2The case for change
9.The system in England and Wales for disclosure of criminal records is complex. It has been described by the Law Commission as “an impenetrable legislative framework,” further compounded by questions of legal certainty, with a compelling case for a wider review.8 In this chapter we consider the evidence received by our predecessor Committee—together with other relevant material—on the operation of the system for disclosure of youth criminal records, and on whether it is an effective and appropriate way of rehabilitating those who offend as children or young adults. In relation to children, the overwhelming majority of witnesses considered that this was not the case, and contended that the system needed to change. For young adults, the majority of those who expressed a view thought that reform was also needed.
The extent of disclosure of youth criminal records
10.The extent of disclosure of criminal records obtained in childhood is evident from Government statistics. As of 17 October 2014, out of 11,547,847 nominal records held on the Police National Computer, 10,520,929 contained a criminal record element.9 In the year 2014/2015, the total number of standard Disclosure and Barring Service (DBS) checks on subjects with convictions (that is, where there was a PNC match for a conviction) was 31,753; of these, 27,322 were disclosed and the remainder (4,431) were filtered.10 The same year, there were 200,710 enhanced DBS checks on subjects with convictions, of which 168,420 were disclosed and 32,290 were filtered. Of the standard DBS checks, 8,268 (26%) related to subjects who were under 18 at the time of a conviction; 7,517 of these were disclosed and 751 were filtered. In total, 46,547 (23%) enhanced DBS checks were made on subjects with convictions who were under 18 at the time, of which 41,117 were disclosed and 5,430 were filtered.11
DBS standard and enhanced certificates, 2014/201512
1. Enhanced certificates: convictions filtered/disclosed:
2. Standard certificates: convictions filtered/disclosed:
3. Enhanced certificates: cautions filtered/disclosed:
4. Standard certificates: cautions filtered/disclosed:
Consistency with the aims of the youth justice system
11.The principal aim of the youth justice system is to prevent offending by children and young people.13 In addition, every court dealing with a child must have regard to the child’s welfare.14 The Government confirmed that its primary objective in youth justice is to stop people being drawn into crime “with consequent blighting of their life chances”, as well as harm being caused to victims and communities. With regard to criminal records, it recognised:
… ..that children who offend may benefit from a second chance following their earlier errors, and that current legislation allows for appropriate rehabilitation.15
12.However, the Prison Reform Trust did not think that the aims of the youth justice system were supported by the current regime for disclosure of youth criminal records, given that this largely mirrors the system applied to offences accrued in adulthood.16 According to the Youth Justice Board for England and Wales, the criminal records framework could better reflect the requirement to have regard to the welfare of the child.17 Likewise, Just for Kids Law18 and the Michael Sieff Foundation19 cast doubt on whether the current regime was consistent with the aims of the youth justice system, including the prevention of reoffending.
13.There was a clear view among many witnesses that children should be allowed to move on from their past, and that the current criminal records system acted as a barrier to rehabilitation.20 The Youth Justice Board for England and Wales pointed out that most childhood offending is transitory in nature; it is important to allow children and young people to learn from their mistakes and “not create enduring links to their offending if it can be avoided”.21 The Children’s Commissioner for England explained that child offending is predominantly unplanned and often carried out in the company of peers; it is a poor indicator of future behaviour as an adult.22 In the experience of Youth Court magistrates, children’s cognitive development can vary significantly:
Many children who come before the court are in the initial stages of developing their consequential thinking skills, and factors such as emotional and social development can be a significant inhibitor to exercising such skills. This goes to the proportionality of criminal records, which should reflect these challenges … ..23
14.We find it a matter of regret that the laudable principles of the youth justice system, to prevent offending by children and young people and to have regard to their welfare, are 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.
The impact on employment
15.In its written evidence, the Government emphasised that the inclusion of offences on a DBS certificate did not automatically prevent individuals from working with vulnerable groups, and that employers should not withdraw employment offers solely on the basis of a spent conviction or caution. Instead, they should exercise “a balanced judgement”, having regard to such factors as the nature of the offence, when it took place and the person’s age at the time; whether it was an isolated incident or part of a pattern of offending; and its relevance to the post in question. In carrying out this exercise, employers should be guided by the DBS Code of Practice,24 which emphasises the importance of openness and fairness and requires all DBS-registered bodies to have a written policy on the suitability of ex-offenders for employment in particular positions.25 NHS Employers publish one such written policy, which emphasises the need for a fair, non-discriminatory assessment.26
16.On the basis of enquiries received on its telephone helpline, the UK Home Care Association gave evidence that employers in this sector would take a risk-based approach to recruitment, balancing information on convictions with the type of work under consideration.27 However, the Criminal Justice Alliance argued that there was an inappropriate balance in favour of employers, allowing them to discriminate against those with youth offending histories.28 NACRO and Business in the Community both highlighted a reluctance by employers to take on ex-offenders, citing research that suggested a majority would use a criminal conviction either to reject an applicant outright or favour a candidate without a conviction.29 It was pointed out that, in reality, many employers operate a “tick box” system that requires individuals to disclose unspent criminal convictions on job application forms.30 There was also anecdotal evidence of widespread confusion about disclosure, leading to “maladministration” of the scheme by employers.31 Employers were also thought to be highly risk averse32 with a tendency to assume the “worst case scenario” in relation to crimes disclosed years after the event, at which point it was difficult for job applicants to provide details of the incident.33 In consequence, many ex-offenders were not applying for jobs for fear of rejection or embarrassment.34 Christopher Stacey, the Co-Director of Unlock, commented:
I would be the first to say that many people with convictions do secure jobs that involve enhanced checks, having disclosed them, but that perception is not widespread … so they do not bother applying. There is this problem across all types of employment of the way that employers recruit—in the way that they ask people to self-disclose during the recruitment process.35
