Post on 15-May-2023
Criminal records checks for employment purposes: what
can the Anglosphere learn from continental Europe?
Andrew Henley (Keele University, UK)
a.henley1@keele.ac.uk
Christopher Stacey (Unlock, UK)
christopher.stacey@unlock.org.uk
Universitat Pompeu Fabra, Barcelona 12th June 2015
Table 1. Comparison of rehabilitation laws in Anglosphere countries
England and Wales Ireland Australia New Zealand Canada South Africa
Relevant
statute(s)
Rehabilitation of
Offenders Act 1974
Criminal Justice
(Spent Convictions)
Bill 2012[1]
Various federal and state-
level laws[2]
Criminal Records (Clean Slate)
Act 2004
Criminal Records Act
1985
Criminal Procedure Act (51 of
1977); Criminal Procedure
Amendment Act (65 of 2008)
Mechanism
of
rehabilitation
Eligible convictions
become spent
automatically through
passage of time
Eligible convictions
become spent
automatically through
passage of time
In most cases,
rehabilitation is
automatic but in Western
Australia some eligible
convictions may require
an application
In most cases, rehabilitation is
automatic but in some
circumstances an application to
a district court may be required
By application to the
Parole Board of Canada
By application to the South
African Police Service and the
Director General (Justice and
Constitutional Development)
In theory a presidential pardon
is also possible
Sentence-
based
exemptions
Applies only to
sentences of up to 48
months (until recently
the limit was 30
months)
Applied only to
sentences of up to 12
months
Applies only to sentences
of 30 months or less
Excludes custodial sentences More than three
indictable offences or
where the sentence was
more than two years or
where a life sentence was
available
Fines in excess of R20,00
Sentences of imprisonment
where any option of a fine
exceeds R20,000 or where no
option of a fine is given
Waiting time
for eligible
candidates
Up to seven years post-
sentence (for those
sentences between 30
and 48 months)
Up to seven years
post-sentence (for
sentences of 9 to 12
months)
Usually ten years (five
years for some summary
offences in Queensland)
Seven years from date of last
sentencing
Ten years for indictable
offences
Five years for summary
offences
Ten years
Offence-
based
exemptions
None[3]
Sexual offences Sexual offences excluded
in New South Wales,
Australian Capital
Territory, Northern
Territory and Tasmania
Sexual offences Sexual offences Sexual offences where the
person is still included in the
National Register of Sex
Offenders or the National Child
Protection Register
‘Schedule 3’ offences under the
Child Justice Act (75 of 2008)
[1] Due to be enacted by summer 2015, see https://www.kildarestreet.com/sendebates/?id=2015-03-03a.21 [2] Including provisions under the (amended) Crimes Act 1914 (Commonwealth), Criminal Records Act 1991 (New South Wales), Criminal Law (Rehabilitation of Offenders) Act 1986 (Queensland), Spent Convictions Act 2000 (Australian Capital Territory), Criminal Records (Spent Convictions) Act 1992 (Northern Territory), Spent Convictions Act 1988 (Western Australia) and the Annulled Convictions Act 2003 (Tasmania). [3] Although public disclosure schemes now exist for sexual and domestic violence offences.
Common problems with Anglosphere rehabilitation laws
1. They involve far too many exclusions (whether based upon sentence,
offence or position applied for) which make assumptions about the ‘dangerousness’ or ‘risk’ of people with convictions (often not borne out by re-offending statistics).
2. They are advanced by using consequentialist justifications about ‘reducing re-offending’ rather than a more deontological approach which sees legal rehabilitation as a fundamental ‘right’ for having completed the sentence of the court.
3. But (based on point 1 and in contradiction to point 2) they often involve fairly lengthy waiting periods before ‘legal rehabilitation’ takes place (or a person becomes eligible to apply) – so they do not help with desistence.
4. That is, they tend to approach legal rehabilitation as a ‘reward’ for desistence already achieved.
5. This leaves moral assumptions about the character of people with convictions (and the discriminatory practices which stem from these judgements) unchallenged.
Colonial Laws Validity Act 1865
• Provided that colonial legislation could be void if it was repugnant with British laws extending to the colonies.
• This Act remained (nominally) in force until the Statue of Westminster 1931.
• In reality, penal authority was delegated to regional governors…but the Act is a potent symbol of the subjugation of colonial territories by the Metropole.
