Article

Legal protections against

criminal background
checks in Europe

Punishment & Society

16(1) 5073
! The Author(s) 2014
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DOI: 10.1177/1462474513506031
pun.sagepub.com

Elena Larrauri Pijoan

Universitat Pompeu Fabra, Spain

Abstract
This article discusses whether there is an increasing demand for criminal background
checks in continental Europe. It also presents the legislative framework regulating criminal background checks in Europe where a requirement of proof of a clean criminal
record in public administration often co-exists with a situation where no specific laws
regulate the rights of private employers to ask for such proof. Finally, the article suggests some legal protections for ex-offenders against the increasing use of criminal
records in the job market and suggests that a law may be necessary to regulate the
right of private employers to conduct criminal background checks.
Keywords
collateral consequences, criminal records, employment, ex-offender re-entry

Introduction
Employment screening on the basis of a criminal record is very common and has
been a widely discussed topic in the United States (Jacobs, 2006).1 The United
Kingdom also has a long history of using criminal records in order to screen
potential employees (McAlinden, 2012; Mustafa et al., 2013; Thomas, 2002,
2011; Thomas and Hebenton, 2012). However, in the rest of (continental)
Europe employment screening on the basis of a criminal record is believed to be
rare and exceptional.2 Some authors think that employment screening on the basis
of a criminal record might be increasing. For example, in the Netherlands in 2009

Corresponding author:
Elena Larrauri Pijoan, Departament de Dret, Universitat Pompeu Fabra, Campus Ciutadella Ramon Trias
Fargas 2527, 08005, Barcelona, Spain.
Email: elena.larrauri@upf.edu

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there were 459,633 applications for a certicate of good conduct for private jobs,
which means an increase of 100 per cent from the year 2005 (Boone, 2011).
In Sweden there were 153,240 checks conducted in 2001 and 345,551 in 2010
(Backman, 2012a).
If this extension were to be replicated within the rest of continental Europe it
would be an unfortunate result since it is widely acknowledged that both de jure
and de facto discrimination due to a past conviction poses a signicant barrier to
ex-oender re-entry (Petersilia, 2003; Travis, 2002). Moreover, if ex-oenders
cannot obtain legitimate employment, their risk of recidivating is higher (Farrall,
2004; Leverentz, 2011; Richards and Jones, 2004; Sampson and Laub, 1993;
Uggen, 2000). Although there is no conclusive evaluation that conrms that vetting
a person with a criminal record eectively reduces the risk of oending, defenders
of employment screening on the basis of a criminal record place great trust in this
policy. This idea is based on the fact that past criminality is considered to be a
predictor of future criminality (for references see Blumstein and Nakamura, 2009).
However, the exact relationship between employment and potential future criminality remains unclear. On the one hand, entry into the workplace might provide
an increased opportunity for further oending.3 Alternatively, legitimate paid
employment might be critical to the desistance process by diminishing an individuals motivation to re-oend. It is dicult to ascertain which aspect (either
increased risk or reduced motivation) will prevail, not only as a general principle
but even more so on a case by case basis.
In this article, I will rstly discuss the increase of criminal record employment
screening in (continental) Europe. I will then provide an overview of the legislation
regulating the use of criminal background checks in continental Europe which
contrasts markedly with that in English-speaking countries. Finally, I will present
the range of possible legal protections against the proliferation of criminal background checks.

Are criminal background checks increasing

in (continental) Europe?
The available data seem to indicate a signicant increase in the use of criminal
background checks (CBCs) albeit these data are limited to the statistics available
from a small number of countries (and comparable data from other countries were
not always available). These data seem to point to an increase in petitions to
National Conviction Registers (NCRs) (see Table 1).
Particularly in the area of childcare, dierent countries (for Australia see Saliba,
2013; for Germany see Morgenstern, 2011; for the Netherlands see Boone, 2011;
for Sweden see Backman, 2012b; for the UK see McAlinden, 2012) have passed
laws requiring everyone applying for employment involving close contact with
children or elderly people to undergo a criminal background check.4
Additionally, for those countries that do not yet require it, Directive 2011/92/EU
of the European Parliament and of the Council of 13 December 2011 (on combating

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Table 1. Number of petitions to National Conviction Registers for employment purposes by

country (UK, Sweden, Netherlands, Spain and Australia) and year (19992011)
Year

UKa

Swedenb

Netherlandsc

Spaind

Australiae

1999
2000
2001
2002
2003
2004
2005
2006
2007
2008
2009
2010
2011

1,183,877
2,155,401
2,577,459
2,736,652
3,182,902
3,382,715
3,810,614
4,269,924
4,219,319
4,020,446

153,247
127,520
122,424
136,297
157,701
200,767
208,111
257,518
278,788
345,551

95,000

254,338
279,700
384,724
474,751
459,633

1,512,166
1,667,731

425,154
414,000
431,000
617,000
1,100,000
1,700,000
2,300,000
2,600,000
2,500,000
2,700,000
2,900,000
3,000,000

