Disclosure of Youth Criminal Records

Debate between Lord Spellar and Robert Neill

Thursday 28th March 2019 Westminster Hall

[Robert Neill]

Yes it is, and the evidence, as I will perhaps demonstrate if I make a bit more progress, shows exactly that. That is entirely the problem that we find. The particular difficulty is that the system is not only mechanistic but is in practice arbitrary—there is no real discretion—and has no right of appeal to speak of. None of those can be just.

As my hon. Friend the Member for Cheltenham (Alex Chalk) and others pointed out, certain things can be filtered out, but that is arbitrary. A single conviction can be filtered out, provided it did not result in a custodial sentence, was not for a listed offence—broadly, a serious offence, although that is probably not the issue most of us would take, as other bits come into it later—and that more than 11 years have elapsed since the date of the convictions. All the evidence suggests that, nowadays, for young men in particular, maturity and desisting from criminal behaviour kick in around the age of 25. Eleven years back from that, they could have been convicted as a teenager for exactly the sort of stupid incident that my hon. Friend referred to, which would then not be filterable at a time when they sought to move into education and work. That is an obstacle, as the evidence clearly shows, and it is no longer realistic, in our submission.

Single offences can be filtered provided that the sentence was non-custodial and was not a listed offence, as well as that more than 11 years have elapsed since the date of the conviction, or more than five and a half years if the person was under 18. That could still be within a key time when they were moving into their mid-20s and getting jobs.

[John Spellar (Warley) (Lab)]

Are there not two further problems? First, the Government’s response seems to be that employers should exercise discretion, but many small employers play safety first, do not exercise discretion and just treat any disclosure as a bar to employment. A second area that causes considerable problems for many people is that if they move between police areas, that can cause considerable delays as their case moves between those areas, and again they lose out on those opportunities. That is economically inefficient, and it is also devastating on their lives in the way that the hon. Gentleman describes.

[Robert Neill]

That is absolutely right, and it tallies with some of the examples given to us directly by people who have been through the system. I agree entirely that it does not make sense.

Let us look at the remaining bits of the system. We have filtering for single convictions. Single or multiple cautions for lesser offences can be filtered out once six years have elapsed, or two years if the person was under 18 at the time. That structure is complicated enough, frankly, but we then get to what we cannot filter, including convictions and cautions for listed offences and multiple convictions for lesser offences, no matter how long ago they happened and regardless of the circumstances.

Those of us who have practised criminal law can think of many instances in which it is perfectly possible to charge more than one offence arising out of the same set of facts. For example, actual bodily harm and a theft, both of which ended up in a conditional discharge or a fine; two offences of theft; or two assaults, because more than one person was involved in a stupid fight. Those are multiple and cannot be filtered, however much time has gone by. That, to us, seems to be nonsense. The view of many witnesses to our inquiry is that the system is complex and arbitrary. It is a blunt instrument, it is restrictive and it is disproportionate. It has exactly the problems that the right hon. Member for Warley (John Spellar) mentioned.

--- Later in debate ---

[Robert Neill]

That, too, is a fair point. Certainly my experience as a lawyer representing people coming through the system was that there were instances of serious behaviour that had to be punished, but very often—this was particularly the case with younger offenders—offenders are also victims of other offending and there are underlying causes that too blunt an approach, such as that which we have, does not help.

We made a number of recommendations. Rehabilitation periods under the 1974 Act should be reduced. There should be an urgent review of the filtering regime, for the reasons we have set out. There should be a presumption against disclosure of so-called non-conviction intelligence, which is held on the police national database. That is legitimate for intelligence purposes, but there should not be arbitrary disclosure of it in the way that happens at the moment, particularly where the allegations on the database were made during someone’s childhood. Individuals should have a right to apply for a review prior to disclosure of their criminal record. That exists in Scotland and Northern Ireland, but not in England and Wales, and we see no reason for that distinction.

The Ban the Box approach, which has been pioneered under recent Governments and is used by some employers, delays the point at which a job applicant discloses criminal records to a prospective employer. That is sensible because it allows the employer, first, to look at the application on its merits and then, if disclosure is appropriate, to see whether the conviction makes any difference to the person’s employability.

[John Spellar]

The hon. Gentleman is rightly and very ably identifying all the issues that the current system causes for individuals and their families and therefore the impact on society if they fail to be rehabilitated. Is not there also an overall, macroeconomic issue, particularly as a number of employers are expressing concerns about shortfalls in labour either leading up to or following Brexit? Artificially restricting people from working and, indeed, from advancing is not just bad for those individuals, shocking though that is, but very bad for society and the economy.

[Robert Neill]

That is an unanswerable point, because we can see that people who are kept unwillingly in economic inactivity—

[John Spellar]

Or low-paid jobs.

[Robert Neill]

Low-paid and unsatisfactory jobs create burdens at every level, so the point is entirely true.