POSSIBLE EMPLOYERS` PROBLEMS WITH NON DISCLOSURE OF SPENT CONVICTIONS

Yesterday the government announced that many released prisoners will no longer be required to disclose to prospective employers their convictions. The press release is available here.  

The reasoning for such a major change is that in the government`s eyes by having "a steady income, routine and purpose reoffending is cut and fewer members of the public will becomes victims of crime".  The government has estimated that the changes will assist about 125,000 in gaining employment. Ostensibly this policy change appears to be of benefit to society as a whole; after all re-offending increases strain on all the justice services from police to courts, to probation and finally to a prison system at the point of collapse. But what of the unmentioned factor in all this ; the employer.  A notable supporter of this policy is likely to be the boss of Timpsons, a long established retailer specialising in shoe repairs and key cutting whose 2000+ little shops cover the country. But what of the small firm whose boss is likely to be hands on from interviewing candidates to being last one to lock the door at night.  S/he will be unaware of the real gap in a prospective employee`s history if said person lies about his patchy CV.  If said person upon being employed commits eg theft or burglary on the premises will his insurance company  pay out for a claim?  If said employee brings to the job an illegal habit he had hidden and is subsequently fired what would be the situation re a possible claim against the employer?  Especially in small towns there might be those employed who harbour grudges against third parties or themselves be the subject of discrimination from those who had suffered in some way from the employee prior to employment.  

There are many hoops through which an employer must jump to be on the right side of  employment legislation.  As it stands this relaxation of disclosure requirements adds a further difficulty.  It also might lead to employers making assumptions on a genuine gap in an applicant`s CV for various reasons and lead them to assume the worst when such assumptions are simply wrong.  Of course somebody with a history of a prison record under this legislation need not remain silent and could admit his/her "spent" convictions.  Like much hasty legislation that has emerged from this government the knock on effects are likely to be considerable and a surprise to some. 

POLICE ACTION AND INCREASING INACTION

As an interested non legally qualified person I suppose the legislation under which we are all governed and have requirement to obey is only as efficient as those who draft it  and those who indicate their approval by voting for it as it passes its various stages in parliament.  And so we have the Public Order Act the terms of which have caused a difference of opinion between the Commissioner of the Metropolitan Police and the Prime Minister.  In  the light of current events it is helpful to know the sections in question: [my bold]

1Riot.
(1)Where 12 or more persons who are present together use or threaten unlawful violence for a common purpose and the conduct of them (taken together) is such as would cause a person of reasonable firmness present at the scene to fear for his personal safety, each of the persons using unlawful violence for the common purpose is guilty of riot.
(2)It is immaterial whether or not the 12 or more use or threaten unlawful violence simultaneously.
(3)The common purpose may be inferred from conduct.
(4)No person of reasonable firmness need actually be, or be likely to be, present at the scene.
(5)Riot may be committed in private as well as in public places.
(6)A person guilty of riot is liable on conviction on indictment to imprisonment for a term not exceeding ten years or a fine or both.

18 Use of words or behaviour or display of written material.
(1)A person who uses threatening, abusive or insulting words or behaviour, or displays any written material which is threatening, abusive or insulting, is guilty of an offence if—
(a)he intends thereby to stir up racial hatred, or
(b)having regard to all the circumstances racial hatred is likely to be stirred up thereby.
(2)An offence under this section may be committed in a public or a private place, except that no offence is committed where the words or behaviour are used, or the written material is displayed, by a person inside a dwelling and are not heard or seen except by other persons in that or another dwelling.
(3)F65. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
(4)In proceedings for an offence under this section it is a defence for the accused to prove that he was inside a dwelling and had no reason to believe that the words or behaviour used, or the written material displayed, would be heard or seen by a person outside that or any other dwelling.
(5)A person who is not shown to have intended to stir up racial hatred is not guilty of an offence under this section if he did not intend his words or behaviour, or the written material, to be, and was not aware that it might be, threatening, abusive or insulting.
(6)This section does not apply to words or behaviour used, or written material displayed, solely for the purpose of being included in a programme [F66included in a programme service].

