3Changing the statutory framework
75.Evidence submitted to our predecessor’s inquiry indicated much disquiet about the current statutory regime for disclosing criminal records acquired by children, and many suggestions for revising the system were put forward by witnesses. In this final Chapter, we consider whether, and how, the law governing disclosure of youth criminal records might be made fairer and more accessible to end users.
International comparisons
76.The Standing Committee for Youth Justice drew attention to its international research into the handling of childhood criminal records,147 which found that the majority of the 16 jurisdictions examined had separate systems for children and adults. For example, in Germany, Ohio, Texas and Spain most childhood records are held on databases entirely separate to those for adults, with significant restrictions on access. In many of the jurisdictions, only the most serious offences committed by children attract a criminal record and/or are classed as ‘convictions’; thus, in New Zealand in 2014, only 48 children under the age of 17 were given a criminal record—compared to 60,000 cautions and convictions (all attracting a criminal record) that were given to children in England and Wales in 2013/14. The research identified provisions for expunging criminal records in 11 of the jurisdictions, although with different conditions and processes. Germany and Spain (from 2019) permit all sentences, apart from life, to be removed from a record, while Canada, Sweden, Italy and Ireland exclude the most serious offences from their otherwise wide-ranging policies on expunging records. Other jurisdictions were found to have more complex rules on expungement of records or link this to rehabilitation.
Treatment of child convicted of second minor offence in Germany, New Zealand, England and Wales.Source: Growing up, moving on - the international treatment of childhood criminal records. SCYJ, March 2016.
77.The Standing Committee’s comparative research also considered the extent to which different jurisdictions allow wider childhood records disclosure for work involving vulnerable people or public trust. With some exceptions, most were found to have special rules for this purpose. However, England and Wales appeared to be relatively unusual—though not unique—in the breadth of information that can be disclosed for work with vulnerable people, and the number of types of organisation given access to it. Many of the jurisdictions examined take a more rehabilitative approach; for example, in Germany, only the (very rare) childhood offences resulting in custody are disclosed, and in New Zealand and Ohio there is only disclosure of more serious convictions.
78.These research findings were partly corroborated by the conclusions drawn by Unlock’s field study of criminal record practices in France, Spain and Sweden. In all three jurisdictions, shorter rehabilitation periods apply than in England and Wales and the breadth of offences that can be expunged from records “showed a level of commitment to rehabilitation that is simply not present” in this jurisdiction.148 Employers who need to check criminal records do so at an appropriate stage and, in Sweden, there are seven different categories of employment allowing disclosure to be targeted closely to the type of job.149
A question of balance
79.The tension between rehabilitation and public protection was one of the issues identified in the inquiry terms of reference. Responsibility for these two objectives is split between the Ministry of Justice (rehabilitation) and the Home Office (public protection). The Justice Minister, Dr Phillip Lee MP, thought that the present balance was right, although he agreed that this was a matter that should be kept under review.150 When Dr Lee and Sarah Newton MP, Minister at the Home Office with responsibility for safeguarding, were asked whether their two departments were “really joined up” on policy relating to criminal records disclosure, they assured the Committee that they worked together on interministerial working groups and that there were also very good working relationships at officer level. Christian Papaleontiou, Head of the Home Office Public Protection Unit, went on to explain that the split role enabled the two departments “to challenge each other’s positions and priorities”, with the aim of striking the right balance.151
80.Other witnesses, while accepting the importance of protecting vulnerable groups such as children,152 thought that the disclosure regime should strike a better balance between the interests of employers and those of people committing offences when young;153 Ali Wigzell pointed out that the Standing Committee’s international research gave no indication that placing a greater emphasis on rehabilitation would have an adverse effect on public protection.154 While employers’ rights should be respected, these rights are not enshrined in international law—unlike the rights of children155—and, it was argued, employers also had a moral responsibility to support ex-offenders, not least to reduce the burden on tax payers.156 The Committee heard the following example:
… a 50-year-old applying to be a traffic warden and they have been prevented from getting that job because they have two shoplifting offences that they committed when they were 12. We would argue, how does that protect the public?157
81.On the other hand, while acknowledging the importance of both rehabilitation and public protection, Christopher Stacey from Unlock cast doubt on the value of searching for a balance, because:
… you are setting it up as a zero-sum game, where you have to do more of one and less of the other[ … ] It rather strangely suggests that we have two different groups of people—people with convictions, who are risky, and society, which is vulnerable. In fact, we have over 10 million people in the UK who have a criminal record, so those lines are not as clear-cut as we might like to think they are.158
An absence of clear cut lines was also indicated by research drawn to the Committee’s attention by NACRO, which showed that many high-risk individuals in fact have no previous convictions.159
82.Christopher Stacey argued that employers tend to assume a clean criminal record indicates a lack of risk, and vice versa.160 The current regime pushes decision making down to employers, who—rather than taking carefully calibrated decisions—often conclude that any information disclosed to them must be relevant;161 however, Unlock’s dealings with human resources professionals indicated that “they want to know the things that are relevant to their organisation and to the risks of the job”.162 Mr Stacey also pointed out that a targeted barring system would allow people to be disqualified from doing particular jobs where public protection is of high importance, which “brings you closer to a position where you are targeting the information to the relevant job or sector …”.163
83.Regardless of whether or not it is a useful principle to base policy-making on criminal records disclosure on achieving a ‘balance’ between rehabilitation on the one hand, and the interests of employers and the wider public on the other, we believe that the coherence of Government policy would be enhanced by consolidating responsibility into a single department.