Notes:
a
This table has been produced by Mart Rovira. Data refer to the petitions to the Criminal Record Bureau for
England and Wales. The Criminal Records Bureau only dealt with petitions for recruitment decisions. Source:
Home Office (2012). These data refer to numbers of applications, not to individuals. The same document
states that during the calendar year 2011 16,365 applicants submitted more than three disclosures and that
the highest number of applications submitted by one person was 16.
b
Backman (2012a) provides data on petitions for employment purposes to the Swedish National Criminal
Records Registry. In 2010 there were 161,349 subject requests (46.7%), 150,340 on childcare workers and
teachers (43.5%), 8729 for insurance intermediaries (2.5%) and 25,133 for special approved homes for youth
care (7.3%).
c
These data show the number of petitions to the Central Conduct Certificate Agency of the Netherlands and
deal only with employment related requests. Data for 1999 come from Bushway et al. (2011) and data from
2005 onwards from Boone (2011).
d
Larrauri and Jacobs (2013) show the number of petitions to the National Criminal Register of Spain. In 2010,
9.2% of requests were related with employment in the police, 2.9% for employment in the army and 63.9% for
obtaining residence and work permits. The rest were given for firearms permits (4.4%), which might also
affect employment in private security, to obtain nationality (7.9%) or for individual requests (11.7%).
e
These data provided for Australia come from the annual reports of the CrimTrac agency from 2000/2001 to
2011/2012 for National Police Checking for employment issues. Annual reports are available at: http://
www.crimtrac.gov.au/about_us/CorporateDocuments.html (accessed 3 March 2013).

the sexual abuse and sexual exploitation of children and child pornography)
states that:
Member States shall take the necessary measures to ensure that employers, when
recruiting a person for professional or organized voluntary activities involving direct and regular contacts with children, are entitled to request information in accordance

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with national law by way of any appropriate means, such as access upon request
or via the person concerned, of the existence of criminal conviction for any of
the oences referred to in Articles 3 to 75 entered in the criminal record or of the
existence of any disqualication from exercising activities involving direct and regular
contacts with children arising from those criminal convictions. (Article 10.2,
emphasis added)

The Directive has to be transposed by 18 December 2013 which might prompt the
question as to whether it will lead to a growth in the number of criminal background checks. For those countries which already have laws requiring/allowing
private employers to carry out a CBC the Directive might add little. For the rest
of Europe where no such laws exist, the Directive will probably change national
laws to require private employers to carry out a CBC in the area of activities with
children, producing as one might expect an increase in the number of petitions to
the NCRs (Table 1). One might argue that the Directive is limited to the screening
for convictions for sexual oences in applications for employment in the area of
childcare. Yet it remains to be seen whether this practice will remain restricted only
to sexual oences or whether it will extend, as has already happened in the UK and
Sweden, to violent oences and to employment with vulnerable adults (Backman,
2012b; Jacobs and Blitsa, 2012; Mustafa et al., 2013).6 Additionally the Directive
might be important in shaping private employers attitudes. It is my contention that
in continental Europe, where there is no law that either allows or requires a CBC,
private employers are not generally allowed to carry one out (and they believe that
they are not!),7 because criminal records are condential (see next section). And yet
the Directive establishes the opposite principle, that private employers are entitled
to request information albeit limited to certain sexual oences in the area of
childcare. In the absence of clear regulation addressed to private employers this
might inuence their legal perception that a CBC is generally allowed.
Why does this directive entitle private employers to request information on
criminal convictions? This change is probably due to an increased perception of
risk (Backman, 2012b; Thomas and Hebenton, 2012), particularly in relation to sex
oenders who seem to encapsulate our worst contemporary fears (Lacombe, 2008;
McAlinden, 2012). It may also be part of the new culture of control and the trend
to delegate the power to punish (Garland, 2001) manifested in this case as a delegation of this power to private employers (Mustafa et al., 2013; Saliba, 2013).
Additionally, the expansion of criminal background checks might be another
example of policy transfer from the USA and the UK to the rest of continental
Europe (Nelken, 2011).

Criminal record employment screening in

continental Europe8
In continental Europe the opportunity to conduct a Criminal Background Check
(CBC) generally means two things: (1) that the employer can enquire directly to the

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National Conviction Register (NCR); or (2) that the employer may ask the individual subject for a proof of a clean record, or criminal record certicate (CRC).9
Private employers do not generally have access to the NCR.10 Unlike in the USA,
where court records are public and individual criminal history records are considered public information, European countries treat individual criminal history as
condential information (Boone, 2011; Herzog-Evans, 2011; Jacobs and Larrauri,
2012; Morgenstern, 2011; Padeld, 2011).
However, European countries do allow their NCRs to provide the record-subject with his or her criminal record upon request (national law usually allows only
the subject to ask for an extract). Since there are neither private vendors nor direct
access to a criminal conviction register, the way to prove a clean criminal record is
usually to ask the applicant for a CRC. Of course, as Damaska (1968) pointed out,
the right of an individual to obtain their ocial criminal record could become a
Trojan Horse in that it would render the condentiality of the criminal records
register useless if employers were permitted to, and generally did, ask jobseekers to
present a CRC. The most common understanding however is that private employers only ask the solicitant for a CRC in exceptional cases and when there are
justied reasons such as business necessity. Employment screening for a criminal
record in the private sector therefore remains rare and exceptional. In Germany,
for example, private employers are only permitted in a few recruitment processes to
ask a job applicant if they have been previously convicted of a criminal oence and
to produce a certicate of conduct as proof. Moreover, if they do ask, the interviewee is permitted to lie (Morgenstern, 2011).
There is currently no research showing how many CBCs are carried out by
European private employers. Research from the USA and the UK (see Table 2)
shows that roughly 5080 per cent of private employers engage in such checks.
However, it is dicult to surmise whether this business practice is likely to be
replicated in continental Europe.11
Pre-employment screening for various positions within public administration
appears to be quite distinct from those in the private sector. Public administration
agencies may carry out a CBC (usually because they have direct access to the NCR
and/or because they are required to ask the subject for a proof of a clean record in
the form of a CRC). Continental European countries generally prohibit persons
with a criminal record from serving in public administrative positions (Larrauri
and Jacobs, 2013).12 Usually, this discrimination against people with a criminal
record takes the form of de jure employment disqualications.13 Many European
countries make ex-oenders (at least until their convictions are expunged) ineligible
to run for and hold positions of power, such as membership of the judiciary,
employment in the police and prison services or to serve as a military ocer.
The list of excluded positions is not, however, limited to those where security
reasons might be relevant (e.g. police or prison ocers), but extends to others
where integrity is seen as essential (e.g. judges) and can nally expand to any
position in the public administration regarded as civil service (e.g. clerks, professors and teachers in public universities and schools, and medical doctors).

