In her first words at the podium at the Conservative Party conference, Home Secretary Priti Patel established the theme of her speech in no uncertain terms. “Today, here in Manchester, the Conservative Party takes its rightful place as the Party of Law and Order in Britain once again.” she opened, continuing: “We stand with the brave men and women of our police and security services. And we stand against the criminals.”
This rhetoric will no doubt be welcomed by many who rightly worry about the effect of crime on our communities. It is not always so easy, however, to divide society between innocent, law-abiding citizens and the criminals. There are many people who, for a host of reasons, commit criminal acts in their youth but go on to make positive contributions to society. This is reflected in the longstanding principle that rehabilitation should be a key aim of our justice system – a principle which unfortunately is often forgotten when it comes to the disclosure of criminal records.
Take the example of Isaac (not his real name). Isaac was 16 years old when he got involved in a scuffle with some other boys after a rugby match, leaving one of the other children involved with a black eye. The police were called and Isaac was questioned, facing the serious charge of Actual Bodily Harm. Deciding that proceeding with prosecution was not in the public interest, the police persuaded Isaac to accept a youth caution – a measure designed as way to deal with minor crimes committed by children which avoids dragging them into the criminal justice system.
That’s where this story should have ended – with Isaac receiving the legal equivalent of a slap on the wrist for what was no doubt a regrettable incident, but not one, most would reasonably agree, that should blemish his reputation for life. But that was not the end of this story. Six years later, Isaac decided to serve his community by enrolling as a community police officer. His application was refused on the basis of the caution that showed up on his criminal record check. Isaac wanted to become one of those “brave men and women” that the Home Secretary lauded – but the system could only see him as one of “the criminals”.
Isaac was a victim of an anomaly of the current system for disclosing criminal records. Youth cautions are considered “spent” immediately and do not usually need to be disclosed when applying for jobs and volunteering opportunities. But certain roles – such as community police officers – require applicants to undergo a criminal records check, on which spent convictions and cautions can be disclosed. Most youth cautions are only disclosable on criminal record checks for the first two years after they are issued, and from then on are “filtered” and don’t get seen by potential employers. However, for some types of offences, this “filtering” rule does not apply. For people in Isaac’s position, their cautions will show up on record checks until they are 100 years old.
Some might say that it is right that future employers are aware of these offences – but this ignores the intention of youth cautions and the circumstances that must be present for them to be issued. Cautions are only ever handed out in cases where police and prosecutors have decided that proceeding with criminal charges is not in the public interest. They are supposed to be diversionary measures that aid the rehabilitation of children who have committed minor offences that do not warrant prosecution. But the current system fails to live up to this ambition, instead locking these young people out of a host of professions and voluntary work that would allow them to make a positive difference to society.
This is a view shared by the justices of the Supreme Court. In January, they ruled to uphold a judgment of the High Court and Court of Appeal that this situation runs contrary to the aims of the youth justice system and human rights legislation, and that the current regime for disclosure of youth reprimands (the predecessor to cautions) and cautions is unlawful. Delivering the judgment, Lord Sumption wrote that the disclosure of reprimands and cautions was “directly inconsistent” with their intended purpose of diverting children from crime. This ruling forces the government to introduce new legislation to rectify this. That was in January. It is now October, and new draft legislation is yet to emerge.
As one of the parties to the judgment, it is up to the Home Secretary – along with the Justice Secretary – to put this new legislation forward. It is thus disappointing that in a conference speech dominated by criminal justice issues, in which she made a host of pledges, no mention was made of reform to the criminal records system.
The Home Secretary justified her tough talk through an appeal to conservative values – asserting that “backing the forces of law and order is central to our DNA as Conservatives.” But isn’t there more to Conservative DNA than punishing people who commit crimes? Isn’t conservatism also supposed to value and work towards a society that enables each individual to contribute and reach their potential? Many Conservatives seem to think so, including figures considered to be on the right of the party such as Theresa Villiers MP. In a Westminster Hall debate in March she said that despite believing in “a firm justice system that punishes crimes appropriately” she did not find it fair “for people to have to live for the rest of their lives with the consequences of terrible mistakes they may have made in childhood.”
If the Home Secretary truly wishes to make the Conservatives “the Party of Law and Order”, she must work with Ministry of Justice to enact the judgment of the Supreme Court and bring forward new legislation that complies with the law. In the meantime, people like Isaac will continue to face the injustice of having mistakes from their childhood preventing them from giving back to their communities.
Jennifer Twite is Head of Strategic Litigation at Just for Kids Law. She led on the case against the Home Office concerning the disclosure of youth reprimands and cautions on DBS certificates. This article was originally published as a guest blog by Bright Blue. Read the original here.