Reducing rehabilitation periods
84.Building on its international research, the Standing Committee for Youth Justice put forward proposals for substantial reductions to rehabilitation periods under the ROA 1974 which, it argued, would be more in keeping with the aims of the youth justice system: Youth Rehabilitation Orders (YROs) should become spent as soon as the order is finished, instead of after six months; custodial sentences of under two years—including Detention and Training Orders (DTOs)—should become spent after six months after the order has finished; child custodial sentences of between two and four years should become spent after two years; and custodial sentences of more than four years and less than life, currently never spent, should become spent after seven years.164 In oral evidence, the Standing Committee’s chair Ali Wigzell argued that shortening these periods would give children a much greater opportunity to turn their lives around and to allow the system to focus on rehabilitation.165 In relation to DTOs, the Standing Committee’s supplementary evidence to the inquiry pointed out that shorter rehabilitation periods would not prevent information being disclosed on a standard or enhanced DBS certificate.166
85.Other submissions expressed broad support for the Standing Committee’s proposals for reducing rehabilitation periods, including those of Unlock,167 Prison Reform Trust,168 Just for Kids Law,169 Criminal Justice Alliance,170 and the Children’s Commissioner for England.171 We are also aware that the Criminal Records Bill, a Private Members’ Bill sponsored by Lord Ramsbotham which had its first reading in the House of Lords on 29 June 2017, would significantly reduce rehabilitation periods for both adult and child custodial sentences, using a framework broadly similar to the proposals put forward by the Standing Committee for Youth Justice. This includes allowing YROs to become spent on the last day that the order has effect, with DTOs of up to two years becoming spent six months after the sentence is completed. However, the Bill goes further than the Standing Committee’s model by proposing a rehabilitation period of four years, rather than seven years, for custodial sentences that exceed four years. The Bill is now awaiting a date for a second reading.172
86.We strongly endorse the proposals for reducing rehabilitation periods for childhood offences contained in Lord Ramsbotham’s Criminal Records Bill of Session 2017–19, which we believe reflect a broad consensus for the need for reform in this area. We commend the Bill to Parliament.