It is s.18 which has been widely quoted by some media commentators more qualified than I. It appears that much of the argument centres around the meaning of the Arabic term "JIHAD".  Below I`ve copied the 3rd paragraph on the first page of this most informative essay. 

"Since the late 20th century, the word jihad has gained remarkable currency: used by resistance, liberation, and terrorist movements alike to legitimate their cause and motivate their followers. The Afghan Mujahiddin, the Taliban and the Northern Alliance, have waged a jihad in Afghanistan against foreign powers and among themselves; Muslims in Kashmir, Chechnya, Daghestan and the southern Philippines, Bosnia and Kosovo have fashioned their struggles as jihads; Hizbollah, HAMAS, and Islamic Jihad Palestine have characterized war with Israel as a jihad; Algeria’s Armed Islamic Group has engaged in a jihad of terror against the government there and Osama Bin Laden and al-Qaeda have waged a global jihad against Muslim governments and the West."

Other learned experts have offered definitions similar to the author of the above. The argument of the Commissioner seems to revolve around the various definitions.  There can be little doubt that these disagreements of the semantics are a get out of jail free card by the Commissioner to avoid taking action against those who knew exactly what they meant and whose audience amidst their cheering knew that also.

The other argument used although I have not seen the exact clause or section stated explicitly is that for presumably s.1 to be used the subjected individual must be "present at the scene."  In other words the offence cannot be committed in a vacuum. This begs the question.  There is an old adage; can a rose be red at night?  The basis of this is that the rose has colour only when light is reflected from it, such light entering a human eye which has the ability to determine the wavelength interpreted by the brain as "colour".  Is the intrinsic value of the rose red or is it a subjective appreciation the reality of which requires that above mentioned eye to validate it?  Imagine two observers of the rose one of whom suffers from a colour blindness where red and green are indistinguishable. In daylight to that person the idea of "red" is incomprehensible.  However when both observers view the rose at night they experience the same subjective result; the rose is lacking colour to both.  They will see a similar shade of grey.  The rose of course is unchanged: its molecular structure is unchanged, its shape is unchanged ; it is the same rose as it was before sunset.  And so with s.1.  Let the legal eagles of government and the Commissioner accept the worldly view of the Muslims involved and present, and non Muslims {Jews} who were not,  that the definition of  Jihad is as above then the requirements to charge have been met.  But no action was taken and reasons for that are disingenuous in the extreme. The plain truth is that the Commissioner of the Metropolitan Police, some Chief Constables and the Crown Prosecution Service were fearful of causing upset or worse in a crowd of 100,000 people, a sizeable proportion of which they considered might have become violent.  That is a perfectly reasonable position for police to have taken and for observers to have understood.  The trouble is, as in so many cases, police action [remember the vigil in memory of Sarah Everard  kidnapped, raped and killed by a firearms licensed police officer when Met Police brutally broke up a peaceful gathering mainly of women] or inaction is condemned only many months later when uniformed weasels make non apology apologies.  This weekend`s inaction is one of those occasions.  It follows the evening of  2/12/21 when Jewish teenagers were wrongly accused of provocative words and/or acts which provoked assault by Muslims. The crime was never solved although how deeply the Met investigated is a moot point. Another deeply disturbing inaction was in May 2021 when a convey of cars containing Palestinian supporters with flags being waved out of the windows drove along Finchley Road in north London; a busy main road  in an area with a high Jewish population.  Nobody has appeared in court for these activities.  When consideration is given to these and other incidents involving Jews and Muslims the reticence of police action is there for all to see.   

We are unfortunate in experiencing a government in disarray seeking desperately which avenues it might choose  to alleviate a probable humbling next year at the ballot box. If it decides that facing up to the political advancement of Islamist Hamas supporting politicking is a vote winner then that might be a single decision which benefits all of us who have taken for granted that our western Judeo Christian civilisation  can continue even  when social and medieval ideas and practices from the backwoods of Pakistan are gaining traction amongst many. 

FYI below is the statement [relevant section] that the Met Police put out to explain their non action.

