Public debate about whether professional footballer Ched Evans should return to his job as a professional footballer following his release from prison for rape, provides a topical example of a wider problem. Over 9.2 million people were known to the police with a record on the police national computer in 2009/10: around 15% of the UK population. Research by Working Links suggests that three quarters of all employers would not employ anyone with a criminal conviction and that 74% of all newly released prisoners remain jobless. In relation to the purpose of employment in the wider criminal justice system, the CIPD found that
…employment is the single most important factor in reducing reoffending. Of the 144 HR professionals who have knowingly employed exoffenders, only 8 have reported cases of reoffending. In addition, two thirds of HR managers state that employing exoffenders has been a ‘positive’ experience.
Whilst many espouse the view that once locked up, the key should be thrown away, in 99% of cases this will simply not happen. This blog is not specifically about whether Ched Evans should be allowed to return to the game, or indeed on the necessity or desirability of those who have been convicted of very serious offences being back in the public eye, there is enough comment elsewhere on this. What this is intended to address is how we deal with ex-offenders as a society. There is no substitute for Working Links’s research, but some of the most interesting parts of the paper deal with the reasons for employers either being reluctant, or refusing outright to employ ex-offenders.
In most cases, if not the lowest down on the list, a direct bad experience with ex-offenders was usually well towards the bottom. Of those who had knowingly employed an ex-offender, only 7% indicated a consistently “worse than expected” performance. Generally however, most employers expressed the view that they would be more likely to employ ex-offenders if there was more support and information for employers during the recruitment process and safeguarding thereafter.
What is worth taking from the majority of employers’ experience of employing former convicts however, is that the majority of the time, negative perceptions are not backed up by actual experience. The low employment rate amongst former offenders is undoubtedly a direct costs to the public purse in respect of jobseeker’s allowance, but also in respect of increased indirect costs by a higher level of reoffending. Ex-offenders who had a job to go to on their release from prison had 45%reoffending rate compared to a 58% overall: the lowest rate of reoffending of all of the groups for which employment status on release was recorded.
It is undoubtable that increased employment for ex-offenders is desirable, both from a societal self-interest point of view, as well as a more altruistic one. An interesting proposal has been the implementation of an “Offender Discrimination Act”, presumably along the same lines as the Equality Act, although the political will for this is never likely to be sufficiently strong to see any progress through Parliament.
There is limited protection in the form of section 4 (3) (b) Rehabilitation of Offenders Act 1974 which provides:
a conviction which has become spent or any circumstances ancillary thereto, or any failure to disclose a spent conviction or any such circumstances, shall not be a proper ground for dismissing or excluding a person from any office, profession, occupation or employment, or for prejudicing him in any way in any occupation or employment…
This provides very little comfort to those whose convictions are not spent, or those without qualifying service (caselaw on section 4(3) found it was an automatically unfair reason for dismissal but those employees had qualifying service and there have been no cases yet on the extent of any exception to section 108 (1) Employment Rights Act 1996). Bearing in mind the very real problems that unemployed offenders cause, perhaps this is something that needs addressing as part of a more in depth consideration of the purpose of the criminal justice system. I suspect there are doubts that vast numbers of unemployed ex-offenders are a good thing.
UPDATE: Jamie Oliver has also hit the headlines since I wrote this post. His restaurant Fifteen, which donates all profit to charity, has taken on an apprentice who was previously sentenced to 4 years in a young offenders institution for rape of a child under 13. A representative of the restaurant has been quoted as saying.
…we decided that as he had served his sentence he should be allowed a place on the programme. He has so far been an excellent student.
When someone who declares they have no convictions is recruited, employers make a crucial fallacy in assuming that the person is not a past offender. The problem is that out of all offences that transpire, only a fraction are detected, and out of those detected, only a smaller fraction lead to a criminal record and out of those, a smaller percentage result in a conviction. It doesn’t end there. Only a subset of those with convictions will disclose them to potential employers, when legally mandated to do so. This obviously entails that the number of known ex-offenders in employment is far less than the total number of ex-offenders in employment.
This leaves employers with an insuperable difficulty. How do they establish that a candidate is, in de facto reality not a past offender given that even if they perform criminal record checks, it would do nothing to disprove past crimes that did not end in convictions?
A risk employers face by turning down those brave and honest enough to disclose their convictions, is that they may never know as to whether the next applicant they recruit may have failed to disclose a conviction, especially if no background checks are made. Or, they may unknowingly recruit someone who did a medium to major crime that didn’t even lead to a criminal record, much less a conviction! And a clean criminal record wouldn’t establish that someone has not engaged in such crimes!
The moral status of one who makes disclosure is established in contrast to one who withheld disclosure. Employers would have no clue about the latter’s credibility when it comes to disclosure, as compared to the former’s credibility.
If we scour the academic literature, we find such fascinating topics discussed therein.