Refining the filtering regime
87.Describing the legislative framework for disclosure of criminal records as “appropriate and effective”,173 the Government asserted that the introduction of filtering “has substantially reduced the number of convictions and cautions disclosed on criminal record certificates issued by the DBS”;174 in 2015–2016, out of 4.2 million DBS certificates issued, 180,000 applications benefited from filtering arrangements.175 However, echoing the conclusions of the Law Commission’s review, many submissions to the previous Committee’s inquiry expressed support for changing the filtering system, including abandoning the inflexible “two conviction” rule176 and revisiting the criteria for non-filterable offences committed by under-18s.177 The Children’s Commissioner for England considered that filtering should be based on the nature of the disposal rather than the type of offence, pointing out that members of the public tend to assume the “worst case scenario” when learning of a previous offence. This view was shared by others, including Unlock178 and the Standing Committee on Youth Justice.179 The Criminal Justice Alliance proposed automatic filtering for all childhood offences that did not result in a custodial sentence, provided four years had elapsed since the last conviction.180 The Association of Youth Offending Team Managers went further, suggesting that only records of the most serious offences should be carried forward into adulthood—such as those attracting a custodial sentence of four years or more, possibly with separate provisions for children who offend during their transition to adulthood.181
88.We note the recommendation of the Taylor Review that, once spent, childhood cautions and convictions should very quickly become non-disclosable on standard and enhanced DBS checks, with the exception of the most serious offences.182 Several witnesses to this inquiry proposed that childhood cautions be automatically filtered after a period of two years.183 With regard to convictions, Prison Reform Trust suggested there should be a right to apply to a tribunal to have childhood records expunged.184 Citing research evidence indicating that most reoffending happens within 12 or 24 months of someone offending or being released from prison, both Unlock and the Standing Committee for Youth Justice argued that there was a strong case for youth criminal records to be automatically expunged after the risk of reoffending had reduced; one option would be after a period of ten years from the end of the sentence for the most recent offence. The Prison Reform Trust called for individuals to have a right to apply to a tribunal for expungement of all or part of their criminal records.185 We note that the final report of the Lammy Review favoured a flexible process for expunging records similar to the system for “sealing” criminal records that operates in Massachusetts, USA: the report recommended that a judge or a body like the Parole Board be able to decide on applications for records to be sealed, with a presumption that favourable consideration would be given to those who committed crimes as children or young adults who can demonstrate that they have changed since their conviction.186
89.In the cases of P, G and W, the Court of Appeal’s central conclusion was that the inflexible rules on non-filtering of multiple convictions and serious offences were not “in accordance with the law” without a mechanism for refinement. While not prescribing the changes that Parliament should make, the Court confirmed an earlier Supreme Court decision187 that the nature of the offence, the disposal in the case, the relevance of the offence to the particular employment and the time that had elapsed were all factors that may need to be taken into account in considering whether public protection was engaged.
90.We note that a police-led system was proposed in 2011 by the former Association of Chief Police Officers (ACPO), under which chief officers would be given responsibility, with appropriate guidance, for determining whether convictions and cautions should be disclosed—applying the same test of relevance and proportionality as they do in relation to non-conviction information held on the PND.188 Speaking at a recent Law Commission symposium on behalf of ACPO’s successor, the National Police Chiefs’ Council, Superintendent Lee Warhurst also expressed support for a police-led system. He pointed out that DBS checks relating to enhanced certificates are already referred to police to allow them to assess whether non-conviction information should be included; he argued that chief police officers could also be entrusted to ensure the proportionate disclosure of all convictions and cautions.189
91.For sexual offences by children, Barnardo’s recommended a review of whether a young person’s record is disclosed after a set period, based on an individual assessment; the question of whether the person still needs to sign the Sex Offender Register should be considered at the same time.190 Similarly, Professor Liz Campbell of the University of Durham questioned the need for automatic disclosure of childhood sexual offences, especially for consensual sexual activity with another child.191
92.We recognise the potential advantages of allowing applications to a court or to the Parole Board to have criminal records “sealed”, but we anticipate that that this would impose unsustainable pressures on the decision-making body because of the number of individuals likely to apply. We therefore conclude that a filtering system, albeit with substantial revisions, should be retained to allow automatic filtering of many criminal records.
93.We recommend an urgent review of the filtering regime, with regard in particular to mitigating its well-evidenced adverse impact on individuals with youth criminal records. We would urge the Government to use such a review to give central place to the aims of the youth justice system, together with the UK’s obligations under Article 8 of the European Convention and the UN Convention on the Rights of the Child. Based on our analysis of the evidence to this inquiry, we also recommend that the following features be considered for inclusion in a new filtering scheme for childhood offences:
- Removal of the rule preventing the filtering of multiple convictions, to avoid multiple minor offences from being disclosed
- Replacing the single list of non-filterable offences with several customised lists relevant to broad areas of employment, professional activity/positions and licences, etc.
- For non-filterable offences encompassing a range of behaviour, such as actual bodily harm, introducing a threshold test based on disposal/sentence so an offence can be filtered automatically where the level of criminal conduct was considered by the court or the police to be minor.
- For filterable childhood convictions, reducing the qualifying period from five and a half years to a shorter period, such as three years, and from two years to one year for childhood cautions.
We also recommend that the review give explicit consideration to the feasibility of extending this new approach, possibly with certain modifications, to young adults up to the age of 25.
94.We further recommend that, after application of the rules for automatic filtering, chief police officers be given additional discretion to decide whether to disclose non-filterable offences in any particular situation, based on the relevance of the offence to the activity and whether disclosure would be proportionate to protecting the public interest, taking into account the age of the offence, the age of the individual concerned at the time of the event, and their intervening conduct. For criminal records acquired during childhood, there should be a rebuttable presumption against disclosure.