OUR JUSTICE SERVICE//WORRYING TIMES AHEAD

 

There are various definitions of what constitutes a justice system.  I suppose the following is as good as any:-  a set of government institutions and systems whose purpose is to apprehend, prosecute, punish, and rehabilitate criminal offenders. From that in simple terms the requirements are a police service, a courts service, a prison service and a probation service.  When a Secretary of State for Justice following on from the incompetence of his erstwhile colleagues in the Home Office in emasculating the police finally makes public what has been going on behind closed doors of Petty France are we to be astonished or relieved? 

To help clear the crown court backlog repeat shoplifters could be prevented from requesting trial by jury as the charge is being removed from those termed "either way". Those on remand whilst awaiting sentence for serious crimes e.g. rape might be free to walk the streets. Ministers are considering that prison recalls  might be scrapped and early release increased. It`s not unlikely that after the flip flop on magistrates` sentencing powers the pendulum will swing the other way but more of that later. 

147,000 police officers in 2010 were reduced to 120,000 by 2019. Since then frantic efforts to recruit have been made by the Home Office.  The result is thousands of ill equipped officers mentally and physically are on our streets. The average attrition rate in 2022 was calculated to be 9.1%, or 2,567 leavers out of 28,173 recruits. Excluding transfers 9,347 police officers left the 43 territorial forces in England and Wales in 2022/23, the highest number in a financial year since comparable headcount data began in 2006/07. Until last year, retirement was the dominant reason for losing officers but now most choose to quit following warnings of rising anger over pay, working conditions and treatment by the government.  It won`t have gone unnoticed that every week or so we read of heinous criminality of police officers being investigated. No wonder police morale must be at an all time low which hardly makes for public confidence in the system. 

I would suggest that over the last decade all manner of instructions have been relayed to magistrates [and of course District Judges MC] to avoid immediate custodial sentences except when absolutely necessary. The reasons are diverse.  Since 2010 half the magistrates courts in England and Wales have closed. From around 29,000 magistrates in that year there are now under 13,000. The notorious variable and various statistics on criminality since 2010 are no help in understanding why there were 347,820 outstanding cases at magistrates courts at 30/09/2022; that in 2022 the custody rate at these courts fell by 1%. For the year ended June 2022 926,689 offenders were sentenced at magistrates courts of whom 24,455 {2.64%} received immediate custody and 21,332 custody suspended {2.3%}. In 2022 the average custodial sentence was 3.2 months. On 2 May 2022 the Government gave magistrates the power to impose a sentence of up to 12-months' custody for a single triable either way offence (Section 224(1A) of the Sentencing Act 2020 inserted by section 13(1)(b) of the Judicial Review and Courts Act 2022).  On 30 March 2023 those powers of increased sentencing were removed. The Criminal Bar Association (CBA), which represents barristers, had previously criticised the plan and said it could increase the risk of people being jailed for short sentences, piling further pressure on prisons. The Magistrates Association said it was “incredibly disappointed” at the decision – which it said was after efforts to cut prison overcrowding – and warned it would “slow down justice”. The above numbers are to give only a flavour of the current situation. If ever there was a clear example of the disarray within the MOJ the Duke of York`s sentencing march up the hill and down again must be it.  Combined with statistical analyses which need staticians to explore, only the most dysfunctional aspects of  that courts system are easily interrogated. 

And so to the prison service under the control also of the MOJ.  The ups and downs, ins and outs, to and fros of prisons, prisoners, prison officers and governors is a total shambles. Apparently the cells in magistrates courts are being made available for the prison service.  Poorly remunerated staff are on record levels of sick leave resulting in their charges being locked in their cells for over 20 hours a day.  I have visited both Pentonville jail [built in 1840] and Wandsworth [built in 1849] to hold 1,000 prisoners. It now has an official capacity of around 1,600 across five wings but inspections have consistently found it to be overcrowded with between 60% to 80% more inmates than it was designed for. In 2020/21, 24.4 percent of offenders who were released from custody in England and Wales went on to reoffend. In 2010 the rate was 31%.  Much can be read into this apparent "improvement". I am neither a statistician, criminologist, social worker nor probation officer by training but considering all the surrounding numbers of what happens before, during and after an offence such numbers are observational only. It is little wonder that with a disillusioned and broken probation service as a result of the MOJ Secretary Chris Grayling`s "reforms" in 2014 only to be reversed in 2020, rehabilitation is a work in progress.

