Critical Issues in Scottish Penal Policy: Disclosure of Convictions

Critical Issues in Scottish Penal Policy: Disclosure of Convictions

This week HLS has invited a selected group of experts to reflect upon critical issues in Scottish penal policy. Today, Dr Beth Weaver provides a clear and critical overview of Scotland’s complex spent conviction legislation and the new proposals that are intended to improve what is an unduly harsh and punitive system of disclosure. She’s asks do the current proposals in the Management of Offenders Bill go far enough? She outlines a humane, progressive and socially just alternative form of disclosure, one that could meaningfully reform Scotland’s spent conviction legislation and make it a world leader in penal policy and reintegration.

Are  Proposed Reforms to Criminal Records Disclosures in Scotland Going Far Enough?

 

A criminal record can make it harder to find a job and employers are using criminal records checks more and more. The Scottish Parliament is reviewing reforms to the Rehabilitation of Offenders Act 1974 (ROA 1974) and practices of disclosure, with the aim of reducing unnecessary barriers to employment for people with convictions while promoting the protection of vulnerable groups.The purpose of the ROA 1974 is to clear the records of many people with convictions, by setting periods following a specific sentence after which the person is deemed rehabilitated and does not have to disclose their convictions (unless special circumstances apply). But it has been criticised for its lengthy rehabilitation periods. However, newreforms are proposed in the Management of Offenders (Scotland) Bill. It is timely, therefore to consider the following key questions, the answers to which might inform how we think about this issue:

  • Why does this matter?
  • What is the problem?
  • What does the research say?
  • What approach do other countries take?
  • What reforms are being proposed?
  • Do these reforms go far enough? 
  • What can we do differently?

                                    

Why does this matter?

Research reveals a complex relationship between (un)employment, offending and desistance but it is generally acknowledged that employment is key to desistance and reintegration (Weaver, 2015; Weaver, 2018). However, it‘s not as straight forward as getting a job and giving up crime. This is because employment in and of itself does not cause or trigger desistance; rather it is the meaning and outcomes of either the nature and/or quality of the work or participation in employment and how these impact on people’s personal priorities or goals, their self-concept and social identity (how it changes the way the person sees themself and is seen by others) and the relationships that matter to them (Weaver, 2015). Farrall (2005) also suggests that work, and as part of that, association with a new social group, can be a mechanism for rebuilding who one is and forging who one will become.  So, the impact of work goes beyond the effects of having an income or even gaining a daily or weekly routine; ‘employment is part of the idea of what is acceptable’ (Owens 2009: 50), and communicates in itself, that you have a place in the world and a role to play – be it in society or even in one’s own family – as a reliable partner and provider or a good parent for example. 

                 

What is the problem?

There are many and varied obstacles to people with convictions accessing and sustaining employment, among which is the stigma of a criminal record and associated vetting and disclosure practices. Evidence indicates that anticipated stigma and the repeated encountering of obstacles to obtaining employment can increase risk of reoffending, undermining desistance (Farrall, 2002; LeBel, 2012; Winnick and Bodkin, 2008) and also, therefore, public protection. If employment can support desistance and reintegration, this would suggest that public protection is increased rather than risked when barriers to employment are removed. Indeed,there is no reliable evidence to suggest that stricter vetting practices, that create barriers to employment, enhance public protection.

Underpinning much of the uncertainty around the recruitment of people with convictions is the lack of clarity as to when past convictions come to be of little or no value in the prediction of criminality, when taking into account information that is self-disclosed or revealed through formal mechanisms of disclosure. It is this uncertainty that ‘Time to Redemption’ studies seek to address.

 

What does the research say?

‘Time to Redemption’ studies investigate the period of time when people with convictions are statistically no more likely to offend than people with no convictions. The key question that these studies seek to answer, then, is this:

How many years of non-offending does it take for a person with convictions to resemble a person without convictions in terms of his or her probability of offending? 

These studies estimate that in general after an average of 7-10 years without a new arrest or conviction, a person’s criminal record essentially loses its predictive value (Blumstein and Nakamura, 2009; Bushway, et al., 2011; Kurlychek et al., 2006; 2007; Soothill and Francis, 2009; for a detailed review of this research, see Weaver, 2018). 

This raises questions as to why some convictions remain enduringly excluded, unspent, ostensibly for the purposes of public protection even where the evidence would suggest that the individual’s risk is statistically no longer predictive of future criminality or put differently, where that risk reflects that of the non-convicted population. Soothill and Francis (2009: 385) go as far to say that employers ‘have more to fear from the non-offending population than from those with convictions’ if those with convictions have not been reconvicted in the last ten years.

How does the UK approach differ to other countries?

