Justice Committee: unfinished business from the 2015 Parliament Contents

Annex 2: Informal note of seminar on disclosure of youth criminal records, 13 December 2016

Committee members present: Robert Neill, Richard Arkless, Alex Chalk, Philip Davies, Kate Green, Mr David Hanson, and Victoria Prentis.

Others present: Christopher Stacey, Co-director, Unlock, Bob Ashford, Founder, Wipetheslateclean, and Anna Boehm, Programmes Manager, Standing Committee on Youth Justice.

Jason, Natasha, Sam, Ben, Anita, Paulette, Kamla and Lynda (names changed: participants sharing personal experiences).

Nick Walker, Nony Ardill, Gemma Buckland, Elise Uberoi, Gavin O’Leary, Christine Randall, Anna Browning (Committee staff).

Plenary session

After introductions and welcome from the Chair, Robert Neill MP, the seminar started with presentations from Christopher Stacey, Co-director of Unlock, Bob Ashford, founder of Wipetheslateclean, and Anna Boehm, Programmes Manager, Standing Committee for Youth Justice.

Christopher Stacey expressed gratitude to the Committee for launching its inquiry into this topic and for holding the informal session. Unlock is a charity for people with convictions, aiming to help them overcome the barriers and stigma caused by the disclosure of criminal records. Unlock does this first through its helpline and website which provide guidance and advice; and second by campaigning, through which it tries to influence the Government and employers to adopt fairer and more inclusive policies. Unlock has a wide focus on all individuals with criminal records, including youth records. It supported SCYJ’s research into childhood criminal records and has made recommendations based on this.

In Mr Stacey’s view, there is now real momentum for change. The Taylor review recommendations, the recent Home Office review of filtering, and the legal challenges to the filtering rules present an opportunity for the Government to be proactive, although its response to the Taylor review suggests that nothing will happen until the legal cases have been resolved. Unlock hoped to hear today about practical measures to take forward—not just for those who acquired criminal records as children, but also as young adults, because having a criminal record and being forced to disclose it affects people for the rest of their lives. While some records may need to be disclosed, the challenge is to establish how and where to draw the line.

It was noted that a 2015 court case on the non-filtering of minor offences (the case of P and A) found that the current regime was in breach of Article 8 of the European Convention on Human Rights. The Court of Appeal will consider the Government’s appeal in February 2017.

Bob Ashford explained that fifty years ago, as a 13 year old boy, he was playing with a group of other young boys caught trespassing on a railway track. One of the boys had an airgun, although he did not touch it. He pleaded guilty to trespass on a railway and possession of a dangerous weapon, and was fined. After training as a social worker, he had to disclose these offences when he applied for jobs, and found he was not getting interviews. Eventually he obtained work within the justice system, progressing over time to be the head of a Youth Offending Team.

Mr Ashford’s criminal record became less important over the course of his career and he advanced to a very senior level in the Youth Justice Board. However, his offences still had to be disclosed for visa and insurance applications. When he was selected to stand for election as the Police and Crime Commissioner (PCC) for Avon and Somerset—a role that would use his skills and background—he discovered that he would be barred from holding office because of his offences, in spite of his career and lack of reoffending, and decided to stand down as a candidate. Falklands veteran Simon Weston had a similar experience. To draw attention to this issue on behalf of others as well as himself, he sought extensive media coverage, much of which was supportive. As a result people started contacting him with their stories. He began to understand the huge impact that criminal record disclosures can have on individuals’ lives, especially when they had to disclose historic offences of which family and friends were unaware. Following this, Mr Ashford set up his campaign, Wipetheslateclean, which aims to change the legislation for PCC elections and the disclosure rules more generally. He is particularly concerned about the lack of information for young people on the requirement to disclose multiple out of court disposals for the rest of their lives; the lack of information on the implications of different sentences prevents them from making informed choices about what is being offered by the police.

It was noted that someone with a criminal record can become a local authority councillor or Mayor, a Member of Parliament or a police chief constable, but not a PCC because this is barred by statute.

Anna Boehm spoke about the work of the Standing Committee on Youth Justice (SCYJ), which campaigns for improvements in the youth justice system. Over the past two years SCYJ has focused on youth criminal records, commissioning comparative research on disclosure regimes in many other countries; this found that the system in England and Wales is much more punitive than in other countries where a rehabilitative approach is taken.

