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 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.

Find out more:

• Howard League Scotland Management of Offenders 2018
• SCCJR TIME FOR POLICY REDEMPTION? A REVIEWi OF THE EVIDENCE ON DISCLOSURE OF CRIMINAL RECORDS
• SCCJR Employment and Employability in Scottish Prisons: A Research Briefing Paper

This week HLS has invited a selected group of experts to reflect upon critical issues in Scottish penal policy. Today we look at the road to prison. Professor Susan McVie and Dr Ben Matthews, researchers from the Understanding Inequalities project, ask what is the relationship between Scotland’s staggeringly high use of imprisonment and poverty? (Scotland's imprisonment rate is 143 per 100,000 of national population, one of the highest imprisonment rates in Europe). But they push us further, encouraging us to carefully and critically think about how studying crime and inequality can inadvertently stigmatise the poor and marginalised.

Imprisonment and Multiple Deprivation in Scotland

In 2005, Roger Houchin foundthat the links between social exclusion and imprisonment in Scotland were so strong that the best strategy to tackle offending behaviour lay in tackling social exclusion. In 2008, the Scottish Prisons Commission agreed that the prison population was over-represented by people from the poorest communities, and recommendedsignificant changes to the use of imprisonment in Scotland. But 10 years on, what progress has been made?

The ESRC-funded Understanding Inequalities project aims to explore the causes and consequences of inequalities in Scottish society.[1]As part of our work on crime and justice inequalities, we revisited Houchin’s report to see whether the relationship between inequality and imprisonment in Scotland still held, especially given the substantial falls in crime in Scotland over the past 15 years[2].

Specifically, we wanted to see if two of Houchin’s conclusions from 2005 were still valid. Firstly, that there was a ‘linear’ or straightforward correspondence between the level of deprivation in an area and its rate of imprisonment. And second, that deprivation was ‘neither a necessary nor a sufficient’ explanation for rates of imprisonment.

We looked at data on Scottish prisoners from one night in 2014 and examined the datazones (a proxy for neighbourhoods) in which their last known address was registered. Houchin’s conclusions were based on a similar dataset, although there were some differences in methodology[3]so our results are not directly comparable with his at the neighbourhood level. Nevertheless, we can compare our findings with Houchin’s for the whole of Scotland.

Results

Let’s consider Houchin’s two propositions in turn.  To do this, we examined inequality in the rate of imprisonment per 1,000 people in each of Scotland’s 6,976 datazones (to enable comparison across different neighbourhoods).[4] Our measure of inequality was the Scottish Index of Multiple Deprivation (SIMD), a routinely used measure of deprivation which ranks Scotland’s datazones from 1 (the most deprived neighbourhood) to 6,976 (the least deprived neighbourhood). 

Proposition 1: There is a linear correspondence between level of deprivation and imprisonment.

If proposition one were true, when we plotted the imprisonment rate against the overall rank of SIMD we would expect to see a downward diagonal slope (i.e. as SIMD rank increases - datazones become less deprived – the imprisonment rate correspondingly decreases).  Using the data from 2014, Figure One tests the proposition that this relationship is linear. The blue line gives a ‘best guess’ of what the imprisonment rate would be in each datazone if all we knew about that datazone was its SIMD rank. We can see that, on average, the most deprived datazones (to the left of the chart) have higher imprisonment rates than the less deprived datazones (to the right of the chart).  This is very similar to what Houchin found - as he puts it, “[i]t is not simply that the most deprived are most at risk of imprisonment, it is that, at all levels of prosperity, the probability of imprisonment increases with increasing deprivation.”

There are some caveats, however.  First, we can see that the relationship between the imprisonment rate and SIMD may be better described as a non-linear correspondence than a linear one[5]- the blue line isn’t straight, it curves upwards towards the left-hand side of the graph.  This means that the difference in the ‘best guess’ of the imprisonment rate between, say, the 100th most deprived datazone and the 200th most deprived datazone is not the same as the difference in the ‘best guess’ imprisonment rate between the 200th and 100th least deprived neighbourhoods. In other words, imprisonment rates in the most deprived neighbourhoods of Scotland appear to be disproportionately higher than those in the most affluent neighbourhoods, based on their levels of deprivation alone.

Proposition 2: Deprivation is neither a necessary nor a sufficient correlate of imprisonment

Houchin’s second proposition was that the averagerelationship between imprisonment rate and deprivation (shown in Figure One) did not show the whole picture. To test this, we added the actual imprisonment rate for each individual datazone to Figure Two. Each dot represents a single datazone in Scotland and, as you can see, the dots do not all cluster around the blue line (the best guess of the imprisonment rate based only on SIMD). This suggests that there are other factors that affect the imprisonment rate of a given neighbourhood rather than just deprivation. The wide spread of points around the line also indicates that neighbourhoods with similar levels of deprivation can have very different imprisonment rates. For example, within the 10% most deprived neighbourhoods the maximum imprisonment rate was over 22 per 1,000 people and the minimum imprisonment rate was zero. However, within the 10% least deprived neighbourhoods the maximum imprisonment rate was 3.75 per 1,000 and the minimum rate was zero. In other words, the imprisonment rate is lower in some of the most deprived neighbourhoods in Scotland (as measured by SIMD) than it is in the least deprived neighbourhoods in Scotland.  Houchin’s second proposition, therefore, is correct.

Imprisonment and Inequality

So has anything actually changed in the years since Houchin’s report?

Based on our analysis, Houchin’s conclusions about the relationship between social exclusion (or inequality) and imprisonment still provide a reasonable description of the relationship between area-level deprivation and area-level imprisonment rates in Scotland. On average there is still a ’correspondence’ between deprivation and imprisonment - and this should be a concern for those interested in prison reform and issues of inequality more broadly in Scotland – however, it is clearly not the only factor that influences whether someone ends up in prison or not.

In order to properly understand the relationship between imprisonment and inequality in Scotland today, we need to take Houchin’s propositions further and examine the extent to which multiple forms of inequality intersect to impact on people’s life chances. In her careful reflection on Houchin’s analysis, Sarah Armstrong cautioned that “killer stats”, like those from Houchin’s report, can “lock in certain ideas and associations… making it difficult to understand the problem in any other terms.” Armstrong warned that if we only focus on the correspondence between deprivation and imprisonment, when we hear the word ‘prisoner’ we will automatically visualize a ‘poor’ face - when the reality is much more complex. We also need to remember that there are very deprived neighbourhoods in Scotland where imprisonment rates are much lower than those of more affluent areas. 

At a simple level, it is true that people living in Scotland’s most deprived communities are disproportionately more likely to end up in our prisons.  But, as we have shown here, visualizing the data in more detail enables us to see that there is a much bigger, more complex, story to be told. It is this that the Understanding Inequalities project aims to do in the coming years.