Control-Alt-Delete

With its recommendations of race-blind charging decisions, deferred prosecutions, and community involvement in youth rehabilitation, this month’s Lammy Review may bring about changes in the treatment of black, Asian, and minority ethnic (BAME) individuals in the criminal justice system as significant as those ushered in by the Macpherson Report in 1999. A theme within the review that has, however, obtained little press is the harshness of the criminal records system on ethnic minorities and juveniles of all races.

Is the criminal records regime in England and Wales prejudicial to youths generally and more especially BAME youths? Would banning questions about previous convictions during work recruitment processes end the ‘double penalty’ of being black and holding a criminal record? And should, as Lammy advocates, an American model of sealing police records be adopted?

According to the Lammy Review, in the last five years the names of 127,000 children (22,000 of whom were over-policed BAME youths) have been uploaded to the Police National Computer (PNC). Most of these records were, no doubt, for minor offences but all will be retained until each child’s 100th birthday and may appear on vetting checks for jobs ranging from accountant or lawyer to traffic warden or football steward. Rehabilitative efforts might come to naught by ‘putting barriers in the way of employment’. And a criminal record represents a significant hurdle in the labour market: a 2016 YouGov survey found that half of respondents would not consider employing an ex-offender.

Juveniles will feel the adverse effects of a criminal record more keenly. Children receive the label ‘offender’ when they are less morally culpable than adults but will be marked with their records’ stain for much longer. And although they will rapidly grow out of crime, young people risk being held back by a caution or conviction just as they are embarking on their careers.

But why should this matter to those without a criminal record? As Lammy notes, evidence from the US suggests that progressive reforms to criminal record regimes boosts employment rates, increases tax revenues, and reduces the welfare bill.

But what reforms could prevent the futures of BAME youths and other disadvantaged groups from being burdened by the dreaded background check?

Lammy praises ‘Ban the Box’ initiatives, voluntary schemes whereby employers restrain themselves from asking applicants to confirm or deny a criminal history, the hope being that a candidate’s merit will be seen before his record is revealed. The ‘double penalty’, the prejudice already faced by BAME candidates for jobs which is worsened if they have disclosable cautions or convictions, is potentially avoided by ‘banning boxes’.

Oddly, the review does not mention that the removal of questions concerning applicants’ criminal histories might, according to US research, actually be disadvantageous to ethnic minorities. Holzer, Raphael, and Stoll found in their 2006 study that firms not performing criminal background checks would instead tacitly use prospective employees’ race as a proxy to gauge past involvement in crime. African-Americans, who (likely due to systemic racism) are incarcerated at a higher rate than their white and Hispanic peers, were rejected more frequently when background checks were not performed, the three researchers found. A 2016 US study by Agan and Starr produced similar results.

Perhaps a more interesting proposal within the Lammy Review is the ‘sealing’ of criminal records. Successive governments have tinkered with the ‘one-size-fits-all system’ regulating when a conviction should be considered ‘spent’ or ‘protected’ (the Supreme Court will in early 2018 examine the ‘calibration’ of the current regime (see SJ 161/24)). A court-ordered sealing of records on a case-by-case basis, as occurs in the US state of Massachusetts, might, however, provide a degree of flexibility for individuals to earn remission for their past sins. Under the Massachusetts model, thoroughly rehabilitated criminals may petition the court for their records to be sealed. While a sealed record will still exist, and can be considered by judges if the individual offends again, the record cannot be disclosed to employers.

Lammy’s recommendation that childhood records should be sealed is not, however, entirely novel. The review curiously does not mention the Standing Committee for Youth Justice’s 2016 report ‘Growing up, Moving on’, the Independent Parliamentarians’ Inquiry into the Operation and Effectiveness of the Youth Court, chaired by Lord Carlile of Berriew CBE QC (June 2014), and the Home Office’s 2002 review ‘Breaking the Circle’, all of which recommended the ‘wiping’ of records for all but the most serious offences from police databases after a certain lapse of time, with Lord Carlile’s report suggesting a ‘clean slate’ for juvenile offenders at the age of 18. Moreover, the Law Commission reported in January that an area for future research might be whether cautions needed to be permanently retained (Law Com No 371). Why simply ‘seal’ records when one can completely delete them?

The deletion of records is a matter that the High Court is currently wrestling with. Two ongoing judicial review claims may result in an end to the lifelong retention of the criminal records of two vulnerable groups. R (on the application of R) v National Police Chiefs’ Council and another is, in part, a challenge to the rule that even a juvenile caution for a trivial offence will be stored on the PNC until the offender’s dotage, with the police’s record-deletion guidance having, it would appear, no regard to the special status of the child in domestic and international law. R (on an application of (1) QSA, (2) Fiona Broadfoot and (3) ARB) concerns the indefinite retention of the records of soliciting offences committed by former prostitutes who have long since ‘exited’ the exploitative trade.

The emotional significance of the deletion of records (as opposed simply to the sealing of records) cannot be underestimated. In France, individuals who have ‘behaved irreproachably’ since being convicted of offences can request the deletion of their records, no matter how serious their past crimes were. According to researcher Herzog-Evans (2011), French judges and lawyers report that ‘judicial rehabilitation’ applications ‘resemble citizenship ceremonies’, with ex-offenders often having ‘a trembling voice and cry[ing] when the ruling is voiced’.

For those whose lives at one point crashed, perhaps there should, then, be a chance to hit Control-Alt-Delete.

Richard Easton is a solicitor at Sonn Macmillan Walker