17.Business in the Community pointed out that younger people with criminal records faced a triple disadvantage from lack of employment experience, lack of networks and a criminal conviction.36 Several witnesses gave evidence that barriers to employment increased the chances of an individual reoffending;37 if a child believes that their criminal record “will haunt them forever”, this encourages the development of an anti-social or pro-criminal identity.38 Ali Wigzell, Chair of the Standing Committee for Youth Justice, emphasised the link between employment and desistance. She commented:
a criminal record can act as a key barrier in that way, because it essentially labels that person as an offender and prevents them from developing a prosocial identity by gaining employment and seeing that reflect back to them by their significant others.39
18.All eight of the individuals who agreed to participate in the Committee’s private seminar had found that their employment prospects were adversely affected by childhood criminal records. One participant, “Anita”, who struggled to find work as a qualified teacher, also submitted written evidence to the inquiry.40 Many other case histories submitted as evidence illustrated the significant problems in obtaining employment faced by those with childhood criminal records. One individual explained how she was raised by drug-addicted parents who encouraged her to steal. Having had three convictions for robbery and theft, she was placed in foster care at the age of 16 and realised she had been living her life “completely wrong”. She wanted a career in nursing but discovered that she would not be accepted because of her convictions. After finding work in financial services, the company went into administration and she was made redundant. She commented:
I’ve been out of work since, not totally sure where I go from here as the enhanced [DBS] checks are being rolled out across all industries and I can’t compete with other candidates on merit/experience alone.41
19.The continuing impact of the rule preventing filtering of multiple, minor convictions is illustrated by this case history:
I have two convictions. Both happened 38 years ago when I was a juvenile. The first was for petty theft, a silly prank with two mates, for which I got a conditional discharge. The second was for ABH: I got into a scrape, pushed someone to the ground and was fined £10. Since then I’ve become a teacher. I was a Deputy Head for some 20 years, but now I’ve started supply teaching I have to explain these as if I am now a criminal.42
20.Bob Ashford, from Wipetheslateclean, attended the Committee’s private seminar and also made a written submission to the inquiry.43 He explained the impact of having acquired two minor convictions as a 13-year old. Although he was able to progress his career in social work and youth justice, advancing to a senior level, when he stood for election as Police and Crime Commissioner (PCC) for Avon and Somerset he discovered that he would be barred from holding office because of having convictions for “imprisonable” offences.44 After resigning his candidacy, he received extensive and largely supportive media coverage of his situation. As a result, he was contacted by many others facing difficulties because of historic criminal records, which led to him setting up his campaign organisation Wipetheslateclean.
21.Problems in obtaining employment were evident in many other case histories given as evidence to the inquiry; space does not permit us to summarise all of them. A consistent concern was the requirement to self-declare convictions that are unspent, using tick boxes on job application forms that were then used to filter out candidates. Business in the Community (BITC) observed:
[Employers] consider that if a conviction is unspent then it must be relevant. This ‘ticked box’ often then becomes shorthand for ‘not fit for employment’ without giving the applicant a chance to explain the circumstances of the offence and any rehabilitation that has happened since.45
22.BITC’s ‘Ban the Box’ campaign aims to bring about voluntary changes in recruitment practices by delaying the point at which job applicants have to disclose criminal convictions, allowing them to be judged primarily on merit. The campaign is now supported by 76 employers, including the civil service.46 It was endorsed by the previous Work and Pensions Committee, whose 2016 report on support for ex-offenders cited a 2016 YouGov survey commissioned by the Department for Work and Pensions, which found that 50% of employers would not consider employing an offender or ex-offender. The Committee concluded:
Ban the Box does not oblige employers to hire ex-offenders but it increases the chance that they will consider them[ … ] We recommend that the Government extend Ban the Box to all public bodies, with exclusions for the minority of roles where it would not be appropriate for security reasons. The Government should also consider making banning the box a statutory requirement for all employers.47
23.We accept that employers are entitled to know about genuine and relevant risks arising from previous criminal conduct. However, the clear difficulties in securing employment faced by people with youth criminal records, often for a lengthy period after they have become adults, leads us to conclude that too many employers fail to make an objective and balanced assessment of the relevance of ‘unspent’ criminal offences declared in job applications. While recognising that exceptions may need to be made for exempted roles, we agree with the recommendation of the 2015 Parliament Work and Pensions Committee that Ban the Box, which applies to all criminal records, should be extended to all public sector vacancies, and that the Government consider making it a mandatory requirement for all employers.
The impact on education, housing, insurance and travel
24.Our predecessor’s inquiry also received evidence that childhood criminal records created barriers to education and housing, as well as inhibiting access to insurance and visas for travel. These concerns were summarised by Just for Kids Law:
We know that having a home and a job, and engaging in education, make it much less likely children will reoffend. It seems perverse that we have a criminal record disclosure system that makes it far more difficult for young people to access these things, when disclosure is frequently unnecessary and disproportionate.48
Education
25.Witnesses pointed out that the University and College Admissions Service (UCAS) advises candidates to declare all unspent convictions and, for courses that lead to particular professions or occupations that are exempt from the Rehabilitation of Offenders Act (ROA) 1974, any spent convictions that would appear on a DBS check.49 The Standing Committee for Youth Justice argued that having a criminal record can affect children’s motivation to continue their education, because they fear discrimination and because they do not want their conviction disclosed.50 The difficulties that individuals experience as a result of having criminal records were illustrated by case histories shared with the previous Committee, such as the case of “Paulette”, one of the participants in that Committee’s private seminar, who encountered problems in accessing university education. Another individual, whose case was presented by Unlock, explained how her retaliation against a school bully had led to her receiving a police warning for actual bodily harm at the age of 15. As a result, her university place to study nursing was revoked. She appealed against the decision, which involved writing a disclosure statement explaining the circumstances of the warning to a risk assessment panel. After qualifying, she eventually obtained employment in nursing but has found career progression difficult because of her criminal record, which she is continually having to explain.
