Disclosure of Youth Criminal Records

I beg to move,

That this House has considered the First Report of the Justice Committee, Disclosure of youth criminal records, HC 416, and the Government response, Cm 9559.

It is always a pleasure to serve under your chairmanship, Mr Walker. I thank the House for giving us the opportunity to debate the report, and my friends and colleagues on the Select Committee on Justice who contributed to it. I am glad to see such a good turnout when other things are happening today as well.

This is an important issue, and not merely a technical one. Although some of the law and regulations around it are complex, we have concluded that it directly affects people’s lives and that the current state of our arrangements is frankly unsatisfactory and unfit for purpose. The gist of what we say is that change is needed, and so far we detect a lack of urgency in addressing that. As a consequence, injustice and, frankly, social harm are being done by the failure to modernise a system that has not kept pace with developments in a number of areas.

I will first address the background to our report. In October 2016, the Justice Committee in the previous Parliament decided to launch an inquiry into disclosure of youth criminal records, partly as a follow-up to the inquiry that we had conducted on the treatment of young adults in the criminal justice system, a substantial report in itself, and partly because of a number of representations that we had received from the non-governmental organisation sector. I refer particularly to the evidence that has been given to us by Unlock and the Standing Committee for Youth Justice, and pay tribute to the work that those organisations do in this field.

In consequence, we had an inquiry in which we took oral and written evidence, but we also held a private seminar with individuals who had been personally affected by this problem. I think many policy makers would benefit from seeing and hearing from those people face to face about the real effects of the system upon them. They were able to talk about the effect on them of their childhood offences—that is the point, as we are often not talking about recent offences, but offences committed when people were children—being disclosed when they were adults, often some time down the track.

One of the many unforeseen consequences of the dissolution of Parliament in May 2017 was that the Committee was unable to produce its report, so one of our first decisions in this Parliament was to revisit it and produce an updated report on what we regard as an important issue, basing it on the evidence that our predecessor Committee had already heard. We published a report on 27 October 2017.

Having set out the chronology, let me give an overview of the background to the system. The criminal records disclosure regime, as I am sure many hon. Members know, is operated by the Disclosure and Barring Service, or DBS. For certain professional jobs, and certainly for work involving contact with children or vulnerable adults, the DBS has, for perfectly good reasons, to provide a standard or enhanced disclosure certificate, which can disclose all criminal records. That includes criminal records that otherwise would be regarded as spent.

There is a so-called filtering system, which allows some spent criminal records to be filtered out of disclosure so that they will not be revealed on the standard or enhanced DBS certificates. The idea behind the filtering system was that it was supposed to allow the disclosure regime to operate in a more proportionate manner, but the evidence that we have heard drives us to the conclusion that, in practice, the filtering system incorporates some significant exceptions, meaning that many offences are not filterable throughout the lifetime of an offender.

Does my hon. Friend share my concern that the UK system for disclosure of childhood criminal records is among the harshest in the world when compared with equivalent developed countries? Although I am a believer in a firm justice system that punishes crimes appropriately, I do not think it is fair for people to have to live for the rest of their lives with the consequences of terrible mistakes they may have made in childhood.

I entirely agree with my right hon. Friend; that is precisely the problem. The disclosure system is an immensely blunt instrument and forgets that, as well as being a punishment, any sensible criminal justice system must encourage reform and rehabilitation. Whatever the no doubt good intentions behind it, the way the system operates is counterproductive in that regard.

For people who perhaps did not have the most advantaged background, let us suppose there is a fight in a school playground that leads to the police being called. That might lead to a conviction for actual bodily harm that is non-filterable. Yet, if they had been born in more affluent circumstances, I am quite sure the police would never have been called and that person would never have gone on to have their life blighted in the same way. Does my hon. Friend agree that we must ensure that this fact is not an impediment to social mobility?

My hon. Friend makes a characteristically significant and thoughtful point. I can think of instances both from my constituency casebook and from childhood friends of mine who got into exactly that situation. That is not what the system was intended for. He is right that it is without doubt discriminatory in a number of regards.

The hon. Gentleman is recalling childhood friends of his own, but will he also reflect on childhood today? There is a whole suite of crimes and temptations resulting from social media—let us think of sexting, where someone might get a criminal offence aged 15 or 16 for inappropriate behaviour with a girlfriend or whoever. Can it really be right that an employer, years later when the person is into their early 30s, should need or want that information? If the employer gets that information, what exactly are they expected to do about it? I am thinking of us, employing young people; do we really want to know that that happened 10 years ago?

That is, again, an entirely fair and perceptive point, and it is quite true. One of the other issues that we have not yet touched on, but that I hope we will in the course of the debate, is the way that the system no longer reflects modern technology and the ability to Google to find out other things about people. None of that was there when this scheme was set in place. Surely the objective is to be proportionate and to be relevant, but that is not the case at the moment.

