Time to redemption
An important new evidence review by Beth Weaver (@weaver_beth) looks at the issue of criminal record disclosure and sets out four approaches to reform.
Time for Policy Redemption? A Review of the Evidence on Disclosure of Criminal Records was published by the Scottish Centre for Crime and Justice Studies on 28 March 2018.
Age, employment and desistance
Dr Weaver’s evidence review confirmed that people can and do stop offending, and that employment is a key protective factor in desistance. However, it also reveals a complex relationship between (un)employment, offending and desistance. In sum, employment in and of itself does not produce or trigger desistance; rather it is the meaning and outcomes of either the nature and/or quality of the work or participation in employment and how these influence an individual’s self-concept and social identity, as well as how these interact with a person’s priorities, goals and relational concerns that can explain this relationship. If employment is an enablement to desistance and social integration, this would suggest that public protection is increased rather than risked when barriers to employment are removed. However, anticipated stigma and the repeated encountering of obstacles in obtaining employment can increase risk of reoffending and undermine desistance.
Time to redemption
Time to Redemption studies empirically investigate the period of time when people with convictions can statistically be considered as exhibiting the same risk of reconviction as people with no convictions. These studies suggest that in general after an average of 7-10 years without a new arrest or conviction, a person’s criminal record essentially loses its predictive value.
Disclosure in the UK
The purpose of the Rehabilitation of Offenders Act 1974 is to put in place a system that effectively clears the records of many people with convictions, by setting periods following a specific sentence or disposal after which the person is deemed to be rehabilitated. The Act provides, in principle, for a system of protection to individuals with previous convictions not to have to disclose these in certain circumstances, but it has been criticised for its lengthy rehabilitation periods. However, the wider system of disclosure of convictions is rather more complex and nuanced in as much as spent convictions can still be disclosed to employers and some convictions, spent or unspent, will always be disclosed for the purposes of employment. This is a significant departure from practices in continental Europe.
A number of critiques have been levelled at the U.K. system of disclosure by the European Court of Human Rights (ECtHR) including: that no distinction is made on the basis of the nature of offence, the disposal of the case, the time elapsed or relevance of the data to the employment in question; that the mandatory disclosure of all convictions is disproportionate and does not allow the exercise of any discretion to balance public protection and privacy; and that disclosure should be limited to only convictions.
Dr Weaver sets out four approaches to reforming the disclosure system which she characterises as:
- Forbidding, and
Reforms of the 1974 Act are intended to reduce the barriers that a criminal history presents to employment reducing rehabilitation periods. This approach is unlikely to increase access to employment and support reintegration, if even spent convictions are disclosed in all positions requiring a Standard or Enhanced level of disclosure, given the impacts that disclosures have on employer decision-making. The “Forgetting” approach to reform would be to legislate a) that all convictions should be subject to the possibility of being spent and b) that spent convictions should be automatically withheld from disclosure with the record sealed and the person presumed rehabilitated for the purposes of employment.
The French approach is to issue a Certificate of Rehabilitation applied for by the individual and issued by the state or judicial authorities in light of evidence that a person has made progress towards desistance. The criteria are demanding, thorough and based on merit and the certificate effectively acts as a ‘letter of recommendation’ that can be used by employers as a mechanism for evidencing rehabilitation.
Another approach (proposed by Larrauri Pijoan) is that the disqualification of a person upon conviction from certain occupations could be incorporated into sentencing. This reflects European practices where rehabilitation and privacy are both viewed as a right, one that places due limits on punishment and its effects. The argument is that the criminal law should address substantial risk, instead of relying on employers and criminal records checks. Such a court-imposed Occupational Disqualification Order, could be imposed by the judge after individualised assessment and limited by proportionality constraints, providing due notice, and applied retroactively as part of the sentence, much like a driving disqualification. The underpinning principle is that the process of employment exclusion has to be authorised in law, with regard to certain employments, and only in cases where there is a specific occupational disqualification order imposed by a court and not a generic criminal record.
Dr Weaver’s final approach involves the production of guidance and revisions to anti-discrimination legislation – effectively protecting the rights of people with convictions under the Equality Act to ensure they do not face inappropriate discrimination. Similar protection is afforded by the Australian legal system.