26.The Association of Youth Offending Team Managers presented several examples of cases where young people with criminal records had faced barriers to pursuing college courses. In one case, a 17 year old who had been convicted of common assault at the age of 14 was accepted onto a health and social care course. At the end of the first year, prior to her work placement, the student’s conviction was disclosed by a DBS check. The college informed her she would be unable to practise as a social worker and, as a result, she changed to a non-vocational course.51 In a similar case, a young person gained a place on a course that would have led to her qualifying as a nursery nurse. However, the college would not let her take up the place because her criminal conviction would lead to difficulties finding her a placement, without which she could not complete the course.52
27.In contrast, Sarah Newton MP, Parliamentary Under Secretary of State for Vulnerability, Safeguarding and Countering Extremism at the Home Office, took the view that it could be beneficial to disclose someone’s criminal records to an educational institution, because:
… ….it could be a critical part of their rehabilitation. Good colleges, good schools, will have services for vulnerable young people—mental health services and other support services—to make sure that that vulnerability is properly looked after. Disclosing information can be beneficial in that situation.
28.We agree that, in some circumstances, there may be advantages in vulnerable students disclosing a history of offending to educational providers that are committed to providing support to them. We also acknowledge that certain professions have stringent admission requirements requiring criminal record checks, and that it is important to avoid creating unrealistic expectations for would-be students. However, we believe that information about criminal records should not be used to create avoidable barriers to study or, where possible, to related work placements. We recommend that educational providers do not automatically use information about spent criminal records to deny access to courses, including vocational courses in health and social care. We urge providers to do everything they can to support students with childhood criminal records in their chosen field of study—for example, by giving them all possible assistance to secure work placements related to their courses.
Housing
29.We note the Ministry of Justice’s wish to see a greater emphasis on getting offenders into suitable stable accommodation as a way to tackle reoffending.53 However, others expressed concerns about the potential adverse effect of youth criminal records on access to social housing in adult life. The Localism Act 2011 restored local authorities’ power54 to exclude, by class, certain applicants they designate as “non-qualifying persons” for the purpose of their housing allocation schemes; this allows authorities to take into account past behaviour. When the Standing Committee for Youth Justice examined the housing allocation schemes operated by 30 London local authorities, it found that 13 of them contained restrictions on people with criminal records.55
30.The problems created by such restrictions are illustrated by a recent court case, where the London Borough of Hammersmith and Fulham was challenged for its refusal to add a 19 year old care leaver to its housing register because of “unacceptable behaviour”—that is, his history of offending between the ages of 12 and 15. The High Court found56 that this amounted to a breach of the ROA 1974; all the claimant’s convictions were spent and could not be taken into account. Other than the spent convictions, there was no other evidence of “unacceptable behaviour” which made him unsuitable to be a tenant. Government guidance for local authorities on housing allocation does not appear to have been updated to take account of this judgment.57
31.Notwithstanding this court decision, at least one London borough still maintains a housing allocations scheme that disqualifies those with convictions for relevant arrestable offences; it may make an exception for those who have maintained “a clear record of behaviour for at least 3 years since the offences occurred”,58 implying that spent convictions less than three years old can still be taken into account. The Standing Committee for Youth Justice pointed out that private landlords and housing associations are also free to reject potential tenants with a criminal record; for example, Camelot, the vacant property management service, states “no criminal record” as one of its vetting criteria for property guardians.59
32.We have serious concerns about local authorities continuing to frame their housing allocation schemes in a way that denies access to applicants with spent criminal records or unspent records of childhood offences that are low-level or irrelevant to their suitability as tenants. We recommend that, in relation to England, Department for Communities and Local Government guidance for housing authorities be amended as a matter of urgency to reflect the High Court’s 2016 decision on spent offences in YA v London Borough of Hammersmith and Fulham, and to clarify best practice in relation to unspent offences. We also draw the attention of the National Assembly for Wales to this issue.
Insurance
33.Insurance companies are entitled to ask customers for details of unspent convictions and to take these into consideration during the application process. Guidance from the Association of British Insurers explains that it is common practice for insurers to take into account only those offences that are relevant to the type of cover, such as motoring offences for car insurance. The guidance also states that:
There is nothing in … the ROA … to prevent an insurer from asking an open question about all convictions, but if a conviction is spent the proposer can legally state that it does not exist. Furthermore, if a spent conviction is disclosed, the insurer is under a statutory duty to ignore it if it was spent at the time of disclosure.60
34.In spite of this clear guidance, there was evidence that having a criminal record, including spent offences, can affect a person’s access to insurance products. A ‘mystery shopper’ exercise conducted by Unlock in 2016 found that 31 household insurers asked questions about convictions or had assumptions about convictions that were misleading. None of them referred to the ROA 1974 or to the fact that spent convictions need not be disclosed. There were similar findings for motor insurance providers. When the mystery shoppers tested insurers’ responses to being informed about convictions that were spent, two providers quoted higher premiums and six refused to quote.
