What can't you do with a criminal record?

A life sentence
May 22, 2013

Chris Huhne and Vicky Pryce will be in home detention until July (© Rex Features)

Read Vicky Pryce's on why she thinks the prison system isn't working

On 13th May, Chris Huhne and Vicky Pryce were released from their two-month prison spell, part of their eight-month sentences for perverting the course of justice. It will not have been what they envisaged when they swapped driving penalty points—an offence that 12 per cent of drivers would be willing to commit, according to a 2006 poll.

But leaving prison, and the end of their home detention in July, will not mean a return to normality. In theory, having a criminal record in Britain should not prevent a person from doing much, unless it is for violent or sexual offences. But in practice, the legal obligation to disclose a record, and the discrimination that follows, restricts access to everything from jobs to insurance, loans and travel. That has a huge impact on former prisoners—contributing, some argue, to Britain’s exceptionally high re-offending rate.

This has been recognised in recent legal changes. But in striking a balance between the public’s wish to know about criminal records, and the need for offenders to rebuild their lives, the law still does too little for former prisoners.

In most formal circumstances, offenders are legally obliged to declare a conviction when asked, until it becomes “spent”: currently this takes seven years for sentences of up to six months and a decade for sentences of up to 2.5 years. Sentences longer than that are never spent. This may entail disclosing a conviction to employers, insurers, landlords, financial services providers, education institutions, visa and adoption agencies and others.

On top of this, employers can request a standard criminal record check—where convictions show up for life—for certain jobs within the health, financial, security and legal sectors. This also includes cautions, which are given without trial when the offender accepts responsibility for a minor offence such as writing graffiti. Jobs involving working with children or vulnerable adults require an enhanced criminal record check, which includes all convictions, cautions and any other information held by police forces that is considered “relevant,” including, potentially, crimes of which a person has been a victim and occasions when officers have visited an individual’s address.

In some cases, a criminal record is an absolute bar to an application. Those convicted of certain sexual offences are blocked completely from adopting, and some violent or sexual offenders are prevented from working with children and vulnerable adults—the government’s Disclosure and Barring Service operates a list of people banned from these positions. In other professions, regulatory bodies have their own rules, which means that anyone who has received a custodial or suspended sentence can generally not become a doctor, lawyer or accountant, among other things.

Even in unregulated professions finding work can be difficult with a conviction. Employers and others are legally entitled to discriminate against an applicant on the grounds of an unspent conviction, regardless of its relevance to the position.

Twenty-four-year-old Christian Douglas served 2.5 years for a robbery offence committed when he was a minor—he stood guard in a post office while two of his friends, unarmed, seized £225 from the till. With GCSEs and A Levels he is better qualified than most inmates, but the length of his sentence means he will have to disclose it for the rest of his life. “When I was released from prison, I did everything,” he says. “I took up every sort of opportunity. I’ve never signed on before; I’m just one of those guys who’s determined. I did all kinds of workshops, disclosure workshops, interview skills, everything. I did at least 10 applications for jobs a week, and we’re talking about Sainsbury’s, McDonald’s, Lidl, all your high street shops. Before prison I had got a job in McDonald’s without even trying, but after I had stuff on my criminal record I wasn’t even getting through the application process to present myself.”

A spokesperson for McDonald’s said that although applicants are asked to declare unspent convictions it is not the company’s policy to discriminate on these grounds, while Sainsbury’s said it has a programme to support those facing barriers to employment. Whether or not an ex-offender will be considered for employment “very much depends on the nature of the role... and the severity of their offence,” said a spokesperson for the supermarket.

Douglas took up voluntary positions and after around nine months of applications eventually found work at an ex-offenders charity, the St Giles Trust, where he is now a caseworker. One of the biggest problems, he says, are online application forms where people are asked to tick a box if they have a criminal conviction. Employers use this to sift people out of the running quickly, he says, so ex-offenders aren’t invited to interview.

That former prisoners find work is important not just for the offender but also for the taxpayer and the public. Education and training are a big part of rehabilitation behind bars—an investment that the government is willing to make because employment is a huge factor in reducing re-offending, which is now at a record high in the UK, costing the taxpayer up to £13bn a year. Almost 50 per cent of prisoners re-offend within a year of release—more than double the rate in Norway, where the government has a “reintegration guarantee” to help them find employment and housing. In the UK, by contrast, as Justice Secretary Chris Grayling put it, we “send people out of prison with £46 in their pocket, and no support at all.”

