Time for Policy Redemption? A Review of the Evidence on Disclosure of Criminal Records

Summary

As the use of criminal record background checks by employers has become increasingly pervasive, having a criminal record can have significant effects on employment prospects producing ‘invisible punishment’ or ‘collateral consequences’ of contact with the justice system (Travis 2002). Taking into account that over 38% of men and 9% of women in Scotland are estimated to have at least one criminal conviction (McGuinness, McNeill and Armstrong, 2013), issues surrounding criminal record checking and disclosure in an employment context affect a large proportion of people. On 28th March, 2018 Scotland Works for You brought together partners from across all sectors of Scotland, public, private, academia and sport to explore some of these issues. This briefing paper is intended to inform not only discussions taking place at this event, but also ongoing consultations and reforms.

‘Time to Redemption’ studies which empirically investigate the period of time when people with convictions can statistically be considered as exhibiting the same risk of reconviction as people with no convictions.  In this briefing paper, the findings of these ‘Time to Redemption’ studies are discussed, following a brief review of the evidence into the relationship between employment and desistance. This paper then explores research into employers’ attitudes, beliefs and behaviours with regard to the employment of people with convictions, prior to exploring practices of disclosure and vetting in the UK, Europe and the USA. Existing practices of disclosure tend to retain the requirement that certain spent convictions will always be disclosed in certain circumstances, for the purposes of public protection. By contrast, Time to Redemption research measures the extent to which people with convictions become statistically close to people without convictions in terms of risk, taking into account age at offence, periods of desistance and crime type, suggesting that in general that period is between 7 and 10 years. This paper suggests that the findings of Time to Redemption studies allows for information pertaining to criminal histories to be used in a more nuanced way, concluding by bringing together these different areas of inquiry to consider implications for approaches to reform. In so doing, this paper ends by reviewing four, not necessarily mutually exclusive, approaches to reform, that might bring Scotland and the UK into closer alignment with European practices and the European Convention on Human Rights, and in particular, Article 8 which provides a right to respect for one’s private and family life, home and correspondence. These approaches, based on a review of and informed by the evidence include: (1) reviewing spent periods and the issue of enduringly unspent convictions; (2) certificates of rehabilitation; (3) court imposed Occupational Disqualification; and the (4) guidance and revisions to anti-discrimination legislation.