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Unlock responds to Supreme Court judgement on criminal records disclosure regime

Deb S — Tue, 19 Feb 2019 08:55:00 GMT

Landmark day as the Supreme Court rules that the criminal records disclosure regime as it applies to multiple convictions and childhood warnings/reprimands is disproportionate.

Read our press release here.

RE: Unlock responds to Supreme Court judgement on criminal records disclosure regime

AB2014 — Tue, 19 Feb 2019 08:55:00 GMT

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[b]Square - 17 Feb 19 5:50 PM[/b]

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[b]AG2 - 10 Feb 19 4:19 PM[/b]

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[b]AB2014 - 5 Feb 19 1:29 PM[/b]

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[b]AG2 - 2 Feb 19 3:09 PM[/b]

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[b]Deb S - 30 Jan 19 3:13 PM[/b]

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Well done, but does this relate to police cautions as well as convictions?

I don't see any reference to people with disabilities being high in the national statistics as victims of hate crime, harassment and antisocial behaviour getting caught up in the criminal justice system with cautions that limit employment opportunities still further.

There should be a way of appealing police cautions that were issued to people at extreme times of anxiety and distress, because all that is seen by an employer on an Enhanced DBS is the decontextualized offence.

From experience, the majority of employers are still not implementing ban the box, they are asking about prior, cautions, reprimands and warnings before the interview stage, with a get-out clause, when challenged, that they do not read the disclosure until after the interview. So, asking for disclosure before the interview does not make any sense, right?

Apparently tens of thousands of people are affected my old police cautions around offences such as ABH - which, can cover anything from minor scratches to serious assault, but the DBS contains one-size-fits-all descriptors of offences which should have probably gone to court.

This trial without day in court police caution, pounds-pence DBS system has stigmatised some of the most vulnerable people in our communities for the rest of their lives or until they turn 100 years old, and yet cautions seem to be obfuscated by convictions for the purpose of the Supreme Court.

It is unlikely that cautions handed out for offenses such as ABH to people with disabilities or to other vulnerable people such as women who have been victims of harassment or domestic abuse will ever be filtered from DBS records until there is common parlance with other marginalised people.

The Supreme Court ruling is a start, but I hope it goes further.

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The reason cautions weren't included, beyond the fact that they weren't mentioned in the original cases, is that they are handled differently. If convictions were handled in the same way, the system would be a bit less unreasonable. For example, the Supreme Court had a problem with the multiple convictions rule, which is not applied to cautions.

Unfortunately, the problem with aggravated assault/harassment is that the relevant law is from 1998, and the Equality Act is from 2010. I'm sure the law could be updated to reflect that, but I'm always reluctant to suggest that the government changes the law, due to the law of unintended consequences.

I'm disappointed that the specific problem of ABH wasn't dealt with, as the level of proof has changed over time, so that many cases that would have been ABH at one time are now common assault. This really is a case where Something Should Be Done.

Technically, a police caution can be appealed, but you have to show evidence of "exceptional circumstances". However, it normally amounts to showing that the police didn't follow the correct procedures, so good luck with that. :(

Employers who ask for disclosure before interview could be breaking data protection law, so as soon as someone is pulled up for it, practice will change quickly. Even then, if nobody asks until a job offer is made, there is still plenty of discrimination. More and more organisations and people are calling for Ban the Box, but a company can ban the box and still be prejudiced, so something has to change. I like Outsourced's idea in principle, but who makes the decision on who is suitable, and who decides who makes the decision? Maybe scrapping basic DBS checks is the way forward, as safeguarding is covered by other procedures. Given that civil servants are being seconded to deal with the bureaucracy of Brexit, maybe they could re-assign all the people who process basic DBS checks, and do it sooner rather than later. Just saying. ;)

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Thanks for your comprehensive reply. I think discrimination has become sophisticated under police cautions.

There should be more transparency on how data is shared and for what purposes - the dbs system doesn't tell the full story about victimisation and disability hate crime, in terms of what led up to offences, it just records the index offence.

