Tag Archives: Rehabilitation of offenders act 1974

Rehabilitation of Offenders Act 1974 in Scotland and reform of the legislation

Disproportionate criminal record scheme in England and Wales is unlawful

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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

https://www.liberty-human-rights.org.uk/news/press-releases-and-statements/disproportionate-criminal-records-disclosure-scheme-declared

 

Protected Convictions Scotland Consultation

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Recruit WIth Conviction responds to the Consultation on the Police Act 1997 and the Protection of Vulnerable Groups (Scotland) Act 2007 remedial order 2015

QUESTION 1

Do you have any views/observations on this Order?

Comment

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.

Appeal Process

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.

 Required Solutions

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.

 

 

QUESTION 2

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?

Comment

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.

 

QUESTION 3

 

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?

 

Comment

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.

 

 

 

Scottish Consultation on reforms to the Rehabilitation of Offenders Act 1974

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All of the proposed amendments can be implemented without delay. The original Rehabilitation of Offenders Act 1974 was designed as a catch all and passed through parliament in 1974 without an exemptions order for care workers, nurses or taxi drivers etc. etc. etc., so the existing disclosure periods are excessive.

Modern technology including forensic science as well as improved child protection arrangements have allowed the courts to prosecute serious offences more often and to link serial offences more to the same individuals. This has resulted in longer sentencing (due to evidence capture of more crimes) and more appropriate supervision of people with convictions. This would have been impossible in 1974.

With the continuing existence of exclusions and exemptions to the 1974 Act for a wide range of professions and the modern public protection mechanisms from more serious offenders, we broadly agree with all of the proposals to change disclosure periods which have been set out in the proposals.

To allow even shorter and more realistic disclosure periods for most people with convictions would require structural changes within the Act, but we believe that all the proposals are consistent with the requirements for safe and sustainable employment and are suitable as a stop-gap until more robust primary legislation is implemented, which could properly contribute to the rehabilitation of people with convictions.

Further measures to protect and inform employers were implemented in the Police Act (Scotland) 1997, the creation of Disclosure Scotland and the Protecting Vulnerable Groups (Scotland) Act 2007. Combining the availability of this information and the advances in the internet, there has never been a time in history, when so much criminal record information has been available.

With these existing mechanisms as well as the provisions of MAPPA in the Management of Offenders etc (Scotland) Act 2005, the safety nets in the Scottish criminal justice system are robust enough to completely remove criminal record disclosure for work which is not currently defined in the Exclusions and Exemptions Order (Scotland) 2013.

Therefore all convictions could realistically become immediately spent without presenting substantial risk however we concede that the required caveats may be too complex for secondary legislation. This could be unpicked more fully within new primary legislation.

The proposals will allow Scotland to catch up with reforms which were implemented in England and Wales in March 2014. Those reforms are already making a significant contribution to; the performance of welfare to work, tackling poverty, improving public health and promoting a fairer and more equal society in England and Wales.

While these impacts are positive, “rehabilitation” is still omitted from the Rehabilitation of Offenders Act, in that individuals who have not been reconvicted within their rehabilitation period could not reasonably still be described as ‘offenders’ and even if the proposals are implemented in full, the Act will still offer no protection for people with unspent convictions. This means that the proposals offer no immediate benefit or practical incentive to people when they leave prison.

Therefore we welcome an acknowledgement in this consultation paper that a broader consultation for new primary legislation is still required in Scotland as soon as possible.

