Youth criminal records disclosure: system undermines principles of youth justice, says committee

Witnesses highlighted the adverse effect of childhood criminal records on individuals’ access to employment, education, housing, insurance, visas for travel, and its discriminatory impact on BAME children, those within the care system and others.

Committee Chair Bob Neill said:

“The Government confirmed to us that its primary objective in youth justice is to stop people being drawn into crime, with consequent blighting of their life chances, as well as harm being caused to victims and communities. But these laudable aims are systematically undermined by the current disclosure regime; mistakes made as a teenager can follow someone around for decades and create a barrier to rehabilitation, as well as profound problems with access to employment and education.”

Problems caused by the disclosure regime potentially affect large numbers of people. In 2014-15, 26% of standard DBS checks and 23% of enhanced checks related to subjects who were under 18 at the time of a conviction.

Overall the evidence strongly supported the case for changing the criminal records disclosure system. For young adults the majority of those who expressed a view thought that reform was also needed.

The Committee recommends:

• Lord Ramsbotham’s Criminal Records Bill to reduce rehabilitation periods under the Rehabilitation of Offenders Act 1974 should be enacted;

• ·        An urgent review of the filtering regime, to consider removing the rule preventing the filtering of multiple convictions; introducing lists of non-filterable offences customised for particular areas of employment, together with a threshold rest for disclosure based on disposal/ sentence, and reducing qualifying periods for the filtering of childhood convictions and cautions;

• Considering the feasibility of extending this new approach, possibly with modifications, to the disclosure of offences committed by young adults up to the age of 25;

• Allow chief police officers additional discretion to withhold disclosure, taking into account age and the circumstances of the offences, with a rebuttable presumption against disclosure of offences committed during childhood;

• Giving individuals the right to apply for a review by the Independent Monitor of police decisions to disclose convictions of cautions.

Committee Chair Bob Neill said:

“According to the Children’s Commissioner for England there is no evidence to suggest that having committed more than one offence is predictive of a greater risk of continued offending in adulthood; on the contrary there is considerable evidence that most children stop offending as they mature. Yet we still have a system which works to prevent children from moving on from their past and creates a barrier to rehabilitation.

“We regret the Government’s decision to pursue an appeal against the recent Court of Appeal decision on the compatibility of the filtering system with human rights standards, rather than tackling the urgent need for reform.”

The Committee also concluded that the coherence of Government policy on this area would be enhanced by consolidating responsibility into a single department.

‘Ban the Box’

The ‘Ban the Box’ campaign aims to delay the point at which job applicants have to disclose criminal convictions by ticking a box on application forms, allowing them to be judged primarily on merit. The Committee recommends the Government extend this approach to all public sector vacancies and consider making it a mandatory requirement for all employers.

Committee Chair Bob Neill said:

“We accept that employers are entitled to know about genuine and relevant risks arising from previous criminal conduct. However the clear difficulties in securing employment faced by people with youth criminal records, often for a lengthy period after they have become adults, leads us to conclude that too many employers fail to make an objective and balanced assessment of the relevance of ‘unspent’ criminal offences declared in job applications.”

Housing

The Committee also recommends urgent amendment to Government guidance on English housing authorities’ allocation schemes to reflect the 2016 court decision (see below) that found a local authority to have breached the Rehabilitation of Offenders Act 1974 by taking into account an applicant’s spent convictions. 

Insurance

The Committee recommends that the Financial Conduct Authority consider undertaking a thematic review of providers wrongly declining cover or quoting higher premiums when customers disclose a criminal record.

Discriminatory impact of the regime

The Committee considered evidence that the disclosure regime causes secondary discrimination for certain groups who are already disproportionately represented within the criminal justice system. The Committee’s conclusion  that the criminal records disclosure regime needs to change is supported by evidence of its discriminatory impact on BAME children, children within the care system, and girls forced into prostitution— an impact that is very likely to follow them into adulthood, to the further detriment of their life chances.

