Today, the High Court ruled that excessive disclosure of minor historical criminal convictions in England and Wales is unlawful under Article 8 of the Human Rights Act, the right to a private and family life.
The filtering system used by the Disclosure and Barring Service (DBS) in England and Wales only allows the filtering of one minor conviction for higher level disclosure checks (for jobs which are not protected under the Rehabilitation of Offenders Act) after a number of years.
In Scotland new provisions to create protected convictions were implemented on 10 September 2015. http://recruitwithconviction.org.uk/protected_convictions_in_scotland/ The Scottish system permits more than 1 minor conviction to be removed from higher level checks after a number of years as well as an appeals process. The failure of the DBS system to filter more than one conviction or allow an appeal, appears to be the basis of the legal challenge.
Why protect more than one conviction? Quite simply, there is no evidence that minor historic convictions link to current offending behaviour but there is significant evidence to show that minor historical convictions are linked with low pay and unemployment in the long term.
This is particularly true for women with convictions, where their median income is less than half the median income of a 24 year old, eight years after their conviction. This is excessive in comparison to the gender pay gap.
When convictions combine with protected characteristics then recruiters and selectors often have to overcome their unconscious bias about “someone who does not look like me or sound like me”. Throwing historical convictions into the mix, allows selectors to reinforce or justify stereotyping and it has a multiplying effect of disadvantage.
The more often that a person receives or perceives discrimination, the more likely they are to mistrust disclosure processes and deselect themselves from opportunities in the future.
People with convictions become anxious about disclosing to anyone and surely after a number of years they have a right to privacy about their past.
In practical terms, nothing has changed in England and Wales yet and the Government can still appeal against the ruling.
All of the proposed amendments can be implemented without delay. The original Rehabilitation of Offenders Act 1974 was designed as a catch all and passed through parliament in 1974 without an exemptions order for care workers, nurses or taxi drivers etc. etc. etc., so the existing disclosure periods are excessive.
Modern technology including forensic science as well as improved child protection arrangements have allowed the courts to prosecute serious offences more often and to link serial offences more to the same individuals. This has resulted in longer sentencing (due to evidence capture of more crimes) and more appropriate supervision of people with convictions. This would have been impossible in 1974.
With the continuing existence of exclusions and exemptions to the 1974 Act for a wide range of professions and the modern public protection mechanisms from more serious offenders, we broadly agree with all of the proposals to change disclosure periods which have been set out in the proposals.
To allow even shorter and more realistic disclosure periods for most people with convictions would require structural changes within the Act, but we believe that all the proposals are consistent with the requirements for safe and sustainable employment and are suitable as a stop-gap until more robust primary legislation is implemented, which could properly contribute to the rehabilitation of people with convictions.
Further measures to protect and inform employers were implemented in the Police Act (Scotland) 1997, the creation of Disclosure Scotland and the Protecting Vulnerable Groups (Scotland) Act 2007. Combining the availability of this information and the advances in the internet, there has never been a time in history, when so much criminal record information has been available.
With these existing mechanisms as well as the provisions of MAPPA in the Management of Offenders etc (Scotland) Act 2005, the safety nets in the Scottish criminal justice system are robust enough to completely remove criminal record disclosure for work which is not currently defined in the Exclusions and Exemptions Order (Scotland) 2013.
Therefore all convictions could realistically become immediately spent without presenting substantial risk however we concede that the required caveats may be too complex for secondary legislation. This could be unpicked more fully within new primary legislation.
The proposals will allow Scotland to catch up with reforms which were implemented in England and Wales in March 2014. Those reforms are already making a significant contribution to; the performance of welfare to work, tackling poverty, improving public health and promoting a fairer and more equal society in England and Wales.
While these impacts are positive, “rehabilitation” is still omitted from the Rehabilitation of Offenders Act, in that individuals who have not been reconvicted within their rehabilitation period could not reasonably still be described as ‘offenders’ and even if the proposals are implemented in full, the Act will still offer no protection for people with unspent convictions. This means that the proposals offer no immediate benefit or practical incentive to people when they leave prison.
Therefore we welcome an acknowledgement in this consultation paper that a broader consultation for new primary legislation is still required in Scotland as soon as possible.
