We completely agree, and the evidence backs this up.But a few paragraphs later, the paper says lifelong disclosure, and lifelong discrimination, is justified because reoffending would be particularly harmful. Surely if reoffending would be so badit is even more important to do everything we can to reduce it, including improved access to employment?
People with more serious convictions face more serious discrimination, and for longer. The MoJ knows this is a big factor in reoffending, but they are not doing anything to change it. Most alarmingly, by continuing with lifelong disclosure the MoJ is signalling that many thousands of people cannot be rehabilitated and always present a risk to the public, even after 40 or 50 years.
In the end, while this paper says all the right things about employment and reoffending, the MoJ are content to leave the old system intact and not consider a genuinely new approach. They argue that discrimination is severe and needs to be addressed; but their proposals are only for less discrimination for some, and they don’t consider the possibility of zero discrimination.
Of course, Unlock will be pushing for any change that helps people with convictions, even small ones. Better is still better. But our real goal over the coming year or two as the paper moves forward is to push the Government to be bolder and less restricted in their thinking, and to deliver a criminal records system that works for everyone.
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Some examples of people we’ve helped
Looking back over the last couple of months, we’ve written up a few examples of the people we’ve helped.
However, more importantly than our role, we think that these examples show how people with convictions are able to overcome some of the barriers that have been put in their way due to their criminal record.
We’ve posted the examples below as case studies in the support section of our website:
Criminal records: a comparison between England and Israel
We know that in the UK, people with criminal records can face stigma, discrimination and barriers which prevent them from being able to move on from their past and make a positive contribution to society. These barriers most commonly relate to employment, but people with convictions can also find themselves locked out of volunteering, access to housing and insurance.
Independent researcher Dana Segev wanted to look at how things could be done differently; in her article published by Unlock, she compares the treatment of people with convictions in England and Israel.
Scottish Government Reforms criminal record disclosure
The Scottish Government has passed a significant reform to their criminal records regime. The Scottish system is separate from the one that applies in England and Wales, and had fallen behind the rest of the UK after Westminster made significant updatesin 2014.
The reforms that Holyrood have now passed make for interesting reading. The Scottish reforms, which come into force in November, give an insight into how criminal records are seen inside government and should be seen as a barometer for the rest of the UK.
The new system does not just mirrorEngland andWales; It is broadly similar, but the changes are significant, especially when looked at in terms of the numbers of people who will be impacted. Note: the Ministry of Justice recently published a sentencing white paper, including proposed changes to the criminal records system in England and Wales.
The changes in Scotland
The most important difference is that the lowest tier for disclosing custodial sentences in Scotland now cuts off at 12 months, not six months as in England and Wales. This makes a significant difference, because short sentences are the most common, and those between six and 12 months are just under 20% of the annual total.
As a result, about 2,000 more people per year will fall into the two year disclosure period, instead of the four year period they would face in Englandand Wales. 80% of all custodial sentences in Scotland will now be in the lowest tier for disclosure, compared to 62% if they had adopted the same system as England and Wales.
This change also impacts the kinds of offences which will fall into the shortest disclosure period. Twelvemonths is the maximum sentence that can be imposed by a magistrate (summary process by a sheriff in Scotland). This means that all custodial sentences imposed by will have the same disclosure regime, which is a much fairer approach.
Minor variations in sentencing between individual sheriffs or magistrates will not lead to multiple additional years of disclosure. There will still be discretion over sentence lengths, but not over how long they will be disclosed for. This also shows more joined up thinking. It makes sense that the existing division between magistrates and crown court is reflected in the subsequent disclosure.
Another major change is that the Scottish legislation will allow – eventually – for sentences over 4 years to become spent. This will not happenautomatically, but the Scottish government have committed to creating a review process to determine when, or if, they can become spent.
This is a significant shift in position, and it is the first attempt in the UK to handle thesemore serious convictions on a case by case basis. While longer sentences are less frequent overall, the current requirement to disclose indefinitely means they impact people for decades, regardless of how much they have moved on. The ability to review a conviction and have it become spent is much fairer than blanket rules.
We do not know what that review process will look like, or even necessarily the criteria that will be used,so there are still some hurdles to overcome. We are particularly concerned about the resources that will be available, because this will hugely impact how effective that system can be. However, this is still a big move in principle, and we hope it will be as meaningful in practice.
These changes are not huge in legislative terms, but they will make a majordifference to a large number of people.22% of annual sentences in Scotland willhave a fairer disclosure regime than in England and Wales. 2,500 people per year will have a more positive futurebecause of a more progressive criminal records system, with easier access to employment and education, and fair access to insurance.
How does this impact England and Wales?
It is very encouraging for our reform work in Westminster that Holyrood has made this move. We can see that political and government circles are interested in a more progressive approach, and that they do see the positives associated with a less draconian system.
