The cost to the taxpayer of reoffending is estimated at between £9.5 billion and £13 billion annually, with half of all crime committed by people already in the criminal justice system.
A recent report by the House of Commons Justice Committee partly lays the blame for this on the rules governing the disclosure of childhood criminal records, which prevent children from moving on from their past and create barriers to rehabilitation.
The report, which recommends an urgent review, looks at the impact of a childhood criminal record on a person’s access to employment, education, housing, insurance and travel visas, and particularly the discriminatory impact on certain groups including Black and Minority Ethnic children and those within the care system. It also recommends changes to the current framework for disclosure.
A key recommendation is the reduction of the time allowed for convictions to become ‘spent’– i.e., the point at which they no longer need to be disclosed to an employer – under the Rehabilitation of Offenders Act 1974 (ROA).
While rehabilitation periods were reduced for some offences in 2014, others were increased. The Information Commissioner also points out that rehabilitation periods only have an impact on basic Disclosure and Barring Service (DBS) certificates; around 80 per cent of applications are for standard or enhanced certificates, which reveal details of both spent and unspent convictions.
The report draws on recent research by the charity Unlock which compared criminal record practices in France, Spain and Sweden, all of which have shorter rehabilitation periods and the range of offences that can be expunged from records “showed a level of commitment to rehabilitation that is simply not present” in England and Wales.
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.
The report calls for a “radical” review of the process by which certain convictions and cautions are removed from criminal records. In particular, removing the rule preventing the filtering of multiple convictions irrespective of the type of offence, tailoring lists of non-filterable offences to areas of employment and reducing the qualifying period for the filtering of childhood convictions and cautions.
As the Children’s Commissioner for England points out, there is no evidence to suggest that having committed more than one offence is predictive of a greater risk of continued offending in adulthood. Rather, there is considerable evidence that most children stop offending as they get older.
The report also recommends allowing police chiefs’ additional discretion to withhold disclosure of non-filterable offences, depending on the age of the offender and the circumstances of the offence, and giving individuals the right to apply for an independent review of the decision to disclose certain convictions and cautions.
While recognising that exceptions for certain positions may need to apply, the report urged the Government to commit to the ‘Back the Box’ campaign, aimed to delay the point at which job applicants have to disclose criminal convictions. It also encouraged the Government to consider making it mandatory for all employers to adopt the scheme, allowing applicants to be judged primarily on merit.
The committee heard evidence from several people whose prospects had been adversely affected by childhood criminal records, including the following case:
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.
While employers are entitled to understand potential risks, it is clear that they often fail to make an objective and balanced assessment of the relevance of ‘unspent’ criminal offences declared in job applications. Research shows, however, that ex-offenders are more likely to remain with their employers for longer and have lower rates of absenteeism than those without criminal records.
The committee also considered the feasibility of extending the revised regime for disclosure of youth criminal records to disclosure of offences committed by older people up to the ages of 21 or 25. The report recognises that adulthood is not something people automatically achieve on their 18th birthday and recommends that further research be undertaken into developing a more nuanced approach to the disclosure
The report mirrors recommendations made in recent reviews by Labour MP David Lammy and child behaviour expert Charlie Taylor’s. Hopefully, these reviews, along with a soon to be heard Supreme Court case considering the compatibility of the filtering regime with the ECHR, will pressure the Government change the current rules.
Following years of cuts, understaffed and overcrowded prisons present few opportunities for rehabilitation. They have become less productive places with declining access to education, association and library visits. Against this backdrop, any move to remove barriers to rehabilitation by easing access to employment and education is welcome, but much more is needed to support everyone with a criminal record.