35.In oral evidence to the previous Committee, Christopher Stacey from Unlock explained that car insurance was often important for young people and that insurance companies regularly asked questions such as, “Do you have a criminal record?” without making it clear that people did not need to disclose convictions that are spent. With regard to unspent convictions:
… it is very difficult to find insurance through the mainstream market. Insurance companies take the view, without any real evidence to show this, that they believe people are higher risk with a criminal conviction. The specialist insurers that do exist here, who sometimes charge more … show the customers who are disclosing a criminal record to be much lower risk.61
36.In response to a request by the previous Justice Committee, the Financial Ombudsman Service reviewed complaints about criminal convictions being used as a reason to decline insurance cover. Although its recording system could not generate data on complaints specifically relating to youth criminal records, it provided two examples of cases involving adult criminal records. In one case, a motor insurance provider cancelled an existing customer’s policy on discovering that she had a spent conviction. In response to her complaint, the insurer suggested that it was the customer’s responsibility to know she did not have to disclose a spent conviction, and reasonable for the provider to take into account any conviction disclosed. The Ombudsman concluded that it was unfair and unreasonable for the customer to be penalised for her honesty. While the Ombudsman was able to impose a financial penalty on the insurer, there was no power to change their policies or processes—that was a matter for the Financial Conduct Authority.62
37.We are concerned by evidence that some insurance providers are wrongly declining cover or quoting higher premiums for applicants who disclose records of spent childhood offences, or unfairly taking into account unspent offences that have no relevance to the type of insurance cover. We recommend that the Financial Conduct Authority consider undertaking a thematic review of this issue within the insurance sector. We further recommend that guidance from the Association of British Insurers be strengthened to leave insurers in no doubt that they must not expressly or implicitly request customers to disclose spent offences, and that unspent offences should be taken into account only if they have relevance to the type of cover. We further recommend that the ABI take steps actively to promote the guidance among its members.
Travel
38.To obtain a visa to travel to certain countries, notably the USA, travellers may be required to disclose criminal records. The US Visa Waiver Programme (VWP) is normally used by those staying less than 90 days. For people travelling for longer periods or who have been arrested or convicted of certain offences, the VWP is not available; they must instead apply to the US Embassy for a visa.63 The disclosable offences are those resulting in serious damage to property, or serious harm to another person or government authority (previously referred to as “crimes of moral turpitude”) and violations of any law relating to possession or distribution of illegal drugs. Applicants for USA visas must provide a police certificate issued within six months of the date of the visa interview. It was pointed out by CRB Problems Ltd that such certificates would disclose all spent convictions, including those that would normally be filtered from an enhanced DBS certificate.64
39.Robert Pinnock submitted evidence of his recent experience of being refused a visa for the USA, in part because he had disclosed his convictions from the 1970s, one of which was for actual bodily harm “despite the fact I was stopping a boy getting a beating”.65 Several participants at the Committee’s private seminar were also affected by visa restrictions arising from their childhood criminal records. The Association of Youth Offending Team Managers also gave examples of families cancelling pre-planned holidays to the USA after their children had been arrested for criminal offences.66
40.We have no remit to comment on the visa practices of other jurisdictions, but we conclude that these can also have a disproportionately negative impact on would-be travellers with criminal records acquired in childhood. We recommend that the Foreign and Commonwealth Office raise these concerns in discussion with relevant governments.
Rehabilitation periods under the ROA 1974
41.The Rehabilitation of Offenders Act 1974 (ROA) enables criminal offences to become “spent” after specified periods of time, relating to the disposal for the offence.67 The Government did not explain the rationale behind the rehabilitation periods under the ROA, including the 2014 revisions.68 It was pointed out that, while rehabilitation periods were reduced for many disposals, they were increased for others, including some Youth Rehabilitation Orders (YROs) and Detention and Training Orders (DTOs).69 The previous Committee’s inquiry received evidence suggesting that these changes had limited value in moderating the impact of the disclosure regime. As the Information Commissioner’s Office pointed out in evidence, rehabilitation periods only have an impact on basic DBS certificates; around four fifths of applications are for standard or enhanced DBS certificates, which reveal details of both spent and unspent convictions in any event, subject to filtering.70 While evidence submitted by a group of school pupils expressed quite mixed views on the length of rehabilitation periods,71 the Standing Committee for Youth Justice referred to the new rehabilitation periods as “lengthy” and pointed to their negative impact on children trying to access work or housing, especially on those who had no history as employees or tenants.72
42.NACRO thought it anomalous that less serious disposals such as endorsements for motoring offences, conditional discharge orders, compensation orders and restraining orders are “unspent” for longer periods than community sentences or certain custodial sentences.73 In oral evidence, Christopher Stacey from Unlock noted that motoring offences take five years to become spent, a technical anomaly that often affects young people.74 Some witnesses75 considered that there was no consistent rationale or evidence base to support the new rehabilitation periods for children.
43.The Government did not provide the rationale behind the current rehabilitation periods, and some witnesses suggested that none exists. The evidence we have considered also leads us to conclude that the 2014 revisions did not go far enough, and we are particularly concerned that, for some DTOs and YROs, the rehabilitation periods have in fact increased to a level that appears disproportionate.
