The criminal justice system must have the capacity to deter criminality, to detect crime when it is committed, to prosecute offenders and to ensure that whatever punishments are handed down by the courts are served. The law-abiding decent citizenry of this country deserves no less. However, when a person has paid his or her debt to society, it is in the best interests of society and of the offender that the person is rehabilitated and reintegrated with all speed. Any gap between so-called normal society and the offender is liable to be filled by more offending. This must be avoided by a focus on youth diversion and by the use of non-custodial options, such as probation, community service and restorative justice. Members will be aware that in his time in office, the Minister has made it a priority to resource non-custodial alternatives to imprisonment. None of this is to state that the Government is not in favour of sending people to jail. However, it believes that imprisonment has its place in a properly planned and resourced penal system, which is something it expects to see emerge from the work of the penal policy review group that is sitting at present.
To digress for a moment, in this regard the Minister hopes the fines (amendment) Bill can be published and enacted this year in order that imprisonment for non-payment of fines can be consigned to history, which is where it belongs. As I indicated earlier, jail should only be used where appropriate. It is not the place for the person who cannot pay his or her television licence. Other alternatives are needed to deal with the person who either cannot or will not pay a fine. In the fines (amendment) Bill, alternatives such as attachment of earnings orders, community service and recovery of assets will be available to the courts where a person has failed to pay a fine, and of course, payment by instalments will be available to all.
I will revert to the Criminal Justice (Spent Convictions) Bill. As I observed, Members must do everything in their power to assist people who fall foul of the law to integrate quickly back into society. It is often said, somewhat tritely, that the best antidote to poverty is a job. The best antidote to criminality is full and active participation in society and in so far as employment is an element of this, then a job and the discipline that goes with it is critically important. This Bill has the capacity to assist people in securing and retaining employment.
The discourse on the Law Reform Commission, LRC, report and on the Bills produced on foot of it, as well as on this Bill in the Seanad, has been marked by its maturity. I look forward to the same considered approach in this House during the passage of the Bill and can assure Members on behalf of the Minister that although the Bill as published last May has been amended substantially, he is open to proposals that will improve it further and looks forward to the debate. A unique feature of this legislation is that when it is compared with the original draft Bill by the Law Reform Commission, almost all of the changes are in the direction of making the Bill more liberal, if that is the right word, in respect of most of its key provisions. As the Minister has stated previously, it is his strong view that if legislation like this is to have any meaningful impact, it must err on the side of generosity to the offender who has paid his or her debt to society, has left criminality behind and just wants to move on. The provisions in this Bill are intended to discourage recidivism and support the rehabilitation and reintegration of offenders back into society.
This Bill has an important contribution to make to the reintegration of offenders and in my opinion it manages the delicate task of striking the right balance between the legitimate interests of society at large and the legitimate aspirations of the offender who wishes to get on with his or her life. It is important to state the Bill is not a criminal or police records Bill and it does not change a person's criminal record in any way. Instead, it focuses on what the offender is required to disclose if he or she is asked whether he or she has a criminal conviction when, for instance, he or she is applying for a job. In that respect, it is a self-administered regime. A person applies the law to his or her own circumstances, determines whether his or her convictions are spent and makes the necessary disclosure. There is no application process, no lawyers are required and no expense needs to be incurred. Having said that, the Minister is fully aware that to the lay person legislation can appear impenetrable, and to address this he has asked his officials to ensure that when the Act is commenced, explanatory material is available on the Department of Justice and Equality's website and elsewhere.
The Bill will allow ex-offenders, after a certain period has elapsed since their sentences were imposed, to move on with their lives. All Members know people, now in their 20s or 30s, who ran foul of the law for a relatively minor offence in their late teens or early 20s and who believe the spectre of their conviction looms over their efforts to move on with their lives. While it is possible that in some instances people are overly concerned that the fact of a conviction will discourage would-be employers from recruiting them, the fact that people have such beliefs is something that Members, as legislators, must take seriously. I should note in passing that there is an extensive and very generous spent convictions regime already in place for children, under section 258 of the Children Act 2001. In this Bill, the Government proposes to put in place a similar, if somewhat more restrictive, regime for adults. While the approach to the drafting of the Bill originally and to the amendments that have been made to it since its publication have all been in the direction of making it accessible to the greatest number of people, the Minister always has taken the view that there are certain convictions that can never become spent. In particular, convictions for serious crimes, which are defined in the Bill as convictions for offences that fall to be tried by the Central Criminal Court, such as murder, manslaughter or rape, or sexual offences covered by provisions of the Criminal Law (Sex Offences) Act 2006, can never become spent.
