Any change to the system of criminal conviction disclosure should enable a more proportionate and contextualised system of disclosure which recognises and minimises multifaceted harms caused by requirements to disclose previous convictions.

Both UK public inquiries which have heavily influenced the escalating availability of criminal record disclosure information, (Cullen and Bichard) respond to extreme and heinous incidents, (Dunblane and Sowham)  where the perpetrators had no recordable previous criminal convictions. Similarly, the Jimmy Saville Investigation report by Dame Janet Smith, provides no evidence that he was never convicted despite being confirmed as such a prolific sexual abuser of children.

Therefore, the escalation of criminal record disclosure by the state  between 1997 and 2013 was driven by the availability of technology and populist ideology, rather than balanced and evidence based proposals about any benefits associated with state disclosure.

To remedy this, Recruit With Conviction is calling for a thorough evaluation of criminal conviction disclosure by the state which includes the following considerations:

• an examination of research evidence about using previous criminal convictions as a proxy for risk
• an evaluation of human rights and international comparisons of conviction disclosure by the state
• an understanding of the multifaceted negative psychological impacts caused by requirements to disclose previous convictions
• a poverty impact assessment on the way that requirements to disclose, escalate poverty among people from the most deprived neighbourhoods.
• The existence of other protection arrangements such as Multi Agency Public Protection Arrangements, the Risk Management Authority, Criminal Justice Social Work services etc.

The above is an extract from the Recruit With Conviction Response to the Protection of Vulnerable Groups and the Disclosure of Criminal Information Consultation July 2018.

I’m a tall, white, heterosexual, middle aged man and my belly is growing too big for my frame, so writing about hate crime lacks some credibility. However, I do recall being disturbed at primary school when a new boy who had moved from Africa spent his playtime with crowds of children around him making ooh ooh eee aah sounds. I still look back and wonder why there was no adult intervention.

I have remained lifelong friends with that boy and despite his adversities, he grew up to become very successful. Another friend from school moved hundreds of miles away from home because he was gay and was concerned about physical violence if he came out in a post-industrial Scottish town. In his case, I’m convinced that adversities from his childhood contributed to his premature death. Other observations of hatred and division from my Scottish childhood include derision of; English people, learning disabilities and even the labels on clothes or shoes. There is also the people of colour problem in Scotland – that orange and green thing!

Although my life started out with a low benchmark of equality and diversity, I’m not complacent about the need for improvements and I’m not complacent about my own personal unconscious bias. Sorry, I’m only human and I’m in the middle of a lifetime pursuit of observing and conquering my faults. I am improving though, even if I still struggle with negative stereotypes about Daily Mail readers!

Many factors have supported our national diversity journey.  We have moved from open hatred and frequent violence to more casual hatred masked by political correctness, however diversity training is not normally effective, unless it has an element to invoke moments of truth about unconscious bias – instead it can be counter-productive.[i] Beating people up with a diversity stick does not work – being angry and judgmental obstructs change to hatred and bigotry.

Reliably benchmarking hate crime is important for recording progress – it is better than 40-year-old anecdotes and perceptions. This can only be achieved by improving reporting rates. There is also a need to expand the scope of challenging hatred to include accents, homelessness and poverty. The abuse of roofless people by affluent weekend drinkers in our cities is particularly disturbing, regardless of any protected characteristics they have.

However, we need to be realistic about our expectations of the justice system to change hearts, minds and behaviours. I have come across too many perpetrators of hate crimes who feel victimised and over-punished, even though the aggravated offence resulted in low level court disposals.

I can recall frequent remarks which appear to genuinely imply or state that “I’m not a racist” or “they would never have prosecuted a black person”. The fact that an equalities campaigner was recently convicted for making racially abusive remarks to the Scottish Defence League linked (http://www.bbc.co.uk/news/uk-scotland-glasgow-west-37803531) suggests that absurdities may exist in the prosecution process for lower level hate crime and that many perceptions are misguided, (although I am not familiar with this case other than the linked report).

The toxicity of hate crime convictions create a long term legacy for perpetrators by over-restricting access to  employment or services such as education. Our work with recruiters has shown that a minor hate crime disposal creates exponential barriers to employment or education, if that conviction is disclosed.