BAME groups

Compared with the White ethnic group, "stops and searches" were four and a half times more likely to be carried out on those from the Black ethnic group and twice as likely to be carried out on those from the "Mixed" group. Proportions of stops and searches resulting in arrests were also higher for these groups. Compared to other groups, members of the Black ethnic group were three times more likely to be given a caution. (Statistics on Race and the Criminal Justice System 2014, Ministry of Justice, 26 November 2015)

Children in care

A disproportionate impact of the disclosure regime on looked-after children was also identified. Research evidence cited by Greater Manchester Youth Justice University Partnership suggested that children in the care system often commit offences that reflect their troubled backgrounds, characterised by loss of emotional control, aggression, and a disregard for enforced boundaries. 

The Criminal Justice Alliance pointed out that those in care settings tend to be criminalised for minor infringements and indiscretions that would be dealt with informally in a family home. This was illustrated by a case study submitted by Just for Kids Law, of a physically abused child who had multiple convictions for assaults on care home staff committed between the ages of 10 and 12, due to his inability to cope with normal physical reactions. 

Mental health

Witnesses also remarked on the discriminatory impact of the disclosure regime on people whose criminalisation as children was linked to mental health problems or autism.

Child sex workers

The Nia Project highlighted that the disclosure of prostitution-related offences committed by women and girls under the age of 18 creates "a huge barrier to women who wish to exit from what is essentially an abusive trade." The Project pointed out that "prostitution is often a survival strategy", making it highly likely that those with prostitution-specific criminal records have multiple convictions that will never be filtered. 

Notes and further info

Additional notes provided below on:

1 Background
2 Relevant court decisions
3 International research
4 Individual experiences
5 Witness quotes

1 Background

The impact of disclosing childhood criminal records has been the focus of concern for many years. The Carlile Inquiry, noting the ‘destructive’ effect of childhood criminal records, recommended in 2014 that children who have committed non serious and non-violent offences should have their record expunged at the age of 18 if they have stopped offending. A series of legal challenges to the previous disclosure regime has led to some changes, most recently in 2013 when a filtering system was introduced to prevent disclosure of certain ‘spent’ records in standard and enhanced certificates.

The Committee’s predecessor held an inquiry on disclosure of youth criminal records in the 2015-17 Parliament, focusing on three questions:

• Is the current statutory framework for disclosing records of offences committed by people when under 18 years old appropriate and effective?
• Does it strike the right balance between protecting employers and the public, and rehabilitating people who commit offences as children?
• What has been the impact of changes made in 2013 to filtering of offences from criminal records checks and in 2014 to rehabilitation periods?

The Committee also sought views on whether the regime should be extended to records of offences committed by young adults, eg up to the age of 21 or 15.  Taking account of the compelling evidence received, the new Justice Committee (Sept 2017) decided to report on these important issues.

N.B: A full explanation of the current criminal records disclosure system, which is complex, is given at Annex A to the Report

2 Relevant court decisions

In the case of R (P, G and W) - v - Secretary of State for the Home Department (May 2017), the Court of Appeal concluded that, without a mechanism for refinement, the inflexible rules on non-filtering of multiple convictions and serious offences were not “in accordance with the law” as required by Article 8 of the European Convention on Human Rights. While not prescribing the changes that Parliament should make, the Court confirmed that the nature of the offence, the disposal in the case, the relevance of the offence to the particular employment and the time that had elapsed were all factors that may need to be taken into account in considering whether public protection was engaged.  The Government has appealed to the Supreme Court.

In the 2016 case of YA - v - London Borough of Hammersmith and Fulham, the council was challenged for its refusal to add a 19 year old care leaver to its housing register because of his history of offending between the ages of 12 and 15. The High Court found that this amounted to a breach of the Rehabilitation of Offenders Act 1974; all the claimant’s convictions were spent and could not be taken into account. Other than the spent convictions, there was no other evidence of “unacceptable behaviour” which made him unsuitable to be a tenant.