Once the Scottish system is in action it will provide a continuous stream of data showing the impact that reducing disclosure has in numerous different ways. If the figures show lower reoffending and improved employment, asthe Scottish government believes they will, this will be powerful evidence for making similar changes in England and Wales.
Equally, the Scottish Government has shown that the arguments that Unlock is making in Westminster do impact policy decisions. The Scottish Justice minister, Humza Yousaf,said: “Progressive changes to disclosure allow people to move on with their lives into employment, [and are] proven to reduce the likelihood of further offending.As a result, these changes] help keep crime down and communities safe.”
These are exactly the arguments that Unlock make, and it is very positive to see officials citing thesebenefits as the reason for reducing disclosure. stance taken further, especially for intermediate-length sentences where Scotland will largely mirror the wider UK.
In the coming year, our calls to reform the Rehabilitation of Offenders Act will certainly be strengthened by the Scottish reforms. The arrival of new legislation will shine a spotlight on the regime in England and Wales, and help to break the inertia, as well as providing real world data. Unlock will be building from Scotland’s example to deliver a truly fair criminal record system that works for everyone.
Get involved
Join the FairChecks movement, and call on the government to reform criminal records checking in England and Wales.
Open letter to Ministers Victoria Atkins and Chris Philp
Back in July, the government responded to a Supreme Court ruling from January 2019, requiring changes to the filtering system. This week these changes have finally gone through parliament – but we have learned that there will be a delay of several months before they are signed into law, ostensibly due to time needed for the DBS to prepare their systems. Together with Liberty and Just for Kids Law, today we publish the below letter sent yesterday to the ministers responsible:
Dear Ministers
Re: Timetable for implementing response to the Supreme Court judgment: [2019] UKSC 3
As organisations involved in the above Supreme Court case on criminal records, we are writing to seek urgent clarification on the timetable for implementing the changes that the ruling required.
This week Parliament approved two statutory instruments that the government had laid to amend the rules for criminal record disclosure, following the ruling of the Supreme Court ruling in January of 2019. These two simple changes will put an end to the disclosure of childhood cautions and will also end the automatic disclosure of multiple convictions as a result of the so-called ‘multiple conviction’ rule being abolished. The Home Office’s own analysis shows that, taken together, these two changes will help around 45,000 people per year to have a fresh start by having clear standard or enhanced DBS checks.
However, these changes have yet to become law. We are deeply concerned at the potential for the changes to still not come into force for several months, as the Minister stated a “hope” for them to be “finalised by the end of the year.” This delay is simply intolerable, and we urge you, as Ministers with direct responsibility for delivering on the two respective Statutory Instruments, to take firm action.
Given the amount of time that has passed since the Supreme Court ruling, we are concerned by the latest hold up.The verdict that drove the changes was delivered in January of 2019. This has given the Government ample time, at least 20 months, to make preparations. These are also not complex changes; they are minor updates to an existing rules-based system.
Across England and Wales thousands of people are still being impacted each month by the currentfiltering rules. According to Home Office figures, over 45,000 people per year would not disclose any criminal offences under the new rules, but they will continue to do so until the new rules take effect. 120 people each day – 3,750 a month – are having their professional futures jeopardised by a disclosure regime which was described by the Supreme Court as having elements that were capricious, disproportionate and perverse. Many more will be putting their career plans on hold, waiting for the changes to come into effect before seeking employment – because of the stigma they know they will face if their criminal record is disclosed.
It is critically important that the Home Office and Ministry of Justice are seen to respect the Supreme Court’s judgement. It reflects very poorly on the Government when it shows conspicuously little interest in realising the changes that have been ordered, and an indifference to the ongoing injustice.
As three organisations who hear every day from people impacted by this system, Unlock, Liberty and Just for Kids Law strongly urge the Ministers to provide the necessary leadership to ensure that the Supreme Court’s decision is implemented immediately. We also urge you to investigate the cause of this delay, and reassure the public that your departments have not made any attempts to frustrate or undermine the Court’s ruling. Everyone deserves the opportunity of a fresh start.
The Law Society Gazette – White paper promises ‘smarter’ sentencing to cut crime
In this article regarding the Government’s newly announced sentencing white paper, Christopher Stacey welcomed the proposals to reduce disclosure periods but highlighted the fact that around two-thirds of the 8,000 people every year who receive sentences of over four years would be excluded from the proposals.
Christopher said: ‘The risk of reoffending is consistently lower for those who have served longer sentences, and data on reoffending by index offence shows sexual and violent offences have lower rates of reoffending than many other categories. Exclusions by offence type risk creating unfairness and anomalies at the margins, further entrenching racial injustice and embedding the idea that some people are inherently incapable of rehabilitation. To genuinely support people striving to turn their lives around through work, all sentences of over four years should be capable of becoming ‘spent’ at some point.’