In England and Wales, the SCYJ has identified the following problems:

SCYJ believes that most children grow out of crime, and is calling for childhood criminal records to be wiped after a period of time—say, ten years—and for a presumption that police intelligence is not disclosed at all. It is also calling for substantial changes to the filtering system and to rehabilitation periods. Anna noted that the Taylor report recommended reforms to the system for childhood criminal records, including limits on disclosure of intelligence, and that similar recommendations had been made by other reports over the last few years, such as the report of the Carlile inquiry. SCYJ welcomed the current inquiry of the Justice Committee and would be happy to provide further assistance to it.

Asked about an appropriate threshold of seriousness for disclosure, Christopher Stacey responded that the Rehabilitation of Offenders Act takes into account the length of sentences. The filtering system operates with blunt categories—for example, DBS cannot filter specific offences or any sentence of imprisonment. There should be scope for discretion. Sentence length would be a better determination. Bob Ashford observed that children make stupid mistakes but mature as they grow up. On principle, they shouldn’t be pulled down by what they did when they were young. On the other hand, the public has to be protected—it is a matter of finding a balance. Wipetheslateclean has made some quite detailed proposals on this. Anna Boehm agreed with the view that ‘disposal’ (i.e. the level and type of sentence) is better for determining seriousness than the type of offence. She accepted that, for particular jobs, some offences are relevant—but it was important to consider when an offence ceases to be a reliable predictor of reoffending. SCYC maintains that all offences should be eligible for ‘wiping’ after ten years, provided the person has not reoffended; at that point, the chances of reoffending become similar to those of someone who has never offended.

Asked why employers could not be trusted to make reasonable decisions, Bob Ashford accepted that many can be trusted, but in his experience others do use criminal records as a criterion for rejecting candidates when sifting through high numbers of applications. Certain online application processes block candidates from going further once they have ticked the box for ‘criminal record’. Christopher Stacey said that, because of this problem, many people with criminal records were put off from applying from jobs in the first place. In this area, excellent work is being done by the ‘Ban the box’ campaign (which is calling on employers to ask about criminal convictions later on in the recruitment process). Anna Boehm agreed with both points, adding that employers often lacked information on the detail and context of offences.

The three panel speakers agreed that there was scope for radical proposals for changing the system, although these had to be achievable, taking into account public safety and acknowledging the impact of public perceptions.

The seminar then broke into two smaller groups.

Table 1 discussion

The names of participants have been changed to protect their identities.

Jason described himself as having been a ‘difficult teenager’. He had been convicted of resisting arrest and ABH when he was sixteen, because of an incident when out drinking with a group of friends on the last day of school. He was sentenced to six days at an attendance centre. Because of this, he was rejected for a job with the local council. He got a place at university; his criminal record did not have to be disclosed to make this application, as no placements were involved on the course. After qualifying, he tried to get work in the social care field, but at interviews he would always undergo extensive questions about his criminal record. He was also turned down for three volunteering roles. Overall, he has been rejected for around fifty per cent of the positions he applied for. With online applications, he would sometimes not disclose his criminal record but after getting through the application process, the employer would apply for a DBS check and then tell him that he didn’t satisfy the job criteria after all. The jobs that Jason was most interested in were the ones working with children, which were rated as high risk. It took him eight months to find a job, making between thirty-five and forty-five applications. He now works on substance abuse issues with young people in schools. The schools often ask to see his DBS checks; in some cases this had let to them insisting that a teacher sits in with him; however, he has had a lot of support from his supervisor who has raised this issue with the schools concerned.

Natasha, now aged 32, explained that she had been convicted of three offences, two of which are now ‘filtered’—one public order offence, and another for theft (for which she got a caution). At the age of twenty, she was given a caution for ABH because of an incident where she tried to defend a friend of hers who was being assaulted by ‘glassing’. She was arrested, along with the perpetrator of the assault. Her statement did not match the statements of the other group involved in the fight, although it matched the statement of her friend. Without a solicitor present, she accepted a caution for what the police said was common assault. She later found out that the caution had been for ABH when this came up on a disclosure. She has had more than a dozen rejections because of her criminal record. Fortunately she managed to get work in the health and social care sector, where she has been for ten years, and currently works for a charity. But in spite of having good references, she was recently refused a place on a nursing master’s course. Her DBS check simply states that she has had a caution for ABH, but gives no further details, and “for an employer to see ABH, that conjures up lots of things”. Natasha felt discouraged from applying for work in this sector as she was tired of disclosing her criminal record, but did not think that her offence warranted this treatment. She questioned why there was no discretion about disclosure on an enhanced certificate; she has three children and has worked with different types of vulnerable people, which she would not be able to do if she presented a risk.