Operation of the filtering scheme
44.Much of the evidence set out above illustrates the practical impact of the filtering scheme76 on individuals with criminal records acquired in childhood, particularly in relation to employment. Sarah Newton MP, the Home Office Minister, described the filtering process as “very open, transparent and rules-based… so that anybody can see what the rules are”. The Minister also assured the previous Committee more than once that the regime was kept under constant review.77 On the other hand, NACRO described the filtering scheme as “complex and arbitrary” and difficult to understand, including for individuals seeking to discover whether their offences would qualify for filtering.78 The regime was also described as “blunt, restrictive and disproportionate”79 and as “not working effectively” to eliminate less serious offences from disclosure.80 It was argued that the list of non-filterable offences—which applies to both adult and child offenders—is too inclusive, and that automatic disclosure of some offences might be unnecessary.81 The Children’s Commissioner for England pointed out that the qualifying period for filtering youth convictions—five and a half years—represented a greater proportion of a child’s life than the qualifying period of 11 years that applies to adult offenders: “For example, a child convicted while aged ten would have to wait for a period equivalent to more than half their life before their record would be eligible for filtering.”82
45.Many witnesses discussed the rule that prevents filtering of multiple convictions and custodial sentences irrespective of the type of offence. Although this approach was supported by the Office of the Police and Crime Commissioner for Staffordshire,83 other witnesses were critical of it. The Standing Committee for Youth Justice expressed concern that the multiple convictions rule was having a “significant impact” on children, as indicated by the disclosure of many otherwise filterable convictions for offences such as shoplifting and possession of cannabis. According to the Children’s Commissioner for England, there is no evidence to suggest that having committed more than one offence is predictive of a greater risk of continued offending in adulthood; on the contrary, there is considerable evidence that most children stop offending as they mature.84
46.Multiple cautions, as opposed to convictions, can be filtered after two years if the person was under 18 at the time of the offence—but any caution relating to a listed offence is non-filterable, so will be disclosed on a standard or enhanced DBS check. It was suggested that young people, especially those in vulnerable situations, might accept a caution from the police without the benefit of legal advice; this also avoided the prosecution being required to prove in court that the offence was committed.85 In addition, there was evidence of children accepting a pre-charge caution for a more serious offence than the one that the police would have charged them for—for example, a caution for actual bodily harm (which cannot be filtered) instead of common assault.86
47.Angela Grier and Terry Thomas from Leeds Beckett University suggested that, overall, the filtering regime reflected a wider move towards a “precautionary risk” approach, whereby risk-based policies seek to avoid a “worst case scenario” rather than being seen as a probability calculus.87 The Government tendency towards risk aversion was acknowledged as a concern by the Justice Minister, Dr Phillip Lee MP, who observed:
The problem is that the list of exceptions grows and the list of circumstances in which we had better err on the side of caution grows. Be assured that I constantly keep looking at that because I want to give as many children as possible a second chance.88
48.The filtering system is rules-based, but we do not accept that these rules are open or transparent or that a rules-based system offers sufficient flexibility. Our predecessor’s inquiry received overwhelming evidence of the harsh impact of the system on those who offend in childhood, arising in particular from the five and a half year qualification period before filtering is permitted, the multiple conviction rule and the serious offences rule. We conclude that too many childhood offences are unfiltered, undermining rehabilitation and denying children the “second chance” to which the Justice Minister is committed. We further conclude that the filtering system is wholly inappropriate for records of childhood offending and should be radically revised as a matter of urgency.
49.Most sexual offences are non-filterable, including the sharing of indecent photographs of children.89 The particular issue of child sexual offenders was considered by Barnardo’s, drawing on its own experience which “clearly shows that many of the children who sexually abuse do so because of their own history of neglect, maltreatment and abuse.”90 Through providing therapeutic support to such children, the charity has concluded that their propensity to reoffend is very low. The profound long-term impact of having a childhood criminal record for a sexual offence was illustrated by evidence submitted to the Committee by a man who was cautioned for downloading a small amount of ‘under-age’ pornographic material at the age of 16, ten years ago. He described himself as “immature and inexperienced, delving into pornography when I was too young myself” and commented: “A caution is supposed to be a low level punishment but as it stays on my record, it truly isn’t.”91
50.Sharing indecent photographs of children in the form of “sexting” between young people has been identified as a growing problem.92 In oral evidence, the Minister, Dr Phillip Lee MP, acknowledged the difficulties in determining when sexual behaviour between children amounted to criminal activity;93 and the Home Office Minister, Sarah Newton MP, suggested that it could be difficult for young people to understand the age of consent or which activities were crimes, “and then they find themselves with quite severe criminal penalties and are put on the sex offenders register.”94 Christian Papaleontiou, Head of the Public Protection Unit at the Home Office, explained that the recent adoption of Outcome Code 16, together with relevant guidance on sexting, allowed the police to record this activity as a crime where, in the public interest, no formal action would be taken.95 This policy change means that sexting does not appear on a DBS certificate, other than at the discretion of the police as part of non-conviction intelligence. However, it was pointed out by the National Chief Police Council’s Children and Young People (NPCC CYP) Portfolio that this leaves unresolved the position of those with earlier childhood records of sexting offences:
This reflects a change in the policing approach, and therefore has implications to those young people who committed offences at a time when policing was focused on detections for offences as being the most important factor, rather than preventing young people entering the criminal justice system.96
51.We do not think that the difficult problem of sexual offending by children is assisted by giving them a record of a non-filterable sexual offence. We note the inconsistency between the current police response to “sexting” by children, designed to prevent them from entering the criminal justice system, and the previous policy of taking formal action. While we commend this change in policing approach, we are concerned about the implications for children whose “sexting” offences pre-date the policy change, acquiring non-filterable criminal records as a result.
