Criminal Records Bill [HL]

Baroness Vere of Norbiton Excerpts

2nd reading (Hansard): House of Lords
Friday 23rd February 2018 Lords Chamber

[Baroness Vere of Norbiton (Con)]

My Lords, I thank the noble Lord, Lord Ramsbotham, for bringing this matter back to the House for debate today. Noble Lords have powerfully raised a number of important and varied issues. Like the noble Lord, Lord McNally, I do not want to speak for too long or to create any hostages to fortune, so if I am not able to respond to all the issues I will of course write.

Rehabilitation is one of the most important objectives of our criminal justice system and the Government support all ex-offenders who wish to turn their lives around. Work can reduce the likelihood of re-offending, as we have heard today, and for many it is a central element in leading a rehabilitated life. This is why the Rehabilitation of Offenders Act—or ROA—provides that rehabilitated offenders will be treated as though they had not committed the offence and, subject to exceptions, will not be required to disclose spent cautions and convictions.

While this is familiar to many noble Lords, it may help if I briefly describe the ROA and how it supports ex-offenders. Under the Act, most convictions and all cautions will become spent following a certain period of time. That period varies according to the disposal or sentence imposed for the crime. Convictions resulting in non-custodial sentences and those resulting in custodial sentences of up to, and including, four years become spent. Where a caution or conviction has become spent, the offender is treated as rehabilitated in respect of that offence and is free to withhold the fact of that caution or conviction for most purposes. This includes when applying for most jobs, as well as when applying for insurance or a bank loan.

However, the protections afforded by the Act are excluded in respect of specified areas of employment. The Rehabilitation of Offenders Act 1974 (Exceptions) Order 1975 lists areas of activity and proceedings that are exceptions to the Act. This means that an employer or other relevant body is entitled to ask for, and take into account, certain details of a person’s spent cautions and convictions, as well as any unspent cautions and convictions. These activities usually involve working with children or vulnerable adults, or where sensitive information is handled and there is a risk to the public of an abuse of trust.

I now come to the specific proposals that the noble Lord has included in his Bill. As I understand it, the intended effects of the main amendments include: bringing all determinate custodial sentences of any length, except extended sentences for certain sexual and violent offenders, within the scope of the ROA, whereas currently only custodial sentences of up to and including four years may become spent; reducing the rehabilitation periods that apply to a range of sentencing disposals for both adult and juvenile convictions, so that they become spent more quickly; removing the rehabilitation periods applicable to fines and some other sentences, including some non-custodial sentences and sentences under the Mental Health Act 1983; and commencing the amendments to the ROA that were made in 2014, in so far as they relate to road traffic endorsements. The intended effect is that rehabilitation periods for road traffic endorsements would be reduced. They are currently of five years.

The current rehabilitation periods were introduced almost four years ago, in March 2014, when reforms to the ROA were commenced through provisions in the Legal Aid, Sentencing and Punishment of Offenders Act 2012. A conviction resulting in a custodial sentence of four years, or 48 months, or less may now become spent with the exception of offenders serving extended sentences. Previously, only convictions resulting in custodial sentences of 30 months or less could become spent. At the same time, most other rehabilitation periods were also reduced. Rehabilitation periods are substantially shorter for individuals who were under the age of 18 when they were convicted.

The Government believe that these reforms, which were approved relatively recently by Parliament, are proportionate and strike the right balance between protecting the public and helping ex-offenders to put their criminal pasts behind them. The Government are therefore not minded to support the Bill introduced by the noble Lord, Lord Ramsbotham, or the intentions behind it at this time. However, we give careful consideration to maintaining a policy which balances protecting the public and supporting rehabilitation, which is why the debate today is welcome.

I turn now to the nuances of the Government’s position, and I hope it will be helpful if I say something about the position and why we have taken it. Noble Lords will be aware, as it has been mentioned today, that aspects of the disclosure regime are currently being challenged in the courts. Several joined cases—P and others—are due to be heard this summer by the Supreme Court. These cases focus on the question of whether the current scheme, which sets out which cautions and convictions can be filtered from criminal record certificates in certain circumstances, is compatible with rights under Article 8 of the European Convention on Human Rights; that is, the right to respect for a private and family life.

Filtering provides that certain old and minor convictions and cautions are protected from disclosure and are no longer included on a standard or enhanced criminal record certificate. Filtering does not apply to convictions where an individual has committed a specified serious offence, has more than one conviction or has received a custodial sentence. Filtering also does not apply to any caution for a serious offence. For individuals who were convicted or cautioned below the age of 18, convictions and cautions are filtered more quickly in acknowledgement of the special importance of supporting those who get into trouble when they are young to put the past behind them. The filtering arrangements seek to strike a difficult balance between the rehabilitation of offenders, their right to privacy and the protection of the public.

Noble Lords may ask why we cannot take a view on this Bill now, given that the Supreme Court litigation does not directly challenge the 1974 Act. The Government believe that it is sensible to consider any proposals for change to the current disclosure arrangements in conjunction with an authoritative judgment of the Supreme Court on the requirements of Article 8 in this context. Although the litigation relates to the filtering rules, we think it is necessary to consider the disclosure regime in the round.