The new consultation should seek to develop proposals for the following:
• Primary legislation with a title which is fit for purpose, such as the Opportunity to Compete Bill. The title of the 1974 Act conveys negative messages where citizens returning from prison are called “offenders” and it implies that they are not rehabilitated until considerable time periods have elapsed after their conviction. If disclosure is required then these rehabilitation periods would be better described as disclosure periods.
• A process of removing disclosure periods completely or reducing disclosure periods for more serious offences which is based on engagement in services, evidence of changed behaviour, risk benefits and the development of personal resilience. Within this there should be a presumption that nobody who is released from prison should face a lifetime of “disclosure” (or what is commonly described as a “second sentence”) without a process of appeal.
• A review of the exclusions and exceptions to the 1974 act where there is currently no protection for people from discrimination and stigma over very minor and very old convictions.
• The potential of a well designed quota based system where some employers would be required to employ people with unspent convictions. While quota systems are controversial and potentially beyond the powers of the Scottish Parliament, this avenue should at least be open for discussion.
• A requirement for all recruiters (in receipt of disclosure information) to be properly trained to make proportionate decisions and for those recruiters to be empowered and authorised to select a person with a conviction or convictions if they are the right person for the job.
• A right for employers to be supported in risk assessment.
• Measures to consider mitigation of the “Google effect” where failure to ask about criminal history is not the same as avoiding discrimination as well as the complications in managing the confidentiality of spent convictions.
• Addressing the knowledge gap among many key workers about effective pathways to employment for people with convictions.
• Ensuring that all citizens have free, available and accessible information about what and when they need to disclose about their convictions for the purpose of employment. This should include the ability to undertake a check for the purposes of PVG prior to applying for a vocational course for “regulated work”.
• Implementation of Ban the Box processes where any disclosure requirements for the purposes of employment are delayed until after an individual has been selected for interview.
• A statutory right for people with convictions to access specialist support for enhancing skills and finding work which is tailored to their hopes and plans.
• A common sense approach to disclosure of convictions for breaches whereby the current proposals still create disclosure time spans which are excessive.
• Inconsistencies in the information available to employers based on which part of the world that an individual committed their crime. There is no evidence of any risk to employers created by the shortage of criminal history information on foreign nationals.

  • Additionally new legislation should seek to specifically find solutions for criminal records intersecting other employment barriers because the stigma of criminal convictions can be worsened for women, people from minority ethnic backgrounds and when the conviction intersects mental health problems. Similarly, conviction labels which include terms such as “racially aggravated” or “domestic” or relate to sex-offending, significantly impede opportunities to compete, even if they are minor offences and sentenced lightly.

This list is by no means exhaustive but highlights some of the limitations to the structure of the 1974 Act to support rehabilitation.

New legislation which supports people with convictions to find and keep meaningful employment, would undoubtedly make critical contributions to Scottish Government policy objectives for health inequalities, diversity, inclusion, poverty, economic development and welfare to work, as well as reducing re-offending.

Findings from Recruit With Conviction action research workshops show that disclosure of even minor criminal conviction can escalate anxiety in the mind of recruiters and this often leads to unfair and unreasonable de-selection. Similarly people with minor convictions often adopt avoidance behaviours when confronted with questions about criminal record disclosure and seek employment in situations where they are not asked, therefore diminishing their own opportunities for suitable employment.

Criminal convictions are most likely to statistically impact male unemployment and by comparing male unemployment trends between Scotland and rUK since the implementation of changes to the Act in rUK, we hope to illustrate potential impacts of reforming the Act.

This graph which was created using data from ONS. It shows a clear trend of Scotland performing ahead of the UK for male unemployment until March 2014 and then lagging behind after Westminster reduced disclosure requirements in England and Wales. This is interesting because it is consistent with Recruit With Conviction findings. Men are 3 times more likely to have a criminal conviction than women and convictions correlate much more closely with unemployed people.

graph
graph

Reports (1) on 31 May 2015 show that Scotland has the lowest female unemployment rate in Europe.

Using big social data like this creates risks for bad social science because causality is rarely able to be defined in correlations. So while this graph neatly illustrates a point, the qualitative evidence and the logic is more compelling and we accept that there are always many competing factors and the policies of targeting resources for female employment in Scotland is another likely contributing factor to the performance of men and women in the Scottish labour market.

It should be noted that while females with criminal convictions are less statistically significant, criminal conviction disclosure for woman is even more stigmatising and previous convictions have greater impact in the labour market for women individually.

(1) http://www.bbc.co.uk/news/uk-scotland-scotland-business-32950469

Recruit With Conviction promotes safe and sustainable employment for people with criminal convictions by working with employers and employability specialists in workshops and ambassador networks. Each workshop aims to both disseminate information as well as inform the knowledgebase about effective practice.

