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Reform The Rehabilitation of Offenders Act 1974 in Scotland

The name of the 1974 Act as it stands is an oxymoron in that it neither supports “offenders” nor “rehabilitation”. The extreme length of time before convictions become spent mean that no fair minded person could reasonably describe somebody with a spent conviction as an “offender”.

The 1974 Act currently provides no incentive for rehabilitation because convictions become spent automatically, regardless of an individual’s effort to change their lifestyle more quickly.

By excluding prison sentences of over 30 months, the 1974 Act also fails to recognise the human capacity for reform.

The inflexible “rehabilitation periods” which would be better described as “disclosure periods” are defined only by the court disposal. While the refinements laid out in LASPO 2012 by Westminster are an improvement, they miss the opportunity to provide incentives for reform, rehabilitation and compliance.

LASPO 2012 should be implemented for retrospective offences in Scotland, however the disposal is a very blunt instrument for defining “disclosure periods”.

“Disclosure periods” should be defined the time of sentencing by using LASPO as a guide and adding conditions for completing orders, paying fines and engaging in rehabilitation activities. Additionally a large number of “one-off” summary offences which have no employment relevance should become immediately spent on the proviso that they are a “one-off”. They should also be filtered from any disclosure for positions covered by the 2013 Order.

Similarly for prison sentences where longer “disclosure periods” are defined, the requirement to disclose should be linked with behavioural compliance in prison and be subject to appeal.

The 1974 Act has not accounted for changes in labour demand, recruitment methods, sentence inflation and increased availability of information about criminal histories during the 40 years since inception. While significant improvements have been made to legislation to protect vulnerable groups, the impact of having a conviction labelled as “racially aggravated”, “indecent”, “sexual” or “fire-raising”, exponentially diminish employment opportunities when compared against other convictions with similar disposals or similar risks to an employer.

The decline of manufacturing sectors with unionised protection has changed workplace dynamics and the modern employment landscape dominated by the service sector, has made recruiters more precious about brand. This in turn increases “conviction stereotype anxiety” among recruiters who are typically not trained, empowered or authorised to “recruit with conviction”.

Although Recruit With Conviction promotes honest disclosure processes, the availability of information legislated in the Police Act 1997 and PVG compounds the problem on a practical level. In particular Disclosure Scotland certificates give no contextual information and employers are left to decipher offences and disposals to corroborate a personal letter of disclosure from the individual. This is a burden for employers. Availability of information on the internet has also impacted negatively.

People with convictions have traditionally down-traded their skills and undertaken voluntary work in order to secure employment but current high unemployment has increased competition for such work. The requirement to disclose convictions creates an inequality of opportunity for local people seeking local jobs when competing with economic migrants for whom criminal record histories are less readily available. In contrast, the opportunity for Scots with convictions to escape their past by relocating to London or elsewhere in the UK has been hindered by the Police Act 1997 and the Internet.

Only a small minority of those labelled as “offenders” by the 1974 Act have served a custodial sentence, however parallel statistics from England and Wales (through a MoJ and DWP data linkage project in 2011) show that while 13% of prisoners were in P45 employment in the month before prison, only 5% were in P45 employment in the month after prison. Other evidence shows that most former prisoners, who find work, return to their previous employers. Those who are successful in finding employment, achieve this through their own networks of friends and family, rather than applying for them on the open job market.

The difficulty of finding work in the regular economy underpins labour supply in the illegal labour market which propagates organised crime and abuse by unscrupulous employers such as paying under minimum wage, non-compliance with other employment rights as well as the obvious tax evasion it supports.

Given that approximately 11,000 people were liberated by SPS last year, and that the DWP’s flagship universal work programme has sustained only 80 former prisoners into employment in Scotland (Work programme cumulative job outcomes in Scotland to September 2013), it is a minor miracle that a third of prisoners manage to avoid returning to custody in the 2 years after release, rather than a surprise that 2 thirds of them will return to prison.

The well documented “licence to lie” which the 1974 Act authorises, is absurd. It fails to recognise a job applicant wishing to be truthful and an employer seeking honesty. So the protection should include the way in which a question can be reasonably asked. For example “Do you have any unspent criminal convictions?” can be answered more in good faith while “Do you have a criminal record?” creates a potential obstacle the relationship between prospective employee and employer. Many people who have committed crime in their past, move forward by building trust with absolute integrity and truth. If the question is asked in the wrong way, then they can feel pressured to over disclose.