The disclosure system has also been considered in a number of recent reports—for example, David Lammy MP’s review into the treatment of and outcomes for black, Asian, and minority-ethnic individuals in the criminal justice system, and Charlie Taylor’s review of the youth justice system. David Lammy called for a discretionary process for criminal records to be sealed and we confirmed in our response at the end of last year that we would consider the recommendation, following the conclusion of the ongoing litigation. We also stated that we would also consider the recommendations made by Charlie Taylor in his report.

Most recently, on 31 January this year the Government published our response to the Justice Committee’s report on the disclosure of youth criminal records, a report that commended the earlier proposals by the noble Lord, Lord Ramsbotham, as representing a reforming consensus. This is a very important area, as noted by the noble Lords, Lord Carlile, Lord Dholakia and Lord McNally. Our response noted that the committee’s report was reflective of the long-running debate on how the disclosure regime should balance the objectives of securing public safety and respecting an individual’s right to privacy. As for the report’s recommendations on reform to the statute, the Government made the following statements, and it is worth reading them in full:

“The Committee makes a number of recommendations and conclusions relating to the legislation which governs the filtering of convictions and cautions from criminal records certificates. The Government notes these recommendations and the Committee’s concerns. However, against the backdrop of the litigation, the Government believes that it is appropriate to consider these recommendations in conjunction with an authoritative”,


statement from the Supreme Court. The Government’s response continues:

“The Committee has suggested that the rehabilitation periods set out in the Rehabilitation of Offenders Act 1974, which are not subject to challenge in P and Others, should be reconsidered. The Government considers that it is important to consider the Committee’s recommendations regarding different aspects of the disclosure system in the round, and will therefore consider this recommendation alongside the others”.


So we are not able to support the noble Lord’s Bill at this time, but we would welcome the opportunity to speak to him further in the interim about how we can increase the support available to ex-offenders. We are making continuing progress in a number of areas, and a wide range of initiatives are ensuring that offenders have the skills and experience that they need.

We are also looking at the reform of education. It remains at the heart of prison reform. Earlier this month, the MoJ launched the procurement process for the new education contracts that will underpin the delivery of learning and skills in prisons from April 2019.

Turning to employability, I note specifically the comments by the noble Lord, Lord Dholakia. We continue to work with Business in the Community on its Ban the Box campaign, calling on employers to give ex-offenders a fair chance to compete for jobs by removing the tick-box for unspent cautions and convictions. We also need to ensure that people with convictions, particularly children and young people, understand when and how they need to disclose their criminal record. The MoJ will work with stakeholders to improve government guidance and information available online to make sure that it is clear, consistent and easily accessible so that people understand their rights and responsibilities in respect of disclosing their criminal record. We will set up a stakeholder panel with a number of charities and voluntary sector organisations to make sure that the information we provide is consistent, up to date and accessible through online and offline channels.

I turn to a few of the points raised by noble Lords. The noble Lord, Lord Ramsbotham, raised the question of ineligible criminal record checks. The DBS publishes guidance on eligibility to support employers and registered bodies. Should an applicant feel that they have been asked to undertake a DBS check in relation to a role that is not eligible, they can contact the DBS to investigate. The DBS can suspend or cancel the registration of a registered body that fails to comply with the code. Knowingly carrying out an unlawful criminal record check is an offence under the Police Act 1997.

The noble Lord also asked about the Law Commission’s recommendations. In the summer of 2016 the Home Office Minister invited the commission to undertake a review of the list of offences that are always subject to disclosure—that is, those that are never filtered. The Home Office and the MoJ are considering the recommendations made in the report. These include the current list of offences that are never filtered, which was drafted by the Law Commission based on a strict interpretation of the existing SI.

The noble Lord, Lord Ramsbotham, along with many other Lords, asked why the Government are not considering these recommendations before the litigation. I think I have spoken sufficiently on this area, but I noticed that the noble Lord, Lord McNally, mentioned that policy-making and legislation must be evidence based, and I agree, and we must surely hear the views of the highest court in the land, which is why it is important that we hear from the Supreme Court before we consider the recommendations of the noble Lord and others such as David Lammy, Charlie Taylor and the Justice Select Committee.

Turning to comments made by the noble Lord, Lord Dholakia, about the article in the Times about the prison population, we want prisoner numbers to come down, but we will not set an arbitrary figure. The purpose of prison is of course twofold. It is for justice for victims and the wider public by holding those in prison to account, but it is also a place for rehabilitation, and we must do much better by offenders and ensure that where we are able more swiftly to rehabilitate them by using home detention curfew or release on temporary licence, we use them when appropriate.

The noble Lord, Lord Ramsbotham, mentioned the cost of reoffending, and I can confirm that the latest estimate based on figures from the National Audit Office is that the annual cost to society of reoffending is £15 billion.

In conclusion, I can only reiterate that we will consider the noble Lord’s proposals, among others, when we have the benefit of the Supreme Court’s judgment later this year. This means we are unable to support his Bill today but we welcome his continued involvement in the issue. I thank all noble Lords for their contributions to the debate.