A system of review
95.In its 2017 decision in P, G and W, the Court of Appeal held that having no independent review contributed to making the present filtering regime unlawful—although better calibrated filtering rules without a review process might be sufficient to remedy this problem in many cases. Support for mitigating the inflexibility of the filtering system by introducing a review process came from Unlock,192 CRB Problems,193 and Youth Justice Board for England and Wales.194 Describing the current disclosure system in England and Wales as “extremely rigid”, the National Police Chiefs’ Council Disclosure and Safeguarding Portfolio cited the examples of the review systems in Scotland and Northern Ireland.
96.We note that, in Scotland, an individual has the right to apply to a sheriff to have a ‘rules list’ conviction removed from their certificate if they believe it is not relevant to their employment. They must notify Disclosure Scotland within 10 working days of the certificate being issued, which will lead to the certificate being withheld from the counter-signing employer. The applicant then has a further three months to make the application to the sheriff, who has the power to order removal of the conviction—in which case Disclosure Scotland issues a new certificate.
97.A somewhat different process exists in Northern Ireland, where an Independent Reviewer of criminal record certificates was introduced in 2016.195 For individuals who were under 18 at the time of all the offences in question, the application is automatically referred to an Independent Reviewer before a certificate is issued. Statutory guidance196 requires the Independent Reviewer to take into account factors such as the nature of the position being applied for, the number and gravity of the offences and when they occurred; the age of the applicant at the time; and, if applicable, when the information would be eligible for filtering. On the basis of the review, the Independent Reviewer can instruct the Department of Justice to issue a new certificate that excludes reference to spent conviction(s), provided he/she is satisfied that this would not undermine the safeguarding or protection of children and vulnerable adults or pose a risk of harm to the public. However, the information remains on the person’s criminal record and may be disclosed at a future date—for example, to a different employer.
98.A common feature of these approaches is that the criminal record certificate is not issued to the countersigning body while the review is in progress—as happens in Scotland and, in Northern Ireland, in cases where all offences were committed during childhood. Unlock recommended that all individuals should be able to apply for their own standard and enhanced check, and made the following observation:
….in practice many people with cautions and convictions do not know exactly how their situation was dealt with. This means that often they do not know whether something will be filtered or not until the check has been returned to them. At this stage, they will have normally had to have already made a decision about whether to disclose or not as part of the application process.197
99.Given the successful introduction of review processes for disclosure of criminal records in Scotland and Northern Ireland, we find it surprising that no system of review exists in England and Wales and we conclude that one should be introduced. We recommend that the Independent Monitor be given an enhanced role in conducting reviews prior to disclosure and, building on our earlier recommendation at paragraph 95, that individuals be given the right to apply to the Monitor for review of a police decision to disclose non-filterable offences, including records of offences acquired in childhood.
147 Standing Committee for Youth Justice. Growing up, moving on - the international treatment of childhood criminal records. Claire Sands, March 2016. The 16 jurisdictions were England and Wales; Scotland; Northern Ireland; the Republic of Ireland; New South Wales; New Zealand; Canada; France; Spain; Italy; Germany; Poland; Sweden; Ohio; Texas; and New Mexico.
153 Greater Manchester Youth Justice University Partnership [DYC0015], National Police Chiefs’ Council Disclosure and Safeguarding Portfolio [DYC0034, Paragraph 4.7];
177 Including Youth Justice Board [DYC0028], NACRO [DYC0029], Criminal Justice Alliance [DYC0026], Standing Committee for Youth Justice [DYC0024]
182 Review of the Youth Justice System in England and Wales, by Charlie Taylor. Ministry of Justice, December 2016, paragraph 88.
183 Standing Committee on Youth Justice [DYC0024]; Criminal Justice Alliance [DYC0026]; Prison Reform Trust [DYC0018, paragraph 5]
186 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.
187 R (T) v Chief Constable of Greater Manchester Police and Others [2014] UKSC 35, dismissing the appeal of the Secretary of State against R (on the application of T) -v- Chief Constable of Greater Manchester and others [2013] EWCA Civ 25
188 National Police Chiefs’ Council Disclosure and Safeguarding Portfolio [DYC0034, paragraphs 4.3, 4.4]
189 Superintendent Warhurst was speaking at a Law Commission symposium in February 2017. See Analysis of Law Commission Symposium on criminal records disclosure: non-filterable offences
195 Section 41 and Schedule 4 of the Justice Act (Northern Ireland) 2015
24 October 2017