Faith or trust in a justice system is a pillar of any democratic society. There have been in the last decade many instances where people`s confidences have been shaken and stirred. The estimated 50% - 60% of our population who have never had any dealings with the courts professionally or otherwise cannot be expected to have strong opinions but for those of us who should know better, worrying times ahead are already in view. 

THE PARADOX OF PRESERVING A DEMOCRACY

This blog usually comments on matters relating to the law in general and magistrates in particular.  Occasionally however there are events and/or circumstances that supercede such limitations.  The dreadful events of the last three days constitute such circumstances.  

On 26th November 2021 the Islamist terrorist group Hamas become a proscribed terrorist organisation in the UK in its entirety, following Parliament’s approval of an Order which was laid in Parliament a week previously.  This means that members of Hamas or those who invite support for the group could be jailed for up to 14 years.  That seems simple enough but like so much legal drafting it leaves interpretation to the courts.  On 9th October Sky News broadcast a live interview with the Head of Political and International Relations in Hamas, Dr Basem Naim during which he denied that any Israeli civilians were killed.  According to his perverted thinking all Israeli citizens are military targets.  That interview can be viewed here. I am old enough to remember that during the height of the Troubles in Northern Ireland from October 1988 to September 1994 the British government banned broadcasts of the voices of representatives from Sinn Féin and several Irish republican and loyalist groups on television and radio in the United Kingdom. Margaret Thatcher initiated this ban.  Considering the IRA was close to blowing her up in Brighton her personal feelings must have been disturbed to say the least. Her thinking seems to have been that such people can be seen but not heard.  In not banning images I suppose she considered that she was still allowing freedom of speech; a pillar of our democracy.  It was a foolish compromise and was widely mocked.  Three decades later the security situation is quite different.  9/11 in the USA and 7/7 here have exposed an awful weakness; a weakness and paradox all democratic nations eventually have to face.  Can a democratic society like the UK refrain from using autocratic ways and means to protect that self same democracy from falling to forces of anarchy and terror?  If we have not reached that point we are close to it. The previously mentioned interview was a soundbite for the approval and praise for murdering Jews.  (I write "Jews" and not Israelis.  The murderers knew that many of their victims and hostages were from foreign countries.) That interview should not have been broadcast. 

In our midst we have seen TV footage of screaming fanatical Muslims in Manchester, Liverpool and London not only castigating Israel but repeatedly calling for the elimination of the State of Israel as an entity because calling for a Palestine from the river to the sea means just that: a Palestine occupying all the land from the Jordan River to the Mediterranean Sea.  Looting a kosher restaurant in the high street of Golders Green shows how perilously close these Islamists are to emulating albeit on a very small scale so far the actions of the Nazis in 1938 Germany.  The full force of existing law must be brought to bear on them.  So far Scotland Yard is showing a reluctance to considering that hate crimes are taking place.  The paradox of preserving a democracy by undemocratic means is ever closer.  The history of Paris after 1789 should be compulsory reading for all politicians. 

SHEEP AND THE POLITICIANS WHO CRY WOLF

Notwithstanding the tens of thousands of individuals who are even loosely termed "court workers" the only people remotely interested in what goes on in the magistrates courts are perhaps just a few thousand who work in the mainly print media and of those the majority don`t work for the Daily Mail or The Times or other mass media; they work for the hundreds of local media companies struggling to financially survive against a tsunami of sometimes unregulated competitors on and off line.  Local magistrates  court reporting remains one of the few activities where such businesses provide information services which are usually unobtainable elsewhere.  Having myself, from time to time whilst active as a presiding magistrate, been the subject [albeit with the offender] of such reports I have nothing but admiration for those undertaking this work.  There is still a majority of the British public without their name on the police national computer.  Unless involved academically these law abiding citizens have absolutely no conception of how the law works in the 97% of criminal cases which begin and are concluded in the magistrates courts until, of course, they are themselves accused of offending. The pressure and lobbying organisation Transform Justice has, for that very reason, initiated a court watchers group to inform on such proceedings.  My opinion in that regard is that the project has merit but care should be taken by these folk that reporting on the court is one thing; offering opinion is another and I have noted that sometimes the twain are confused.  Arguably no topic within the legal system is perhaps as significant as sentencing although it`s fair to add that the whole system rather like the concrete used to construct some of the court buildings  has been crumbling from the top for over a decade: 2010 to be precise.  

