Irrational records

Issue: 127
Posted: 25 June 10

Paul Blackledge

Terry Thomas, Criminal Records: A Database for the Criminal Justice System and Beyond (Palgrave, 2007), £45

In this important, historically informed mapping of contemporary criminal records policy Terry Thomas overviews the emergence and growth of criminal records from the Victorian period through to the present day to illuminate the modern system as a whole. He points to the ideological assumptions that underpinned the Habitual Criminals Act 1869 through which the modern criminal records system was born, and how these class-biased assumptions continue to influence modern policy. He also explores the various malign ways in which criminal records have been used in more recent years. In so doing he contributes to exploding the common-sense belief that more information about offenders helps protect the public. The present system not only has hidden costs, it is also internally incoherent in a way that can actually foster criminal activity.

The Habitual Criminals Act did not spring out of thin air but followed a series of practices going back at least as far as the 16th century. Then, if you could prove an ability to read verse from the bible, you could claim “benefit of clergy” and escape punishment—but only once. To show that you had a conviction you were literally “branded a criminal”: V for vagabond, T for thief, or M for Manslaughter. These brands would be on a part of the body that could be hidden from general view while being easily accessible by the authorities. The 1699 Shoplifting Act did allow for branding on the cheek, but this fell out of favour when it became clear that visibility ensured that the branded would find it nigh on impossible to get a job and thus would almost inevitably have to become hardened criminals.

The Victorians, like many modern bar-room philosophers and the 2001 Home Office Halliday report, tended to confuse the fact that people at the bottom of society were compelled to live on the fringes of the law with the assumption that there existed something that could be meaningfully described as the “criminal class”—a class which could be controlled through criminal records. (Like modern politicians they also tended to equate crime with the activities of the poor rather than with what we now tend to call “white collar crime”). The Habitual Criminals Act had the aim of aiding both policing and sentencing of this group. Whereas the police could, in theory, use criminal records to register the hallmarks of particular criminals, the courts could take previous convictions into consideration when sentencing. The problem with this system, of course, was that it reinforced its own errors. When crimes were committed the “usual suspects” would be rounded up, miscarriages of justice would then occur, and these miscarriages would be compounded as they would be used as evidence for the next round-up and sentencing of the usual suspects!

In recent decades the computerisation of criminal records (the Police National Computer went online in 1974) has led to an exponential growth in both the number and the uses of criminal records. One problem with this system is the quality of the evidence input by the police themselves—indeed it has been reported that the police at Scotland Yard’s National Identification Bureau have hours of fun laughing at the rubbish sent in to them by their colleagues around the country. Thomas quotes one idiot copper who wrote in an arrest form that “when being spoken to” the suspect’s “left eye glides to the centre of his face where it is stopped by his nose” (p41). I guess this ailment would make it easy to pick him out in an identity parade, but I’m not sure if there is a box in the database for gliding eyes.

Beyond the errors there are deeper problems with the criminal records database—even from the point of view of those who compile it. With computerisation, criminal records have become easily available to wider and wider groups of people and their use has morphed from aiding policing and sentencing to a number of other functions including, perhaps most importantly, vetting for jobs. It is at this level that the contradictory demands and consequences of the criminal records database are most evident.

There is widespread agreement amongst academics that employment is a key factor in “resettlement of desistence from crime” (p92). Despite this knowledge criminal records have been used much more widely by employers as a means of vetting potential employees. The problem is that denying employment to convicted criminals tends to make the problem of criminality worse. This is a specific example of a more general problem with capitalist social relations: the gap between individual and social rationality. For society as a whole it makes sense for convicted criminals to be rehabilitated into the community, and one of the best ways to do this is through a good job. Individual firms, by contrast, would rather have someone else employ the “criminal”. The only way to make rehabilitation through employment work is therefore to stop records being used by employers.

Unfortunately, there is a mass of social pressure from the press and populist politicians to do precisely the opposite—and criminal checks are routinely carried out for increasing numbers of jobs. Justified by scare stories of child abuse, the consequences of this policy go much deeper: and as with branding shoplifters in the past, this policy almost seems designed to create hardened criminals. By effectively excluding certain people from the job market it creates a situation in which criminal behaviour is the only way some people have to make ends meet. Moreover, with more than 25 percent of the working age population having a criminal record, these police checks are both a cause of constant humiliation and a stick with which employers can beat workers.

The situation has deteriorated since the conviction of Ian Huntley for the Soham murders in 2002. Although Huntley had no previous convictions, there had been a series of allegations about his past behaviour. In response to this case there has been a huge widening of the information provided to prospective employers (by the way, because the Criminal Records Bureau is meant to be self-funding, and because it charges for these records, it has become enmeshed in its own market logic—it actively seeks new customers!). When responding to a criminal records check the police can reveal “other relevant information” with no clear sense of what this includes. The possibility for miscarriages of justice at this level—not simply about who goes to jail but also over who gets a job—has therefore massively increased. There is also evidence that lots of people are self-denying jobseekers (not applying for jobs for which they are eminently qualified and for which their convictions are not relevant): these individuals operate under the not unreasonable assumption that when comparing two otherwise equal candidates, employers’ decisions would be informed by a previous conviction even if it was supposedly irrelevant to the job.

In fact, the culture of police checks goes far beyond those employers who are legally entitled to see criminal records. Many other employers insist that prospective employees pay for their own criminal record under the provisions of the Data Protection Act. Consequently, the rights enshrined in an act which nominally was designed to allow citizens the right to access the state’s files on them are being subverted by the power of capital as a force against those it was intended to protect. This problem points to a general weakness with liberal criticisms of these infringements on individual liberty—the social irrationalities and violations of individual rights illuminated in this book are perpetrated by capitalist firms as well as the state. The strength of Thomas’ argument is that in pointing to both sides of this problem he provides a useful resource from which to construct a Marxist critique of the system as a whole.