The Law Commission’s review of non-filterable offences
52.In February 2017, the Law Commission published a report of its review of the operation of the filtering system, undertaken at the request of the Home Office.97 The review concluded that the list of non-filterable offences lacked coherence and that the complexity of the legislation, owing to its multiple sources, made it hard to understand and inaccessible to users—especially those who are not lawyers. The “operational list” of non-filterable offences used by the DBS also created uncertainty for individuals. For example, some offences appear to have no basis in statute and certain new offences have been omitted from the list. The Commission recommended that, in the future, an improved single list should be created.98 However, this should be considered in the context of a wider review of the disclosure system, which might include relaxing the rules that exclude multiple convictions and custodial sentences from being filtered.99 The report also observed that:
The system might be regarded as disproportionately harsh in its effect on young offenders. There is an argument that some offences, although they may justifiably be non-filterable when committed by an adult, should be allowed to be removed from the record after a time in the case of a young offender.100
53.We commend the Law Commission’s detailed and authoritative report on non-filterable offences, and endorse its conclusions on the complexity and inaccessibility of the filtering system and its recommendation for a wider review of the whole disclosure system, a matter to which we return below.
Compatibility with Article 8 of the European Convention on Human Rights
54.The Information Commissioner’s Office (ICO), which has responsibility for data protection, concluded that the filtering system was in breach of the requirements of Article 8 of the European Convention on Human Rights, which protects the right to respect for private and family life:
Any scheme without the sufficient flexibility to permit the use of discretion and judgment on the part of the data controller is likely to fall foul of Article 8…101
The ICO went on to observe that, while a thorough consideration of individual circumstances in every application would “prove prohibitive, in terms of cost and speed”, any regime needed to be able to consider factors that would ensure disclosure of personal data was a proportionate and necessary intrusion into the person’s privacy.102
55.The compatibility with Article 8 of the rules on non-filterable offences was the subject of a Court of Appeal decision in May 2017. In the linked cases of P, G, and W,103the court considered whether automatic disclosure, without any right of appeal, of multiple convictions and serious single offences was compatible with Article 8. The claimant P, while suffering from undiagnosed schizophrenia in her early thirties, had been convicted of theft and failing to surrender to bail; the claimant G, when aged 13, had received two reprimands for child sexual offences relating to younger children; and the claimant W, at the age of 16, had been convicted for actual bodily harm, receiving a conditional discharge.
56.The Court of Appeal concluded that the multiple conviction rule and the serious offence rule, without a mechanism for refinement, were not “in accordance with the law” as required by Article 8(2) of the Convention. The multiple conviction rule applies irrespective of the offence, the type of disposal, the time that has elapsed or the relevance of the information to the prospective employer; and the serious offence rule, although based on the nature of the offence, does not allow proportionality to be examined in relation to the other factors.104 However, it was for Parliament, not the courts, to devise a system that would more finely balance the rights of individuals to put their past behind them with the need to keep the public safe; it might be sufficient to change the filtering system rather than introducing an individual right of review.105 In response to this decision, the Government has appealed to the Supreme Court; the case is expected to be listed for hearing in the summer of 2018.
57.We note that the observations of the Information Commissioner’s Office regarding the compatibility of the current disclosure scheme with Article 8 of the European Convention chime with the conclusions of the Court of Appeal’s important decision in May 2017, the latest in a line of recent judgments regarding the compatibility of the regime with human rights standards. We regret the Government’s decision to appeal against this recent judgment rather than tackling the urgent need for reform without further delay.
Disclosure of police intelligence
58.When an enhanced DBS check is requested, a relevant chief police officer must be asked to provide any additional non-conviction information about the subject that they reasonably believe to be relevant for the purpose of the certificate. Evidence to the previous Committee’s inquiry indicated fewer concerns about the disclosure of non-conviction information from the Police National Database (PND), compared to concerns about the system for disclosing records of offences. The Government drew attention to the statutory Home Office guidance to chief officers of police on discharging this function, and to the role of the Independent Monitor in providing a disputes process for an individual to challenge inaccurate or inappropriate disclosure; the Independent Monitor also reviews a sample of cases every year. The Government pointed out that the Independent Monitor’s annual report for 2014 noted no significant areas of concern in this regard.106
59.The Information Commissioner recognised that an element of judgment and discretion is built into decisions about disclosing police intelligence, that chief police officers are required to take Article 8 human rights considerations into account, and that the role of the Independent Monitor provides a further safeguard. The Commissioner was “broadly satisfied that the framework … achieves the right balance between public safety and the right to privacy of the applicant.”107 However, CRB Problems Ltd was concerned that, even if a reprimand or caution is filtered from disclosure, the incident in question generally remains on the PND; the police therefore have a discretion to disclose it as non conviction information on an enhanced certificate.108 Christopher Stacey from Unlock was worried about potential inconsistencies between the disclosure practices of different police forces, and about the fact that, in practice, it falls on young people to proactively challenge a police force disclosure.109 Both Unlock and the Standing Committee for Youth Justice argued that there should be a presumption against disclosure of police intelligence relating to under-18s, as part of a distinct approach for children.110 We note that a similar recommendation was made by the Taylor Review of the Youth Justice System in England and Wales.111
60.We recognise that the regime governing the disclosure of police non-conviction information benefits from having an independent review mechanism and that chief police officers use their discretion in deciding whether disclosure should be made. However, allowing discretion within decision-making may lead to inconsistency between police forces. To support consistency, we recommend a rebuttable presumption against disclosure of police intelligence relating to under-18s, including of information relating to a reprimand or caution that would otherwise be filtered from a DBS certificate.
