- A blog from Kayleigh Paxman, Offploy's Organisational Development Lead.
On Wednesday 30th January 2019 the UK’s highest court ruled against the government in the ongoing battle over criminal records disclosure. The Supreme Court found that current legislation around the declaration convictions contravened human rights laws, in particular, Article 8 of the European Convention on Human Rights.
The ruling came as great news to campaigners such as those from Unlock, the leading charity for people with criminal convictions, who provided an intervention to the court to highlight how the current rules negatively affect people with numerous convictions, however minor, and young offenders.
The court heard from four people with criminal convictions, all of whom had been negatively affected when seeking employment due to very old convictions showing up on a DBS check. One of the cases, ‘P’, was suffering from undiagnosed schizophrenia when she committed her crimes in 1999. Her first offence involved stealing a sandwich, for which she received a caution. The second offence involved stealing a book (priced 99p); she was prosecuted and bailed to appear before a Magistrates court. She was homeless at the time and due to her health, failed to appear at court, so received two convictions – the second theft offence and an offence under the Bail Act 1976. Now, P’s health has improved and she is looking to pursue a career as a teaching assistant. P has secured some voluntary roles but feels that her convictions shown on a DBS check have not only created barriers to paid employment but also caused her significant embarrassment when having to explain her health situation to potential employers.
Offploy supports many candidates on a daily basis who are being unfairly treated when seeking employment in a similar way to P. These are all people who have made mistakes but are wanting to move on with their lives, gain employment, give back to their communities and they are being prevented from doing so due to past mistakes, often ones made as a child or desperate circumstances.
So where do we go from here?
In their response to the ruling, Unlock outlined perfectly what the next steps should be:
“Some of the shortcomings of the current filtering system have today been recognised by the Supreme Court. The court described the rule for disclosing multiple convictions and its impact on individuals as ‘capricious’ (para 63). The inclusion of youth warnings and reprimands in the disclosure regime is described as a ‘category error’ and an ‘error of principle’ (para 64).
A fair, proportionate and flexible filtering system should be developed which protects the public without unduly harming the ability of people to move forward positively with their lives. The Supreme Court accepted that a fair system can be based on rules and pre-defined categories. We believe it is possible to develop an acceptable system which operates principally with automatic rules, but these must be the right rules with the right outcomes. There are a number of practical steps that the government can take which we would support, including:
1. Removing the ‘multiple convictions’ rule and so enabling more than one conviction to be filtered
2. Reducing the list of offences not eligible for filtering
3. Creating a distinct system for the disclosure of criminal records acquired in childhood, and taking a more nuanced approach to those acquired in early adulthood.
Crucially however, we believe that the system must have a discretionary filtering process with a review mechanism which could be accessed by people whose criminal records do not benefit from the automatic filtering rules. Although the Supreme Court did not consider this to be necessary for the regime to be in accordance with the law, we believe this is vital to allow some cases to be considered on a case-by-case basis, to ensure that the rules do not operate unfairly. We urge the government to take this opportunity to look at introducing such a scheme that incorporates lessons from other similar schemes, like that in Northern Ireland.”
Lord Sumption, who sat on the high court during the ruling, stated: “...Cases often turn on two competing public interests. One is the rehabilitation of ex-offenders. The other is the protection of the public against people whose past record suggests that there may be unacceptable risks in appointing them to certain sensitive occupations.”
This is why a call for a change to the DBS filtering system is essential in order to provide ex-offenders with a fair chance at a normal life and successful rehabilitation. It also makes clear the need for employers to look at people with criminal convictions on a case-by-case basis and is why we encourage employers to ‘Ban the Box’ - this helps to not only give someone a fair chance, but can also help employers fill skills gaps with people who they would have previously dismissed.
Offploy would like to congratulate Unlock for their outstanding campaigning on behalf of everyone with a criminal conviction and hopes that all of us in the criminal justice voluntary sector can work together for a better outcome and a change in legislation. This ruling has been a large victory, but there is still a lot more work to be done.
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