The new consultation should seek to develop proposals for the following:
• Primary legislation with a title which is fit for purpose, such as the Opportunity to Compete Bill. The title of the 1974 Act conveys negative messages where citizens returning from prison are called “offenders” and it implies that they are not rehabilitated until considerable time periods have elapsed after their conviction. If disclosure is required then these rehabilitation periods would be better described as disclosure periods.
• A process of removing disclosure periods completely or reducing disclosure periods for more serious offences which is based on engagement in services, evidence of changed behaviour, risk benefits and the development of personal resilience. Within this there should be a presumption that nobody who is released from prison should face a lifetime of “disclosure” (or what is commonly described as a “second sentence”) without a process of appeal.
• A review of the exclusions and exceptions to the 1974 act where there is currently no protection for people from discrimination and stigma over very minor and very old convictions.
• The potential of a well designed quota based system where some employers would be required to employ people with unspent convictions. While quota systems are controversial and potentially beyond the powers of the Scottish Parliament, this avenue should at least be open for discussion.
• A requirement for all recruiters (in receipt of disclosure information) to be properly trained to make proportionate decisions and for those recruiters to be empowered and authorised to select a person with a conviction or convictions if they are the right person for the job.
• A right for employers to be supported in risk assessment.
• Measures to consider mitigation of the “Google effect” where failure to ask about criminal history is not the same as avoiding discrimination as well as the complications in managing the confidentiality of spent convictions.
• Addressing the knowledge gap among many key workers about effective pathways to employment for people with convictions.
• Ensuring that all citizens have free, available and accessible information about what and when they need to disclose about their convictions for the purpose of employment. This should include the ability to undertake a check for the purposes of PVG prior to applying for a vocational course for “regulated work”.
• Implementation of Ban the Box processes where any disclosure requirements for the purposes of employment are delayed until after an individual has been selected for interview.
• A statutory right for people with convictions to access specialist support for enhancing skills and finding work which is tailored to their hopes and plans.
• A common sense approach to disclosure of convictions for breaches whereby the current proposals still create disclosure time spans which are excessive.
• Inconsistencies in the information available to employers based on which part of the world that an individual committed their crime. There is no evidence of any risk to employers created by the shortage of criminal history information on foreign nationals.
Additionally new legislation should seek to specifically find solutions for criminal records intersecting other employment barriers because the stigma of criminal convictions can be worsened for women, people from minority ethnic backgrounds and when the conviction intersects mental health problems. Similarly, conviction labels which include terms such as “racially aggravated” or “domestic” or relate to sex-offending, significantly impede opportunities to compete, even if they are minor offences and sentenced lightly.
This list is by no means exhaustive but highlights some of the limitations to the structure of the 1974 Act to support rehabilitation.
New legislation which supports people with convictions to find and keep meaningful employment, would undoubtedly make critical contributions to Scottish Government policy objectives for health inequalities, diversity, inclusion, poverty, economic development and welfare to work, as well as reducing re-offending.
Findings from Recruit With Conviction action research workshops show that disclosure of even minor criminal conviction can escalate anxiety in the mind of recruiters and this often leads to unfair and unreasonable de-selection. Similarly people with minor convictions often adopt avoidance behaviours when confronted with questions about criminal record disclosure and seek employment in situations where they are not asked, therefore diminishing their own opportunities for suitable employment.
Criminal convictions are most likely to statistically impact male unemployment and by comparing male unemployment trends between Scotland and rUK since the implementation of changes to the Act in rUK, we hope to illustrate potential impacts of reforming the Act.
This graph which was created using data from ONS. It shows a clear trend of Scotland performing ahead of the UK for male unemployment until March 2014 and then lagging behind after Westminster reduced disclosure requirements in England and Wales. This is interesting because it is consistent with Recruit With Conviction findings. Men are 3 times more likely to have a criminal conviction than women and convictions correlate much more closely with unemployed people.
graph
Reports (1) on 31 May 2015 show that Scotland has the lowest female unemployment rate in Europe.
Using big social data like this creates risks for bad social science because causality is rarely able to be defined in correlations. So while this graph neatly illustrates a point, the qualitative evidence and the logic is more compelling and we accept that there are always many competing factors and the policies of targeting resources for female employment in Scotland is another likely contributing factor to the performance of men and women in the Scottish labour market.
It should be noted that while females with criminal convictions are less statistically significant, criminal conviction disclosure for woman is even more stigmatising and previous convictions have greater impact in the labour market for women individually.