While workshop participants start off with varying degrees of understanding, we strive to respect feelings of participants but challenge misconceived perceptions and promote equality, diversity and inclusion by threading through understanding of unconscious bias about other barriers to employment which are faced by our most vulnerable friends and neighbours.

Please take the time and make your response to the consultation which is available on the link http://www.gov.scot/Publications/2015/05/5592

Welfare to Work and Reforming ROA1974 in Scotland

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In March 2014 the UK Government implemented new employment rights to people with criminal convictions by reducing the length of time until most convictions are deemed spent. These changes covered England and Wales only. The consultation to change this legislation was launched in Scotland on 20th May 2015.

Findings from Recruit With Conviction action research workshops show that disclosure of even minor criminal conviction can escalate anxiety in the mind of recruiters and this often leads to unfair and unreasonable de-selection. Similarly people with minor convictions often adopt avoidance behaviours when confronted with questions about criminal record disclosure and seek employment in situations where they are not asked, therefore diminishing their own opportunities for suitable employment.

By comparing unemployment trends between Scotland and the UK we hope to illustrate this point.

graph
graph

This graph which was created using data from ONS. It shows a clear trend of Scotland performing ahead of the UK for male unemployment until March 2014 and then lagging behind after Westminster reduced disclosure requirements in England and Wales. This is interesting because it is consistent with Recruit With Conviction findings. Men are 3 times more likely to have a criminal conviction than women and convictions correlate much more closely with unemployed people.
Reports (1) on 31 May 2015 show that Scotland has the lowest female unemployment rate in Europe.

Using big social data like this creates risks for bad social science because causality is rarely able to be defined in correlations. So while this graph neatly illustrates a point the qualitative evidence and the logic is more compelling. There are always many competing factors and the policies of targeting resources for female employment in Scotland is another likely contributing factor to the performance of men and women in the Scottish labour market.

It should be noted that while females with criminal convictions are less statistically significant, criminal conviction disclosure for woman is even more stigmatising and previous convictions have greater impact in the labour market for women individually.

(1) http://www.bbc.co.uk/news/uk-scotland-scotland-business-32950469

Reforming ROA 1974 – An Opportunity to Compete

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Further delays to reforming the Rehabilitation of Offenders Act 1974 in Scotland would restrict the effectiveness of government policies on welfare to work, diversity, health and reducing re-offending .

The news on 20 May 2015 that the Scottish Government are consulting on proposals to change this is very welcome. http://www.bbc.co.uk/news/uk-scotland-32800432

Recruit With Conviction employer workshops consistently uncover bias when convictions are disclosed to recruiters. The employer workshops also show that recruiters need both empowerment and authorisation to select applicants who disclose their criminal convictions.

However, employers should be at the heart of designing safe and sustainable employment solutions, so we warmly welcome this approach by the Scottish Government to listen to the voices of the business community.

Beyond this, minor criminal convictions commonly correlate with long term unemployment and poverty – clearing minor convictions faster is a pragmatic solution to help more people find work and stay in work.

Changes to the 1974 Act were implemented in England and Wales on 10th March 2014. They generally shorten the length of time that convictions can be considered for the purpose of recruitment for most jobs.

The changes helped Tracy from Wigan. She was arrested for holding a small quantity of drugs at a music festival and fined £300 in court in April 2013 when she was a student.

Under the changes to the legislation in England and Wales, fines normally become spent after 1 year which was great for Tracy. She graduated in June 2014 and so she had full protection from discrimination on the grounds of her conviction when she applied for work.

However if Tracy had applied for a job in Scotland, then she would need to disclose this conviction for 4 more years under the terms of the 1974 Act.

1 in 3 men and 1 in 10 women of working have a criminal conviction and even minor historic convictions correlate with unemployment, underemployment and low pay as applicants gravitate to less formal employment where conviction information is not requested by employers.

Therefore reforming the 1974 Act will support the wider welfare to work strategy.

