Disclosure of youth criminal records Contents

Conclusions and recommendations

Consistency with the aims of the youth justice system

1.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. (Paragraph 14)

The impact on employment

2.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. (Paragraph 23)

The impact on education, housing, insurance and travel

3.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. (Paragraph 28)

4.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. (Paragraph 32)

5.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. (Paragraph 37)

6.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. (Paragraph 40)

Rehabilitation periods under the ROA 1974

7.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. (Paragraph 43)

Operation of the filtering scheme

8.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. (Paragraph 48)

9.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. (Paragraph 51)

10.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. (Paragraph 53)

11.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. (Paragraph 57)

Disclosure of police intelligence

12.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. (Paragraph 60)

Discriminatory impact of disclosure regime

13.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. (Paragraph 65)

The UN Convention on the Rights of the Child and the Beijing Rules

14.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. (Paragraph 70)

Criminal records acquired by young adults

15.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. (Paragraph 74)

A question of balance

16.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. (Paragraph 83)

Reducing rehabilitation periods

17.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. (Paragraph 86)

Refining the filtering regime

18.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. (Paragraph 92)

19.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:

20.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. (Paragraph 94)

A system of review

21.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. (Paragraph 99)

24 October 2017