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Table 2. Summary of the results of research that provide information on the proportion of
employers that carry out a CBC for at least one job positiona
Source

Place

Percentage

Helfgott (1997)
Society for Human Resource Management
(SHRM) (2004)
Holzer et al. (2007)

USA
USA

1996: 62.5%
1996: 51% 2004: 80%

USA

19921994: 48% (31.6% for all positions)

2001: 63.2% (45.5% for all positions)
2001: 74%
2010: 92% (73% for all positions)
2011/2012: 87% (69% for all positions)
2010: 66%
1991: 83%
2000: 63%
2006: 67% (60% for all positions)
2002: 66% 2006: 14%

Pager (2007)
Society for Human Resource Management
(SHRM) (2012)
Uggen (2013)
Apex Trust (1991)
Metcalf et al. (2001)
Brown et al. (2006)
Chartered Institute of Personnel and
Development (CIPD) (2007)

USA
USA
USA
UK
UK
UK
UK

Note:
a
Table produced by Mart Rovira. The table only shows the results for quantitative studies with at least 100
respondents. With the exception of Pager (2007) and Uggen (2013), all authors refer to surveys to employers
asking the reasons to carry out a criminal background check in their recruitment processes. Similarly, the data
of Uggen (2013) show the proportion of employers that have contracts with companies that provide criminal
background checks to job applicants. Pager (2007) refers to the observation of real job recruitment
processes.

Somewhat curiously to US academics, European scholars have tended to accept

without criticism the practice of employment screening and discrimination based
on conviction records in the public sector (if not in the private sector).14
Additionally, where occupational licences are required to conduct a private
business, there are often laws requiring government agencies to make the issuance
of such licences contingent on a clean criminal record check. For example, in most
European countries, only individuals who have a clean criminal record can be
licensed to work as commercial drivers, in the private security sector or as bouncers, in gambling establishments, or to be admitted entrance to the professional
schools of lawyers or pharmacists (for the Netherlands, see Boone, 2011; for
England, see Thomas, 2007).
As already mentioned Directive 2011/92/EU of the European Parliament and of
the Council of 13 December 2011 (on combating the sexual abuse and sexual
exploitation of children and child pornography) allows European private employers to ask for proof of a clean record. This represents a shift because it explicitly
entitles private employers to carry out a CBC in the area of childcare positions.

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Notwithstanding this shift, it is important to emphasize the limits of the directive in

order to avoid interpretations that generalize its scope. The directive (1) allows (and
does not require) employers to ask; (2) only for convictions; (3) for certain crimes of
sexual abuse to minors; (4) to those who work in close relation with children;
and (5) does not give criminal records a conclusive force, because it does not forbid
employers to hire a person with a criminal record.15
It will certainly be of interest to follow how this Directive impacts the actual
practices of employers in continental Europe. When it is implemented it will most
probably produce an increase in CBCs for all of the activities which require regular
and close contact with children. Additionally, although it only requires a CBC for
childcare positions and only mentions information regarding certain sexual
oences, we might witness an expansion similar to the one that has occurred
in UK of the Directive to include within its scope convictions for violent oences
and other forms of employment involving contact with vulnerable populations.
This situation leads me to reect on what kinds of protections might be introduced
to mitigate the possible proliferation of CBCs beyond the purpose of screening for
past sex oence convictions.

Protections against the proliferation of criminal

background checks
Several authors (Lam and Harcourt, 2003; Love, 2005; McEvoy, 2008; Naylor
et al., 2008; Paterson and Naylor, 2011) have studied ways of minimizing the
negative impact of a criminal record for employment. They tend to focus on the
anti-discrimination model and the spent model. I will briey explain these two
models and then suggest some other possibilities. The point of this exercise is not to
say that these rst two models do not work, but to provide additional ideas which
might achieve the same intended outcomes.

The anti-discrimination model

This model is based on the International Labour Organization [ILO]
Discrimination and Employment and Occupation Convention 1958 that requires
all countries that are party to the Convention to declare and pursue a national
policy designed to promote (. . .) equality of opportunity and treatment in respect of
employment and occupation, with a view to eliminating any discrimination in
respect thereof (Convention 111 (ILO 111)). Article 1(1)(a) of ILO 111 denes
discrimination in employment as:
(a) any distinction, exclusion or preference made on the basis of race, colour, sex,
religion, political opinion, national extraction or social origin, which has the eect of
nullifying or impairing equality of opportunity or treatment in employment or
occupation;

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While the Convention currently species certain grounds for non-discrimination