Over disclosure also occurs when information is not available to the individual or employer.

For the new Act to support access to employment opportunities for people with convictions, it needs to be considered and properly integrated into wider employment legislation and good recruitment practice. Recruit With Conviction is partnering a number of UK organisations to implement “Ban the Box” as policy among private sector employers as a code of practice.

“Ban the box” has been legislated for public sector employers in the USA using slightly different variants in different states. By delaying conviction disclosure to later in the recruitment process more people with convictions will get interview practice, more will get the opportunity to explain their convictions in person and ultimately more will get jobs and keep them. “Ban the Box” also removes the poor practice of pre-selection screening where individuals can be deselected automatically on the grounds of unspent convictions, regardless of their irrelevance to the post and before they can outline their employment attributes.

In Scotland, some public sector employers are currently the trailblazers in good practice with some notable exceptions and in many cases policy and practice are poles apart.

The privilege of exemption from the 1974 Act and outlined in the 2013 Order needs further exploration. It is clear that for the vast majority of people with summary convictions, that these offences are no proxy for future risk and disclosure of such convictions is an unnecessary burden and embarrassment for too many individuals.

It is particularly disappointing that employers in justice agencies such as the Scottish Police Service, Scottish Prison Service and Scottish Court Service appear to have a tendency to almost apply blanket bans (if anecdotal information is accurate). This would be an abuse of their privilege to be exempt from the 1974 Act – although not illegal. Justice agencies should be leaders of good practice because they understand risk, would benefit from the resulting improvement in diversity and could become credible ambassadors for the recruit with conviction concept among other employers.

Failure to “recruit with conviction” is a failure to recruit effectively. Like any cohort of people who are marginalised by a label, “people with convictions” are more likely to need additional support in getting employment but also as a cohort they are more likely to include untapped potential as an opportunity for the employer. For the sake of efficiency and diversity in the public sector, the “recruit with conviction” process should be legislated and encouraged throughout the public sector supply chain as a mandatory community benefit clause element.

Other obstructions to “recruiting with conviction” come from sloppy interpretation of guidance from the Financial Services Authority which invokes regulatory recruitment rules on the Finance Sector, CPNI regulations for recruitment in airports, utilities etc. and HMG Baseline Personnel Security Standards which enforce formal vetting processes for reserved civil service appointments and subcontractors in Scotland. Often these vetting processes are not backed up with credible HR strategies and individuals have been denied employment on the grounds on minor and irrelevant summary convictions. Guidance from FSA, CPNI and HMG Baseline Personnel Security Standards do not enforce blanket bans on people with unspent convictions; however there is a tendency for them to be interpreted very conservatively.

By contrast, the guidance for PVG is relatively clear although time periods for clearance and appeal can be excessive for some individuals. In caring and healthcare settings in Scotland, there has been an improvement in realistic assessment on the relevance of criminal records.

Significant reform is required and legislation is only one of the tools to achieve this. While the Recruit With Conviction campaign has been effective in promoting good recruitment and employability practice, the organisation is a social enterprise which is funded through the sale of workshops and has limited resources.

Employability services are also part of this required reform as standards are inconsistent. Too commonly minimum standards of guidance for criminal record relevance are not met and too often individuals start a course of training or study for work which is incompatible with their criminal record or their willingness to disclose it when spent. Advice to over-disclose spent convictions and advice to disclose non-conviction information occurs needlessly. This is partly due to the complexity of the legislation as well as training needs.

Beyond this, specialist employability services for people with more complex offending histories have become marginalised by commissioning which is reliant on bean counting outcomes rather than promoting assets based approaches to quality support. While the right job for the right person at the right employer at the right time is life changing – the wrong job is a bad outcome.

Cons to Cobblers

James Timpson, CEO of Timpsons is a distinguished speaker on business leadership, so we are delighted that our colleagues at Howard League Scotland have organised a lecture on Tuesday 28th January in Edinburgh.

“Cons to Cobblers” promises to give a unique insight into the employment of people from prison and importantly keeps the conversation alive for businesses to Recruit With Conviction.

