The disclosure conundrum for those with old/minor convictions

So, Bob Ashford has been forced to withdraw as Candidate for the Avon & Somerset PCC due to two minor convictions from 46 years ago. It’s attracted a lot of media attention in the last day or so. A BBC article on the story can be read here.

However, he isn’t the first to face this problem. Simon Weston, the Falklands war veteran, pulled out in early July for a number of reasons, one of which was minor misdemeanour’s from his youth. A Guardian article on this story is available here.

A lot of people have been (rightly) debating the case for whether people with convictions should be able to stand as a PCC candidate with a criminal record. Bob Ashford himself gave a great account on Radio 4 yesterday morning as to why it was important to be able to show to young people that, if they change their ways and go on to be successful in their life, they should be allowed to move on by society. This kind of policy shows that society (or at least Parliament) isn’t allowing this to happen.

It’s not surprising. Parliament can be clumsy when it comes to drafting legislation. The concept of somebody being a PCC candidate after being in prison is a strange one. But, somehow, this translated into a provision that barred anyone who has been convicted of an offence that could have potentially lead to imprisonment. The result is a bar for those with minor convictions from 46 years ago. This surely wasn’t the intention of Parliament.

Indeed, Government recognises this. It was reported that Theresa May was prepared to amend the provisions when the case of Simon Weston hit the headlines. It’s not clear whether there is any substance to this ‘offer’, but if there is, it’s a shame that Mr Weston didn’t her up on it. However, he stood down for other reasons too. Plus, the damage had already been done.

In addition to this, for some time now the Government have been ‘looking’ at the issue of old and minor convictions being disclosed on CRB checks. I won’t go into the entire history of this, as it’s well documented on Unlock’s website (here). But, suffice to say that the work came about following a legal challenge to the Police’s ability to retain criminal record data. An independent expert panel (which I was a member of) was set up to look at the issue, chaired by Sunita Mason. The panel provided it’s recommendations to Government (available to download on the above page) on how the situation could be improved.

Unfortunately, Government has not changed anything. In a recent letter to the Panel from Theresa May and Ken Clarke (download here), they showed their true commitment to the issue by delaying to do anything. There is reasonable excuse — a legal case is going through the courts — but all this case would do (if anything at all) is force Government to change the policy. If the Government changed it regardless, there wouldn’t need to be a legal case. Basically, the Government are waiting to see if they are going to be forced to do something. If they’re not, they probably won’t.

There have also been criticisms levelled at the Rehabilitation of Offenders Act as a result of the Bob Ashford situation. Personally, I think some of this criticism is misplaced. It shows a bit of a misunderstanding of the ROA.

When putting together the provisions around the PCC process, it was Parliament that decided that they wanted ALL convictions to have to be disclosed. As a result, they will have applied to the Ministry of Justice to be included on the Exceptions Order (the specific one relating to PCC is here). The MoJ rarely refuses requests of this nature, and certainly wouldn’t have refused this one. It’s hard to blame the ROA — but rather, it’s the fault of Parliament in using the Exceptions to the ROA.

Calls to reform the ROA have also been made. It’s a shame these ‘calls’ didn’t come earlier and stronger, when Government was actually reviewing the ROA. At the time, most lobbying groups focused on simply reducing the disclosure periods. Unlock were a lone voice in lobbying for changes to the Exceptions Order too and the broader issues of the ROA, as this part of the Act has significantly weakened the impact of the legislation.

So, in Spring 2013, we’ll see a reformed ROA come in, with reduced disclosure periods for positions covered by the ROA, but this will do nothing to change the positions exempt from it, and so wouldn’t stop the Bob Ashford saga from happening again in the future.

However, the interesting point from the Bob Ashford saga, and one that has surfaced many times for those with old/minor convictions, is that these people don’t actually have a formal criminal record. There is nothing on their Police National Computer file. Nothing on their CRB. So, what do you do in this situation?

Well, it’s not clear whether any checks are being done on PCC candidates (not that it would make a difference for those with nothing on their record) but it’s clear that Bob Ashford didn’t feel it was possible to lie in his declaration. That’s understandable, and actually speaks volumes. The idea behind not having people with convictions is presumably because of an issue surrounding honesty and integrity? Well, personally, I think Mr Ashford has shown himself to be of the highest of both, by voluntarily disclosing and being so honest and open about his history.

However, not everybody else feels able to do the same. Many people with old/minor convictions have nothing on their CRB record. But, they know they have a criminal record. So, do they disclose? This has caused problems for people, particularly when the step-down process was in force, as people whose convictions were stepped down were advised by police and other agencies not to bother disclosing. This was, legally, bad advice. Technically, like Bob Ashford, they should have disclosed. They were not being asked “do you have a conviction on your PNC”. They were being asked “have you ever been convicted”. The answer to the latter, even if it’s not recorded (or if its stepped down), is yes.

Nevertheless, given the difficulties that people with convictions face in getting employment when they disclose, and given the number of people with criminal records on the PNC that choose to take a chance and not disclose, it’s not surprising that those with nothing on their formal record feel in a disclosure conundrum.

So, what needs to be done? Well, the Government need to get to grips with the issue of old/minor convictions. There needs to be a process that ‘filters’ this information. It surely cannot be the intention of Parliament that people with convictions for 40+ years ago continue to be penalised as a result of minor indiscretions.

The workings of the ROA, and particularly its exceptions, also needs to be reviewed. At the moment, there is an increasing feeling amongst the people that I speak to that, despite the changes to the ROA disclosure periods, it is becoming an increasingly meaningless piece of legislation. That’s a shame, as it really does help some people, but the way it works at the moment leads me to conclude that it would probably be better to start all over again. The fear, though, would be that the political climate at present would obstruct any attempts to improve the situation. If recent events are anything to go by, it’s more likely that we’ll just have to stick with what we’ve got, and find ways through the disclosure conundrum.