Recruit WIth Conviction responds to the Consultation on the Police Act 1997 and the Protection of Vulnerable Groups (Scotland) Act 2007 remedial order 2015
Do you have any views/observations on this Order?
This amendment will give confidence to potentially hundreds of thousands of people to take up volunteering with vulnerable groups or apply for work as a taxi driver, traffic warden, care worker or a host of other professions, however new practical problems have arisen.
New Practical Problems
People with convictions will not know if convictions are protected and recruiters tend to view any non-disclosure as a breach of trust, so a new catch22 situation has arisen.
After such long periods of time, it is unlikely that anyone will remember enough details about convictions to be confident whether or not it will be protected. Working this out is quite complex and citizens will be concerned about getting it wrong.
Protected convictions are now within the scope of the Rehabilitation of Offenders Act 1974. This creates problems for employers who can now unwittingly discriminate against an applicant who discloses a protected conviction. While guidance from Disclosure Scotland will ease some of these problems a number of solutions are still required.
Conviction Disclosure Anxiety
Conviction disclosure anxiety (CDA) is a natural response when someone is asked about their criminal convictions. Negative previous experiences of disclosure, toxic sounding conviction labels and high aspirations tend to heighten the problem. The resulting avoidance behaviour is not exclusive to serious offending histories. In fact CDA is surprisingly common across most of the 1 in 3 men and 1 in 10 women who have a conviction marked on the Scottish Criminal History System.
Specialist services exist which support people to overcome CDA and teach applicants how to disclose appropriately. However resources for these services are increasingly tight and they tend to be directed towards a very small number of individuals with serious of persistent offending histories rather that the majority of people with convictions.
An appeal process now exists, where spent convictions which are eligible for protection but have not yet passed the time period for protection. A letter will be sent to the applicant before disclosing to their employer. It will offer them an option to either appeal to a sheriff or allow Disclosure Scotland to send the certificate on to the employer. The sheriff will then decide if the conviction is relevant to the job and can remove the conviction from the certificate. It is right that this should continue, however this process should ideally be picked up before a recruitment process begins to avoid delays for recruiters and applicants and a more general mechanism to remove unprotected convictions may be more practical. The SSSC has designed an effective process for fitness to practice and this may be a more practical mechanism and this is combined with more knowledge of regulated work compared to a sheriff.
A properly resourced dissemination framework
There is an extreme deficit in knowledge about disclosure on the part of career advisors, jobcentre plus staff, employability workers and other professionals who may support applicants.
Providing guidance on the existing Rehabilitation of Offenders Act 1974 algorithms and practical advocacy for disclosure and overcoming Conviction Disclosure Anxiety, is largely regarded as “someone else’s responsibility” – probably someone in the criminal justice system. This mindset needs changed and the knowledge needs to be shared so that what, why, when and how to disclose convictions becomes a core skill-set of all professionals who provide employability support.
Recruit With Conviction disseminate information to employers and relevant advisers, however our work is limited by funding only from our commercial activities and re-investments. This barely scratches the surface of the problem and a funded mechanism to cascade this information should be a priority.
Employers who use higher level conviction disclosure information also need to be aware of the regulation and how they need to reframe the way they ask for conviction disclosure and reconsider the way that they handle disclosure of protected convictions so that they comply with data protection requirements.
Free on-demand access to criminal history information
Currently a citizen can only confirm the details of their criminal history by applying for a Subject Access Request to Police Scotland. This costs £10, requires copies of identification to be sent and has a turnaround period of up to 40 days. This significantly interferes with job search and still requires specialist intervention to figure out spent/unspent/protected markers.
Having spoken to police officers, Recruit With Conviction understands that this process could be easily administered at any open police station.
If Disclosure Scotland algorithms were also applied to the Police system, then each conviction could also be marked as unspent, spent-unprotected or spent-protected on a print out for the citizen.
Given the correlation of poverty and minor criminal convictions, we also believe that the £10 charge is somewhat excessive for a citizen to find out critical information which affects their opportunity to compete for employment.
A Disclosure Helpline
While Disclosure Scotland provides excellent technical advice through its helpline, there are a range of nuances for both employers and applicants that could be smoothed through practical support and a knowledgebase of good practice relating to intersecting problems.
Funding for Apex Scotland’s Disclosure Helpline was ceased some time ago and a void exists in the availability of such support. The MOJ support similar services for citizens in England and Wales and they are provided by NACRO and Unlock.
We recommend the resumption of a Scottish disclosure helpline with a remit to support citizens and employers. Apex Scotland and Recruit With Conviction would be happy to collaborate in providing such a service.
In most cases, a web-portal of information would be largely ineffective because the emotional needs relating to conviction disclosure anxiety are interwoven with complexities around simply what needs disclosed and when. Often individuals who seek support have not discussed their criminal conviction with anybody for years and may have never shared the information with their close family.
In relation to the 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?
If communicated effectively, the right to withhold disclosure of protected convictions will have significantly positive impacts on people with convictions.
One third of men and one tenth of women in Scotland are labelled with a conviction marker and evidence from the MOJ/ DWP/ HMRC data joining project shows that even minor convictions have a long term negative impact on low pay and unemployment. Eight years after any conviction the median wage of people with convictions is around two thirds of the median wage of 24 year olds and conviction labels correlate with deeper deprivation for most minority ethnic groups and while women are significantly less likely to have criminal convictions, the median income of these women is around half the median income of 24 year olds in the UK. Beyond this, the data joining project provides data which suggests that around half of all unemployed people have at least one conviction.
Ongoing action research with a range of stakeholders by Recruit With Conviction consistently finds Conviction Disclosure Anxiety as a principle reason for people to deselect themselves from opportunities which ask for disclosure of convictions on applications. This is particularly true for many parents considering volunteering in school and other groups where their children participate.
Furthermore conscious and unconscious bias (relating to convictions) from selectors is inevitable and despite procedures to mitigate bias, training selectors is required and this self awareness transcends benefits to many other areas of equality.
Unconscious bias also has a multiplying effect where negative stereotypes intersect, for example a criminal record for somebody from a minority ethnic background or a female can be treated more harshly and in most cases a conviction legally be used to deselect that person.
Therefore the removal of clearly irrelevant convictions and communication of these rights will have a significant benefit on many groups.
In relation to the Equality Impact Assessment, please tell us what potential there may be within these amendments to legislation to advance equality of opportunity between different groups and to foster good relations between different groups?
With effective communication the amendments will improve equality of opportunity in regulated work. As described above, they can be particularly helpful for women and people from minority ethnic backgrounds.
However, there is an extreme deficit in knowledge on the part of career advisors, jobcentre plus staff, employability workers and other professionals who may support applicants. This problem and solution is described in more detail in the answer to question 1.
In terms of fostering good relations, the increasing criminalisation of “hate crime” is creating an increasing number of people who have particularly toxic conviction labels for low level offences such as breech of the peace.
This leaves many perpetrators of hate crime with a sense of injustice and inequality rather than the desired effect for improving community relations. Interventions using restorative justice methods as a diversion from prosecution are more likely to contribute towards community cohesion in most cases.
The toxicity of such convictions when disclosed, excludes opportunities, damages community relations and heightens perceptions of injustice. Consideration should be given to ways in which community cohesion can include people with such convictions.