I am grateful to my hon. Friend for this impactful debate. He has mentioned the impact of new technology, particularly Google, and it is a matter for great concern that everything that has happened in an individual’s past is stored in perpetuity on the internet. Does he agree that the fact that information is easily available for so long can render the Rehabilitation of Offenders Act 1974 essentially toothless, and that that is something we ought to look further at in this place?

Again, my hon. Friend raises a fair point—it is not the immediate subject of our inquiry, but it is a good point. Perhaps, in our joint work on the Select Committee, that is something we could look at taking forward, because there is no doubt that that legislation has also failed to keep in touch with changes in science and technology.

Further to exactly that point, although it is not directly relevant to the discussion here, we must all accept the fact that that information is held independently and above that which we can legislate for in this place. I am aware that work is coming forward from the Department for Digital, Culture, Media and Sport to address that, but, in all honesty, although we can tamper at the edges and change things in ways that make us feel better and directly make the lives of young offenders better, unless we can control how information about private individuals is used, we can have very little effect on the future.

That is certainly true, and it indicates the need for a much more joined-up and holistic approach to dealing with this matter. I am sure it is something we need to return to and address. Although it can only deal with a part of that problem, disclosure and barring needs to be resolved itself. The updating of the whole approach to dealing with criminal records, disclosure of information and the regulation of social media is important, because all of them can get in the way of helping people to turn their lives around.

The point made by my right hon. Friend the Member for Chipping Barnet (Theresa Villiers) about examples from other countries is significant. Our criminal justice system has some of the worst reoffending results among our comparators, and one reason for that is the difficulty of getting people back into employment, education, homes, work and relationships. To a greater or lesser degree, the mechanistic operation of the current disclosure and barring system can be a bar to people moving on in those directions, all of which, the evidence overwhelmingly shows, make people less likely to reoffend. We are getting in the way of that.

Does the hon. Gentleman agree that the cumulative impact of disclosing youth criminal records is an avoidable barrier to employment, education and housing, which can be devastating for a young person and can lead to long-term adverse effects way into adulthood?

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.

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.

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.

I completely agree on the need for flexibility in the system. If we are interested in rehabilitation and support for offenders, there is an argument that, for example, schools should be told something of the past activity of an individual, particularly if mental health issues were involved, so that they could provide the necessary support to make sure that the individual was looked after.

It is ironic. At the moment we have a box-ticking exercise in which a conviction can be disclosed. As the right hon. Member for Warley rightly said, an employer may well have 200 applicants for a post so will simply play safe and delete anybody who has ticked the conviction box, regardless of how relevant that is for the job that they seek to employ a person to do. That is a burden for a small employer.

However, frequently when people apply for jobs through large employment agencies, it is almost as if an algorithm exists and that anyone who ticks the box is automatically filtered out by the computer system before their application gets any farther. None of those show the level of discretion that was perhaps anticipated when the scheme was drawn up. But it is not fair to push the burden on to employers. There is an obligation on the state and Government to set up a fair and appropriate regime that gives them comfort that they can make appropriate checks and that equally helps people to rehabilitate themselves.

The other point is the disproportionate impact on young people. That may seem obvious, but I do not think it is really recognised by those who run the system. The qualifying period of five and a half years is a great proportion of a child’s life, and is perhaps one of the most critical portions of a young person’s life as they grow up, mature and move into the employment, work and qualification phase. To have this hanging over them then, rather than further down the track, could not come at a worse time. There is not enough recognition of that.

The Law Commission gave compelling evidence to us, observing that the filtering regime might be well regarded as disproportionately harsh on young offenders. Our report concluded that too many childhood offences are unfiltered, undermining rehabilitation and denying children—which is what they were at the time they committed the offences—a second chance. We urge the Government to revise that as a matter of urgency. We also heard powerful evidence on the adverse effect that childhood criminal records have on employment, education and housing, as well as on insurance and visas for travel—everyday things, not the obvious things that we think about. We heard clear evidence of the discriminatory and adverse impact of that.

My hon. Friend mentioned insurance, which includes car insurance. We rely on cars for our jobs, for pleasure and for all sorts of things. The way that insurance companies look out for these people is not very helpful at all and can leave people in difficult situations.

Absolutely. Because it is blunt, employers and insurers will inevitably take the risk-averse approach. I do not entirely blame them for doing that; the system does not help them to be proportionate and more careful in their judgment than would otherwise have been the case. We also concluded that there is clear evidence of particular impacts on black and minority ethnic children and those who came through the care system, as I think my hon. Friend the Member for Cheltenham hinted.