This week has seen an unprecedented level of news coverage on the way that criminal records should be disclosed. First, the Supreme Court ruled on Wednesday (in the case known as “T”) that the criminal records disclosure regime was disproportionate. In short, the court found that the life-long disclosure of minor cautions and convictions was ‘disproportionate’ and ‘not necessary in a democratic society’. Perhaps most importantly, it ruled that the system was ‘not based on any rational assessment of risk’. Then, the following day, a parliamentarians’ Inquiry into the youth court system, led by Lord Carlile, published a wide range of recommendations, including ways that criminal records should be dealt when people are under 18.
Both of these announcements relate, in part, to the ‘filtering’ process that the Government established in May 2013, and which is operated by the Disclosure and Barring Service. To be frank, the Government clearly felt forced into bringing in this system in the first place, as a result of an earlier Court of Appeal ruling in the “T” case. As a result, the government did the bare minimum it felt it needed to do, and we’ve said right from the start that this system doesn’t go far enough.
We know from our Helpline that many people with minor cautions and convictions continue to be excluded from the filtering system. A common example is where someone has multiple convictions. For example, this can include someone who’s been overpaid benefits for two months running – the result is that they might be charged with two offences, and so never eligible for filtering. The list of offences that are “not eligible” is also quite a blunt instrument, and the lengths of time (11 years for an adult conviction) are too long.
So it’s not surprising that, in the first three months that the filtering system operated, only 15% of people with convictions has a conviction filtered from their DBS check. This means that 85% will continue to have their convictions disclosed for the rest of their lives.
That’s why we agree with the recommendations made in the Carlile report. The filtering periods for young people should be reduced, they should apply to people with more than one conviction, and they shouldn’t automatically rule out anybody who’s been given a short prison sentence. And it’s right that the system recognises young people as meriting more favourable treatment, but we need to look at how the system works for adults too.