Asked whether she would want this information if she herself was an employer, Natasha accepted that she would want to know if someone had recently offended. But she thought that offences over ten years old should be filtered, unless there had been further offending. If a disclosure had to be made, then there should at least be more information about the context in which the offence happened.

Questioned on whether parents should warn children that the consequences of doing something wrong would stay with them for the rest of their lives, rather than giving them a message that the slate would be wiped clean, Natasha responded that good parenting meant that children should be told there would always be consequences, irrespective of the legislation. Christopher Stacey pointed out that people did not necessarily commit crime rationally, in a way that allowed them first to step back from the situation to consider their options.

Sam said that he had dropped out of school at sixteen; he was drinking a lot and hanging around with the wrong type of people. Without qualifications, he couldn’t get a job. At seventeen, he was convicted for shoplifting and motoring offences (speeding and driving without insurance), then convicted again at eighteen. After that, he struggled to find work apart from occasional agency jobs and was put on youth training programmes. At the age of 24, he was convicted for ‘bouncing’ cheques. He was put on probation but violated the conditions, then got convicted again. As a result of this, he has three convictions for multiple offences. He is now in his forties, and has had ‘hundreds’ of rejections over the years. He learned to apply for jobs that did not require a DBS check and was fortunate in finding employers who wanted to give him an opportunity. He now has to disclose his record but, since the Rehabilitation of Offenders Act and the filtering system, he has found that employers are not so judgmental. He now works in a probation hostel with high risk offenders, serves in the army reserves, and is in his final year at university, doing a criminal justice degree. He commented that some of the big security companies will not hire people with a criminal record, even if the offending happened a long time ago. In his case, they would sometimes let him progress to the interview stage, only to tell him that it was their policy not to employ people with criminal records. Travelling to the USA also presents a problem; he is due to go there as part of the army reserve.

Ben explained that he had become involved in drugs before going to university, and while at university his involvement became ‘criminal’. During his second year the police raided his house and he was convicted of possession of cannabis and ketamine (although he could have faced more serious charges). He was fined for these offences. After graduating, he applied for over 200 jobs over the course of a year and received no responses. He attributed this to having ticked the box confirming that he had a criminal record. This propelled him further into crime, although he managed to avoid getting any further convictions. A year after leaving university, he decided to sort out his life; he also came to realise that not disclosing his criminal record was the only way to get a job. For the last five years, this approach has worked, although he has been at risk of losing jobs if his employers found out about his convictions—as has happened to some of his friends. His record was now spent, so it would only show up on enhanced DBS checks. Ben would really like to work with drug addicts, but would not be able to get a job in this field at present. He is currently doing a master’s degree in public policy, for which he did not need to disclose his record. In his view, certain types of non-violent and non-fraudulent crime should not have to be disclosed; convictions should only be disclosed if they will affect someone’s ability to do the work. The current system is very unhelpful for young people as it prevents them from moving away from crime. He knows people who were in the same situation as himself who are now in prison.

No participants had run into difficulties getting insurance or housing, other than Jason, who had been required to disclose his criminal record when he applied for emergency housing. Natasha said that one of her clients at the charity where she works had an arson conviction, which was difficult to overlook in relation to housing. Sam commented that employers are able to search Google and Facebook to find out whether job applicants have a criminal record, even if there was no obligation to disclose it when making the application. There was always a risk that an employer would find out in this way—although if the conviction had become spent, employers tend to respect this. In an ideal world, people would disclose everything, but in reality, employers make judgements. People can ask to get themselves removed from Google searches but their requests are not always accepted (and information remains in newspaper archives in any event). Asked what they thought employers should know, participants considered this would depend on the offence, on how long since the person had offended, and what they had done since. Ben noted that employers used criminal records as a system for sifting applications because they got so many applications, especially from young people. He had been in situations where he was sure that the employer wanted to hire him but could not do so because of company policy. Asked what the solution was to this problem, Ben said that the Bristol drugs awareness courses were the best thing he know of for preventing criminal records. These course are non-punitive and attendance would not be recorded.