(i.e. race, religion, etc.) it also leaves room for parties to add further grounds in the
future. According to McEvoy (2008) European countries could follow the example
of Australia which extended its non-discrimination protections to include criminal
records.16
The Convention 111 [ILO 111] also states in Article 1(2) that: Any distinction,
exclusion or preference in respect of a particular job based on the inherent requirements thereof shall not be deemed to be discrimination. According to the
Australian Employment Opportunities Act (1986; cited by McEvoy, 2008) the
principles that follow from this prohibition of discrimination are: (a) that an inherent requirement must be essential to the position; (b) the burden is on the
employer to identify the inherent requirement; (c) it should relate to a specic
job; and (d) there must be a tight correlation between the job in question and a
particular criminal record.
Lam and Harcourt (2003) and McEvoy (2008) favour the anti-discrimination
model17 on the basis that the relevant discussion should not be whether the conviction is spent (see next section) but whether it has relevance to the type of
employment under consideration. The main problem with this model in Europe
however is that, where they exist, anti-discrimination statutes do not cover criminal
records.18 A rst measure could therefore be to recognize ex-oenders as a disadvantaged group entitled to special employment protection (Louks et al., 1998).19 As
we have seen, exclusion from employment will not be considered discrimination if it
is based on the inherent requirements of a job, or what is usually called business
necessity. Therefore a second problem might be that business necessity runs the
risk of being interpreted very widely. While the reduction of risk and increased
workplace safety are legitimate goals, there needs to be a reasonable t between
these goals and the means used to achieve them. This tends to be framed in terms of
a tight relation, or close nexus, between the oence and the occupation
(Aukerman, 2005: 3949; Damaska, 1968: 553). It should therefore be insisted
upon that the onus is on an employer to prove that employment exclusion is
justied and further suggest that business necessity is only admitted for the prevention of an immediate and serious threat to public security. A last shortcoming
of anti-discrimination statutes, as the Australian example shows, is that these might
not cover the prohibition on asking about previous convictions (Lam and
Harcourt, 2003). This is why discussion is required on the condentiality principle
(see later) to forbid employers from generally asking for proof of a clean record.

The spent model

The spent model allows oenders to not disclose a spent20 conviction when applying for a job. Many European countries21 provide for expungement of conviction
records once the sentence has been served and a waiting period has passed. The risk
of committing a further oence after the sentence provides the justication for
buer periods (usually some years after the sentence has been served), but once

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the sentence and the waiting period is over, the record is expunged and the person is
presumed rehabilitated and enjoys the same constitutional rights as a person with
no record.22
The main limitation of this model is that not all convictions get spent and for
some professions certain convictions are never expunged (Lam and Harcourt, 2003;
McEvoy, 2008; Paterson and Naylor, 2011; Silva, 2010; Thomas, 2007). Another
problem is that the existence of buer periods implies that an ex-oender remains
under suspicion (and therefore can be considered unreliable) until their conviction
is expunged. A third problem is that (in UK) even if spent, convictions might still
be disclosed. Additionally in the USA, Colgate Love (2002, 2011), has criticized
expungement policies on the basis that it is not wise to favour people to rewrite
their pasts and she has advocated rehabilitation certicates as an alternative.23
The spent model is justied by studies that point out that after a certain
redemption time the risk of reoending for ex-oenders is similar to non-oenders (Blumstein and Nakamura, 2009; Bushway et al., 2011; Kurlychek et al.,
2007).24 However, this model accepts too readily that people will and should
suer collateral consequences (i.e. exclusion from employment) during a certain
time after their sentence has been served.

The confidentiality model

In continental Europe, except in the cases of childcare as mentioned in the Directive,
no law seems to address the specic question as to whether a private employer is
legally permitted to ask for a Criminal Record Certicate. Could the fact that there is
no law concerning private sector employers be interpreted as meaning that employers in Europe may usually require job applicants to submit a CRC?
One possible view is that anything that is not prohibited is permissible and one
could interpret this silence as an implicit permission for employers to ask. This
seems to be the case in English-speaking countries (Naylor et al., 2008). As Naylor
(2011: 81) states the principle is such that any actions are considered lawful unless
there is an explicit law making them unlawful.25 Also, the UK assumes that
employers are entitled to ask the subject for this information,26 therefore creating
a double track: a CBC if the employer is eligible and registered with the
Disclosure and Barring Service (DBS) or directly asking the employee to apply
for their criminal record from the local police (Thomas, 2002). If employers in
continental Europe do not have access to a NCR but are free to ask the individual
subject for a CRC, one could conclude that the main dierence between the USA
and Europe would merely be a formal one. In the USA, the employer directly
obtains the job applicants criminal record, usually from a private information
vendor (Jacobs, 2006), whereas in Europe it is done through the particular subject.
However, according to my judgement this is not a correct conclusion because in
(continental) Europe the requirement for a person to undergo a CBC would not be
considered permissible unless there was a specic law authorizing it or a clear business necessity.27 This conclusion derives precisely from the condential character of

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criminal records in national legislations.28 Also European legal norms try to avoid
collection and dissemination of criminal history information. For example Council
Framework Decision 2008/977/JHA on the protection of personal data, processed in
the framework of police and judicial co-operation in criminal matters, states the
exceptional situations when police or judicial data can be transmitted to a private
party.29 Moreover, criminal convictions are considered protected personal data and
therefore entitled to the aegis of data protection laws.30 Admittedly there is no law
that forbids private employers from asking for a CRC, and unfortunately there are
no case law judgments regarding this issue to my knowledge. Yet the interpretation
of national laws, European directives and Council of Europe recommendations31
does seem to provide arguments for the conclusion that, unless exceptionally justied, private employers in (continental) Europe may not, until now, ask for a CRC.
It might seem odd to assert that a criminal conviction is condential since
judgments are made in public (Jacobs and Larrauri, 2012; Thomas and
Thompson, 2010).32 However, the European Court of Human Rights (ECtHR)
has recently conrmed (case of M.M. v. The United Kingdom, 13 November
2012, Application no. 24029/07. Final 29 April 2013) that: As it recedes into the
past, [the conviction] becomes a part of the persons private life which must be
respected.
Therefore, and in my opinion, an important protection against the expansion of
CBCs in continental Europe is to insist that only when there is a law explicitly
authorizing it may an employer ask for a CRC, otherwise he does not have the
right to request it33 unless exceptionally justied by business necessity (as explained
in the anti-discrimination model). The justication for this conclusion is that it is
the laws role to balance the legitimate interest of protecting the individual from
discrimination with any risk to be considered. If there is no statute limit then there
is a danger of excluding all oenders from all jobs based on a general animus
and letting private employers consider a past criminal record as evidence of present
bad character.