Recruit With Conviction promotes safe and sustainable employment for people with criminal convictions by working with employers and employability specialists in workshops and ambassador networks. Each workshop aims to both disseminate information as well as inform the knowledgebase about effective practice.
While workshop participants start off with varying degrees of understanding, we strive to respect feelings of participants but challenge misconceived perceptions and promote equality, diversity and inclusion by threading through understanding of unconscious bias about other barriers to employment which are faced by our most vulnerable friends and neighbours.
In March 2014 the UK Government implemented new employment rights to people with criminal convictions by reducing the length of time until most convictions are deemed spent. These changes covered England and Wales only. The consultation to change this legislation was launched in Scotland on 20th May 2015.
Findings from Recruit With Conviction action research workshops show that disclosure of even minor criminal conviction can escalate anxiety in the mind of recruiters and this often leads to unfair and unreasonable de-selection. Similarly people with minor convictions often adopt avoidance behaviours when confronted with questions about criminal record disclosure and seek employment in situations where they are not asked, therefore diminishing their own opportunities for suitable employment.
By comparing unemployment trends between Scotland and the UK we hope to illustrate this point.
graph
This graph which was created using data from ONS. It shows a clear trend of Scotland performing ahead of the UK for male unemployment until March 2014 and then lagging behind after Westminster reduced disclosure requirements in England and Wales. This is interesting because it is consistent with Recruit With Conviction findings. Men are 3 times more likely to have a criminal conviction than women and convictions correlate much more closely with unemployed people.
Reports (1) on 31 May 2015 show that Scotland has the lowest female unemployment rate in Europe.
Using big social data like this creates risks for bad social science because causality is rarely able to be defined in correlations. So while this graph neatly illustrates a point the qualitative evidence and the logic is more compelling. There are always many competing factors and the policies of targeting resources for female employment in Scotland is another likely contributing factor to the performance of men and women in the Scottish labour market.
It should be noted that while females with criminal convictions are less statistically significant, criminal conviction disclosure for woman is even more stigmatising and previous convictions have greater impact in the labour market for women individually.
I recently saw a pigeon with a missing left foot at 2 different times and in 2 different places on the same day. The suffering of this pigeon invoked a bit of compassion in my hardened heart and the co-incidence was a challenge to basic logic and reasoning. Other inexplicable observations can nag me a little more.
During working visits to Italian and Romanian justice organisations over the last couple of years, I have asked prison officers about prisoners refusing family visits. One of the Romanian officers replied that refusing a family visit would immediately invoke a psychological support referral because something serious must be wrong. Each response suggested to me that refusing family visits was something of a rarity in Italy and Romania.
It has left me with one of those nagging inexplicable observations because this appears to be inconsistent with what I hear in the UK about prisoners refusing family visits.
Perhaps my perceptions about the UK are grossly inaccurate and perhaps some foreign aspects may have been lost in translation or obscured by prison politics. I’ve got no groundbreaking evidence, just a distracting rumination about a perceived inconsistency.
Refusing a family visit might be a symptom of severe depression and institutionalisation or it might also be a response to an argument or dispute.
I asked an Italian sociologist, Rosario Palese from Fondazione Abacus, about my observation, and his explanation related to family ties being at the heart of both Italian and Romanian culture and that provided some context.
There is evidence that regular family visits are linked with reduced re-offending rates and there is also evidence that families make critical contributions to finding jobs, homes and maintaining relationships.
Logic dictates that resource to enable, promote and facilitate positive family contact for prisoners is a valuable investment of public money. There is also evidence of significant improvements for family contact with a number of innovations like video-links facilitated by Apex, the work of Storybook Dads and of course the excellent Families Outside services among others.
This leaves a simple question in my mind… “Why is there not a specific prisons KPI for family contact?” I think it would provide more insightful information than the number of absconders or escapes. Connecting this to our work at Recruit With Conviction, we believe that positive family engagement probably makes the biggest single contribution to finding and sustaining work after prison.
It sounds simple but it also begs another question about all of those people in prison who have no positive family connections and the importance of our communities to be the surrogate families of citizens returning from prison. Many of whom are traumatised, lonely and vulnerable with less obvious scars than a one footed pigeon which might hobble into our life. Given a chance though, they may well surprise you with humility, humanity and honest hard work.
