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November 3, 2017

Nobody’s problem – our crazy criminal records system

I often reflect on how and why change happens. Mostly luck is involved and/or influential champions. Getting the law changed can be the solution to a social problem, but not necessarily. For five years I worked on a campaign to reduce the number of under 18 year olds in prison in England and Wales. The number reduced by a third in three years without any change in the legal criteria for sentencing a child to prison.

Unfortunately, the only way of reforming our crazy and inhumane criminal records system is through legislative reform. And with Brexit dominating the legislative timetable, few other things get a look in. I’ve been working (voluntarily) with the Standing Committee for Youth Justice to reform the law on childhood criminal records. Teenagers do stupid things – they paint graffiti, get into fights, send sexts and shoplift. In years past, when the police were subject to “offences brought to justice” targets, they would regularly nick teenagers because they were relatively easy to catch. Teenagers often accept cautions without having any idea (or being informed) of the long term implications. This means there are thousands of teenagers and adults with criminal records for things they did when they were young and stupid. This is a good example:

“In 1979 I received a conditional discharge for indecent exposure. I was at school at the time and celebrating finishing my exams. I “mooned” a passer-by but didn’t appreciate the legal difference between exposing my bottom rather than my genitals. I went to university, and when my conviction was spent, starting working in a bank. I carved out a career in financial services and ended up working in a number of senior roles in prestigious firms. In 2007 the Financial Services Authority obtained complete exception from the Rehabilitation of Offenders Act (ROA) meaning that I need a full CRB check. Since then I have dropped out of a senior new role as I couldn’t take the risk of a check damaging my reputation in the industry. So, bizarrely, my conviction has become more relevant the older it has got. Now, nearly 35 years on, it is strangling a career that, until now, flourished with the same criminal background. Surely, there should be some sensible time after which spent means spent. To find that, after nearly 35 years, a conviction that merited only a conditional discharge is still as live today as it was 35 years ago, is very odd. In fact, in a way it is more live today.”

No one is condoning teenage crime, or saying it doesn’t do harm. But should a crime committed when young become a life sentence? As it is, we do give children who commit murder actual life sentences (unlike any other country in Western Europe), but we also condemn many who commit minor teenage crimes to a life-long criminal record. Anyone who is convicted twice before the age of 18 has a criminal record for life regardless of the level of the convictions – it could be stealing a car and driving without insurance, or shop lifting twice. You could have been only ten when convicted, but those crimes still come up on your criminal record when you are applying to be a traffic warden aged 50. You may well get the traffic warden job even with a record of teenage crimes, but the computer may say no – when given the choice its easy for an employer to reject the candidate with the criminal record.

The legacy of childhood criminal records is nobody’s problem and no one in government is taking ownership of it. Parliamentarians are concerned – David Lammy suggested “sealing” childhood criminal records and the Justice Committee has just recommended reform across the board. But getting government engaged is a challenge. Responsibility is shared between the Ministry of Justice (responsible for the Rehabilitation of Offenders Act), the Home Office (responsible for DBS checks) and DWP. The problems suffered by those with criminal records don’t directly affect any government department – they can’t see and don’t often hear about the human misery criminal records cause.

Anyone who is turned down for a job because they did some stupid things when a teenager is embarrassed and downcast. They don’t shout about it. But they don’t go for a promotion, or a career change or they remain unemployed. The damage to the economy of wasted talent is unknown and unknowable.

The status quo is safe and comfortable. Employers, financial services and colleges feel they are doing the right thing in turning away people with criminal records – regardless of whether the crimes were committed by a teenager a long time ago. The problem with having teenage offences on a record is that it implies that they are important, that someone who shoplifted aged 12 may still be risky. Enlightened employers like James Timpson, see the criminal record for what it is – just some information, which doesn’t help assess someone’s potential. But you have to be a confident employer to be enlightened.

There are people in government who understand that the present criminal records system is contributing to human misery but not to safety. But it is not a priority. So, for now, risk aversion rules.