Ban blanket bans

As we have seen previously in section two Criminal record employment screening
in continental Europe, Europe normally bans the employment of ex-oenders in
any public administration position.34 The exclusion of ex-oenders from employment in positions of civil service is general and not limited to positions where state
security is at risk or where the nature of the oence and the job role in question
might give rise to concerns about a risk of harm (Stoll and Bushway, 2008; Uggen,
2008). The probable historical reason for this blanket ban is, therefore, to give an
image of integrity within the public administration. However, nowadays one could
precisely argue that it is the public administration which should provide an example to others by employing ex-oenders and not discriminating against them based
on their conviction records (Henry and Jacobs, 2007).35

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In order to pursue this aim I would argue against a blanket ban (where all
positions are eligible for checks, oences are not specied and the time elapsed
since a conviction is not considered) such as those which exist in the public administration in many countries of continental Europe. Certainly, one could argue that
a blanket ban might be justied because some occupations are more sensitive than
others (for example bus drivers, teachers and police ocers).36 One problem is that
to exclude those with criminal records from employment automatically and on the
supposed basis that previous convictions are predictive of future risk, is too overinclusive in some circumstances (for instance, sex oenders have low reconviction
rates as was pointed out in the Swedish debate; Backman, 2012b) and too underinclusive in other circumstances (a domestic violence conviction might say nothing,
for example, about the alcohol problem that poses a real risk for a bus driving
position). Such problems are not inevitable, but rather reect the fact that the
indicator chosen is a poor proxy for the harm to be avoided.37
One could however argue that a criminal record is a proxy of poor character,
and unreliability, and therefore, relevant to an applicants potential performance in
any kind of job.38 However, this line of argument might lead to a slippery slope:
Could one not argue that even the most menial factory job oers opportunities for
theft or drug distribution, or that factory owners have an obligation to protect their
employees from potentially violent co-workers? In any eld there will be concerns
about safety, theft and public order. (. . .) if the State can bar a person from working as
a policeman or teacher or gas station attendant, can the state not also bar that person
from working altogether? (Aukerman, 2005: 48)

Therefore, in my opinion, a law prohibiting everybody who has a criminal record

from employment in the public administration could infringe the right to work, the
right to equal access and the right to rehabilitation.39 Excluding people with a
criminal record from the public administration requires, in my opinion, carefully
drafted laws that can adequately balance all the rights involved. This law should:
(a) be limited to convictions; (b) dene the specic oences that are relevant;
(c) relate to oences and sentences of a certain gravity; (d) pass the close nexus
test for that specic position; (e) have no conclusive force; and (f) only take into
account unspent criminal records. Some laws requiring employment screening in
public administration positions in continental Europe are carefully drafted and
might meet all these requirements, but some could well be challenged.

The sentencing model

I would argue that when there is a risk of immediate and serious threat that extends
beyond the sentence we should advocate for the use of the criminal law to address
this risk, instead of relying on private employers and criminal records checks. One
possible way in which this could be achieved would be for judges to use an
Occupational Disqualication Order.40 Advocating for an extended use of

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Occupational Disqualication Orders, rather than the extended use of CBC, means
that these are subjected to some principles of punishment.41 This order would be
imposed by the judge after individualized assessment and limited by proportionality constraints, giving the oender due notice42 and they would also not be applied
retroactively (OKeefe, 2010; Roberts, 2008).
This model also presents many problems. Would judges automatically impose
these orders in all circumstances? One could presume so, although this does not
seem to be the case in countries where these sentences or court orders exist.43 How
would we enforce these orders (James Jacobs, personal communication)? This is a
dicult problem but certainly no worse than enforcing other community sentences,
where compliance is achieved by supervision or by the threat of further sanctions.
Another discussion would be how to justify these occupational disqualication
orders, as backward-looking punishment or as a purely preventative measure
(Antony Du, personal communication)? And, in case we think of them as court
orders, are all principles of punishment to be applied?44 These are all interesting
philosophical and juridical questions that deserve further thought and discussion.45
The main principle of the sentencing model is that the participation of society in the
process of employment exclusion has to be authorized by a law (in certain employments) and only in cases where there is an occupational disqualication order
imposed by a court (and not a generic criminal record).

Concluding thoughts
We do not know what the actual practices of European employers are but we fear
that criminal record employment screening in (continental) Europe might extend
from the public to the private sector. This potential exclusion of ex-oenders from
all jobs is particularly troublesome because we are in an era, not only of mass
imprisonment, but of mass convictions (Chin, 2012). Therefore the problem is not
only imprisonment but the convictions to which criminal records are attached,
which can then produce multiple collateral consequences.46 These consequences
are produced independently of the gravity of the oence (Roberts, 2008) and
they are especially disproportionate when attached to a vast number of misdemeanours (Natapo, 2012: 13231328).47
I believe it is necessary to emphasize that I am aware of certain risks posed by
some ex-oenders and other people, and I would certainly like to diminish them.
My reections relate to the fact that we try to achieve this goal almost exclusively
by using criminal records as a proxy for future risk and this impacts negatively
upon far too many people. It is the widespread exclusion of all ex-oenders that
I think we should avoid by trying to balance the employers interest with societys interest in the social reintegration of ex-oenders (Uggen et al., 2006;
Western, 2008).
Several authors (Lam and Harcourt, 2003; McEvoy, 2008; Naylor et al., 2008;
Paterson and Naylor, 2011) have studied ways of minimizing the negative impact
of a criminal record. They tend to focus on the anti-discrimination model