The Scottish Government is preparing to set up a commission on widening access to Higher Education which will commence in March 2015. This follows commitments set out by Nicola Sturgeon in “One Scotland – Programme for Government” (1)
Talented children are born into deprivation or privilege without discrimination but adversity and opportunity for children are grossly uneven. The correlation between criminal histories and deprivation is therefore unsurprising.
There is a clear research gap regarding the extent to which criminal records are a barrier to Further or Higher Education and the commission on widening access should investigate this important factor as part of its remit. Full-time study is also an opportunity to create the conditions to stop offending and to put the cushion of time between convictions and applying for work.
1 in 10 women and 1 in 3 men in Scotland have a criminal record so this is not a marginal issue and our poorest neighbourhoods have a much greater density of people with convictions than the Scottish averages presented above.
While barriers to wider access are broader and more complex than one issue, quite simply any inclusion strategy is incomplete unless it considers the impact of previous convictions.
There are 2 distinct avenues which the commission should explore regarding barriers for people with convictions.
The extent to which people with convictions are excluded by further or higher education institutions. (Criminal convictions with certain labels such as, fire-raising, hate crimes and sexual offences are particularly difficult to consider objectively and anecdotal evidence of very good practice and very poor practice in admissions has been presented)
The extent to which people with convictions, deselect themselves from Further or Higher Education because they anticipate discrimination over their conviction or they deselect themselves due to anxiety about discussing their past. (Self de-selection is common when recruiters request criminal history disclosure for employment)
While the commission has an opportunity to develop a strategic response, Recruit With Conviction seeks a more practical role through the development of academic circles of influence in Scotland, comprising people who are interested in either of the following areas:
Improving the access to study for people with convictions.
Improving opportunities for employment or work placements for people with convictions in education institutions and their supply chains – Ultimately improved diversity in recruitment can support wider cultural changes in admissions.
If this appeals to you and you work in Further or Higher Education, then please sign up to the circle of influence on the following link
As a teenager, I worked for an entrepreneur called Bob Druce. He had built up a number of successful businesses and he carried a quiet and thoughtful disposition combined with a huge stature. This enabled him to have a legendary status among my peers. The experience of working for him has served me well throughout my career.
Bob was known as a great motivator and I remember a rather pompous business partner asking him, “Bob, do you use the carrot or the stick?”. Bob replied, “Neither, I don’t employ donkeys!”
Motivating people to change their lives after criminal behaviour or long term unemployment, is commonly simplified by populist prattle which is similar to the rhetoric of that pompous questioner.
Pain is not always gain. Typically, humans are blind to the vulnerabilities of others, especially when we think of those people as different to ourselves or when we can’t see them.
Motivating people to change their behaviour is complex and Recruit With Conviction uses the following description of best practice: The right intervention, for the right person at the right time, delivered in the right place, for the right reason and with the most efficient use of resources.
In order to expand my limited knowledge in this field, I recently attended a seminar at University of Edinburgh – Punishment and Welfare Revisited. It was delivered by eminent professors David Garland and Michael Alder. To be honest, some of the theory in the discussion was beyond my comprehension but there are some pursuing thoughts which I can’t help ruminating over.
Criminal Justice and Welfare to Work policies are utterly disconnected for 2 principle of reasons.
1. The policies are developed in departmental silos – In Scotland, welfare to work policy is developed in Westminster and Justice in Holyrood. (Not a political statement just a fact)
2. The drivers for change have conflicting priorities. The welfare to work priority is benefit “off-flow” and the justice priority is reducing crime.
A job underpins a change from crime and that job should be a positive outcome for the employer and the employee if it is going to be sustainable.
The Recruit With Conviction priorities are; the right job, at the right time, with the right employer, for the right person in the right place. Pressure for fast benefit “off-flows” do not necessarily support this and can cause significant harm at times. If jobs and people are mismatched then this can harm the employer as well as the employee.
If employers have negative experiences, then fair opportunities to compete for work are diminished.
With further Scottish devolution announced for some welfare to work issues, we now have an opportunity to get a little closer to an intelligent solution.
Poverty has a clear connection to crime and while money does not cure poverty any more than morphine cures cancer, generosity, opportunity and compassion, go a long way.