From time to time I have offered cases where the invisible directive from the MOJ for sentencers to keep out of jail many who should be behind bars borders on political arrogance taking we the public for idiots.  Politicians preach hard guidance and courts apply hand wringing misplaced benevolence.  Below are just a pitiful few recent examples where the sentence does anything but fit the crime.

The dreadful cases of murder and rapes by serving Metropolitan Police officers and others provided a well earned shock to authorities who have shouted loudly that such cases, the tip of a known iceberg, will in future be treated with the severity they deserve.  One such observation was that indecent exposure, an offence which most magistrates have had to listen to, would no longer be treated as a relatively minor offence.  It would be treated as an indication that the offender was on an unstable ladder likely for him to lead to falling further into depravity.  Academic studies have justified this reasoning.  A sex offender denied his guilt until the day of his trial when he admitted indecent exposure to a 14 year old girl. Not only was that cowardly delay likely to have caused even more distress to the child his late guilty plea was of no avail insofar as he was sentenced to virtually the maximum available to the bench; 23 weeks but against all logic it was suspended.  Obviously only those in the courtroom heard all the evidence and mitigation but common sense comments are valid. Those in the local area interested in the topic must be at best confused and at worst  dismayed. The report is available here. 

In Derby a 22 year old drunk driver was guilty of her third such conviction in three years. The Sentencing Guideline for this offence is here.  Not only was she well over the limit she tried to deceive police by pretending she was a passenger in the vehicle; an aggravating circumstance if ever there was one.  She was sentenced to 18 weeks custody which was suspended for two years. In addition she was disqualified from driving for four years and  ordered to pay £199 in financial penalties.   A 100 day alcohol monitoring tag was ordered to be attached and she was required to  attend 25 rehabilitation sessions.  How seriously all that will be monitored by an emasculated probation service we will never know.  But how can we have confidence in our legal system when such a dreadful disregard for the law is treated almost as a misdemeanour.  

Another case at  Southern Derbyshire Magistrates’ Court gives me cause for disquiet.  It seems to me natural justice that when a violent offence is committed against an obviously pregnant woman the law should punish the offender and mitigation if any should be treated with the utmost caution.  When the court was told the same offender, the partner of the victim, was convicted for ABH against her  in November 2022 immediate custody should surely have been the correct sentence.  But no!  The District Judge, to his shame suspended the sentence.  Any right minded person must weep at this blatant observing of those aforementioned invisible guidelines from those who have underfunded prisons and their workforce since 2010.  Such indifference to the public will lead to vigilantism and a further disregard for politicians and their public offerings of nirvana.  The on line report can be read here. 

Knife offending in this country is endemic.  Hardly a day goes by from Cornwall to Cumbria without such an offence taking place.  And still, this government like so many others, is by passing immediate custody  and offering ever improved sentences for offenders as if they were offering new improved washing powder.  

I have taken the opportunity to publish below Proposals 4 & 5 of  "Consultation outcome Government response to consultation and summary of public responses (accessible)
Updated 2 October 2023."

The complete document on knives and bladed articles is available here. 

Proposal 4 - The Criminal Justice System should treat possession in public of prohibited knives and offensive weapons more seriously.

Question 10: Should the Criminal Justice System treat those who carry prohibited knives and offensive weapons in public more seriously?

81. We asked respondents for their views on whether the possession of a prohibited knife in a public place should be treated more seriously. We asked respondents to tick one of the following responses and explain the reasoning for their answer. The provided responses were:

Yes

No

82. There was a total of 2,333 responses to this question.

83. The majority of responses (65%) agreed with this proposal with comments from some respondents talking about the devastating impact knife crime has on lives and communities and that this change will better reflect the severity of the crime.