Please help to promote this event and bring some sceptics with you too.

For details see the link.


Recruit With Conviction Highlights – 2013

The Recruit With Conviction team had a fantastic year in 2013 and we want to share a few of the highlights with you. Here are our top 10.

Thanks to all of our amazing advisers, partners and businesses for making all this possible:

1. Recruit With Conviction engaged hundreds of employers to promote safe, fair and effective recruitment of people with criminal records.

2. Right Honourable Kenny McAskill, Cabinet Secretary for Justice in
Scotland launched Recruit With Conviction employer discussion events on
changes to the Rehabilitation of Offenders Act 1974.

3. We supported the development of Ban the Box in London in partnership with Business in the Community, UNLOCK, Howard League, Criminal Justice Alliance and Barrow Cadbury Trust.

4. We delivered a full programme of Apply With Conviction workshops in the North West of England to Job Centre Plus advisers, substance abuse specialists and work programme advisers to help improve services for people with convictions.

5. We reinvested over 2000 consultant hours pro-bono for the development of our wider social aims.

6. We facilitated successful employer events in Glasgow, Edinburgh, Aberdeen, Dundee, Irvine and Inverness.

7. We visited Potenza in Italy for the start of a new transnational European
programme with Italian and Romanian partners. This will focus on education towards employment.

8. We developed strategic partnerships with No-Offence CIC, Apex, Scottish Business in the Community and Scottish Family Business Association. We have also developed many other relationships with other great organisations.

9. We secured positive media coverage for our campaign including BBC TV news and national newspapers

10.  We made a crucial contribution to diversity, improved recruitment practice and the reduction of re-offending.

Rehabilitation Reports – What employers want

Employers often say that their main obstacle to Recruiting With Conviction is unknown risk. Employers don’t feel comfortable assessing risk that ex-offenders pose and why should they?

One clear response from a justice professional on this subject, came from Damian Evans, the Governor at HMP Highpoint in Suffolk at a conference organised by Business in the Community in February 2012.

He said that prison staff are the experts in risk assessment and that employers should contact the prison for advice. (or words to that effect)

Recruit With Conviction guide employers to engage with Justice Professionals if they have risk concerns after a disclosure. Employer anxieties are typically disproportionate to the real risk.

Rehabilitation reports would have to be very simple, so the report would contain one of a number of single simple statements written in wording that employers can understand. For example “This person has addressed the root causes of their offending”.

Each rehabilitation report would include a date validity statement to guide employers.

Is it practical? Hold your breath and wait for derision from justice colleagues – but it is what employers want and it may form part of a solution which includes Ban the Box and an application process to remove convictions from the record early when an individual can evidence their progress.

Rehabilitation of Offenders Act 1974 Scotland – The first debate

On 1st October 2013, the Scottish Parliament debated modernising and reforming the Rehabilitation of Offenders Act 1974. It was the first opportunity in almost 40 years for a meaningful political discussion in Scotland on legislation which could make meaningful changes to the lives of hundreds of thousands of people by giving them an opportunity to compete for jobs.

Recruit With Conviction congratulates the whole parliament for a very
constructive debate on an important issue. There is a tremendous opportunity now to pull together a solution which could make a significant impact on reducing re-offending and welfare to work, as well as improving general recruitment practice to get the right people into the right jobs, regardless of unrelated criminal records.

The televised debate (linked below) provides a useful context.

The Scottish Parliamentary debate on the 1974 Act

Open letter on Referendum votes for Prisoners

The directors of Recruit With Conviction support the Howard League Scotland and a number of leading figures from Scottish civic society in calling the Scottish Government to review of the blanket ban on convicted prisoners voting in the independence referendum.prisoner vote

Our request is pragmatic rather than political – restriction of voting rights does not deter criminal activity.

Voting is a responsibility as well as a privilege and therefore voting is an opportunity to engage in citizenship and reflection of the greater good – qualities which employers want.

Giving back responsibility is key to starting work and stopping crime.