So, rather than treating humans like donkeys for a short term fix, we can motivate lasting change by simply empowering talented key workers and employers to get it right.
Should a person who has been convicted of rape, be allowed to work in a very high profile position where he is adulated by impressionable young people?
The publicity of the Evans conviction has highlighted some of the legal issues about sexual consent to a wider audience and hopefully this will result in some constructive debate and improved attitudes towards sexual violence. Any contribution to reduce sexual violence needs careful consideration.
Reducing crime fundamentally improves our quality of life and sustained employment is the single most important factor in reducing re-offending.
While employment empowers positive change the Ched Evans case has complicated cause and effect implications. If Ched Evans’ returns to professional football, would this represent acceptance or normalisation of sexual violence?
We don’t know for sure but vile threats towards Jessica Ennis-Hill after her intervention suggest that there is some merit to this argument but is Ched Evans responsible for the comments and attitudes of others? He has never publicly promoted sexual violence as a means of response to disagreement.
Evans’ return to football would have been smoother, if he had demonstrated reform and remorse but instead he has chosen to appeal his conviction. For the time being, he is a convicted rapist but his co-defendant is not. The behaviour of both men on that night was fundamentally wrong and we have a wider challenge to improve the attitude of some young men towards women more generally.
Taking responsibility is a critical component for safe and sustainable employment in the Apply With Conviction and Recruit With Conviction models. Failure to take responsibility can occur if an individual is in denial and genuinely fails to understand the consequences of their behaviour. This is intrinsically linked with self preservation. More rarely, it is the result of a miscarriage of justice but that is a matter for the courts – not intuitive beliefs based on one side of an argument.
If Evans wins his appeal then public knowledge of what really went on that night will not change much but he will be relabelled from a rapist to a victim in a miscarriage of justice. In reality those words are hollow but similarly other terms like “offender” or “murderer” mask many other truths.
Ched Evans is a footballer, he has a talent for football that is rare and is perhaps only found in 1 in every 100,000 people or more. But what does it say about our society if we seek moral guidance from somebody on the grounds of their wealth or ability to kick a ball rather than their compassion and decency?
He has been convicted of a serious crime and served his prison time. Banishing him from his profession and denying him the opportunity to compete for work is an understandable moral gut reaction. After all, rape is a disgusting behaviour. However, Evans is now one of the most vilified and marginalised people in our society. He is a national figure of hate but he is also a human being with many perfections and imperfections. So while our gut reaction is to repulse against vile behaviour, a sound analysis of the facts suggests that our society is better served by stopping the hatred and letting him work. If Ched Evans and others like him are allowed to fulfil their potential and develop compassion, rather than get angry, self destruct and harm other people, then the world will be a slightly better place.
Employment is widely used to support rehabilitative processes across a broad spectrum of problems which affect human beings. This includes criminality, addictions and mental health issues. With a little creativity and collaboration, rather than witch-hunts and tribal fighting then great outcomes can be achieved. A football club could work with Evans, his probation officers and others so that this young man can develop positively, perhaps donate a significant proportion of his large salary to charity and play the beautiful game.
Changes to the Rehabilitation of Offenders Act 1974 in March 2014 for England & Wales have made a critical contribution to the latest fall in UK unemployment. We cannot quantify this without further robust research but here are a few interesting facts to consider:
4.3 million people with convictions in England & Wales represented 28% of all people claiming Job Seekers Allowance in the UK according to the MOJ data joining report published in January 2014 (1)
The 1974 Act improvements in March 2014, have removed the requirement to disclose convictions for the purposes of most employment – for potentially about 1.8 million people according to research from UNLOCK. (2)
The unemployment drop is strangely paralleled with a drop in wages – a fact which defies Labour Market logic
The labour market recovery in the rest of the UK has caught up with the labour market recovery in Scotland – both now sit at 6.4 % but Scottish changes to the 1974 Act are still under review. (3)
While there are many more factors which impact labour markets such as sanctions and conditionality to benefits and wider economic growth, the drop in unemployment is a success and the 1974 Act changes will have contributed.