From experience, victim dialogue, restorative justice, and Victim Support all ignore stories of those who have had to defend themselves against harassment and hate crime because services are not commissioned to deal with 'grey areas'.

I guess that having a police caution lets institutions off the hook for 'unintended' discrimination. Unlike other protected groups under the Equality Act 2010 ex-offenders with protected characteristics and cautions have no protections. They are not even given equal status to those with convictions for the purpose of campaigning. It's all about people with convictions.

Even if an employer employs a person with a caution that shows on enhanced DBS I know from experience that even volunteering opportunities are limited. It's all very subjective. It's like being judged over and over for years by people who may or may not like you.

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Whilst you are right that it is discrimination, there are also elements of protecting the company/ organisation. Companies and organisations have the responsibility to protect their staff and anyone who comes into contact with the organisation. Say a person with a conviction is employed and then harms someone connected with the organisation, the victim will claim that the organisation knowingly put them at risk by employing someone with a conviction. This would mean that the victim could start a civil case against the organisation which they will almost certainly win.
I am all for hiring ex-offenders, and have pushed for this in a number of places I have worked - but there are reputational an potential financial risks to deal with.

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This just comes back to the multiple conviction rule and ancient convictions from 20-40 years ago. A proper risk assessment should show that there is effectively no risk. Of course, where do you draw the line? 20 years? 19? 15? 10? As for the risk of damage to reputation, it is often the case that the only people who know about the convictions are the applicant and the employer, and neither of them should be disclosing to anyone else. So where is the risk?

RE: Unlock responds to Supreme Court judgement on criminal records disclosure regime

Square — Sun, 17 Feb 2019 17:50:26 GMT

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[b]AG2 - 10 Feb 19 4:19 PM[/b]

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[b]AB2014 - 5 Feb 19 1:29 PM[/b]

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[b]AG2 - 2 Feb 19 3:09 PM[/b]

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[b]Deb S - 30 Jan 19 3:13 PM[/b]

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RE: Unlock responds to Supreme Court judgement on criminal records disclosure regime

AG2 — Sun, 10 Feb 2019 16:19:39 GMT

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[b]AB2014 - 5 Feb 19 1:29 PM[/b]

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[b]AG2 - 2 Feb 19 3:09 PM[/b]

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[b]Deb S - 30 Jan 19 3:13 PM[/b]

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RE: Unlock responds to Supreme Court judgement on criminal records disclosure regime

AB2014 — Thu, 07 Feb 2019 08:47:26 GMT

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[b]Miguel - 7 Feb 19 8:40 AM[/b]

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[b]Outsourced - 6 Feb 19 12:47 PM[/b]

German efficiency as usual.

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And common sense.

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Yes, yes, that's all very well, but it's not very good at stopping people with convictions from getting jobs, is it? That's not what British people pay their taxes for! BTW, there doesn't seem to be an emoji for "I'm being sarcastic". :(

RE: Unlock responds to Supreme Court judgement on criminal records disclosure regime

Miguel — Thu, 07 Feb 2019 08:40:30 GMT

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[b]Outsourced - 6 Feb 19 12:47 PM[/b]

German efficiency as usual.

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And common sense.

RE: Unlock responds to Supreme Court judgement on criminal records disclosure regime

Outsourced — Wed, 06 Feb 2019 12:47:14 GMT

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[b]BenS - 6 Feb 19 7:46 AM[/b]

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[b]Outsourced - 2 Feb 19 9:34 PM[/b]

The review of the whole system should focus on the statutory agency being the one stop shop for background checks. They can review everything in totality and issue a certificate with suitable for appointment to (insert job and company) or unsuitable for appointment.

Certification would cost a lot more, and therefore reduce blanket use. Only those that are needed in law or for those who want to fork out the cash.

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I lived in Germany for a few years, and the system was roughly as follows.