Spent convictions legislation has three key elements: the range of sentences that may become spent, the length of time a person must wait - without being convicted again - before the conviction is deemed spent, and the types of employment that are covered by the legislation. I will turn first to the sentences that may become spent. The Law Reform Commission report had recommended that only custodial sentences of six months or less could become spent. Having considered the various views expressed by interested parties, the Minister has taken the view that six months is too short. The Bill provides that sentences of up to 12 months may become spent. Furthermore, in the course of the passage of the Bill through the Seanad, the Minister brought forward an amendment to allow for suspended sentences of up to 24 months to become spent. Returning to the 12-month threshold for custodial sentences that is provided in the Bill, this covers approximately 85% of all persons committed to prison each year. The remaining 15% are by definition in prison for serious offences and are not covered by the legislation.
The second key variable is the rehabilitation period - that is, the period during which the person must remain conviction-free in order for a conviction to become spent. The LRC report provides for a relatively crude system whereby custodial sentences would attract a seven-year rehabilitation or waiting period and non-custodial sentences a period of five years. In the period before and since the publication of the Bill last May, the Minister has considered the various viewpoints put forward suggesting these periods are too long. The Bill as published provided for a more graduated approach while maintaining the seven and five-year thresholds. However, having considered the matter further, the Minister introduced an amendment in the Seanad that reduced the maximum rehabilitation periods to five years for a 12-month custodial sentence and to three years for a fine exceeding €5,000. He also made consequential changes to the other rehabilitation periods and simplified the categorisation of sentences. The Minister is satisfied that the regime now before the House, with some rehabilitation periods as short as two years, is proportionate.
The third variable is the range of employment in respect of which persons seeking work would be obliged to continue to disclose their convictions. Needless to say, this is a highly complex area with a wide divergence of views as to what should be included or excluded. I hope Members will agree that the Bill keeps the list of excluded employment types to the minimum. These are predominantly those relating to the administration of justice and the security of the State. The Bill, as amended in the Seanad, does not now list those employment types relating to children and vulnerable persons that are excluded but instead provides that any employment or activity that is included in the Schedule to the National Vetting Bureau (Children and Vulnerable Persons) Act 2012 is an excluded employment for the purposes of the Bill. This linking of the two legislative items makes it clear that the Criminal Justice (Spent Convictions) Bill cannot be used to circumvent the intentions of the aforementioned vetting Act. Outside of that, most employment types are covered by the provisions of the legislation. The LRC report had proposed that the entire civil and public service be excluded.
The Minister decided against that approach and has, instead, targeted the exclusions to sensitive employments in the Civil Service. He has provided that other sensitive posts can be added by ministerial order, but only on request from the Public Appointments Service, a body that is recognised throughout the State for its reputation for integrity, probity and fairness. I reiterate what the Minister said previously on this issue. The public service, as a major employer should provide a lead to the rest of the country in an area of public policy such as this and we believe that this Bill excludes the smallest number of public service employments possible, consistent with our legitimate concerns regarding sensitive areas. We have consciously decided against excluding swathes of the public service, as to do so would send out the wrong signal. Finally on the employment issue, even in the case of excluded employments, we expect that responsible employers would not allow a minor conviction from a number of years ago to prevent them from taking on the best man or woman for the job where the conviction has no bearing on their capacity to do the job. Responsible, fair employers have a duty to treat people fairly and with respect. All things being equal, the best person for the job should get it.