84. Some respondents, including practitioners working with young people, suggested that this proposal may impact negatively on young people who may carry knives in public for self-defence purposes or because they are coerced into carrying the article.

Government response

85. We note concerns raised in relation to this proposal having the potential to impact on vulnerable people who may be coerced into carrying knives. Similar concerns were raised in relation to proposal 3. The courts will always consider each case individually and will take into account mitigating factors, such as age, lack of maturity and vulnerability.

86. The government is clear that it is unlawful to carry knives for self-defence purposes. The Prevention of Crime Act 1953 makes it an offence to carry offensive weapons in a public place, without lawful authority or reasonable excuse. Carrying a knife is likely to entice knife crime in local communities rather than discourage it and will put young people at risk as a result.

87. The government will ask the Sentencing Council to consider amending sentencing guidelines on possession of bladed articles/offensive weapons to treat possession of a prohibited weapon in public more seriously.

Proposal 5 - A new possession offence of bladed articles with the intention to endanger life or to cause fear of violence.

Question 11: Do you agree with the proposal?

88. We asked respondents whether they thought the government should introduce a new offence of possession of bladed articles with the intention to endanger life or to cause fear of violence. We asked respondents to tick one of the following responses and explain the reasoning for their answer. The provided responses were:

Yes

No

89. There was a total of 2,361 responses to this question.

90. The majority of respondents to this question (64%) agreed with this proposal. Respondents in favour of this proposal argued that current legislation does not recognise the severity of carrying a knife with the intention to cause fear and the increased likelihood of escalation resulting in harm or threat to life. Respondents stressed the need to act before the actual act of threatening another person occurs.

91. Some respondents agreed with the proposal, but they shared their views that they thought it would be difficult to prove that there is an intention for an individual carrying a bladed article to endanger life or cause fear of violence.

92. There were also respondents who were of the view that this is already covered under current legislation; the majority of respondents who provided these comments had selected ‘no’ as their answer to this question.

93. Some respondents, including practitioners working with young people, suggested that this proposal may impact negatively on young people who may carry knives in public for self-defence purposes or because they are coerced into carrying the article.

Government response

94. The government will seek to introduce a separate possession offence of bladed articles with the intention to injure or cause fear of violence with a maximum penalty higher than the current offence of possession of an offensive weapon when parliamentary time allows.

95. We believe that there is a gap in knife legislation between simple knife possession and possession and threatening another person. This proposal mirrors existing firearms legislation that has been effectively implemented by prosecutors. We expect that this proposal will support the police in tackling violence before the actual harm has been done and where there is evidence, for example on social media, of taunting or threatening behaviour.

96. We note concerns raised in relation to this proposal having the potential to impact on vulnerable people who may be coerced into carrying knives. The courts will always consider each case individually and will take into account mitigating factors, such as age, lack of maturity and vulnerability.

97. The government is clear that it is unlawful to carry knives for self-defence purposes. The Prevention of Crime Act 1953 makes it an offence to carry offensive weapons in a public place, without lawful authority or reasonable excuse. Carrying a knife is likely to entice knife crime in local communities rather than discourage it and will put young people at risk as a result.

Governments of all shades, Secretaries of State for Justice and Home Office Ministers have spouted on for decades about what they`ll do about knife crime.  It`s fair to say that very few of the public now take anything they say on the subject except with a large pinch of salt.  The old adage of the boy who cried wolf has survived for centuries owing to the underlying truth, reasoning and logic conveyed by those few words.  What is not immediately flagged up is the effect on a society when a government duly elected operates under that very proverb crying wolf so often that electors finally disregard its words and as a result seek the apparent simplicity of the demagogues who offer manna from a utopian heaven the price of which, unsaid, is the loss of democratic rights.  I am fearful that we are slowly entering that period when the value of almost any political policy promised by government or those who seek government is discounted, disregarded and held as an example of the need by some voters for "strong government".  The lesson is there before us. The point is whether the sheep are listening to the politicians who cry wolf.