Requirements for life-long disclosure of minor cautions are disproportionate.
Requirements for life-long disclosure of minor cautions are disproportionate
Last week saw an unprecedented level of news coverage on the way that criminal records should be disclosed. First, the Supreme Court ruled on Wednesday (in the case known as ‘T‘) that the criminal records disclosure regime was disproportionate.
In short, the court found that the life-long disclosure of minor cautions and convictions was ‘disproportionate’ and ‘not necessary in a democratic society’. Perhaps most importantly, it ruled that the system was ‘not based on any rational assessment of risk’.
Then, the following day, a Parliamentary Inquiry into the youth court system, led by Lord Carlile, published a wide range of recommendations, including ways that criminal records should be dealt when people are under 18.
Both of these announcements relate, in part, to the ‘filtering’ process that the government established in May 2013, and which is operated by the Disclosure and Barring Service.
To be frank, the government clearly felt forced into bringing in this system in the first place, as a result of an earlier Court of Appeal ruling in the ‘T’ case. As a result, the government did the bare minimum it felt it needed to do, and we’ve said right from the start that this system doesn’t go far enough. The case below is a typical example:
“I was convicted of theft when I was 19. I was charged with two offences because I stole money on two different days, but when I went to court, I thought I was just given one conviction. Since then, I’ve got a degree in Forensic Sciences and worked in various roles which have involved a lot of trust and honesty.
“Now I’m 38 and I’m looking to move career. But all the jobs I want to go for (ideally I’d love to be a teacher) involve an enhanced check, and although I got excited when I saw that there was this filtering process, I’ve since discovered that my conviction will show up because it’s seen as more than one conviction, plus it involved a suspended prison sentence. I know I deserved to be punished for what I did, but that was nearly 20 years ago now, and it means that I’m simply avoiding any job that involves a DBS check because I feel ashamed at having to talk about it every time I go to an interview. I think people should be given a clean slate at some point.”
We know from our Helpline that many people with minor cautions and convictions continue to be excluded from the filtering system. A common example is where someone has multiple convictions, like the above case. This can include someone who’s been overpaid benefits for two months running – the result is that they might be charged with two offences, and so never eligible for filtering.
The list of offences that are ‘not eligible’ is also quite a blunt instrument, and the lengths of time (11 years for an adult conviction) are too long.
So it’s not surprising that, in the first three months that the filtering system operated, only 15 per cent of people with convictions has a conviction filtered from their DBS check. This means that 85 per cent will continue to have their convictions disclosed for the rest of their lives.
That’s why we agree with the recommendations made in the Carlile report. The filtering periods for young people should be reduced, they should apply to people with more than one conviction, and they shouldn’t automatically rule out anybody who’s been given a short prison sentence. And it’s right that the system recognises young people as meriting more favourable treatment.
But we need to look at how the system works for adults too. The recommendations made by Carlile could equally apply to adults. A scale could be developed for more serious convictions, so that a longer period of time ‘conviction-free’ has to have passed before it could be filtered. For more difficult sentences, and more serious offence-types, there could be a process which allows people to apply for their convictions to be filtered – some form of ‘exceptional case’ procedure.
Ultimately, we need a more nuanced system which goes further than the ‘minimum-level’ that the government has so-far introduced. Having been involved in the original group that reported to the home secretary, it was clear to me that the old system, as well as the system that was subsequently introduced, were lacking in their evidence-base, which is what the Supreme Court found too.
Hopefully, last weeks’ news will be the start of a more informed discussion about the criminal records disclosure system, and the developing of a more proportionate system for the disclosure of past cautions and convictions.
Christopher Stacey is director (services) of Unlock, an independent information, advice and advocacy charity for people with convictions
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