We must also consider any outcomes in terms of poverty impacts. Pejorative terms associated with hate crime aggravators are common parlance among certain generations and communities. The misuse of this language within the context of a heated dispute is complex and this is especially true for individuals with communication difficulties or people who have difficulties asserting themselves.

I’m aware of hate crime survivors who later committed suicide and my final point is to consider the wellbeing of victims. There is no doubt that human adversities such as hate crime can result in long term trauma but healthy relationships are the very tonic required to heal people after adversity. I am convinced in many cases, mediation would be a much better response to achieve this than criminal justice.

In short, I am concerned that Lord Bracadale’s Review of Hate Crime Legislation in Scotland may not invoke practical improvements if it recommends increasing punitive approaches. Although hate crime remains a priority problem in Scotland, it requires all of us to step up not just the police and courts.

Richard Thomson

Director – Policy Development

Recruit With Conviction

[i] https://www.researchgate.net/publication/265575186_Most_Diversity_Training_Ineffective_Study_Finds

The text below sets out a draft response from Recruit With Conviction to the Scottish Government consultation which proposes changes to higher level disclosure. https://consult.scotland.gov.uk/disclosure-scotland/remedial-order-2018/

We welcome any feedback from partners and stakeholders before we submit our response in November 2018. Email your feedback to info@recruitwithconviction.org.uk

Do you have any views / observations on this Proposed Draft Order?

Recruit With Conviction works to smooth the path to safe, suitable and sustainable employment for people with convictions. We welcome the opportunity to respond to the consultation on the PROPOSED DRAFT POLICE ACT 1997 AND PROTECTION OF VULNERABLE GROUPS (SCOTLAND) ACT 2007 REMEDIAL ORDER 2018

Conviction disclosure inhibits fair opportunities to compete for employment.

Conviction disclosure anxiety is a normal human reaction. This anxiety links to avoidance of applying for jobs and ineffective disclosure. In practical terms, people tend to disclose ineffectively and unassertively unless they receive specific support to do so. Such disclosure support is not widely available

Your rights to withhold disclosure of protectable convictions and your responsibilities to disclose unprotectable convictions are defined from a complex set of algorithms. – Applicants and recruiters do not understand it.

The current employer guidance on asking for pre-disclosure information for PVG, enhanced or standard certificates, necessitates a similarly complex question. Ideally recruiters should only be permitted to request unspent convictions up front because spent convictions are rarely relevant and always require confidential handling. If recruiters only  asked for unspent convictions in advance, then it would simplify disclosure for applicants and recruiters. Any spent convictions which appeared later  in the process would be unlikely to have relevance and should be easy to deal with.

Furthermore, information about spent convictions is highly confidential and this information is ringfenced from most recruitment situations. There are handling rules for this information when it has been provided by Disclosure Scotland , however other recruitment processes are not audited for secure information exchange or storage. There are risks that applicants may feel obliged to provide such information by email or non-secure webforms.

Disclosure of convictions also affects recruiters. Offender stereotypes and inaccurate associated assumptions are commonly developed in the minds of recruiters, especially where those recruiters have not been trained to deal with disclosure of convictions and in situations where conviction disclosure is rare. Therefore, any change to remove the unnecessary disclosure of  convictions should be welcomed.

The process which uses the expertise of sheriffs to make such decisions on a case by case basis appears transparent and robust. 

In relation to the partial Equality Impact Assessment, please tell us about any potential impacts, either positive or negative; you feel the amendments to legislation in this consultation document may have on any particular groups of people?

Men are about 3 times more likely to have a criminal conviction than women. Therefore, men are significantly more likely to have to disclose convictions than women. There are also significant correlations with of people with convictions to poverty and deprivation.

From a wider equalities perspective, we know that protected characteristics can create additional barriers to disclosure.  Most people carry some level of conscious or unconscious bias against individuals who appear to be “unlike themselves”.  Where recruiters have a “not like me observation” connected to a person disclosing a conviction, then different ethnicities, accents, cultural behaviours, learning disabilities etc, create a multiplying negative effect on the disclosure barriers. There is also evidence, that women with convictions are judged more harshly by recruiters than men after committing like for like offences.

