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The right of offenders to get back on track

As prison reformers celebrate changes to UK law on disclosing criminal records, the campaigning organisation Unlock asks whether the reforms go far enough

Christopher Stacey
10 March 2014

 People with criminal convictions are not the most popular group in society. However, once offenders have served their sentence and don’t re-offend, it is in the interests of everybody to enable them to move on positively with their lives and contribute actively to society.

We are not talking about a small group of people. Around 100,000 people are sent to prison every year, but there are more than 1.4 million convictions at court every year. The majority – approximately 945,000 convictions – involve a fine, with 195,000 convictions resulting in a community sentence, and about 45,000 having a suspended prison sentence. In England and Wales,  more than nine million people have a criminal record. A third of people claiming Jobseeker’s Allowance have been cautioned or convicted in the last 10 years.

Before the 1974 Rehabilitation of Offenders Act,  anybody given a conviction at court would have to disclose it for the rest of their life if they were asked. That caused real difficulties for people trying to get their lives back on track. The Act, now 40 years old, remains the only piece of legislation that provides some legal protection to people with convictions.

However, ever since its introduction, the Act has been criticised, particularly with regard to the ‘rehabilitation periods’ attached to a sentence. For example, a fine took five years to become ‘spent’, an eight-month prison sentence took ten years, and a sentence of more than 30 months in prison could never be spent.

Right from its launch in 1999, Unlock campaigned for reforms to these rehabilitation periods. We contributed to  the Government’s original Breaking the Circle consultation in 2002, and since then have pushed for the recommendations in that report to be implemented. The more recent review of Breaking the Cycle brought rehabilitation back on the agenda and, although it was a long-time coming, changes were included in the Legal Aid, Sentencing and Punishment of Offenders Bill which received Royal Assent in 2012.

Two years down the line, the changes are coming into force. In England and Wales, many people will find that their conviction becomes ‘spent’ a lot sooner than previously. The changes are retrospective, so that people already convicted will benefit too. If you were sentenced in June 2013 to one year in prison, that conviction would previously have taken 10 years to become ‘spent’. Under the changes, this will reduce to four years from the end of the full sentence.  It also means that many people who had a conviction that would never be spent (those with sentences between 30 months and four years) will also benefit.

There are also changes to non-custodial sentences. Rehabilitation periods for those given community orders are being reduced and for those who are fined, the period is reduced from five years to one year.

The impact on this for people with convictions will be great. It means an end to the years of struggles that many have had finding work or even getting insurance. 

“I’ve struggled for the last 20 years. My convictions were previously never spent. I’ve been waiting for the last two years for these changes to come in. Finally, I can apply for work with a clean slate,” one person wrote to us on hearing the news.

Disappointment

Once a conviction is spent, there is no need for an applicant for a job or for insurance cover to reveal it. And it would not be disclosed on a basic check. However, it doesn’t get deleted, and will need to be disclosed for most jobs that involve standard or enhanced criminal record checks.

Despite the many improvements, the reforms have fallen short of some campaigners’ hopes.  Sadly, when the changes were being brought before Parliament, my organisation, Unlock, found itself largely isolated in calling for further change.The reforms will undoubtedly make a significant impact to thousands of people, but given that it is the first significant change for nearly half a century, we believe it represents a missed opportunity.

For example, the upper-limit of sentence that can become spent has been raised from 30  months to four years. We believe that people with sentences of more than four years should also have the possibility of having their convictions becoming spent at some point.

In 2012, more than 7,200 people received a prison sentence of more than four years. It is a sad indictment of our criminal justice system that it believes these 7,200 people cannot be rehabilitated. Placing any individual outside the scope of the Act sends out the message that they are permanently ‘unreformable’ or ‘irreclaimable’. This is a serious a disincentive to any attempt on their part to reform. 

One solution would be to give people with sentences of more than four years the opportunity to apply to a court or other tribunal for their conviction to become spent if they spend a certain amount of time in the community conviction-free. Such a process could also apply to those who under the new reforms would still wait many years for their conviction to become spent. It would be a great incentive against reoffending for someone to know they would lose the stigma of the ‘ex-offender’ label. Achieving rehabilitated status could become a significant ‘marker’ in the process, a formal recognition of re-integration requiring conscious and deliberate activities consistent with good and active citizenship.  

Another disappointment is the number of exceptions to the legislation: jobs and roles where spent convictions can still be taken into account. The growing number of exceptions from and exemptions to the Act consign people with old convictions to an increasingly narrow range of employment and educational opportunities. This is shown in the number of standard and enhanced criminal record checks undertaken in recent years (which can only be undertaken on positions exempt from the Act). In 2002, there were 1.3 million a year; in 2011, there were 4.3 million.

Some of this increase represents an increasing appetite for criminal record checks from employers. But the same period has seen a significant number of additions to the occupations on the exceptions list. It  needs overhauling to establish precisely what occupations should be included in it. The  Government has ruled this out.

‘Licence to lie’

The reforms also fail to deal with the so-called ‘Google effect’ and the way in which information is now more readily available. Court reporting remains a fundamental right of our justice system, but the increasing ways of sharing information online represent a significant challenge to the way that the 1974 legislation works.

The Act is often criticised for being ‘toothless’, and to my knowledge, no employer has ever been prosecuted for taking into account spent convictions, despite numerous anecdotal examples of such discrimination having taken place. One practical measure would be to amend the ROA to make it an offence to ask about criminal convictions other than unspent convictions (rather than merely having a duty to ignore spent convictions).

Unless employers and insurers are prevented by law from asking questions to which they are not entitled to know the answer, they will continue to discriminate with impunity. Such a change would enable people with convictions to answer questions honestly, rather than, as at present, being ‘licensed to lie’. 

Of course, there is relief that these reforms are finally coming into force. But we should not lose sight of the remaining difficulties that are left unaddressed. It would be a mistake to think that, if your conviction becomes spent under these changes, that is the end of your problems. In our experience, a criminal record will haunt someone for the rest of his or her life. In many cases it prevents people from reaching their full potential. That cannot be good for society.

As the changes come into effect we will be updating guidance on our self-help website, hub.unlock.org.uk, as well as updating our online tool disclosurecalculator.org.uk. We will also be holding ‘masterclasses’ on the changes. We know that staff and practitioners who provide employment support and careers advice to people with convictions often struggle in understanding this legislation. 

 

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