There is also a correlation with minor offences and poverty so the criminal conviction issue is a more common barrier to finding work for people in the poorest communities. To compound the problem, areas of high unemployment and deprivation make the dynamics of local labour market favour employers rather than applicants. Our experience of working with employers in different areas has demonstrated examples where more employers in Aberdeen are better prepared to accept people with complex convictions. In sharp contrast there are employers in North Ayrshire who use criminal record disclosures as an automatic de-selection tool because they receive too many applications.  Dr Colin Lindsay at Strathclyde University has also undertaken research which shows that employers deploy more diverse recruitment practices in areas of low unemployment.

The problem of de-selection also relates to spent convictions because filtering of minor convictions  do not apply for people with Scottish Convictions. This is a concern for anybody applying for a job which is exempt from the provisions of the 1974 Act. Care work is a common career aspiration and the failure of Scottish disclosure systems to filter out some of the irrelevant convictions causes another specific barrier.

While Tracy from Wigan was never a chaotic drug user, Brad from Liverpool has a history of chaotic drug use and was convicted a number of times for various minor offences. All of his convictions relate to periods of time when his drug use was at its worst.

Recruit With Conviction delivered training to a number of Drugs workers in Merseyside and set out opportunities where changes in the 1974 Act could be used as an incentive in recovery where many individuals have a long history of minor convictions and no prison sentences. With a short rehabilitation period, people in recovery can look forward to an achievable time frame when their record is (sort of) wiped clean. This is very powerful emotionally for people in recovery who harbour a deep sense of guilt about their past and it can be used positively. Of course any recovery plan needs to be personalised to an individual but there are clear opportunities for support workers to help bind things together positively.

Even when Brad had a relapse in August 2014, his support worker was able to establish that he’d not stolen anything and he’d not been arrested so his rehabilitation from the criminal system was still intact. Therefore he was able to refocus on drug recovery without having to start all over again and he has also found employment.

Even minor convictions can be a root cause of anxiety and self doubt present a number of barriers to recovery from addictions and mental health problems.

By enabling opportunities for people to compete for employment, people with convictions are more likely to find the right job.

The right job for the right person is a very effective intervention. It can stop the escalation of minor crime turning into more serious crime and it can also provide a valuable second chance for people with more serious convictions who are liberated from prison.

While core improvements need to be made in employer engagement and in employability support, legislative changes have the potential to make a critical contribution.

Note: In 2013 Recruit With Conviction facilitated a number of stakeholder discussion events on reforming the 1974 Act on behalf of the Scottish Government.

Scottish colleague update

Disclosure, Recruitment,

Dear colleague,

On 10th March 2014, the 1974 Rehabilitation of Offenders Act will be revolutionised in England and Wales. Up to 1.5 million people every year will no longer have to disclose their convictions for most jobs.

These changes will not apply in Scotland and it is important that advisers are very clear about this. Incorrect advice can significantly obstruct job opportunities. For example, over-disclosure of convictions when there is no requirement or in this instance under-disclosure which can be as obstructive.

From research in England, we believe that around 45% of people claiming JSA have a criminal conviction (excluding driving endorsements) so this is a mainstream issue – but sometimes specialist support is required.

Recruit With Conviction Ltd is the not for profit organisation committed to promoting safe, effective and sustainable employment for people with convictions. Please note that we do not deliver direct services to individuals and if specialist support is required then you should make an appropriate referral to your local specialist service. e.g. Apex Scotland, Access to Industry or JCP Disclosure Service in the West of Scotland.

The Scottish Government is working to develop a unique solution for Scotland. We along with a number of additional partners are supporting this work but no changes are imminent.

For more information about the employment of people with convictions and training for advisers and employers, please see our website www.recruitwithconviction.org.uk.

We would be grateful if you could forward this information to colleagues.

Richard, Roger & Dughall.

Directors Recruit With Conviction Ltd

Reform The Rehabilitation of Offenders Act 1974 in Scotland

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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

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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.

http://www.howardleaguescotland.org.uk/event/cons-cobblers

 

Recruit With Conviction Highlights – 2013

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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

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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.