On the distinction between children, young adults and adults, participants agreed that maturity did not necessarily come with adulthood and one participant was aware of studies indicating that many young people were not mature until the age of 24. Jason commented that young people often did not think about the long term consequences of their actions. It was noted that many other countries handle criminal records differently–for example, in some states of the USA, offenders can petition the court after five years to ask to have their records expunged. Sam pointed out that certain people who have never been arrested may be as likely to commit crime as those who had been convicted, and that individuals who have committed crimes without being caught don’t face the same barriers as those with convictions. Natasha said that she had been shortlisted for some jobs because the HR department did not disclose the relevant section of her application to the panel, but then at the interview her criminal record would come up “and the whole conversation suddenly turns sour”. She also said that she had wanted to apply for a property assistant role that did not require a DBS check, but the organisation’s website said that some roles did require a DBS check, which put her off applying.

Christopher Stacey thought there was sufficient evidence of the detrimental effect of the current system of disclosure to support a more proportionate approach. The public did not realise that people get punished for the rest of their lives. Employers should have a clear policy on dealing with criminal records; sometimes they receive irrelevant information but think that they cannot ignore it and so they reject the person.

Table 2 discussion

The names of participants have been changed to protect their identities.

Anita, who is 27, said she had received two reprimands as a child. She had been given the first one at the age of 11 for arson, after causing £100-worth of smoke damage in a school toilet by setting fire to toilet roll when playing with a lighter with friends. The second reprimand had been given at the age of 14 for ABH, when she hit another pupil in the playground in self-defence. She explained that her mother had not realised the severe consequences of accepting the reprimands on her daughter’s behalf. The police had told her mother just to sign the form and although she could not recall having been told about the implications of doing so, she had thought that it would “make it go away”. The form, a copy of which she showed Members, stated that the record would expire when she was 18 years old.

Anita is now a qualified teacher. When studying for her teaching qualification she had almost been kicked out of the university following an enhanced disclosure required for her placements. She hadn’t anticipated her criminal record would be a problem when she had applied for the course. She was now working as a college lecturer with adults as she was unable to get a job in a school. Until recently she had been working abroad (for six years), but since returning to the UK had been hit by “constant barriers” in finding supply work, despite her experience and passion for teaching. Although her convictions are spent, teaching is an exempted profession under the Rehabilitation of Offenders Act so she always has to ‘tick the box’. She noted that there was no box allowing her to indicate that the offences took place when she was under 18. She has also found it hard to get insurance.

Paulette, now aged 33, is also a teacher. She explained that she had been involved with social services from the age of 13 (after her father stabbed her mother to death) and at 16 she was convicted for importation of cannabis from Jamaica having been groomed by an older man with whom she had a sexual relationship. Soon afterwards she was convicted of a joint enterprise offence relating to a street robbery after a girl was robbed on a bus by a member of a group she was part of. She served a two-year youth custodial sentence. Since then, she had committed no offences. She could not recall whether she had been informed of the implications of her criminal record, but had had legal representation at the time. She applied to university as she wanted to become a social worker but, having discussed her offences with a panel, was told she could not do the course. She then did a series of ‘dead-end jobs’ in call centres and retail. Paulette applied again for university, told them her story and they agreed to adopt a risk assessment approach. She had to see another panel before her placement. Working through a charity, she now teaches young people involved in the criminal justice system and care leavers. She cannot, in her charity work, disclose her criminal record or related elements of her life story (despite the potential benefits of these anecdotes to her students). She had not applied to teach in mainstream education but expressed doubt about whether she could do so, because of the attitude of mainstream schools.

Kamla is a qualified pharmacist who had received a distinction in her studies. Now aged 39, at the age of 19 she received a criminal conviction for theft (stealing goods from her employer over a period of two weeks, when she had not been paid). Despite being open during the internal investigation and returning all stolen items, Kamla was still prosecuted, even though her employer was aware of her career choice. She was sentenced to six months’ probation for two counts of the same offence and was not represented by a solicitor until the point of sentencing. Initially the conviction did not hold her back. She qualified in 2000 and until 2014 she had held various positions at a hospital but had to resign because of bullying from her manager, related to her criminal convictions. She made contact with Unlock and put in an Employment Tribunal claim but did not continue with it owing to a bereavement. Following a career break, she was offered another hospital job, but this was retracted and she felt that her previous manager had jeopardised her chances. She now saw her offence as “stupid” (although she commented that other employees were doing the same thing) and felt that it had hindered her earning capacity, career options and personal relationships but had taught her to be compassionate. She was now self-employed and seeking to do a graduate diploma in law.

