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

The Anglosphere: mostly common-law legal systems

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