Therefore, unnecessary requirements to disclose convictions have complex negative impacts on equalities and any movement to remove unnecessary requirements to disclose convictions would have a positive impact on equalities.  

In relation to the partial Child Rights and Wellbeing Impact Assessment, please tell us about any potential impacts you think there may be on children’s wellbeing. 

There is well established research which connects Adverse Childhood Experiences (ACE’s) to Post Traumatic Stress Disorder (PTSD), high levels of cortisol, poor education outcomes, poor health outcomes and prison experience.

Distressed behaviours which are linked to unresolved PTSD are commonly a root cause of offending behaviour. When the PTSD is resolved and the social determinants of adversity in a person’s life are no longer present, then that person has no reason to commit crime any more than any other person.

It would be significantly beneficial for children who suffer from ACEs and PTSD to be more able to build safe relationships with adults who understand their distressed behaviours through personal lived experience.

From a wider perspective, public and voluntary organisations which fail to recruit staff and volunteers who are representative of their patients, pupils clients and customers are not  effectively resourced to make improvements to inequalities in health, education, justice and social care.

“The Adverse Childhood Experiences (ACE) Study”. cdc.gov. Atlanta, Georgia: Centers for Disease Control and Prevention, National Center for Injury Prevention and Control, Division of Violence Prevention. May 2014.

The first principle of Recruit With Conviction is to select the right person for the job regardless of unrelated criminal convictions.

We recognise the importance of flexibility for employers to take up recruit with conviction. For some employers the first principle sets out a clear message that recruiters are empowered and authorised to select a candidate with convictions. Sometimes, employers seek additional social outcomes for their communities and having a criminal record may be part of being the right person.

Recruit With Conviction supports employers to move with the pace and ambition which is right for them. The approach can be discreet or it can be public but it should be underlined by a commitment to be fair to applicants with convictions.

Trapping people into poverty after they have served their sentence has created long term inter-generational sojial justice problems in our poorest communities. There is untapped potential among people with convictions, which is left untapped by widespread poor recruitment practices. This is an opportunity for employers which use Recruit With Conviction guidance.

Supporting your Workforce

Recruit With Conviction workshops are carefully provided in order to inform your workforce about safe and sustainable employment of people with convictions and allows employees to:

• unpick myths and misconceptions about criminal histories,
• consider connections with diversity and inclusion,
• broadly understand the legal framework: Balancing the responsibilities of protection with the protection of rights
• understand how disclosure of convictions affects applicants and recruiters

This can be tailored to your own recruitment or provided as a cross organisational workshop.

Supporting your Applicants

Apply With Conviction is an ongoing 5-year action research programme working with Jobcentre plus staff, careers advisers and wider employability staff to enable them to improve their support to job applicants with convictions by using an Apply With Conviction model.

Disclosure of convictions unearths complex human behaviours, including anxiety and avoidance behaviours. The main outcome is that advisers are better equipped with the following information:

• The rights and responsibilities of applicants with convictions
• Why, when and how to honestly disclose criminal convictions to employers

Some employers also provide direct support to applicants with convictions and this ranges from implementation of clear and fair guidance through to providing a service to applicants to help them to disclose convictions.

Banning the Box

Recruit With Conviction has worked closely with Business in the Community and other partners in the development and direction of Ban the Box UK. Removing tick-box processes from criminal record disclosure is an important element of inclusion and diversity because so many people with convictions de-select themselves as soon as they see the disclosure question.

Relevance and risk

Most convictions are not directly relevant to most workplaces so and risk assessments must fit in with any risk processes that you operate in your business. Relying on criminal history information on applicants is not a safe risk tool if it is used in isolation. It is best to speak to directly to the applicant about any concerns and find out what has changed in their lives. If you still have concerns about an applicant’s criminal history, then ask them if you can speak to their social worker or another justice professional. Also, work in partnership with a local prison, a local authority or an employment support providers because they can advise you.

Confidentiality

The starting point on confidentiality is “who needs to know”, however it is more complex than this. Sometimes convictions have no relevance to anybody else in the workplace but sometimes they do. This most important factor is to be honest with the applicant about who will be told and who won’t be. Unless the conviction history is very minor or very old then there is always a risk of the individual being “outed” by someone in the community, a colleague or an internet search. So be pragmatic and ask the applicant about what they think is best and work out the best approach with them.

