Criminal Records (Childhood Offences)

Theresa Villiers Excerpts

Wednesday 10th October 2018 Commons Chamber

[Theresa Villiers (Chipping Barnet) (Con)]

I beg to move,

That leave be given to bring in a Bill to make provision about the criminal records of persons aged under 18 on the day an offence was committed; and for connected purposes.

I am bringing forward this Bill to highlight the need for reform of the rules in England and Wales on the disclosure of offences committed in childhood. I became involved in the issue after being approached separately by two of my constituents. Minor incidents during their teenage years, one leading to a caution and another to a police warning, were showing up on their Disclosure and Barring Service checks and causing risk-averse employers to turn them down for work in healthcare and schools.

We have one of the most punitive approaches in the world to childhood criminal records, and the case for change is strong. Support for reform has come from many quarters, including the Select Committee on Justice, the Ministry of Justice’s Charlie Taylor review, the Law Commission, and a number of charities and campaigning organisations. The system has been extensively litigated on several occasions and was ruled to be unlawful by the Court of Appeal, and a Supreme Court judgment is imminent. Whether the Government win their case or not, the current approach is not working, and change is needed.

Convictions can potentially become spent, meaning that they no longer have to be declared to employers and do not appear on basic criminal records checks, but rehabilitation periods can be lengthy and some types of conviction can never become spent. Even spent convictions and cautions continue to appear on standard and enhanced DBS checks, which are accessible to an expanding list of employers and organisations, including the care sector, the NHS, schools and financial regulators. Some cautions and convictions can be filtered from a standard and enhanced check, meaning that they no longer appear, but the filtering system is limited. If a person has committed two offences, no matter how minor, they will not be filtered, and there is a long list of offences that can never be filtered. In one of the cases considered in the recent Supreme Court litigation, a boy hit a school bully and was charged with actual bodily harm. ABH is an offence that cannot be filtered, so that will appear on his DBS record for life.

A key problem is that we have no distinct criminal records system for children. Apart from some limited differences providing for slightly shorter rehabilitation periods and other timeframes, children are subject to the full rigours of the disclosure system that I have outlined. Records relating to under-18 offences are retained for life. I believe that the childhood criminal records system in England and Wales is anchoring children to their past and preventing them from moving on from their mistakes. It is acting as a barrier to employment, education and housing. It is therefore working against rehabilitation, undermining a core purpose of the youth justice system. The current rules also perpetuate inequality. The Government’s race disparity audit concluded that children from a black and minority ethnic background are sadly more likely to end up with a criminal record. A system that is unduly penal in its treatment of such records has a harder and more disproportionate effect on BME communities. Similar points can be made about children who have spent time in care.

A report by the Standing Committee for Youth Justice examined the treatment of childhood criminal records in 16 comparable jurisdictions. Ours was the most punitive of all those examined, including every one of the US states considered in the report. Children in England and Wales are more likely to receive a criminal record and, according to the charity Unlock, the effect of that record is more profound and lasts longer than anywhere else in Europe. We need a fairer, more proportionate and flexible system that protects the public without unduly harming people’s opportunity to change and turn their lives around. We need wide-ranging reform, not a piecemeal response to losing a court case.

I acknowledge that children who commit very serious crimes should be excluded from the reforms, but careful consideration should be given to where to draw the line. With that caveat, a new distinct system for childhood criminal records could include the following: first, it could reduce the period before an offence can become spent; secondly, it could restrict the circumstances in which police intelligence relating to events in childhood can be disclosed; thirdly, it could scrap the rule that provides that someone with more than one offence can never have their offences filtered out of a DBS check; and, fourthly, it could reduce the list of offences that are never eligible to be filtered from such a check.

Even some offences that sound serious can result from relatively minor episodes. For instance, a child who pushes over another child in the playground and takes their phone could technically be guilty of robbery. Other reforms that should be considered include the introduction of a discretionary system for filtering those offences that are deemed to be too serious for automatic filtering, with an independent review process. I appreciate the concern about introducing a discretionary, and hence administrative, element to the system, and the cost and time that that could involve, but both Scotland and Northern Ireland include such an element in their legal systems, and it could really help in hard cases when the context in which the offence was committed can show it in a completely different light from how it first appears.

A further reform that has been floated is a provision for the deletion of childhood offences from police computers altogether, if certain conditions are met, perhaps along similar lines to the judicial rehabilitation process that operates in France. I know that that sort of change would give peace of mind to many who feel that their lives have been ruined by their childhood convictions.

I fully accept that those who commit criminal offences in childhood should face prosecution and punishment. If they have the capacity, they must face the consequences of their actions. But, except in cases of really serious criminal offences, I just do not believe that it is fair for people to have their entire lives blighted by the poor judgments and mistakes that they made in childhood. The sad fact is that many of us make bad choices and foolish decisions when we are young. Thankfully, for the vast majority of us that does not result in involvement with the criminal justice system, but for those children who do end up with convictions, it should not mean a life sentence.

Many people in that situation have the potential to make a big success of their lives and contribute positively to our economy, public services and society, but they are being held back by convictions, cautions or warnings for minor offences committed many years ago when they were completely different people from the adults they have now become, and those offences should have no relevance for the careers that they now wish to pursue. The situation can be a cause of shame, anxiety and distress. People’s past is robbing them of hope for their future. Putting up unnecessary barriers that deter or prevent people from working in sectors such as education, the NHS, social care or the City means that the country is losing out on real talent and energy. I have felt genuinely inspired by what constituents have told me about how they have turned their lives around. They are studying at university or doing an apprenticeship—they are aspiring to a better life.

I am introducing the Bill because I believe that if we are here to do anything in this Chamber, it is to ensure that this country is a place where people have opportunity. We are here to make sure that the constituents we represent have the chance to get on and make a success of their lives—to go as far as their talents and hard work will take them. If we are going to be serious about giving people a chance in life, that should include giving them a second chance. Lord Trimble once said:

“Just because you have a past, doesn’t mean you can’t have a future”.

The reforms that I am advocating would help to remedy a grave injustice in our legal system. I commend the Bill to the House.

Question put and agreed to.

Ordered,

That Theresa Villiers, Victoria Prentis, Sir Bernard Jenkin, Mr Nigel Evans, Mr Iain Duncan Smith, Dr Phillip Lee, Mr David Lammy, David Hanson, Kate Green, Liz Saville Roberts, Jim Shannon and Sir Edward Davey present the Bill.

Theresa Villiers accordingly presented the Bill.

Bill read the First time; to be read a Second time on Friday 26 October, and to be printed (Bill 272).