Discriminatory impact of disclosure regime
61.Several witnesses considered that the disclosure regime caused secondary discrimination for certain groups already disproportionately represented within the criminal justice system. The NPCC CYP Portfolio expressed concern about the over-representation of Black and Minority Ethnic (BAME) young people within the criminal justice system,112 as did Professor Liz Campbell of the University of Durham,113 Angela Grier and Terry Thomas from Leeds Beckett University114 and the Greater Manchester Youth Justice University Partnership.115 According to Ministry of Justice statistics for 2014, compared with the White ethnic group, “stops and searches” were four and a half times more likely to be carried out on those from the Black ethnic group and twice as likely to be carried on those from the “Mixed” group. Proportions of stops and searches resulting in arrests were also higher for these groups. The statistics also show that, compared to other groups, members of the Black ethnic group were three times more likely to be given a caution.116 The over-representation of BAME young people within the youth justice system has also been highlighted by the report of the Lammy Review, led by David Lammy MP.117
62.A disproportionate impact of the disclosure regime on looked-after children was also identified.118 Research evidence cited by Greater Manchester Youth Justice University Partnership suggested that children in the care system often commit offences that reflect their troubled backgrounds, characterised by loss of emotional control, aggression, and a disregard for enforced boundaries. The Criminal Justice Alliance pointed out that those in care settings tend to be criminalised for minor infringements and indiscretions that would be dealt with informally in a family home.119 This was illustrated by a case study, submitted by Just for Kids Law, of a physically abused child who had multiple convictions for assaults on care home staff committed between the ages of 10 and 12, due to his inability to cope with normal physical reactions.120
63.Witnesses also remarked on the discriminatory impact of the disclosure regime on people whose criminalisation as children was linked to mental health problems—especially if they had been sectioned;121 to autism; or to depression caused by post-traumatic stress.122 CRB Problems Ltd gave an example of a client who was:
…suffering from autism some years ago when treatments, help and support for such sufferers was hardly available, was in fact taken into care and when the home had problems with him—due in fact primarily to his condition—he ended up with 2 convictions, which under the present filtering rules will never be filtered off.123
64.There was also evidence of disproportionate impact on two other groups. The Nia Project highlighted that the disclosure of prostitution-related offences committed by women and girls under the age of 18 creates “a huge barrier to women who wish to exit from what is essentially an abusive trade.”124 The Project pointed out that “prostitution is often a survival strategy”, making it highly likely that those with prostitution-specific criminal records have multiple convictions that will never be filtered.125 Evidence submitted to the previous Joint Committee on Human Rights by the Project for the Registration of Children as British Citizens has highlighted that, applying the “good character” requirement, the Home Office may refuse British citizenship to children with criminal convictions, many of whom do not have leave to remain in the UK, even though they may have been born in this country or arrived at a very early age.126
65.Our conclusion that the criminal records disclosure regime needs to change is supported by evidence of its discriminatory impact on BAME children, children within the care system, girls forced into prostitution and children seeking to become British citizens—an impact that is very likely to follow them into adulthood, to the further detriment of their life chances.
The UN Convention on the Rights of the Child and the Beijing Rules
66.The UK has international law obligations under the UN Convention on the Rights of the Child (UNCRC), which it ratified in 1991. Article 3(1) of the UNCRC makes the best interests of the child a primary consideration “[i]n all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies …” According to Article 40(1), the treatment of children who infringe the penal law should take into account their age and the desirability of promoting their reintegration into society; Article 40(2)(b)(vii) requires every child to have their privacy fully respected at all stages of penal law proceedings; and Article 40(3) expects States Parties to promote the establishment of penal laws and procedures “specifically applicable to children”.
67.Building on these Articles of the UNCRC, the UN Committee on the Rights of the Child has recommended that diversion from judicial proceedings should lead to a definite and final closure of the case, without the child in question being treated as having a criminal record or previous conviction.127 The Committee has also recommended that, in normal circumstances, a child’s name should be automatically removed from criminal records when they reach the age of 18.128 In addition, the UN’s so-called “Beijing Rules”129 require records of juvenile offenders to be kept strictly confidential, with access limited to authorized persons.
68.Many witnesses to the inquiry suggested that the system for disclosure of youth criminal records falls short of the UK’s obligations under the UNCRC, by not being distinct from the regime for adults, working against the aim of rehabilitating children, and undermining children’s privacy.130 We also note that in its concluding observations on the UK’s fifth periodic report, the UN Committee on the Rights of the Child recommended that the UK ensures that diversion measures do not appear in children’s criminal records.131
69.When the Minister, Dr Phillip Lee MP, was asked in the oral evidence session whether the criminal records system aligns with the UK’s responsibilities on the rights of the child, he responded:
I am confident that the system, as it currently stands, is in line with what the UN has concluded. We have a system that stands comparison with anywhere else in the world, to be honest with you.132
70.We do not share the Minister’s confidence that the current system for disclosure of youth criminal records is consistent with the UK’s obligations under the UN Convention on the Rights of the Child, General Comment No 10 of the Committee on the Rights of the Child and the Beijing Rules; indeed, we conclude that the current framework may well fall short of these obligations and requires significant reform.