I refer to the main provisions of the Bill. Section 1
is a standard provision containing the definitions of terms used in the Bill. I draw the attention of Deputies, in particular, to the definition of "excluded conviction" as a conviction resulting in a jail sentence of more than one year; a conviction in respect of an offence reserved by law to be tried by the Central Criminal Court; and a conviction in respect of a sexual offence. The custodial sentences covered by the legislation are listed. Essentially, the legislation covers any sentence of one year or less, whether imposed as one sentence, as consecutive sentences, totalling one year or less or as concurrent sentences, the longer or longest of which is one year or less. Non-custodial sentences are defined as including suspended sentences of up to two years, fines, probation orders, community service orders and restriction on movement orders.
Section 2 is a key section. It sets out the circumstances in which a conviction may become spent once a conviction free period has elapsed. The Bill is retrospective and applies to all convictions, regardless as to when they occurred. No more than two convictions may become spent. Section 2(2)(c) provides that a person must have complied fully with any sentence imposed to benefit from the scheme. Section 2(2)(e) provides that where a person has more than two convictions, the first two qualifying convictions, in date order, are the two that can become spent. Section 2(4) was added to the Bill in the Seanad. It provides that where a person is convicted of more than one offence at one court sitting, this may be treated as one order of conviction for the purposes of the Bill. This is intended to address the situation where a person is convicted of a number of related issues at one court sitting, for example, a number of road traffic offences or a number of public order offences relating to one incident. Without section 2(4), the two-conviction limit could be used up or exceeded in one go and the Bill would be of no benefit to many of the people it is intended to assist.
Section 3 deals with applicable relevant periods, that is, the time before a conviction can become spent. The relevant periods are set out in tables under Schedule 2. Part 1 of the schedule deals with custodial sentences and Part 2 with non-custodial sentences. Section 3(3) provides that the relevant period commences on the effective date of conviction, which is defined in section 1 as the date the sentence becomes operative in most cases.
Section 4
covers the situation where further convictions are incurred during the relevant period. While the general position is that the relevant period must be conviction-free for the conviction to become spent, provision is made to allow for both a first and subsequent relevant conviction to become spent, where the subsequent conviction is incurred during the relevant period for the first conviction. In this case, the relevant period applying is whichever expires later. I refer to a relatively simple example where a person has a conviction with a three-year rehabilitation period and during that time, he or she is convicted again of an offence carrying a five-year rehabilitation period. In this scenario, the rehabilitation period for the first conviction will be extended to the end of the five years applying to the second conviction and both will become spent together at that time. The rule in section 2(2)(e) stating that no more than two convictions may be deemed spent continues to apply.
Section 5
provides that, in general, a person who has a spent conviction may not be required to disclose it. Section 6
deals with how spent convictions are to be treated in the course of court proceedings. Section 6(1) provides that no evidence of a spent conviction is admissible in court proceedings. It also provides that no question can be asked regarding a spent conviction and, if asked, need not be answered. However, section 6(2) provides that a court may require the disclosure of a spent conviction, if justice demands it, but the court will take whatever steps it deems necessary to prevent or restrict publication. Section 6(3) sets out a number of scenarios where a person may be required to disclose a spent conviction: in criminal proceedings, where he or she is a party or a witness; in adoption, guardianship or custody proceedings; in proceedings relating to the provision of accommodation, care, training, or schooling for a child or vulnerable adult; or where the person consents to the disclosure.
Section 7
sets out limitations to the general effect. Section 7(1) provides that a person must disclose a spent conviction to An Garda Síochána under questioning following arrest, in an application relating to immigration or during an investigation under Part 3 of the Central Bank Reform Act 2010. Section 7(2) provides that a person convicted of insurance fraud must disclose such convictions when applying for insurance cover. In the Bill, as drafted, this provision was much broader, requiring the person to disclose all convictions. Section 7(2)(c) provides that the fact of a conviction being spent under the Bill does not cut across any disqualification, disability, prohibition or penalty otherwise imposed. For example, if someone is convicted under the Companies Acts and receives a suspended sentence, he or she may also be disqualified as a company director. This disqualification continues in force regardless of when the conviction becomes spent.
