July 14 2024
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Second chances and ‘invisible punishment’

Second chances and ‘invisible punishment’

Court usher sketch, Isobel Williams

‘A job is the best help that any ex-offender can get to avoid returning to crime. Crime breeds when individuals are left without a stake in society… getting a job is the best thing that any ex-offender can do.’
Jack Straw, to the House of Commons in 1997

However obtaining a job is easier said than done if you have a criminal record. With employment practices in the UK actively seeking the criminal record history of job applicants in a high percentage of cases, those in possession of a criminal record are facing an increasingly difficult task of gaining fruitful and lasting employment. The featured sketch is ‘court usher’ by Isobel Williams – for more of Isobel’s sketches see HERE.

The Disclosure and Barring Service (DBS) is the new non-departmental public body replacing the old Criminal Records Bureau ‘CRB’ check. It reveals information regarding criminal history, but does not provide any data about the factors that led to the commission of the offence or anything that the person has done to overcome those factors.

  • Business in the community recently launched its Ban the Box campaign calling on UK employers to give people a second chance by ‘removing the tick box on application forms that asks about unspent criminal convictions’.
  • ‘Ban the box’ is being backed by Unlock, the charity which helps people with convictions. ‘It’s important for this campaign to be led by the business community itself, and that’s why we are wholeheartedly behind BITC,’ says Unlock’s director of services Christopher Stacey. Read Chris’s blog HERE, also see HERE for useful information.
  • More information about Ban the Box available at bitc.org.uk/banthebox and #BantheBoxUK

Whilst discrimination in the workplace has been prohibited on the grounds of race, gender, age or disability, a job applicant’s conviction history remains one of the few areas where employers can legally discriminate against the applicant when looking to offer employment.

Legislation makes an attempt to limit reference to previous convictions if they have become ‘spent’. A ‘spent’ conviction is one that can effectively be ignored after a specified period of time (the rehabilitation period) under the terms of the Rehabilitation of Offenders Act 1974. However, some convictions can never be regarded as ‘spent’ and some professions are exempt from the provisions of the Act.

Once a conviction is ‘spent’, the 1974 Act gives the individual the right not to disclose it when applying for a job. Offenders will always have to declare their previous ‘spent’ convictions when applying for employment in sensitive workplaces.

The amount of time for rehabilitation depends upon the length of the sentenced imposed, not on the categorisation of the offence itself. Reforms to the Act have came into force last month (March 2014). These reforms, which act retrospectively, shorten the rehabilitation periods for most convictions, after which they are considered ‘spent’. With more than 9m people in the UK in possession of a criminal record, a great many individuals are expected to benefit from these reforms (National Policing Improvement Agency Business Plan 2009/10).

However this still leaves those individuals who have a conviction, which can never be regarded as ‘spent’, or those applying to a profession exempt from the Act, in a very difficult position, with their previous conviction permanently requiring to be disclosed to potential employers.

This does not support our rehabilitation culture ideal.

If convictions can at no time become ‘spent’, the affected individual is left with little chance of demonstrating rehabilitation and will permanently find gaining meaningful employment arduous. He will be subjected to everlasting discrimination in the labour market, and this can lead to serious life-long consequences for the offender.

But, it is clear, that a balance must be struck, between protection of society and the enhancement and furtherance of an idealistic rehabilitation culture.

The Prison Reform Trust Surveying Prisoner Crime Reduction Survey 2013 reveals the vast majority of offenders (97%) expressed a desire to stop offending. When asked which factors would be important – most stressed the importance of having a job (68%) and yet in 2012-13, only 26% of prisoners entered employment on release from prison (National Offender Management Service Annual Report 2012/13).

The international law firm Freshfields Bruckhaus Deringer LLP recently announced that it is to stop asking job applicants to disclose whether they have criminal records on initial application forms, supporting Business in the Community’s campaign ‘Ban the Box’. Following a similar model used in America, the campaign is aimed at promoting the assessment of job seekers on the basis of their abilities. It asks UK employers to remove the tick box on application forms that asks about criminal convictions, then allowing them the opportunity to judge an applicant on his suitability for the role first.

Business in the Community say: ‘The tick box can act as a barrier to entering employment for many people’.

It is in the interest of all to reduce the barriers, those in possession of a criminal record face, when seeking employment, with statistical evidence demonstrating employment reduces re-offending by up to 50% (Reducing re-offending by ex-prisoners, Social Exclusion Unit Report). Philip Richards, a partner at Freshfields, calls the ‘Ban The Box’ campaign ‘an excellent initiative that highlights the major role businesses can play in helping ex-offenders back into work, away from homelessness and from adding to re-offending rates’. Freshfields will request information regarding unspent convictions only after a job offer has been made. Other businesses, including Alliance Boots, have pledged support to the campaign.

For some individuals, an ‘invisible punishment’ has been bestowed upon them. Upon release from serving a period of incarceration judicially imposed, they continue to be punished, by the stigma of holding a criminal record.


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