‘Anchoring, everlasting, uncertainty, resilience’: Researching the impact of criminal records acquired in youth
Nicola Collett, a PhD student at Keele University, is currently researching the potential influence of a criminal record acquired between the ages of 10-25, later on in adulthood. Here she blogs about some of her findings so far.
Almost three years into my PhD I am spending much of my time surrounded by scribbles, highlights and post-it-it-notes as I continue to draw together the key ‘themes’ and ideas which came out from the interviews I conducted. In a recent research update I shared that I had been to Ghent to present preliminary findings and ideas which this blog will discuss in more detail. The four themes I highlighted in this presentation are: ‘anchoring’, ‘everlasting’, ‘uncertainty’ and ‘resilience’. Whilst the thesis is still a work in progress I hope this blog will help give some indication of the experiences captured in this research. Thank you again to those who took part and placed their trust in me.
Anchoring
“…it was a really traumatic erm period of time in my life so when I have to disclose it or talk about it not only I’ve got the actions of the things I’ve done wrong…I’ve got the erm context of it all as well…which for me feels worse it’s like…I don’t know a little bit re-tr- re-traumatising”
Megan
“…this caution had an effect on me for…years. Literally for years. You know…it caused me a lot of grief in the sense that I had to re-live that situation over and over again”
Yasmeen
Throughout our lives we take part in interviews and assessments, fill in various different forms and go through an array of sorting processes designed to filtering people as they try to access different opportunities. This occurs in variety of life domains from employment and volunteering to insurance and travel. This has become a common often taken for granted feature of our lives. However, for several of my participants these processes can be emotionally harmful as they require not only the disclosure of a criminal record but further explanation of the context of their offending. This is the anchoring affect whereby individuals are emotionally drawn back to a time in their lives where they may have faced victimisation, trauma, addictions and other significant difficulties. It was explained to me that this experience of disclosure could be humiliating, embarrassing and felt to be deeply invasive.
Everlasting
“…it’s had an impact on my life when I thought it was done you know? I thought I’d I’d reinvented myself I’d left that life behind. I’ve I’ve done everythin’ since I’ve done volunteerin’ I’ve worked […] I came from nothin’ […] all I’ve done is jump through hurdles…for like ten years […] I’ve had a clean slate throughout uni nothin’s gone wrong but still…this is apparently the pinnacle of my life that should dictate where I can go”
Paul
The long-term enduring nature of a criminal record has been discussed by Unlock and other criminal record scholars and campaigners. Indeed, the everlasting effect of having interacted with the criminal justice system at a young age was something the majority of my participants discussed. Those in early adulthood shared how they felt nervous and lived with a degree of anxiety at the potential for their criminal record to resurface later in life. In contrast, those later in adulthood reflected back on how they had personally experienced the criminal record as everlasting, resurfacing after many years of it not being disclosed. There was a real sense of not being able to fully move on despite having developed maturity and grown older with more life experience.
Uncertainty
“I think it’s always that thought I think it’s always there I think it’s always that… that thing in the back of ya mind… that it will stop ya from from future opportunities from travelling erm from future job prospects”
Ben
Linking very closely to the everlasting potential of having a historical youth record disclosed later in life is the third theme uncertainty. Due to the knowledge that their criminal record may resurface almost all my participants, even those who felt they had been successful thus far, acknowledged a degree of uncertainty over their future plans. Indeed, whilst individuals felt they had a degree of control over their lives and have found ways to access opportunities, there was an awareness of their vulnerability to external changes in law and policy. For some this uncertainty was only a slight concern whilst for others it was a significant issue causing them to worry about future romantic relationships, travel post-Brexit and the ability to attain and advance in employment. At the time of writing we are all living through increased uncertainty due to the global pandemic, and I am wondering how this might be affecting those with criminal records who may need to seek new employment. Life is truly unpredictable and the added layer of precariousness given by having a criminal record further complicates things.
Resilience
“…the thing that I um you know I rate myself for is that fact that I I stood strong…and I persevered do you know what I mean?…I never I never like let it get me down”
Yasmeen
Whilst much of this blog post has captured the negatives and difficulties associated with living with a criminal record, my interviews with participants covered a range of different emotions. Through the tears and the anger was laughter and strength. As such, I am keen to ensure I acknowledge the positivity and ‘can do’ attitude some of my participants had. Whilst largely experiences were negative, many of those I spoke to discussed their motivation and drive to succeed despite the potential obstacles living with a criminal record creates. This resilience was shown by many and it was something people spoke proudly of.
Unlock very much welcomes and supports today’s announcement by the Justice Secretary that disclosure periods for criminal records will be reduced. If these proposals proceed to statute, it will mean more people with criminal records being able to get jobs and make a positive contribution to society. The current criminal records disclosure system does little to promote rehabilitation or serve public protection, but it does result in people being locked out of jobs and opportunities, often for the rest of their life, because of a criminal record that serves as a second sentence.