The vast majority of offenders—97 per cent—say they want to change their ways, and two-thirds believe having a job is key to this. But just 15 per cent of those released in 2008 were in formal employment with a salary above the tax threshold two years later. Half were on out-of-work benefits.

Having a criminal record can also have a huge impact on personal life. One difficulty is finding housing; one in three people leaving prison are homeless, partly because housing benefit is suspended for those sentenced to 13 weeks or more in prison, meaning that they often have to give up their home. Others lose their tenancy or mortgage because they can’t keep up with payments while inside. Intense competition for social housing means offenders are unlikely to secure accommodation on leaving and they may be excluded from some private rental properties. Some mortgage lenders also ask about criminal convictions and have a bar on offering products to people with anything but motoring convictions. A lack of permanent accommodation makes it yet harder to find employment, and can cause problems in accessing vital services such as a GP.

For those who do have a home, insuring it can be unaffordable. Ex-offenders are usually asked to pay a huge premium or are refused cover entirely—even if the conviction has no relevance to the insurance being sought. Figures from comparison website Confused.com show that the price of home insurance more than doubles if the policyholder declares a conviction. “Simply by clicking, ‘yes, I do have convictions,’ we’re talking about a £1,000 price difference, or we’re talking about people not giving you insurance quotes at all,” says Douglas. “You’re constantly paying a big premium… and where am I going to get that?”

It can also be impossible to visit countries such as the United States and Australia because visas may not be offered to people with convictions (depending on the severity of the offence and other mitigating or aggravating factors). Douglas, whose mother’s family live in the US, used to go every year but hasn’t been back since his conviction. Since he was a minor when he committed the offence, there is a chance he will be offered a visa following an interview at the US embassy—this is dealt with on a case by case basis. But, at least for a while, Huhne and Pryce may not be allowed on American soil—they will not even be able to transit there—since their crime is likely to be considered under the US category of “moral turpitude.” Crimes never become spent for the purposes of US immigration.

Douglas’s family life has been impacted in other ways. His mother wanted to adopt a child but could not as he lives with her. The criminal history of all adult members of the household is taken into account when considering the applicant’s suitability.

Christopher Stacey, Director of Services at Unlock, the national charity for people with convictions, agrees that disclosure laws constitute a major barrier to employment. “On a day to day basis we get calls from people who have convictions from many years ago that have no relevance to the work they’re doing, but simply the fact that they have a conviction on their record means they are refused the job,” he says. “The system is forcing people down... so a lot of the work our charity does is simply encouraging them. But we should also try to encourage the system to be better in terms of what is and is not disclosed.”

In recognition of this, the law was revised at the end of March following a Supreme Court case involving a man who was forced to reveal two cautions he received when he was 11 when he applied for a job and a university course, and a woman who had to disclose a caution for stealing a pack of fake nails when she applied for a job as a carer. Under the new regulations, convictions resulting in a non-custodial sentence will be wiped from record checks after 11 years (but only if there are no other offences on the individual’s record), while cautions will be removed after six years. This is an improvement—but the changes apply only to one-off, non-custodial sentences that are already spent, and the periods of time remain lengthy considering these are for minor offences and cautions.

The past 12 months have seen other improvements. “Spent” periods are due to be reduced at the end of this year—under the current system, Huhne and Pryce have to wait 10 years before their convictions are spent, but following the changes this will be reduced to just under five years. While sentences of more than 2.5 years currently never become spent, this will be raised to four years. In an attempt to tackle re-offending rates, Chris Grayling also announced in January that, by 2015, every prisoner serving less than 12 months will undergo a mandatory period of rehabilitation on leaving (currently this applies only to those serving longer sentences). But there will still be severe restrictions on the professional and personal lives of ex-offenders, and convictions—like Douglas’s—that will never become spent.

At the heart of the issue is the relevance and proportionality of criminal record checks. Douglas believes the authorities need to deal with cases individually to identify and support genuinely reformed offenders. Convicts should be assessed by a panel of professionals, he suggests—similar to the system used for parole—to decide whether their conviction still needs to be disclosed after a certain period. For employment, the record check might be done at the point that a job is offered, instead of at the point of application, giving offenders a chance to present themselves at interview and employers the opportunity to decide whether to proceed.

Back in the outside world, Huhne and Pryce will face fewer problems than other prisoners. Although Huhne’s political career is over, the highly-skilled and high-profile nature of their careers means they won’t struggle to find work. But the vast majority of prisoners are from a very different background. By hampering their access to employment, housing and financial services, the rules risk denying them the ability to lead a full life and preventing the rehabilitation of the prison population.