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(allowing employers to take criminal records into account only when there is a
close nexus between the oence and the professional position) and the spent
model (requiring only the disclosure of unspent criminal records). It seems to
me that the anti-discrimination model assumes that all employers are entitled to
carry out a Criminal Background Check (directly, by enquiring to the National
Conviction Register, or indirectly by asking the subject to provide a Criminal
Record Certicate) and that all we can do is try to avoid discrimination against
ex-oenders. The spent model seems to accept the existence of a buer period
during which oenders that have already served their sentence are still facing collateral consequences based on future risk considerations. Both models are valuable,
because the rst focuses on the protection it can give to the ex-oender while the
criminal record is unspent and the second requires that criminal records become
spent. We should denitely suggest their implementation.
Additionally, I would argue that the European principle of condentiality of
criminal records, according to which criminal records are protected personal data,
provides some preventive protection against possible future discrimination on the
basis of a conviction. This model would require a law regulating the right of private
employers to ask for a criminal record certicate only where the employment of an
ex-oender might be presumed to represent a certain risk. Moreover this law
cannot enforce a blanket ban, such as the ones that commonly exist banning
access to all public administration jobs, and as I suggested it should: (a) be limited
to convictions; (b) dene the specic oences that are relevant; (c) relate to convictions and oences of a certain gravity; (d) pass the close nexus test for that specic
position; (e) ensure that previous convictions have no conclusive force; and (f) only
take into account unspent criminal records.
Finally, the sentencing model advocates for the use of an occupational disqualication order. I would argue that when there is a real risk that extends beyond the
sentence we should advocate for the use of the criminal law to address this risk,
instead of relying on private employers and criminal records checks. One possible
way in which this could be done, would be for judges to use an occupational
disqualication order. This procedure allows for an individualized assessment of
the nature of the oence, the length of time elapsed since the oence was committed, the type of job disqualications and the duration of the order. Lastly,
leaving the task of protecting society against dangerous people mainly to employers
assumes that they are in a better position to provide safety, albeit at the cost of
eventually engaging in discriminatory practices: an unfortunate by-product, which
the state will try to minimize. In contrast, I think it is a task of the state (as the
embodiment of the liberal constitution) to provide security and protect the rights of
the vulnerable sections of society.
Acknowledgements
This research has been supported by the Spanish Ministry of Economy (Research Project,
DER 2012-32150 on Community Supervision) and by the Catalan Department of
Universities of the Generalitat de Catalunya (AGAUR 2009 SGR 1117). Many of the

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good ideas come from James Jacobs, to whom I owe my thanks for the discovery of this
topic and for continuous discussions and support. This article has been presented in ESC
(Bilbao, 2012), ASC (Chicago, 2012), the Scottish Centre for Crime and Justice Research
(Edinburgh, 2012) and Robina Institute (Minnesota, 2013). Many participants have provided thoughtful comments from which I have beneted. Special thanks to Andrew
Ashworth, Dimitra Blitsa, Antony Du, David Felip, Michael Tonry and Dirk van Zyl
Smit. Mart Rovira has provided useful research assistance. My last thanks for great editing
go to Andrew Henley.

Notes
1. The adverse legal consequences of a conviction were highlighted for the first time
by Damaska (1968). The effects of a criminal record are not limited to employment,
especially within the USA where they extend to other civic, social and political rights
as the contemporary discussion of collateral consequences has shown (Demleitner,
1999; Ewald, 2012; Pinard, 2010).
2. There are no data to confirm this belief except the opinions of those experts
who have written about this topic (see Boone, 2011; Herzog-Evans, 2011;
Larrauri, 2011; Morgenstern, 2011). Empirical research of what employers do is
rare in (continental) Europe although the evidence which does exist confirms that
nowadays criminal background checks are an extended practice only in the
UK (see Table 2).
3. Research done by Keith Soothill (oral presentation in ASC, 2012) indicates that in a
35 year follow up, around 40% had subsequent convictions but only 8% had
offences which were directly adverse for an employer.
4. Although only the UK has made it a criminal offence to either apply for a job or to
knowingly employ a person convicted of abuse (McAlinden, 2012; Thomas, 2011).
Additionally, it is also an offence to fail to carry out a check. I thank Andrew Henley
for this last comment.
5. Art. 3: Offences concerning sexual abuse with children who have not reached the age
of consent; Art. 4: Offences concerning sexual exploitation; Art. 5: Offences concerning child pornography; Art. 6: Offences concerning solicitation of children; Art.
7: Offences concerning incitement, aiding and abetting.
6. I do not imply that the level of criminal background checks will be comparable to
the USA. The literature is now very broad but there seems to be an agreement as
to different North American and European cultures of control (Garland, 2001),
political economies (Cavadino and Dignan, 2006) and factors influencing punitiveness (Tonry, 2007). Not to mention the difficulty of conceiving even North
American penal culture, climate or weather, as something homogeneous (compare
for example, Green (2013) with Henry (2012)). Regarding criminal records as
I argue in section three Protections against the proliferation of criminal background checks, the main difference is the confidential character of criminal records in continental Europe and the high importance attached to the protection of
privacy.