3 International Research

International research into the handling of childhood criminal records by the Standing Committee on Youth Justice (Growing up, moving on - the international treatment of childhood criminal records; Claire Sands, March 2016) found that the majority of the 16 jurisdictions examined had separate systems for children and adults. For example, in Germany, Ohio, Texas and Spain most childhood records are held on databases entirely separate to those for adults, with significant restrictions on access. 

In many of the jurisdictions, only the most serious offences committed by children attract a criminal record and/or are classed as ‘convictions’; thus, in New Zealand in 2014, only 48 children under the age of 17 were given a criminal record — compared to 60,000 cautions and convictions (all attracting a criminal record) that were given to children in England and Wales in 2013/14. 

The research identified provisions for expunging criminal records in 11 of the jurisdictions, although with different conditions and processes. Germany and Spain (from 2019) permit all sentences, apart from life, to be removed from a record, while Canada, Sweden, Italy and Ireland exclude the most serious offences from their otherwise wide-ranging policies on expunging records. Other jurisdictions were found to have more complex rules on expungement of records or link this to rehabilitation. 

Ali Wigzell of the Standing Committee for Youth Justice said that their international research gave no indication that placing a greater emphasis on rehabilitation would have an adverse effect on public protection.

4 Individual experiences

In December 2016, the previous Committee held a private seminar attended by eight people who had been directly affected by disclosure of criminal records from when they were children, together with representatives from the Standing Committee for Youth Justice, Unlock, and Wipetheslateclean. A note of the seminar annexed at the end of the report vividly illustrates the continuing harm which disclosure can have.

Extracts from the report:

“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.”

An individual whose case was presented by Unlock explained how her retaliation against a school bully had led to her receiving a police warning for ABH at the age of 15. As a result her university place to study nursing was revoked. She appealed against the decision, which involved writing a disclosure statement explaining the circumstances of the warning to a risk assessment panel. After qualifying she eventually obtained employment in nursing but has found career progression difficult because of her criminal record, which she is continually having to explain.

A 17 year old who had been convicted of common assault at the age of 14 was accepted on to a health and social care course. At the end of the first year prior to her work placement the student’s conviction was disclosed by a DBS check. The college informed her she would be unable to practice as a social worker and as a result she changed to a non-vocational course. In a similar case a young person gained a place on a course that would have led to her qualifying as a nursery nurse. However the college would not let her take up the place because her criminal conviction would lead to difficulties finding her a placement, without which she could not complete the course.”

Bob Ashford from Wipetheslateclean explained the impact of having acquired two minor convictions as a 13 year old. Although he was able to progress his career in social work and youth justice, advancing to a senior level, when he stood for election as a Police and Crime Commissioner for Avon and Somerset he discovered that he would be barred from holding office because of having multiple convictions for “imprisonable” offences. After resigning his candidacy he received extensive and largely supportive media coverage of his situation. As a result he was contacted by many others facing difficulties because of historic criminal records, which led to him setting up Wipetheslateclean.

5 Witness quotes from report

“I would be the first to say that many people with convictions do secure jobs that involve enhanced checks, having disclosed them, but that perception is not widespread… so they do not bother applying. There is this problem across all types of employment of the way that employers recruit – in the way that they ask people to self-disclose during the recruitment process.”
Christopher Stacey, Co-Director of Unlock.

“A criminal record can act as a key barrier… because it essentially labels that person as an offender and prevents them from developing a prosocial identity by gaining employment and seeing that reflect back to them by their significant others.”
Ali Wigzell, Chair of the Standing Committee for Youth Justice.

“We know that having a home and a job, and engaging in education, make it much less likely children will re-offend. It seems perverse that we have a criminal record disclosure system that makes it far more difficult for young people to access these things, when disclosure is frequently unnecessary and disproportionate.”
Just for Kids Law