England and Wales has one of the most punitive criminal record disclosure regimes in Europe – and there’s no evidence that it’s reducing crime. Getting people with convictions into work, supporting their families and contributing to the economy is one of the best ways of making communities safer. Evidence shows that more than half of men, and three quarters of women who receive a conviction, will never be convicted again.
Today’s announcement that some sentences of over four years in prison will no longer have to be disclosed when applying for most jobs if people are conviction-free seven years after completing their sentence is a positive step forward. We have long campaigned for a system that enables all convictions to become ‘spent’ at some point.For those that these proposals apply to, once they have completed their rehabilitation periodthey will no longer be required to disclose their conviction for most jobs or education courses, nor for housing or insurance.
However, more than 8,000 people every year receive sentences of over fouryears and today’s proposals have wide-ranging exclusions which we understand will mean that around two-thirds of people sentenced to more than four years in prison will continue to have a lifelong ‘never spent’ conviction.
The risk of reoffending is consistently lower forthose who have served longer sentences, and data on reoffending by index offence shows sexual and violent offences have lower rates of reoffending than many other categories.Exclusions by offence type risk creating unfairness and anomalies at the margins,further entrenching racial injustice and embedding the idea that some people are inherently incapable of rehabilitation. We do not believe that to be the case.
We have long-supported Lord Ramsbotham’s Criminal Records Bill, and the proposals in that Bill are a pragmatic attempt to see positive change, given the rehabilitation periods for adults wererecommended in the Breaking the Circle report in 2003, and accepted by the government of the time. The proposals today fall short by comparison.
Making changes so that more people have their convictions become spent sooner is a positive change. However, there is little point in having more people reach this stage if employers can continue to discriminate. There are fundamental questions as to how effective the legislation is in a society where information remains online and employers regularly ask about spent convictions even if they are not entitled to know about them.
The government needs to make sure that the legislation does what it is intended to do – give people a chance to live free from the stigma of their past. Today’s proposals do nothing to address these issues, which is why we continue to call for a root-and-branch review of the criminal records regime.
Everyone should have the opportunity to unleash their potential and make a positive contribution to society. Everyone should have the opportunity of a fresh start. We hope the government will listen and make sure that law-abiding people with convictions have a real chance to move on with their lives without their criminal record hanging over them.
ENDS
For media enquiries, please contact Ruth Davies, Digital and Communications Manager. Email ruth.davies@unlock.org.ukor call 07458 393 194
Notes to editors
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.
High-resolution images for media use are available from Unlock’sFlickr account.
Spent convictions can still be disclosed for jobs working with children or vulnerable adults, or in some trusted professions. What shows up on standard and enhanced DBS checks is determined by the filtering rules.
Case studies
Below are case studies of individuals where their conviction will remain a lifelong ‘never spent’ conviction because their offences are excluded under the proposals by the Ministry of Justice.
Case study – Ian
Ian joined his well-known firm in the early 1990s when few employers asked about criminal records. Over the years he developed his skills and now managed the office, earning a good salary.
In 2019, the firm introduced new HR systems and retrospectively carried out basic DBS checks on all staff. Ian had been sentenced to 7.5 years in prison in the 1980s for his involvement in an armed robbery. Ian explained this to his employer, hopeful that his 25 years of service and exemplary work record would stand him in good stead. Despite this, the firm let Ian go – they said they couldn’t risk anyone finding out that one of their employees had an unspent conviction. Ian is claiming JSA while he looks for work.
Case study – Amir
At 17 Amir was convicted, under joint enterprise, for a serious assault on a man. He was sentenced to 6 years in prison. On release, he moved with his family to a new area and completed qualifications in business and IT. Amir eventually started a small business from home doing computer repairs and providing training.
Now 29, Amir applied for a job in the training department of one of the big four accounting firms. After a telephone interview, assessment centre and face-to-face interview Amir was selected over the 18 other candidates. On receiving the offer, Amir disclosed his unspent conviction. The HR manager told him someone would be in touch. After three months of waiting, Amir contacted the UK Director of HR who said the company had a policy of not employing anyone with an unspent conviction.
Case study – Anne
Anne was convicted of the manslaughter of her husband and sentenced to 7 years. At her trial it was accepted that she was suffering from a psychiatric condition resulting from her husband’s abusive behaviour over two decades. Anne is out of prison now and volunteers as a speaker for a charity that supports victims of domestic abuse.
Anne has applied for part-time work at a supermarket and a high street retailer but has been turned down both times because of her unspent conviction. She felt the interviewers were sympathetic when she disclosed but afterwards was told it was ‘company policy’ not to employ anyone with an unspent conviction.
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