A punitive approach
A new (19 April 2016) report from the Standing Committee for Youth Justice (SCYJ) compared the criminal record systems in 14 different countries (and 17 legal jurisdictions) and found:
The childhood criminal records system in England and Wales stands out … as being the most punitive. A criminal record acquired by a child in England and Wales can affect that person for longer, and more profoundly, than in any of the other 16 jurisdictions reviewed.
This report looks at the treatment of childhood criminal records across a number of countries in Europe, Australasia and three states in the USA. The jurisdictions examined were: Australia: New South Wales; Canada; England and Wales; France; Germany; Italy; New Zealand; Northern Ireland; Poland; Republic of Ireland; Scotland; Spain; Sweden; USA: New Mexico; Ohio & Texas.
Formal disposals and criminal records
England and Wales stand out as an outlier amongst the jurisdictions examined as having a criminal records system where children receive formal disposals (both pre-court from the police, and post-court) which have serious criminal records implications, comparatively frequently.
In 2013/14 in England and Wales, 60,000 cautions and convictions (all attracting a criminal record) were given to children. Under the current system, some of the records attached to these disposals will need to be disclosed for many years, and sometimes forever. By way of contrast, over the same time frame, only 48 children under the age of 17 were given a criminal record in New Zealand and in New Mexico only one child received a criminal record (through an adult sanction).
England & Wales treat child and adult criminal records similarly
In the majority of the jurisdictions examined for the report, there are separate, and different, systems for dealing with child and adult criminal records. By way of contrast, England and Wales treat criminal records acquired in childhood in the same way as those acquired in adulthood, regardless of the offence category.
The records are held on the same database, and are subject to the same retention and disclosure rules. What distinguishes the two systems is that childhood criminal records become ‘spent’ (when they no longer must be disclosed) and can be ‘filtered’ (not disclosed in DBS checks) more quickly than those of adults.
Childhood criminal records in England and Wales can never be deleted
In England and Wales, a record of a childhood caution or a conviction, however minor, is kept by the state for life and can never be erased. This is unusual; 11 of the jurisdictions examined have provisions for expunging (destroying) childhood criminal records, although systems do vary considerably between countries.
Where England and Wales are in the minority is in having no provision to remove childhood contact with the justice system from a person’s record at all. This means that a record of a minor teenage conviction will be kept on record for a person’s entire life, and may well be disclosed.
Wide-ranging disclosure of childhood records
England and Wales have one of the most unrestricted, and therefore, punitive regimes in terms of childhood criminal records disclosure. Although subject to a very limited filtering system, records of criminal convictions and cautions acquired in childhood are retained for life, and all convictions and cautions must frequently be disclosed for many years, and often for life.
Despite the limited provision of filtering, an SCYJ Freedom of Information request to the Disclosure and Barring Service (DBS) in 2015 found that 88% of childhood convictions are not being filtered.
An offence committed in childhood will only be ‘filtered’ i.e. removed from a DBS Standard or Enhanced certificate if 5.5 years have passed since the date of the conviction; and if it is the person’s only offence; and it did not result in a custodial sentence. However, if the offence appears on the list of over 1,000 offences which cannot be filtered (including sexual offences and those with a degree of violence) then the conviction can never be filtered, and details of all their convictions will always be included on a check.
Penelope Gibbs, Chair of the SCYJ summarised the report like this:
A child in England and Wales is not only more likely to acquire a criminal record, but this record will affect them for longer, and more profoundly, than in any of the countries reviewed.
A child who has shoplifted a couple of times will suffer the disproportionate penalty of not only having the offences recorded for life, but also having to disclose it at key points – such as entering university or applying for certain jobs, such as a teacher, or a police officer. No other country reviewed inflicts such tough penalties on a child who offends.
The SCYJ is launching a campaign calling for radical reform of the law on childhood criminal records. Its recommendations include shorter rehabilitation periods, expanding the current filtering system, and wiping the slate clean after ten years.
About the Standing Committee for Youth Justice
SCYJ is a membership body, representing over fifty organisations, campaigning for a better youth justice system. It focuses on policy and legislation affecting all aspects of the youth justice system and young people caught up in it – from policing to resettlement. SCYJ advocates a child-focused youth justice system that promotes the integration of children in trouble with the law into society and tackles the underlying causes of offending. Such a system would serve the best interests of the children themselves and the community at large.
You can follow SCYJ on Twitter @theSCYJ