European nations only disclose recent, unspent convictions and they tend to prevent private agencies, the media, and the general public from having access to criminal records; such information is considered private and confidential.By contrast, the UK allows for the disclosure of all convictions, cautions and police records (soft information) in certain contexts and situations, such as Standard and Enhanced Disclosure in Scotland. In this way the UK is an outlier, and the European Court of Human Rights (ECtHR) has criticised the UK system of disclosure for: providing no distinction on the basis of the nature of offence, the disposal of the case, the time elapsed or relevance of the data to the employment in question; that mandatory disclosure of all convictions is disproportionate and does not allow the exercise of any discretion to balance public protection and privacy; and that disclosure is not limited only to convictions.

 

What reforms are being proposed for Scotland?

Clearly there is a need to reform Scotland’s disclosure system. Following consultation in 2015, the Scottish Government proposed reforms to the Rehabilitation of Offenders Act  by way of The Management of Offenders (Scotland) Bill. The Management of Offenders (Scotland) Bill’s provisions have the overall effect of restricting the disclosure of people’s criminal histories in two key ways: 

  • By generally reducing the length of time before a conviction (or other disposal) is deemed to be spent; 
  • By modifying the 1974 Act’s threshold, currently set at a custodial sentence of 30 months or longer, before a conviction never becomes spent. The Bill changes this so that a sentence of up to 48 months’ imprisonment may, in time, become spent.

 

Do the Scottish reforms go far enough?

Theproposed reforms, while welcomed, are limited. While across continental Europe, as noted above, only recent, unspent convictions are disclosed, Scotland will retain a more punitive disclosure system as the reforms pertain principally to basic disclosure: they make no direct changes to the higher level disclosure system concerning standard or enhanced disclosures.Thus some sentences will remain enduringly excluded, unspent, ostensibly for the purposes of public protection even where the evidence would suggest that the individual’s risk is statistically negated. Current legislation and disclosure practices do not reflect the evidence from Time to Redemption studies. Moreover, an excessively wide and complex disclosure system may actually undermine prospects for reintegration. The proposed changes, much like the current system, raises a number of questions about justice (Larrauri Pijoan 2014a) such as why, when some old convictions can be spent under the ROA, are they subject to disclosure when applying for a wide range of employment positions? Why are arrests, cautions and soft information disclosable when they are, by definition, judicially unproven? 

 

What can we do differently?

Scotland should adopt a holistic rather than piecemeal review of the system. This might include a system that can forget and forgive, as well as forbid participation in certain occupations and facilitate employment protection so as to promote compliance with the ECHR and allow a more rights informed and nuanced approach to the disclosure of criminal histories. 

 

Forgetting: Reviewing Spent Periods and the Disclosure of Enduringly Unspent Convictions: Scotland could legislate a) that all convictions should be subject to the possibility of being spent and b) that spent convictions should be automatically withheld from disclosure so the record is sealed and the person presumed rehabilitated for the purposes of employment.

Forgiving: Certificates of Rehabilitation might be issued by the state or judicial authorities in light of concrete evidence that a person has made progress towards desistance. The certificate would effectively act as a ‘letter of recommendation’ to employers.

Forbidding: Court Imposed Occupational Disqualification: at sentencing, and after an individualised assessment, a judge canprevent a convicted person from certain occupations. The idea is that employment exclusion has to be authorised in law and only in cases where there is a specific occupational disqualification order imposed by a court and not a generic criminal record.  

Facilitating: Providing Guidance and Revisions to Anti-Discrimination Legislation: supporting fair employment for people with convictionsmight be assisted by amendments to existing anti-discrimination legislation such as the Equality Act 2010. Currently, people with convictions appear to be the only group that are excluded from its protections. One implication might be that people with convictions should be legally recognised as a disadvantaged group entitled to special employment protection.

Last words

The disclosure of criminal histories has significant impacts on access to employment and potentially on prospects for desistance. The need to bring Scottish practices in closer alignment with the European Court of Human Rights has resulted in recent and ongoing reforms to both the 1974 Rehabilitation of Offenders Act and disclosure guidelines. Research strongly suggests that proposed reforms could go further. Existing laws and reforms proposed for governing disclosure retain the requirement that some spent convictions will always be disclosed in certain circumstances, irrespective of evidence. This is likely to continue contributing to risk-averse reactions from many employers and might negatively affect people’s efforts to ‘go straight’ and undermine public protection. This would suggest that no, the proposed reforms in the Management of Offenders Bill do not go far enough because they do not address their intended purposes: reducing unnecessary barriers to employment for people with convictions while promoting the protection of vulnerable groups. 

 

 

Author Information: Dr Beth Weaver is a member of the Howard League Scotland organising committee. She is a leading and renowned desistance scholar and has specific interests in user involvement and co-production and the use of through-the-prison-gate social cooperative structures of employment. All of her research has an applied focus on penal reform.

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