Most people – men and women – hold unconscious biases about groups of people.

Depending on the discipline, unconscious biases can be referred to as; schemas, stereotypes, mental models, cognitive shortcuts, statistical discrimination, implicit associations and spontaneous trait reference.

It is the tendency of our minds to apply characteristics of groups (real or imagined) to our judgements about individual group members.

Recruit With Conviction workshops provide a safe environment for participants to discover their own unconscious bias and to learn how mental fatigue can lead to cognitive shortcuts and less objective decision making.

To book on to one of our workshops contact info@recruitwithconviction.org.uk

The best recruiters know their own bias. People in prison are the most stigmatised and stereotyped individuals anywhere, so if you think you really do diversity, then test it! See the opportunities available when you “recruit with conviction” and come to a prison event.

Employers can tour prison workshops and training facilities  in HMP Barlinnie on 13th March 2015. Follow the link below to see a flyer and book a place.

Employment and Employers’ Fair Flyer

Recruit With Conviction also have another provisional date for an employer event in HMP Addiewell on 25th March 2015. For more information on HMP Addiewell contact info@recruitwithconviction.org.uk

“Recognise yourself in he and she who are not like you and me” – Carlos_Fuentes

Is the public sector in Scotland Recruiting With Conviction?

The public sector in Scotland is a diverse set of organisations ranging from very large NHS Trusts through to small agencies which employ only a handful of people.

They often have mature policies and procedures for the recruitment of people with convictions. Some organisations have even gone the extra mile in their community roles, for example, NHS Lothian are sector leaders with their socially responsible recruitment programme.  They implemented a strategy to increase recruitment opportunities for young people and vulnerable groups and enabled this through tailored Recruit With Conviction diversity workshops. By supporting first line managers and recruiters to recognise their unconscious bias towards the most stigmatising stereotypes relating to “offenders”, the workshops were able to unpick obstacles in wider diverse recruitment, providing solutions and empowerment to make good recruitment decisions and select staff from the widest possible pool of talent.

While many other public sector organisations have positive policy and procedures for the recruitment of people with convictions, they are not always effective because of the difference between authorisation and empowerment. Similarly, the monitoring of recruitment practice relating to people with convictions is rare, if it exists at all. However there are some diligent Human Resource professionals who are prepared to argue the case for recruiting with conviction.

While NHS Lothian is developing as a leader in socially responsible recruitment, there is anecdotal evidence about practice in other agencies where individuals are deselected automatically if they disclose convictions. In another case Recruit With Conviction successfully supported an individual to appeal de-selection from a desk based job in a public sector agency because he had one historic conviction relating to possession of one MDMA tablet. This conviction coincided with a time in his life when he was suffering bereavement.

But the public sector is not recruiting?

Reduced budgets and recruitment freezes in tandem with increased outsourcing mean that less public sector jobs are available and competition for these posts tends to be very high. The lack of availability of public sector jobs is accentuated by false assumptions by applicants that they will never be employed by the public sector because they have a criminal record or they consider the prospect of disclosure of convictions too embarrassing.

However a reduction in available opportunities does not diminish the need for good practice. Excellence in human resources is often developed in the public sector. Private sector professionals often ask how the public sector addresses such recruitment difficulties and human resource specialists easily move across sectors, so there is a bleed out effect for developments.

Given that the profile of people with convictions is so closely linked with deprivation profiles, we argue that unless barriers (to recruiting people with convictions) are addressed, then employers are only playing at the fringes of the diversity agenda. There is no place for this elephant in the room any more.

But it only affects a small number of people?

Analysis from the “2013 MoJ /DWP /HMRC data share”(1) evidences close correlation between people with any conviction and low pay, temporary employment and long term unemployment. Given that the research cohort of 4.3 million people represented about half of the population of people with convictions in RUK and 28% of people on job seekers allowance (JSA), we estimate that as many as 50% of people claiming JSA may have at least one criminal conviction. In contrast about one fifth of the working age population has at least one criminal conviction.

It is true that many more employability barriers exist but there are good reasons to start with the most difficult one first.

https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/304411/experimental-statistics.pdf