Lynda, now aged 43, described her upbringing within a family she described as “toxic”. Her mother was an alcoholic who had been to prison twice. The family lived in a poor area and people were “in and out of the house all the time”. All her siblings had criminal records and her brother was in prison for having killed someone. Most of her siblings had been taken into care and she and her younger sister had sporadic visits when the neighbours or schools contacted social services but overall they were ignored by the various agencies. From the age of seven, she began shoplifting biscuits as she was not fed by her mother. Aged 11, she broke into a school to be able to play with toys and draw. She was sent to the police station but her warning was not put on record, although she described herself as “spiralling down that road”. Her first conviction was at 14 for shoplifting. She felt that this had been like a cry for help: she was running away constantly and did not consider that the social workers or teachers were doing their job. She had wanted to be a prison officer but, at the age of 22, was working in retail. Her family decided she should “sort out the Christmas meal”: she was convicted for employee theft of the goods in a trolley they had filled. Subsequently, she had a conviction for drink driving when she was found to be over the limit from the previous night.

Lynda said she felt like she had been fighting against the grain, having become homeless to get out of her family environment and wanting to “prove everyone wrong”. She had done clerking for a solicitors’ firm (as the solicitor who represented her had given her a job) and had also worked with young people for two London local authorities. She had most recently applied for an administrative role, despite being over-qualified, as low-paid jobs do not require a DBS check. She felt that people did not look beyond the criminal record, “whether or not you are fantastic”. She stated “it’s like you are marked until death”.

Participants were asked how being asked about their criminal records made them feel about themselves. Anita found it mortifying and embarrassing to have to discuss offences from her childhood and have professional people “judging you” on it. She remarked that because of that piece of paper she was not treated like an employee or a human being. Kamla felt that the stigma had affected her self-esteem and caused unnecessary worry, affecting her quality of life. All participants agreed that they had not done as well as they could have done in their careers and their ambitions had been suppressed. They felt that they should not continue to be punished and stigmatised for their past. Knockbacks can have a significant impact and can lead to a loss of hope in trying to seek work, so forcing people onto benefits or even encouraging a return to criminal behaviour. They were frustrated that supportive statements, for example statements made to DBS panels, may have little effect. Two participants were motivated to help other people in similar situations. One said she “shouldn’t be reduced to a conviction—there is more to me than this”.

Participants were also asked whether they all felt there ought to be a clean slate. There was some discussion about the circumstances of the offence; for example, being in a controlling relationship at a young age, negative influence of family and environment which can continue into adulthood, and cultural and religious issues affecting social maturity. Kamla was asked whether, if she was an employer, she would feel comfortable being in the dark about someone’s offence against a former employer; at what stage, if at all, should a line be drawn under past offending? She responded by saying that everyone makes mistakes and she believed employers should be brave in considering these matters. For a regulated profession, she did not consider it should be an issue provided there were no restrictions on the licence to practice and the employee could get references. In her view, a line should be drawn after ten years.

Participants were then asked whether they had experienced any other problems relating to disclosure of criminal records—for example, with insurance, housing, or visas. Two participants had applied successfully for visas for the US and one for Australia, but they felt that the process they went through to get them was inconvenient, embarrassing and unnecessary. None had experienced housing issues relating to their criminal records.

Participants were asked whether they had ever thought of lying to potential employers about their criminal history. One had felt it necessary to take a chance, but also picked companies which were unlikely to ask for a DBS check. She also had experience of having been asked to disclose her record at an interview and then never hearing from the employers again. Some employers ask for details of convictions whether they are spent or not, which they shouldn’t do.

Finally, participants were asked why they had wanted to come and talk to the Committee. Anita wanted to see change and felt there should be a lot more education of young people and parents about the impact of criminal records. Asked whether any record should be wiped, Lynda said she believed this should happen if the offence did not lead to imprisonment, or was not serious, and the offender was a juvenile at the time. If the offender was over 18, each case should be considered on an individual basis. Even some sexual offences could be considered minor. The possibility of having an opportunity to go to a tribunal or review, or the chance to pay a fee to have the criminal record removed, were also discussed; Paulette said she would pay a fee but felt that those worst affected may be least able to pay. The list of excepted professions was also discussed, with some agreement that it was too long. There was a view that the list does not match up with public concern and public safety. Participants also commented on the absence of legal advice when accepting a caution, together with the lack of police understanding about its severity and the legal profession’s lack of understanding of the disclosure system as a whole. The tendency of some schools and carers to call the police rather than deal with matters privately was also an issue.

Conclusion

After the conclusion of the two small group discussions, Robert Neill MP thanked all the participants for giving up their time to come to Westminster, and for sharing with Members their experiences and their views on this issue.





26 April 2017