Tag Archives: Equal Opportunities

Disproportionate criminal record scheme in England and Wales is unlawful

22 January 2016

Today, the High Court ruled that excessive disclosure of minor historical criminal convictions in England and Wales is unlawful under Article 8 of the Human Rights Act, the right to a private and family life.

The filtering system used by the Disclosure and Barring Service (DBS) in England and Wales only allows the filtering of one minor conviction for higher level disclosure checks (for jobs which are not protected under the Rehabilitation of Offenders Act) after a number of years.

In Scotland new provisions to create protected convictions were implemented on 10 September 2015.  http://recruitwithconviction.org.uk/protected_convictions_in_scotland/ The Scottish system permits more than 1 minor conviction to be removed from higher level checks after a number of years as well as an appeals process. The failure of the DBS system to filter more than one conviction or allow an appeal, appears to be the basis of the legal challenge.

Why protect more than one conviction? Quite simply, there is no evidence that minor historic convictions link to current offending behaviour but there is significant evidence to show that minor historical convictions are linked with low pay and unemployment in the long term.

This is particularly true for women with convictions, where their median income is less than half the median income of a 24 year old, eight years after their conviction. This is excessive in comparison to the gender pay gap.

When convictions combine with protected characteristics then recruiters and selectors often have to overcome their unconscious bias  about “someone who does not look like me or sound like me”. Throwing historical convictions into the mix, allows selectors to reinforce or justify stereotyping and it has a multiplying effect of disadvantage.

The more often that a person receives or perceives discrimination, the more likely they are to mistrust disclosure processes and deselect themselves from opportunities in the future.

People with convictions become anxious about disclosing to anyone and surely after a number of years they have a right to privacy about their past.

In practical terms, nothing has changed in England and Wales yet and the Government can still appeal against the ruling.

See also



Inclusion with Conviction

This is the Recruit With Conviction submission to the Scottish Parliament Equal Opportunities Committee  inquiry into race, ethnicity and employment:

A criminal record is rarely a single barrier and it disproportionately intersects with victims of crime, deprivation, male gender and minority ethnic backgrounds.  Beyond this there are complex dynamics when criminal convictions intersect any protected characteristic and empathy may be challenged by unconscious bias in relation to age, disability, gender reassignment, sex, race, religion or belief, sexual orientation, marriage and civil partnership and pregnancy and maternity.

Where the criminal record marker intersects minority ethnic backgrounds and poverty then ethno-cultural empathy is particularly challenged. Decisions can be influenced by the recruiter’s unconscious bias relating to a “person who does not look like me or sound like me” and then the bias can be increased disproportionately because the applicant also has a criminal record.

1 in 3 men and 1 in 10 women in Scotland have at least one criminal conviction and the conviction marker correlates with low pay, unemployment and transient employment.

Evidence from England and Wales 1.“Experimental statistics from the 2013 MoJ /DWP /HMRC data share: Linking data on offenders with benefit, employment and income data” which tracked incomes of more than 4 million people with criminal convictions shows significant disadvantage in the earning of people from different ethnic backgrounds who also had a criminal conviction. These figures were calculated 8 years after their conviction/caution or release from prison.

Median annual wage of people with criminal records from different ethnic backgrounds in 2011/12

White – North European £14,600

White – South European £10,700

Black £11,400

Asian £11,700

Chinese, Japanese or South East Asian £12,400

Middle Eastern £8,700

Unknown £16,500

Total £14,300

No direct general population comparison is available in the research, however the Annual Survey of Hours and Earnings, which calculates the figures on a different basis, shows that the median amount of earnings for UK employees aged 16 and over in 2011 was £21,100

Recruit With Conviction partners in England have provided anecdotal evidence that recruitment drives for positive discrimination on the grounds of ethnicity tend to be more successful where recruiters are empowered and authorised to select candidates with convictions.

For a wider international context, Pepsico were fined $3.13m in the USA for applying blanket bans on recruiting people with markers against criminal background checks. The fine specifically related to indirect discrimination on the grounds of race because people from minority ethnic backgrounds were disproportionately disadvantaged.

The above information relates specifically to cultural dynamics outside Scotland where minority ethnic backgrounds correlate closely with poverty. This has been presented because there is an evidence gap relating to the impact of previous convictions intersecting with minority ethnic backgrounds in Scotland.

While the committee might view this evidence as peripheral, we would argue that it should be a central objective to ensure that the most excluded people within any disadvantaged groups should be a priority for support in a fully inclusive Scotland.

  1. https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/304411/experimental-statistics.pdf
  2. http://recruitwithconviction.org.uk/18pepsico-pay-out-millions-because-they-didnt-recruit-with-conviction/