Section 8
deals with information sought by another state. The Bill only applies to Ireland and, therefore, a person may still be required to disclose convictions if the laws of the state making the request or in respect of which the request is made requires disclosure. This section does no more than restate the law as it stands. The Oireachtas cannot legislate extra-territorially to provide that our spent convictions regime will apply in other jurisdictions. While the section does no more than restate the law, it is important and, regrettably, will result in some people not benefitting from the legislation as they may have hoped or expected. Many of the people who contacted us as public representatives regarding this legislation intend to apply for visas, for example, to the United States. They fear that the disclosure of a conviction will preclude them from getting a visa. While I cannot comment on how the US authorities may deal with the disclosure of a conviction, people who are asked by another state to disclose all of their past convictions cannot rely on this Bill to avoid such disclosure. The request for the information is made under the laws of the issuing country and it is not in our hands to legislate that requirement out of existence. To avoid any confusion, if a person is asked by a foreign state to disclose all his or her convictions, in accordance with the laws of that state, he or she cannot hide a spent conviction and rely on this legislation to do so.
Section 9
provides that certain employments are excluded under the legislation. "Relevant work" is defined in section 1 to cover work or activities involving children and vulnerable persons that require vetting under the vetting Act, those mainly civil and public service employments listed in Schedule 3, and additional employments that are exempted by ministerial order under section 9(2). The subsection provides that the Minister may, by order, exclude other positions in the civil and public service at the request of the Public Appointments Service and having consulted with the Minister for Public Expenditure and Reform and any other Minister with an interest in the particular post.
We have taken a much more liberal approach to excluded employments than the LRC recommended and my sense from previous debates on the issue in this House and the Seanad is that there is support for this. However, in a way, there is a more important issue that goes to the heart of this legislation. A previous conviction, including one that resulted in the jailing of an individual, should not be a mark on that person for all time in all but the minority of serious cases. Instead, we, as a society, should encourage the person to move on and integrate himself or herself into normal society. Employers have a duty to consider all applicants for a job on their merits. Where they apply for a job in an excluded employment, including in the public service, there is an onus on the employer to only take the fact of a conviction, where this is declared, into account, in so far as it calls into question the capacity of the person to carry out the job. For example, there are a raft of minor convictions that one must disclose when applying for a position with children that have no bearing at all on one's fitness to do the job and a prospective employer should not allow its judgment to be jaundiced by the fact of a conviction that has no relevance.
Section 10 mirrors the provisions in section 9 in the case of licences. Persons applying for certain licences must disclose their convictions. These licences include public service vehicle, private security, taxi and firearms licences. Since the Bill was published, driver testers have been added to the list at the request of my colleague, the Minister for Transport, Tourism and Sport, Deputy Leo Varadkar.
Section 11 provides that where a person requests a copy of his or her criminal record from the Garda Síochána, the record is to be provided in two parts, with the spent convictions provided separately. This means that in most cases, a person who is required to provide a copy of his or her criminal record will be able to produce a clean record, provided that, if convicted, his or her conviction or convictions are spent. Sections 12 to 14, inclusive, are general provisions relating to expenses, transitional arrangements and the Short Title.
In framing this legislation, the Government has tried as far as possible to make it accessible to those who may benefit from its provisions. This is a relatively straightforward, self-administered scheme. Unlike in other jurisdictions, there is no application process, tribunal to attend, judge to satisfy, bureaucracy or cost. This is not to say the Bill - no more than most legislation - is easily understood by the layperson, particularly where the person has more than one conviction. Generally speaking, for most people with one conviction that is more than five years old, the conviction will be spent once the Act is commenced. The position is more complex for people with multiple convictions, some of which may become spent under the legislation while others may not. With this in mind, we have provided some worked examples in the appendix to the explanatory memorandum and officials in the Department of Justice and Equality are working on a frequently asked questions booklet that will be available on the Department's website once the Bill is enacted. The booklet will set out the position in layman's terms for a range of circumstances in which people find themselves and will be added to over time as new scenarios emerge.
This is a landmark Bill, which is complementary to the National Vetting Bureau Act. It allows Ireland to join the vast majority of its European Union partners in providing a mechanism whereby people can leave behind a past misdemeanour and move on with their lives. It is not a panacea for every ill, nor does it claim to be, but a measured approach that will allow the vast majority of people with convictions to move on. It is another step on the road to the development of a more mature approach to how we deal with crime generally. As I stated, society and the individual both benefit from the earliest possible rehabilitation and reintegration of offenders. I commend the Bill to the House.
