In Britain, Criminal Records Dog Offenders For Decades

About 17 years ago, Mrs P received a caution for stealing a sandwich. She also stole a 99p book, for which she was prosecuted. Homeless and suffering from schizophrenia, she failed to appear in court, and so received two convictions. She has since failed in her efforts to get work as a paid teaching assistant, which she attributes in part to the fact that she has to disclose her criminal record, and by extension her mental-health history, to prospective employers. Now Mrs P and others will challenge this system in the Court of Appeal, in a case which highlights Britain’s punitive approach to criminal records.

 

England and Wales boast a complicated system with three levels of background checks. For the most basic review, after a set period (which depends on the sentence) criminals’ records can be considered “spent”. More rigorous scrutiny is needed for jobs such as teaching and the law. Certain crimes can be “filtered” out of the records, following a tortuous set of rules. But about 1,000 offences, including violent or sexual ones, must always be revealed, as must any that led to a jail sentence. Those with multiple convictions, no matter how minor, must divulge them. A 19-year-old fined in court for a theft would be 30 before it was removed from his record.

 

All this adds up to a system that affects ex-offenders for longer and more profoundly than those elsewhere in Europe, says Christopher Stacey of Unlock, a charity that helps ex-cons. Not all countries include cautions in criminal records, as England and Wales do. In some, employers tend only to ask for background checks when required to do so by law. Sweden allows crimes that have resulted in imprisonment to be expunged after ten years. In France, a judge can deem a person to be “rehabilitated” and wipe the slate clean.

 

Young Britons are treated especially harshly, according to the Standing Committee for Youth Justice, a campaign group. Of 16 jurisdictions it examined, 11 had some provision for expunging childhood criminal records; England and Wales do not. In 2014 New Zealand, one of the countries that tries hardest to avoid giving children criminal records, landed just 48 youngsters under 17 with one. In England and Wales almost 60,000 criminal records were imposed on children. Accounting for population, that makes it about 90 times stricter.

 

Criminal records can be crippling. Employers are risk-averse, says Mr Stacey, and often assume that if something is flagged on a background check they cannot hire the applicant. Councils are increasingly unwilling to allow those with criminal records access to social housing. Insurers charge them more.

 

Recently the Law Commission, an independent body that reviews the laws of England and Wales, published a report on the filtering system. It argued that it risks disclosing both too much and too little. If the government loses the case against Mrs P, it may make changes. Mr Stacey argues that old and minor convictions and cautions should not be disclosed when no longer relevant. He says the number of crimes that may be filtered out could be expanded. The police review the most stringent checks and could always reveal more information if deemed necessary.

 

The dilemma is how to balance risk with rehabilitation. At present, Britain leans heavily towards minimizing the former. A criminal record is, in effect, an additional sentence, says Mr Stacey—one that can run for the rest of a person’s life.