‘Less-eligibility’ and ‘Non-superiority’
‘Less-eligibility’ – Benthamite principle embedded in British social policy through the Poor Law Amendment Act 1834.
Influences the idea of ‘non-superiority’ for former lawbreakers:
‘the requirement that the condition of the criminal when he has paid the penalty for his crime should be at least not superior to that of the lowest classes of the non-criminal population’ (Mannheim 1939: 57)
‘Less eligibility’ and the Rehabilitation of Offenders Act 1974
• …the present scarcity of jobs for men in Plymouth may well lead private sector employers to be more selective about who they recruit.
(Letter from Edward Heath, Prime Minister, 4th September 1972)
• I am afraid I cannot undertake to ask my colleagues to
take the exceptional course of finding Parliamentary time for the [Rehabilitation of Offenders] Bill in the Commons this session….the Bill could be accommodated only at the expense of other deserving measures or debates on other matters that demand Parliamentary attention.
(Letter from Robert Carr MP, Home Secretary, 19th April 1973)
‘Less eligibility’ in the 21st Century [Priti Patel MP] said: ‘This is yet another example of gold-plated rights for convicted criminals at the expense of their victims and the law-abiding majority.’
'The public will be outraged to see their hard-earned taxes funding degrees for prisoners while most people have to pay their own way through university by taking out loans.
'Not only will this seem unfair to those who do the right thing, pay their own way and do not break the law, but it also sends out the signal that crime pays.'
(‘Crime does pay if you want to Take OU course: Taxpayers funding 1,600 prisoners this year’, Daily Mail, 9th March 2011)
Table 2. Comparison of rehabilitation laws in selected
continental European countries
Spain France Sweden
Relevant statute(s) Article 136 of the Criminal
Procedure
Penal Code 1994 Criminal Records Act 1998
Mechanism of
rehabilitation
Eligible convictions are
‘cancelled’ on application
after passage of time
‘Legal rehabilitation’ is
automatic after passage of
time
‘Judicial rehabilitation’ is
based on application after
passage of time
Eligible convictions are
‘weeded’ automatically after
passage of time
Sentence-based
exemptions
None None for either forms None
Waiting time for eligible
candidates
Up to 5 years from the end of
the full sentence
Up to 10 years from the end
of sentence for either forms
of rehabilitation.
Up to 20 years (the majority
after weeded after 10 years)
Offence-based exemptions None ‘Crimes’ (e.g. homicide,
armed robbery and robbery)
are exempt from ‘legal
rehabilitation’
None for ‘judicial
rehabilitation’
None
Exempted occupations
where scrutiny of full
criminal record permitted
None; once cancelled, only
available to judges and
courts
None; once either form of
rehabilitation applies, only
available to judges, courts
and prisons
None
Opportunities for the UK to learn?
• Context
– Winston Churchill Memorial Trust
– “Travel to learn, return to inspire”
– What the systems mean in practice
– Spain, France and Sweden
– Some key features to discuss
Spain – “Cancellation”
• Simple in theory. Straight-forward (5yrs max)
• Use of ‘clean’ criminal record cert. (symbolic?)
• Not automatic – have to proactively cancel
• Lack of evidence of effectiveness
• Commitment to privacy and non-entitlement of employers
France – “Rehabilitation”
• Legal rehabilitation
– Automatic – 5 years for most – 5,000 a year
– Takes effect fairly quickly
– ‘Recognises’ desistance
• Judicial rehabilitation
• Eligible after 1/3/5 years
• ‘Ritual’ – recognises full desistance – ‘reward’?
• Wide scope: applies to all offences
• Role of court: ‘near perfect citizen’ – 20-25 a year
Sweden – “Weeding”
• 10 years for the majority / 20 years maximum
• Not disclosed on any employer disclosure
• Recommendation to criminalise access to police records
• Freedom of Information
Themes
• Right to rehabilitee
– Time periods / Breadth of offences
– Nobody “beyond the pale” / Encouraging desistance
• Single tier of ‘rehabilitation’
– ‘Ultimate’ – no exceptions
• Forgiving v Forgetting
– ‘Forgiveness’ – not hiding the past – “good conduct”
– European model – ‘forgetting”
– Room for both?
Reflections
• Ways for UK to improve, or European counterparts strengths being eroded?
• Need for research into effectiveness such measures on rehabilitation/social inclusion
• Download the report in full:
– www.unlock.org.uk/wcmt