The 1974 Act changes should now lay a pathway for other difficult political justice decisions which are sensible but counter the populist prattle of Mail, Express et. al. For example,
Delivering on promises to reduce short term prison disposals
Implementing radical reforms to the 1974 Act in Scotland more hastily and making further improvements to the act in England and Wales. See UNLOCK’s proposals (4)
Properly funding community justice
Making prison less harmful to vulnerable prisoners
Providing throughcare services which best support recovery from incarceration
Supporting services like Recruit with Conviction to help change recruitment cultures to open up job markets for people with convictions and engage community conversations about criminal justice which are better informed than frighten, flog and f*** the consequences.
Of course some of this is already being achieved but the successful results of changing the 1974 Act, gives a strong mandate for even more common sense!
Basic Disclosure Certificates are issued by Disclosure Scotland so that employers can check unspent convictions.
Recently a significant change has been implemented which affects many people who have been admonished in court, Admonition is the lightest punishment that a sheriff can use and until November 2013, Disclosure Scotland aligned it with an Absolute Discharge which has a 6 month disclosure period under the Rehabilitation of Offenders Act 1974.
Unfortunately, an admonishment is not specifically mentioned in the 1974 Act or subsequent amendments, and technically it carries a 5 year disclosure period under Scots law.
15,000 admonishments are issued every year by Scottish Courts for low level crime usually where it’s not suitable to issue a fine or community order – often because of the individual is vulnerable.
The change in Disclosure Scotland processes means that the individual has to disclose their admonishment for 5 years which is disproportionate to any relevant risk requirement.
Recruit With Conviction has already spoken to one individual who has been explicitly denied work because of this change in procedure and we’ve no idea how many more people are affected.
We are gathering more evidence on the number of other people who are disadvantaged in the labour market by this change before we lobby the Scottish Government to make a special change for this in advance of the wider review of the 1974 Act in Scotland.
However this is an important consideration for any employability adviser in Scotland because so many individuals who are unemployed, also carry minor convictions. Please pass this information on through your Scottish networks.
Recruit With Conviction also provide specialist training for employability advisers. See Apply With Conviction for more details.
Note: Individuals who are under the age of 18 when they are convicted have a rehabilitation period of 30 months and if an individual also has an indictable conviction, then the disclosure period for an admonishment can be lengthened.
Reforms update driving endorsements – our thoughts but not legal advice.
This story has more twists and turns than a whodunit crime drama. The MOJ Guidance(1) explains a bit more detail about the driving endorsements.
This technical guidance implies the following absurd scenarios:
Joe is convicted for stealing a car and gets a speeding endorsement at the same time, he gets a fine and a driving endorsement. The fine would normally be spent after a year but under new legislation, the driving endorsement would hook on to that car theft conviction so if would not be spent for 5 years.
Jane was convicted for shoplifting which is related to her drug problem and she received a Drug Treatment and Testing Order for 6 months which she completes. She completed the order and turned her life around and the conviction was due to become spent 12 months after the order but she picked up an endorsement for speeding just before this was to become spent. This endorsement has a 5 year rehabilitation period and hooks her unspent conviction for a further 5 years.
In reality the way that endorsements are recorded on police systems are inconsistent and it is unclear what data and algorithms will be used in producing Basic Disclosure Certificates – therefore practicalities of disclosure are inconsistent with the legislation. Disclosure Scotland have now agreed to issue basic certificates in England and Wales which only show unspent convictions with the changes applied.(2) We have asked them more questions and will update you when we get answers. In the meantime the best solution is to use Basic Disclosure Certificates (if you are in any doubt) to define disclosure requirements for jobs which are protected by the ROA1974 Act. The best practical advice in the meantime is that some endorsements will show up and hook unspent convictions for 5 years but they usually won’t.
The legal advice on this is complicated and inconsistent and the mess will not be easy to rectify.
Background
Basically the motor insurance industry was concerned because the original reforms reduced the requirement to disclose most driving endorsements to 1 year.
ROA 1974 gives people the right to be free from most discrimination including insurance discrimination on the grounds of spent convictions but the insurance industry uses endorsements as a risk proxy for 5 years – which would have been illegal.
So Schedule 2 driving endorsements(3) were given a 5 year rehabilitation period for which there is a degree of logic – but that’s where the logic ends
For practical training to help people with convictions to get and keep a job the Apply With Conviction Training for advisers wraps evidence based practice around the relevant legislation.
We are continuing to work with a wide range of partners to get the best possible information. Much more detailed information is available at www,unlock.org.uk and www.nacro.org.uk
