The current childhood criminal records system
The current childhood criminal records system, governed under the Rehabilitation of Offenders Act 1974, allows widespread and lengthy disclosure of childhood criminal records. A criminal record can block access to employment, education, housing and insurance. Childhood criminal records act as a barrier to opportunity and endure throughout adulthood, making them, in effect, life-sentences. Between 2014 and 2018 nearly 850,000 people were affected by the disclosure of youth criminal record on a standard/enhanced check.
Recent welcomed developments
A 2017 enquiry by the House of Commons Justice Select Committee found that the system for disclosure of youth criminal records undermines the principles of the youth justice system to prevent offending by children and young people and to have regard to their welfare. The enquiry concluded that the system prevents children from moving on from their pasts and creates a barrier to rehabilitation.
In January 2019, the Supreme Court ruled that the disclosure of youth reprimands and warnings, now replaced with youth cautions, to future employers is incompatible with Article 8 of the European Convention on Human Rights, the right to respect for private and family life. The court held that the disclosure of youth reprimands, now youth cautions, on DBS forms is directly inconsistent with their intended purpose as a rehabilitative and diversionary measure from the criminal justice system.
While the judgment confirmed that the current system is unlawful, it was left to Parliament to consider how to implement necessary changes and to give effect to the ruling. At long last in July 2020, the Government responded to this landmark judgment by announcing it plans to stop the automatic disclosure of youth cautions.
In its Business Plan for 2020-2021, the Youth Justice Board for England and Wales (YJB) outlines its vision of “a youth justice system that sees children as children, treats them fairly and helps them to build on their strengths so they can make a constructive contribution to society”.
The YJB’s strategic objectives are to:
- strengthen and enhance the delivery of its statutory functions;
- see a youth justice system that sees children as children first, and offenders second;
- see an improvement in the standards of custody for children and promote further rollout of constructive resettlement;
- influence the youth justice system to treat children fairly and reduce over-representation; and
- see a reduction in serious youth violence and child criminal exploitation.
Problems with the current system
These welcome developments in youth justice are severely undermined by the current criminal records system. The Standing Committee for Youth Justice (SCYJ) recently published a briefing paper outlining how the current childhood criminal records system acts as a fundamental barrier to YJB’s objectives. The SCYJ argues that the current childhood criminal records system anchors young people to their past and entrenches their criminal identity. The SCYJ argues this “impedes progress at pivotal opportunities for a child or young person to move away from crime, namely when trying to advance in education, obtain housing, or employment.”
The current system criminalises children who are victims of exploitation that receive criminal records for behaviour that is a direct result of exploitation or a response to related trauma. Not only are these children let down by a society that fails to protect them from the harms of exploitation, they are punished further by a justice system that fails to recognise them as victims and by the long-term consequences of childhood criminal records.
Education, employment and secure housing are vital to constructive resettlement yet the childhood criminal records system acts as a barrier to accessing such opportunities thus actively working against rehabilitation of children. The current system creates long-lasting stigma that makes it very difficult for young people to move away from an offending identity. This prevents young people from moving on from past mistakes and reaching their full potential.
Black and Minority Ethnic (BAME) young people experience multiple discriminations and oppressions that can affect their access to education, housing and healthcare. The current system of childhood criminal records acts as an additional burden to BAME young people who are already overrepresented in the criminal justice system. In this way the current system entrenches racial disparity and inequality.
The current childhood criminal records system is not conducive to taking a child first, offender second approach to youth justice. It fails entirely to recognise child development and the complex reasons children become entangled in the criminal justice system, including exploitation. The current system prevents adults striving to positively change their lives from doing so. David Lammy summarises the problem as “people can change quickly but their criminal record does not.” A childhood mistake made at as young as ten years old can have devastating consequences for an individual’s livelihood throughout their entire life.
The case for sealing childhood criminal records
Children should not be stigmatised throughout their entire lives for offences committed as children. The current system fails to distinguish offending as children from offending as adults. While the Government’s plans to stop the automatic disclosure of youth cautions is welcome, a major review of legislation on the disclosure of childhood criminal records is desperately needed. We need a system that better balances the need to protect the public while allowing children to grow up and move on from their pasts.
The Government should look to recommendations 34 and 35 of David Lammy MP’s Lammy Report and consider the benefits of a sealing process for childhood criminal records.
Recommendation 34 of the Lammy Report:
“Our CJS should learn from the system for sealing criminal records employed in many US states. Individuals should be able to have their case heard either by a judge or a body like the Parole Board, which would then decide whether to seal their record. There should be a presumption to look favourably on those who committed crimes either as children or young adults but can demonstrate that they have changed since their conviction.”
Recommendation 35 of the Lammy Report:
“To ensure that the public understands the case for reform of the criminal records regime, the MoJ, HMRC and DWP should commission and publish a study indicating the costs of unemployment among ex-offenders.”
The current system is arbitrary and does not take into account the positive changes people make after childhood offending. A sealing process would bring much needed flexibility to recognise when individuals have moved on from childhood offending and no longer pose a significant risk to others and would emancipate these individuals from the shackles of their childhood criminal records. This would allow greater access to employment and constructive resettlement. It would also allow young people to move away from an offending identity and give them a real chance to achieve positive change throughout adulthood.
The Youth team at HJA aim to avoid arrest and conviction and thereby try to limit the impact on the child’s future prospects. Contact us if you need advice in relation to your DBS certificate or your criminal record in general. We are committed to achieving the best outcomes for our clients.
Our experienced Criminal Defence solicitors are widely recognised as one of the leading criminal defence practices in the UK. If you need legal advice you can call our experts 24 hours a day on 0808 115 3986 or get in touch online.”