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7. It might come as a surprise that employers do not know the exact rules, but this is
usually the case, due to the low visibility of this issue which tends to develop in
circulars and instructions rather than in specific laws (Thomas, 2002, 2007). Often
not even lawyers are certain of what the rules are regarding the effects of a criminal
record because this topic is located outside of the field of sentencing and
corrections.
8. To speak of Europe can be a bit adventurous, since obviously each country
has its own legal system. However I do hope to portray general trends.
The reason why I speak of continental Europe is because, regarding publicity
and criminal background checks, the UK has some traits that are more similar
to the USA.
9. Two further additional ways of finding out if a person has a criminal record are just
asking the applicant or hiring a detective to find out. I thank James Jacobs for this
comment.
10. Finland, France, Germany, Greece Hungary, Luxemburg, Italy, Spain and Sweden
do not allow employers to obtain individual criminal history information from
their National Criminal Registers (KPMG, 2009).
11. There has been some research on the willingness of employers to hire a job applicant
with a prior felony or serious misdemeanour conviction in Germany. Langenhoff
et al. (2007) report 62 per cent of German employers would consider employing an
ex-offender with appropriate qualifications though there have been some doubts
about the reliability of the survey (see Morgenstern, 2011). As regards to actual
employment discrimination when hiring, Buikhuisen and Dijksterhuis (1971) have
shown the existence of discrimination towards applicants with criminal records
through an application experiment in the Netherlands. They found that individuals that mention a criminal record in their application letter had a lower probability of being called back. More precisely, individuals with a drunken driving
record or a theft record had a lower chance of being called back (26 per cent and
32 per cent respectively) compared to 52 per cent for an individual without a
criminal record.
12. Some laws and licences only render job applicants and employees ineligible if their
criminal sentence included an employment disqualification; other positions are
closed to individuals who have been convicted of any crime, or of an intentional
crime, or of one of a list of specified crimes. A few occupations are only open to
persons with no previous administrative offences.
13. These disqualifications may result from a court order, automatic legal disqualification as a collateral consequence or by administrative agencies or professional
bodies (Damaska, 1968: 550).
14. James Jacobs, personal communication. See, however, Explanatory Memorandum
to Rule 22 of the Council of Europe Probation Rules (2010). Some reasons
that might explain why there has been no movement to repeal the laws barring
ex-offenders from public bodies are explained in Larrauri and Jacobs (2013).
Nelken (2011) argues that the value of comparative work is also to get to know
your own system better. I cannot but agree.

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15. Although the Directive allows employers to carry out a CBC in a restricted way, it
is unfortunate from a rehabilitation perspective that: (a) it does not mention that
only unspent criminal records should be disclosed to employers and; (b) it does not
restrict the types of sentences that can be notified to employers.
16. The UK government ratified this Convention in 1999 and therefore could include
criminal records under the principle of the broader commitment to upholding
international law (McEvoy, 2008).
17. This is also the most used model in the USA, because it is admitted that blacks are
arrested and convicted more frequently than whites. Therefore policies based on
non-recruitment of applicants with a conviction record can, if they have a disparate
impact on ethnic minorities, be challenged based on a violation of Title VII of the
Civil Rights Act of 1964 (Aukerman, 2005).
18. See, for example, Directive 2000/78/EC of 27 November 2000 establishing a general
framework for equal treatment in employment and occupation, [2000] OJ L303/16.
Art 1: Purpose. The purpose of this Directive is to lay down a general framework
for combating discrimination on the grounds of religion or belief, disability, age or
sexual orientation as regards employment and occupation (...). But it does not
mention criminal records (emphasis added).
19. France prohibits employment discrimination based on origin, sex, morals, sexual
orientation, age, family situation or pregnancy, genetic characteristics, ethnic backgrounds, nationality, race, political opinions, syndical or mutual activities, religion,
physical appearance, family origin, health status or physical condition, but does not
mention criminal records (Article L1132-1, Chapitre II, Principe de non-discrimination, Code du travail). Germany prohibits discrimination of sex, race and ethnic
background, religion and beliefs, age and sexual identity, with no mention of criminal records (General Equal Treatment Act (AGG) from 2006).
20. A spent or expunged conviction is a conviction that should not be disclosed to
the public. The term expungement is more common in the USA, whereas in the
UK spent criminal record is more commonly used. The effects of expungement/
spent statutes might vary on: (a) the offences that are expunged; (b) the time that is
required; (c) the effects of the expungement (mainly, is the ex-offender obliged to
disclose it and can somebody with a spent criminal record still be disqualified?); (d)
to whom and under what circumstances will this information be available?
21. This is true for Finland, France, Germany, Greece, Hungary, Italy, Luxembourg
and Spain (KPMG, 2009). There is now a reform being discussed in Ireland to
introduce a Spent Convictions Bill 2012. I thank Niamh Maguire for this
information.
22. See, for example, Change the Record campaign for reforms to the Rehabilitation of
Offenders Act, http://www.nacro.org.uk/data/files/change-the-record-report1829.pdf. For a criticism of life bans see also Bushway and Sweeten (2007: 702
703), although they finally admit long-term bans for certain politically sensitive
cases, such as barring child-sex offenders from working with children.
23. See also Radice (2012). To understand how courts could support this process see
Maruna and LeBel (2003).

