Disclosure of Youth Criminal Records

Debate between Victoria Prentis and David Lammy

Thursday 28th March 2019 Westminster Hall

[Victoria Prentis (Banbury) (Con)]

I will start by apologising profusely for not having been present at the beginning of the debate, and I apologise to my hon. Friend the Member for Bromley and Chislehurst (Robert Neill), whose speech I missed a great proportion of, and to the Minister. My day job is slightly fraught at the moment, and I was engaged in the Chamber when the debate started.

Were this debate about anything else, I would not have come, but I feel more passionately about this subject than about practically anything else in the criminal justice sphere, and I have campaigned on it for many years. It goes to the heart of what our criminal justice system is for: yes, it is about punishment, rehabilitation, and keeping the public safe. But is it really about ruining the lives of young people who come before it because they are silly, unwise and have not yet grown up, as the right hon. Member for Tottenham (Mr Lammy) said? Does ruining their lives serve any real, practical purpose for the rest of society? Many years ago, I came to the conclusion that it does not, and that we have the system out of kilter with the rest of the criminal justice system and with all notions of proportionality, so I really wanted to speak in this debate. I am going to go into the way the filtering system works—in some detail, I am afraid.

Of course, the criminal justice system needs to keep a record of what has happened and what crimes have been committed, but as far as I am concerned, unless there is a public safety element, nobody else needs to know. Criminal records are currently disclosed either by an individual—in person or on a declaration form—or via a check. The Disclosure and Barring Service issues official criminal record checks in England and Wales, and there are three levels of check: basic, standard and enhanced. There is a so-called filtering system that allows some spent criminal records to be filtered out, so that they will not be revealed in standard and enhanced checks. That system was supposed to allow the disclosure regime to operate in a more proportionate manner. However, it incorporates some significant exceptions, which means many offences are non-filterable.

Filtering operates in a mechanical fashion with no discretion, and there is no right of appeal. A single conviction can be filtered provided that it does not result in a custodial sentence, that it is not for a listed offence—that is, a serious offence—and that more than 11 years have elapsed since the conviction, or five and a half years if the person was under 18 when convicted. Single or multiple cautions for lesser offences can be filtered once six years have elapsed, or two years if the person was under 18—I hope you are still with me, Mr Walker; it is clear as mud, isn’t it? Convictions and cautions for listed offences and multiple convictions for lesser offences cannot be filtered, no matter how long ago they happened and regardless of the circumstances of the offence. Of course, many of the real injustices that Members have highlighted fall into those categories. In 2014-15, there were nearly 60,000 enhanced DBS checks in which cautions were disclosed, of which 8,500 related to under-18s.

Why does this matter? We have heard from many Members, including the hon. Member for Lewisham West and Penge (Ellie Reeves), that employers are very risk averse. They often assume that if there is a flag, they simply cannot hire, and we know that employers do not interview people who have ticked the box. As Lord Kerr has said,

“it is wholly unrealistic not to recognise that many employers, faced with a choice of candidates of roughly similar potential, would automatically rule out the one with a criminal record.”

A criminal record acquired as a youth is, in effect, a life sentence. Although a person can change and learn from their mistakes, their criminal record cannot. In the past five years, more than 1 million criminal records that relate to offences from more than 30 years ago, when the person involved was between 10 and 35, were disclosed through enhanced or standard DBS checks.

We have also heard from the hon. Member for Lewisham West and Penge that people do not apply for jobs, because they are embarrassed by their criminal records. We have no method of working out what effect that has had on people’s lives—we cannot prove a negative—but it is clear that, in many ways, it is affecting people’s employment possibilities. The DBS system anchors people to their past and serves as a second and continuing sentence. The system affects people with a criminal record more profoundly, and for longer, than elsewhere in Europe—or the world, as we have heard.

Our predecessor Committee held a private seminar with eight individuals who had been personally affected by the disclosure of criminal records. All had found that their employment prospects were adversely affected by their childhood criminal records, and they told us heartbreaking stories of repeated rejection before they succeeded in getting a job, frequently one that was well below their level of ability. It is not only employment that is affected by criminal record checks: most social housing providers ask about criminal convictions, and since 2011 have had the right to apply blanket bans. Croydon Council states that if a person has

“been involved in relevant criminal behaviour”

they

“will be disqualified from going on the housing register…Relevant criminal behaviour includes conviction of an arrestable offence in, but not restricted to, the locality of the dwelling.”

In addition to a criminal conviction, failure to prevent others from committing crime can be used as a reason to refuse housing. Bromford has said that

“where the unacceptable behaviour is committed by a member of the household other than the applicant or any person living with them”

it

“will rely on the failure of the applicant or person living with them to prevent or deter the unacceptable behaviour as a reason to treat this as unacceptable behaviour.”

University and college admissions are severely impacted. Although I am pleased to say that the criminal conviction box has now been removed from UCAS applications, many universities continue to ask all applicants for any criminal records, regardless of the course they are applying for. We have heard extensive evidence about how criminal records can affect insurance for cars, housing and travel, which can restrict self-employment opportunities. People with unspent convictions also pay disproportionately more for the insurance that they are able to obtain, and we have heard compelling evidence that it is often difficult for them to rent a house, as well. These young people are leaving the criminal justice system, and money and rehabilitation hours will have been spent on them. The last thing we want to do is cut off their opportunities to retrain, get a job, a house or a car, go on holiday or travel for work. We are ruining every aspect of their life, so it is important that we look at this issue holistically.