The full text of the letter is on the link below and the signatories are:

Dr Oliver Aldridge MBBCh,DRCOG, MRCGPGPwSI
Addiction Medicine Specialist
Tam Baillie
Scotland’s Commissionerfor Children and Young People
Mark Bevan
ProgrammeDirector, Amnesty Scotland
Shami Chakrabarti
Director, Liberty
Andrew Coyle CMG
Emeritus Professor of Prison Studies,University of London, and former
prison governor
Mike Dailly
Principal Solicitor,Govan Law Centre

Andrew Deans
Member ofthe Scottish Youth Parliament, AngusNorth and Mearns
Mike Ewart
Chief Executive, Scottish Prison Service 2007‐2009
Reverend Sally Foster-Fulton
Convener, Church and Society Council, The Church of Scotland
Tom Halpin
Chief Executive, Sacro
Alison Hannah
Executive Director, Penal ReformInternational
Martin Johnstone
Chief Executive, Faith in Community Scotland
Tony Kelly
Kaliani Lyle
Scotland Commissioner, Equality and Human Rights Commission
Juliet Lyon CBE
Director, Prison ReformTrust
Margaret Malloch
Senior Research Fellow, Scottish Centre for Crime and Justice Research
Robin McAlpine
Director,Jimmy Reid Foundation
Isabel McCue
Chief Executive, TheatreNemo
Gill McIvor
Professor of Criminology,University of Stirling

Andrew McLellan
Her Majesty’s Chief Inspector of Prisons in Scotland 2002‐2009
Fergus McNeill
Professor of Criminology and Social Work,University ofGlasgow
Jim Murdoch
Professor of Public Law,University ofGlasgow
Mike Nellis
Emeritus Professor of Criminal and Community Justice,University of
John ScottQC
Chair,Howard League for Penal Reform, Scotland
David Shrigley
Artist and adviser to Insight and Outlook,the Koestler Exhibition for
Scotland 2012
Morag Sievwright
Development Co-ordinator, Faith in Throughcare
Richard Sparks
Professor of Criminology,University of Edinburgh
Alec Spencer
Former prison governor and Director of Rehabilitation and Care, Scottish
Prison Service, and Professor of Criminology and Criminal Justice,
University of Stirling
Alan Staff
Chief Executive, Apex Scotland
Ruth Stark
Manager, Scottish Association of Social Work
Cyrus Tata
Professor of Law and Criminal Justice,University of Strathclyde

Richard Thomson
Director, Recruit With Conviction
Jackie Tombs
Professorin Criminology and SocialJustice,Glasgow Caledonian
Robin Waterston
Clerk,Quakersin Scotland
Pete White
Co-ordinator, Positive Prison? Positive Futures

Open letter to Kenny MacAskill MSP, Cabinet Secretary for Justice.

Full criminal record disclosure for the purposes of employment is inconsistent with Article Eight of the Human Rights Act, according to news reports emerging on 25 January 2013.

While this ruling was made specifically about English processes in an English court, it was within the context of the European Convention of Human Rights, and it was declared on an auspicious day for Human Rights activists in Scotland, inspired for hundreds of years by the work of Robert Burns.

While indicators of risk of child abuse are important to prevent the type of abuse which was of greater prevalence during the 20th century, there is a plethora of other useless but deeply personal information available and it is used to unfairly discriminate against people in this century. In fact, there has never been a time in history when criminal record information has been so freely available.

This is information about acts of anger, pride or jealousy which were punished and recorded inconsistently – a source of regret and personal embarrassment for many. For example, a lady charged with racist breach of the peace for comments made to her own father during a heated family argument and a man who was charged with procession of drugs which he had taken from his teenage son.

A third of unemployed people have criminal convictions (excluding common driving offences) and a significant number of graduates, apprentices and working young people acquire a Friday night conviction, which changes their prospects and causes anxiety.

Even with more serious convictions or persistent offending behaviour, there is clear evidence that after 4 years of being crime free, the likelihood of the person re-offending is about the same as the general population. Many individuals are ready to contribute long before this.

Primarily, the hearts and minds of recruiters need to change but there is an opportunity for legislature to remove more convictions from the record and to require employers to assess the relevance of any declared convictions at interview and not during paper sifts. Attitude and aptitude for work is in no way diminished by a criminal record.

Recruit With Conviction is the campaign to support employers in the safe and effective recruitment of people with a criminal record.

Richard Thomson, Director, Recruit With Conviction Ltd