Employers have no right to ask directly about convictions, at any stage, ever. If they want to know about convictions, they must apply to the statutory criminal records agency on a job-by-job basis. Approval from this agency then only allows them to request that the applicant provide the employer with a criminal record certificate on themselves - it does not allow them to ask the applicant "do you have any convictions?".

When the applicant then applies for this certificate, they specify the job applied for, and the criminal records agency then provides a certificate revealing only convictions that are relevant to that job - not just any/all convictions. So if you're applying to a role in banking, an indecent images conviction will not show up. If you're applying to a role with children, a white-collar conviction will not show up. It is illegal for employers to ask "do you have any convictions?" - all they can do is get approval from the agency to request a certificate showing any relevant convictions.

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German efficiency as usual.

RE: Unlock responds to Supreme Court judgement on criminal records disclosure regime

BenS — Wed, 06 Feb 2019 07:46:32 GMT

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[b]Outsourced - 2 Feb 19 9:34 PM[/b]

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RE: Unlock responds to Supreme Court judgement on criminal records disclosure regime

AB2014 — Tue, 05 Feb 2019 13:29:03 GMT

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[b]AG2 - 2 Feb 19 3:09 PM[/b]

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[b]Deb S - 30 Jan 19 3:13 PM[/b]

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RE: Unlock responds to Supreme Court judgement on criminal records disclosure regime

Outsourced — Sat, 02 Feb 2019 21:34:23 GMT

RE: Unlock responds to Supreme Court judgement on criminal records disclosure regime

AG2 — Sat, 02 Feb 2019 15:09:59 GMT

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[b]Deb S - 30 Jan 19 3:13 PM[/b]

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RE: Unlock responds to Supreme Court judgement on criminal records disclosure regime

Yankee — Fri, 01 Feb 2019 14:10:17 GMT

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[b]Deb S - 30 Jan 19 3:13 PM[/b]

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Great step forward. Disappointing the court did not support Mr W. I suspect that relates to the type of offence. The problem with the list of offences that can never be filtered is that they bear no relation to the sentencing, just the charge. For example, being found 'technically' guilty of an offence involving violence and getting a slap on the wrist with a small fine makes no difference - if the offence is on the list it won't be filtered.

RE: Unlock responds to Supreme Court judgement on criminal records disclosure regime

AB2014 — Thu, 31 Jan 2019 08:53:07 GMT

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[b]BenS - 31 Jan 19 7:58 AM[/b]

Well done, Unlock! Thanks for campaigning for this.

As for what happens next, it will be interesting to see. The Government was told years ago by the ECHR to change the situation regarding the blanket ban on all prisoners from voting, but to my knowledge nothing has changed (but I would be happy to be told I'm wrong about this).

Hopefully this change will be more acceptable to the public than the prisoner votes thing, as millions of people are affected by this.

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In reply to Leigh, the timescale will be lengthy. For a start, the Ministry of Jesters and the Go-Home Office will say they are busy with Brexit. Eventually, they will come up with proposals, then pretend to consult. They know that the bottom line is that they have to comply with what the court told them, and they will probably do the minimum required to do that and solve the problems in the cases actually brought to the court. There are other linked cases where the courts ruled against the government, but the government chose not to appeal until they knew the outcome of this case. I'd say a minimum of 2-3 years before the law changes.

The government was able to ignore the ECHR ruling on prisoner voting because the ECHR then ruled that no compensation was due. That removed the incentive to change things and stopped the prime minister from feeling physically sick about it all. Nice guy.

Thousands of people are affected by filtering, but this is a chance to change the whole system of rehabilitation law. Of course, that would take even longer, so they might just go for that to delay change until the next general election.

RE: Unlock responds to Supreme Court judgement on criminal records disclosure regime

BenS — Thu, 31 Jan 2019 07:58:29 GMT

RE: Unlock responds to Supreme Court judgement on criminal records disclosure regime

Leigh — Thu, 31 Jan 2019 00:14:19 GMT

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[b]Deb S - 30 Jan 19 3:13 PM[/b]

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This is really positive but what happens next? Presumably the government has to review the current filtering system? Any idea of the timescale?