Criminal records acquired by young adults
71.The previous Committee’s inquiry also sought views on whether the regime for youth criminal records should be extended to disclosure of offences committed by older people, for example up to the ages of 21 or 25. The case of “Kamla”, one of the participants at that Committee’s private seminar, illustrates how acquiring a criminal record can have a profound impact on a young adult’s life. One witness said that his non-filterable conviction for actual bodily harm at the age of 18 was still creating barriers to employment, 37 years later.133 Another individual thought that people between 18 and 22 still had a “teenage” way of thinking.134 Richard Curen, who offended at the age of 20, described himself as “naïve and immature” and argued for a different approach for criminal records acquired under the age of 21.135 Transition to Adulthood (T2A) welcomed the Committee’s decision to extend the inquiry to disclosure of young adults’ offending, pointing out that this was consistent with the conclusions of its inquiry into the treatment of young adults in the criminal justice system. T2A argued that employment, housing and good health were key factors in reducing a young adult’s offending, and called for a distinct approach to criminal records disclosure that promotes desistance from crime. The organisation reminded the Committee of its conclusion that young adults:
…who decide no longer to commit crime can have their efforts to achieve this frustrated both by their previous involvement in the criminal justice system due to the consequences of having criminal records, and limitations in achieving financial independence due to lack of access to affordable accommodation or well-paid employment as wages and benefits are typically lower for this age group.136
72.Likewise, the Association of Youth Offending Team Managers questioned the assumption within the legal system that young adults are fully responsible, referring to research that suggests “adulthood is not something which people reach on their 18th birthday.” The Association supported changing the regime for disclosing young adults’ criminal records, to bring it in line with the provisions for care leavers (who are entitled to support until the age of 21, or 25 if they are in full time education or have a disability).137 A more nuanced approach for the criminal records of young adults was also recommended by Greater Manchester Youth Justice University Partnership,138 Angela Grier and Terry Thomas from Leeds Beckett University,139 Business in the Community140 and the Police and Crime Commissioner for Staffordshire.141
73.When asked in the oral evidence session to comment on this issue, the Minister, Dr Phillip Lee MP, thought that there would be a problem in “arbitrarily” deciding to give different treatment to people aged between 18 and 25:
… .because you can find some individuals who are emotionally immature, reach 25, reflect upon their behaviour and realise that they were wrong. There are others who do not do that.142
While supporting change in principle, T2A143 and Unlock144 recommended that further research be undertaken on developing a more nuanced system for young adults. Prison Reform Trust believed the system for young adults “is worthy of separate and more detailed study” but that it should not replicate the system for children, who should be treated differently.145 Ali Wigzell, from the Standing Committee for Youth Justice, agreed that children should be recognised as a group with needs that are distinct from those of young adults.146
74.In the light of the report of our predecessor Committee and the evidence submitted to the present inquiry, we consider that a more nuanced approach may be required for the disclosure of records of offences committed by young adults aged between 18 and 25, while still retaining a distinct approach for children. We recommend that a new approach for disclosing the criminal records of young adults be the subject of comprehensive research.
8 Law Commission, Criminal records disclosure: non-filterable offences. Law Com No 371, 31 January 1917.
9 Home Office FOI release published 21 January 2015. As well as persons with convictions, this includes those with impending prosecutions, cautions and any other criminal justice activity on their record, e.g. arrested but not charged.
10 The system for filtering records of certain offences is explained in Paragraph (i) of Annex 1
11 Source: DBS Freedom of Information release 1377, published 17 March 2017
12 Source: DBS Freedom of Information release 1377, published 17 March 2017
24 Disclosure and Barring Service Code of Practice, updated 16 November 2015
34 CRB Problems Ltd [DYC0004], Just for Kids Law [DYC0022ata.parliament.uk/writtenevidence/committeeevidence.svc/evidencedocument/justice-committee/disclosure-of-youth-criminal-records/written/43107.html]
37 Including Greater Manchester Youth Justice University Partnership [DYC0015], Standing Committee for Youth Justice [DYC0056]
47 House of Commons Work and Pensions Committee, Fifth Report of Session 2016–17, Support for Ex-Offenders, HC 58 (paragraph 99)
49 SCYJ [DYC0056]; Unlock [DYC0057]. See https://www.ucas.com/corporate/about-us/privacy-policies-and-declarations/ucas-declaration
53 Ministry of Justice, Prison safety and reform, November 2016
54 Local authorities had the power to exclude categories of housing applicants between 1997 and 2003
57 Department for Communities and Local Government, Allocation of accommodation: guidance for local housing authorities in England. June 2012
58 https://www.croydon.gov.uk/sites/default/files/articles/downloads/Allocations%20Policy%20Final%20021116C.pdf
60 Page 8, Insurers’ approach to people with convictions and related offences: An ABI good practice guide. March 2014
63 The ROA 1984 does not apply to US visa law, so even spent convictions have to be disclosed.
67 Rehabilitation periods under the ROA are explained in Paragraph (d) of Annex 1.
76 The system for filtering records of certain offences is explained in Paragraph (i) of Annex 1 .
89 An offence under Section 1 of the Protection of Children Act 1978
97 Law Commission; Criminal records disclosure: non-filterable offences, February 2017. Law Com No 371
111 Review of the Youth Justice System in England and Wales, by Charlie Taylor. Ministry of Justice, December 2016, paragraph 89.
117 The Lammy Review: An independent review into the treatment of, and outcomes for, Black, Asian and Minority Ethnic individuals in the Criminal Justice System. Final report, September 2017.
126 Evidence submitted to Joint Committee on Human Rights inquiry into the UK’s record on children’s human rights, by the Project for the Registration of Children as British Citizens [CHR0011]
127 Committee on the Rights of the Child, General Comment No. 10 (2007), Children’s rights in juvenile justice; paragraph 27.
129 UN Standard Minimum Rules for the Administration of Juvenile Justice (“The Beijing Rules”), adopted by General Assembly resolution 40/33 of 29 November 1985
130 Including Children’s Rights Alliance for England [DYC0009], Standing Committee for Youth Justice [DYC0024], Leeds Beckett University [DYC001], Professor Liz Campbell [DYC002], Youth Justice Board [DYC0028].
24 October 2017