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24. As Maruna (2009) rightly argues the existence of a ban for ex-offenders affects the
time to redemption.
25. However, the fact that something is not explicitly forbidden does not mean that it is
permitted. This conclusion is only valid when the normative system has a closening
rule that authorizes this conclusion. This happens in criminal law, but it cannot be
assumed in civil law (or labour law). See Alchourron and Bulygin (1971). I thank
Professors of Jurisprudence, Jose Juan Moreso and Pablo Navarro for this
explanation.
26. It is generally considered reasonable for an employer to ask a job applicant about
their criminal record (Mason, 2010: 11).
27. In Germany it is admissible only for positions that require personal integrity and
asking only for convictions directly relevant to the job (Morgenstern, 2011).
28. For Spanish labour law academics, criminal records constitute protected personal
data-like information about an individuals politics, trade union affiliation, religion, health and sex life (see Larrauri and Jacobs, 2013). Some European countries
restrict even the possibility of an individual person to apply for their own information. In Sweden, until 1989, not even the individual subject had access to his or
her criminal conviction history (Backman, 2012a); or not without the intervention
of an intermediate organization that decides which information can be provided to
the employer (the Netherlands); or allowing consultations but not letting written
information to come out from the register (Germany); or having to specify the
purpose for which the CRC is asked (Finland).
29. Art. 14: 1. Member States shall provide that personal data received from or made
available by the competent authority of another Member State may be transmitted
to private parties only (...) for: (i) the performance of a task lawfully assigned to it;
(ii) the prevention, investigation, detection or prosecution of criminal offences or
the execution of criminal penalties; (iii) the prevention of an immediate and serious
threat to public security; or (iv) the prevention of serious harm to the rights of
individuals (emphasis added).
30. The European Union Directive 95/46/EC of the European Parliament and of the
Council of 24 October 1995 on the protection of individuals with regard to the
processing of personal data and on the free movement of such data, clearly considers criminal convictions sensitive personal data (Art. 8).
31. The Council of Europe Recommendation No. R (84) 10 of the Committee of
Ministers on the Criminal Record and Rehabilitation of Convicted Persons that
tries (2) to ensure that only the authorities responsible for the criminal justice
system and those exceptionally authorized under the legislation on criminal records
may receive the full list of entries on the criminal records; other public bodies or the
person concerned receiving only partial extracts.
32. The tensions that confidential criminal records create with the publicity of judgments are clear; this is usually handled by arguing that although the judgment is
public the criminal record is not. For a discussion see Leith and McDonagh (2009).
33. Not even with the consent of the prospective employee. See second-stage consultation of social partners on the protection of workers personal data (launched by

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34.

35.
36.

37.
38.
39.

40.
41.

42.

43.

67

the European Commission): In any case, requesting from a worker his/her criminal
record, without specifying which particular criminal convictions are considered
relevant in relation to the employment at issue, is prohibited, even with the concerned workers consent (emphasis added).
However blanket bans might differ between countries. For example, in the
UK a criminal background check could disclose convictions, cautions and
warnings indefinitely (Zalnieriute, 2013), whereas in Spain a blanket ban normally means exclusion on the basis of unspent convictions (i.e. five years after the
sentence has been served). Therefore the amplitude of the blanket ban is also
variable.
This is the goal of Ban the Box campaigns (Henry and Jacobs, 2007).
Interestingly security guard was not an occupation that according to some North
American lower courts could justify a blanket exclusion of convicted people
(Aukerman, 2005: 40), whereas in Europe this is usually an occupation excluded
to ex-offenders.
Several authors (Larrauri, 2011; Thomas, 2007) have criticized using criminal records as a proxy for future risk instead of relying on other risk assessment tools.
Something that should be kept in mind is that offenders with a criminal conviction
record usually have already served their sentence.
The Spanish Constitution (Art. 25) provides that criminal punishments involving
deprivation of freedom should aim towards rehabilitation and social integration.
The Spanish Constitutional Court (STC number 77/1985, 27 June) addressed
whether a law, that contains a bar to some, or all public employment, would
infringe the Spanish Constitution. The Court said: (a) The restriction of rights to
people with criminal records, is justified only for crimes of a certain gravity;
(b) when there is a legitimate goal (e.g. the need to protect the youth and infants);
(c) and this requirement does not totally impede the opportunity to rehabilitation
because it allows for the expungement of a criminal record after some time. In
Spain to expunge a criminal record means that his criminal record will not be
disclosed when the subject asks for his CRC, and it will only be visible to judges.
An occupational disqualification can be a sentence or a court order added to a
sentence (see note 44).
An argument already advanced by American Bar Association (cited by
Aukermann, 2005); Chin (2012); Demleitner (1999); Love (2002); Pinard (2010);
and Von Hirsch and Wasik (1997).
This refers to the problem of plea bargaining and offenders being unaware of what
the collateral consequences will be. The Padilla v. Commonwealth of Kentucky (559
US 356 (2010)) decision requires that this be explained. See generally Love and
Chin (2010).
In Spain an occupational disqualification sentence exists and they are not used
excessively. A Disqualification Order also exists in the UK under the Criminal
Justice and Court Services Act 2000: The Disqualification Order is an added
part of a sentence when someone receives 12 months or more custodial sentence
for designated offences against children.

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44. The difference between a sentence and a court order, as stated on Court of Appeal
in Field and Young ([2003] 1 WLR 882), is that in the latter case it does not have to
respect all the principles of punishment. Collateral consequences of a sentence, such
as the exclusion of certain jobs (on the basis of a criminal record), are not considered punishment, but a restriction of rights.
45. Surely there are many other aspects in need of discussion. To point out a few
stimulated by Duff (2013): (a) Should it be mandatory for employers not to hire?
(b) Should it leave some place for automatic exclusion done by professional bodies
only on the basis of a criminal record?
46. Besides barring employment, a particularly severe collateral consequence of conviction is deportation.
47. Or even to arrest records (James B. Jacobs, personal communication).

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Elena Larrauri Pijoan is Professor of Criminal Law and Criminology in Universitat

Pompeu Fabra (Barcelona). Her research interests are: criminal records; community sentences; and gender and criminal law. She has been awarded a Fulbright-la
Caixa and Alexander von Humboldt Scholarship, is President of the European
Society of Criminology (20072010) and she is All Souls Visiting Fellowship for
20132014. For more information see: http://www.upf.edu/criminologia/

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