I was pleased that the right hon. Member for Tottenham was able to speak about his report—which I was intending to quote from extensively, but given that he has done so, I will skip that section of my speech. However, I will say that I was having an informal chat with a group of staffers recently, who were in their early 20s. As we would expect, they were well-spoken, well-educated young people who had had many opportunities in life and done well for themselves. I was talking about this subject, which I talk about quite often, and I asked them, “When you were a teenager, did you ever get into trouble with the police? Did you ever do something on the edge of what you should have been doing?” Every single one of the male staffers to whom I spoke recounted an episode that might have landed him in trouble with the police at the time he was involved in this slightly risk-taking and unwise behaviour. Had they been boys who were of a BAME background or were just less advantaged—less able to talk for themselves and less able to get their mum down to the police station to argue on their behalf—they all might have ended up in the criminal justice system, rather than just outside it.

[Mr Lammy]

I am grateful to the hon. Lady for raising the issue in the manner that she has. It is way more effective than I would be if I raised the same point. Does she know that there is a general statistic that child psychologists have found, which is that 70% of young people have committed a crime at some point? The vast majority were never arrested or caught. It is part of that journey to adulthood. Is she aware of this issue, which I have raised in the context of marijuana? Young people are sitting in a campus university as we speak, probably smoking a joint, and if you called the police, people would think you had gone mad. The same young people walking down Brixton High Road or in Salford will get arrested or a criminal record. That is the hon. Lady’s point.

[Victoria Prentis]

I could not agree more with the right hon. Gentleman. It is right that young people should be cut some slack generally, but it is not right that some people are cut greater slack than others. That is what I found very disturbing about his report. I was particularly disturbed by his section on Gypsy, Roma and Traveller communities, where the numbers of people in the community as to the numbers in the criminal justice system are truly astonishing. I was also disturbed by the effects on black women in the criminal justice system. I encourage anyone interested in this area to read his report properly, because there are some burning injustices in how the system operates. Like him, I have two teenagers at home at the moment, and how they behave and the risks they take are always a worry. We really do not want silly behaviour to ruin the rest of their lives. I cannot commend his marvellous report highly enough.

I am concerned that over the years, those of us who have campaigned in this sphere have not had big enough asks. I remember getting very cross, when I was first elected to this place, when campaign groups said, “Let’s ask for convictions to not be in boxes or asked about after two years.” I thought, “God, that is two years of a young person’s life when they should be working, going to university, getting car insurance and all the rest of it.” Those are not years or time that they should have to wait. The period when a young person comes out of the criminal justice system is the most important time that we have as a society to set them right and help them into a useful and fulfilling life. We cannot slam them by making box-ticking get in the way of everything they do.

In the report, we made recommendations. One was on consistency with the aims of the youth justice system, and it is important that we view this as part of a holistic whole. The hon. Member for Lewisham West and Penge talked passionately about the impact on employment. Clearly the Ban the Box campaign should be extended to all public sector vacancies. The Government should consider making it mandatory for all employers. Why do we have boxes? What are they for?

We made a recommendation on the impact on education, housing, insurance and travel, stating:

“We recommend that educational providers do not automatically use information about spent criminal records to deny access to courses…We urge providers to do everything they can to support students with childhood criminal records”.

Local government guidance for housing authorities should be amended as a matter of urgency. Guidance from the Association of British Insurers could easily be strengthened to leave insurers in absolutely no doubt that they must not expressly or implicitly request customers to disclose spent offences. With travel, we recommend that where there really are safety concerns, the Foreign and Commonwealth Office should raise them with relevant Governments. If there are safety issues, that is different, but that is not the case in the vast majority of cases. The 2014 revisions on rehabilitation periods do not go nearly far enough. For some detention training orders and youth rehabilitation orders, the rehabilitation periods have increased to a completely disproportionate level.

The Committee concluded that the operation of the filtering system is wholly inappropriate for the records and should be radically revised. The Law Commission’s detailed and authoritative report on non-filterable offences is excellent and we endorse its conclusions. We discussed the potential advantage of allowing an application to have a record sealed, and I suspect the Chair of the Committee mentioned it at the beginning. I am sure the Minister will talk to us later about his plans for revising the filtration system. We hope that the recommendations of the right hon. Member for Tottenham in the Lammy review will be taken into account in the production of a new and more appropriate system.

Our final recommendations were about the disclosure of police intelligence and the discriminatory impact of the disclosure regime. I endorse those recommendations absolutely. I have trespassed a long time on this debate, and I thank you for your indulgence, Mr Walker, given I arrived late. This report is one of the best pieces of work that has been done by the Justice Committee. I very much hope that the recommendations are taken into account. Next week, I am going with a group of concerned colleagues who span the whole political spectrum to see the Home Secretary about this issue. I very much hope that the Ministry of Justice and the Home Office are able to work together at the pace of the faster, not the slower, of those two great Departments and that we will sort this out once and for all.