I move: "That the Bill be now read a Second Time."
Spent Convictions Bill 2007: Second Stage.
I am pleased to present the Spent Convictions Bill 2007 to the House as a Government supported Bill. I am especially pleased for the opportunity since I introduced it as a Private Members' Bill in October last year.
The core message in the Bill concerns the need to facilitate the rehabilitation of convicted persons and to do so in a way that not only benefits the individuals concerned, but that takes account of the wider interests of society, especially the protection of vulnerable persons. In particular, the Bill will facilitate rehabilitation through the reintegration of convicted persons into the workforce, and will allow them to build new careers.
I have held an interest in this area for some time. Previously, I introduced the Rehabilitation of Offenders Bill in March 2007, but it fell in the normal way following the general election in 2007. The Bill takes account of the very valuable and insightful report from the Law Reform Commission published in July 2007. In producing its proposals for reform, the Commission undertook a very wide-ranging examination of the issues involved, including a very useful review of arrangements in other jurisdictions. As a result, the report is comprehensive. Its conclusions are well argued and take full account of Irish conditions. I am satisfied, therefore, that we can have confidence in the proposals for reform contained in the report. It was this belief that led me to introduce the Bill. The Law Reform Commission consulted very widely in preparing the report.
The Bill began as a Private Members' Bill. As a private Member, I did not have access to the advisory and drafting services of the office of the Attorney General. However, since it has been adopted by the Government, the necessary legal and drafting expertise has been available. The Bill is being examined and this will probably result in some amendments during later the stages. The amendments will clarify and expand some of the Bill's provisions. I will, in so far as possible, identify in my remarks today those matters that may require amendment, but the primary objective of the Bill, that is, the achievement of rehabilitation through employment, remains intact.
Based on its preliminary assessment of the Bill, I confirm that the office of the Attorney General is of the view that there is no constitutional bar to its enactment. The central point of the Bill is to provide to persons having a conviction for a minor offence the opportunity of not disclosing that conviction when seeking employment. There are several limitations and exclusions where disclosure will always be required, the most notable relating to employment where there is access to children. However, the fundamental point is that the Bill recognises that the most effective means of rehabilitation is through gainful employment. Employment restores the person's self esteem, it enhances his or her status among family, friends and the wider community and, as has been shown many times, it reduces very considerably the likelihood of re-offending. Securing employment is, clearly, a very effective way of achieving the reintegration of convicted persons into society. The Bill, therefore, addresses a significant gap in our present arrangements. At present we have no means of regarding a conviction as "spent", apart from the limited regime for non-disclosure available to minors under section 258 of the Children Act 2001. This Bill provides us, therefore, with the means to put a structured system in place for not disclosing convictions.
I accept that, in general, people should be allowed to move on with their lives after completing their term of imprisonment or the payment of the fine.
Unfortunately, experience demonstrates that the possibility of securing employment is greatly reduced once a prospective employer becomes aware of the existence of a criminal record and in the absence of any general statutory non-disclosure arrangement, the prospective employee often is obliged, when asked, to reveal the information recorded on the Garda criminal records. The effect of the current situation is that the person who was over 18 when the offence was committed must carry with him or her the consequences of even a minor offence long after the debt to society has been repaid. Most Members will agree that this situation offends their view of what is proportionate, fair and reasonable.
Although I agree the present arrangements should be altered, I also am anxious that a proper balance should be maintained between the interests of society generally on one hand and, on the other, the need to allow those who are prepared to rebuild their lives a reasonable opportunity to do so. In arriving at an appropriate balance, it is necessary to pay particular attention to the protection of vulnerable people. I will re-examine the definition of vulnerable persons in section 5(2) of the Bill to expand it to include persons who are vulnerable by virtue of their age and physical impairments, as well as intellectual impairment. While I am satisfied there should be disclosure of past convictions when seeking employment that entails access to any of those groups, it also must be said that disclosure of a conviction does not mean the offer of employment has to be or will be withdrawn. It does mean, however, that the employer can make a more informed decision in each such case.
There are other instances where disclosure of previous convictions also seems appropriate. For instance, in criminal proceedings, a court is entitled to be informed of previous convictions before sentence is passed for the offence being tried. In this way, the court is in possession of all the relevant facts and consequently can impose a sentence that is appropriate to the offender. It also means the court can properly distinguish between repeat and one-off offenders, which is how it should be.
I now wish to turn to the provisions of the Bill. The effect of a conviction being regarded as "spent" is set out is section 4. Where a conviction is "spent", the person will be treated as a person who has not committed, been charged with, prosecuted for, convicted of or sentenced for the offence in question. However, I must add the Bill does not entail any deletion of the criminal records held by the Garda Síochána. The record will continue to exist and the Bill will merely specify circumstances in which the details of that record are or are not to be disclosed.
The Bill will apply only in cases where a sentence of imprisonment not exceeding six months or a fine or other penalty has been imposed. The Law Reform Commission gave detailed consideration to the sentence threshold and concluded, based on Irish sentencing policy and practice, that a six-month threshold was appropriate in our circumstances. While I find the commission's argument to be persuasive, I am open to consideration of a slightly different threshold. The Bill refers to "prohibitions" and "disqualifications" when referring to other penalties. It is likely that I will seek to amend those terms to give them more precise meaning. I also will clarify, by way of an amendment, that the arrangements in this Bill apply only in the case of those who were 18 years or over when the offence was committed. In other words, this Bill will not affect the operation of section 258 of the Children Act 2001. I also intend to make clear that the Bill will apply equally to persons who were convicted prior to and after its enactment. In the case of those who were convicted prior to the Bill's enactment, they may benefit from its terms if they satisfy them.
The possibility of non-disclosure only will arise after seven years has passed without a further conviction when a sentence of imprisonment had been imposed or after five years in other cases. It might be argued that such periods are too long and that the best hope of rehabilitation arises where the offender secures employment very shortly after completion of his or her sentence. Undoubtedly there is merit in that view but a balance must be found between the needs of the offender and the need to protect society. One must therefore be satisfied that sufficient time has passed before society can feel assured that the offender has demonstrated his or her willingness to embrace society in a positive way. I am aware the Law Reform Commission's report examined this issue carefully and recommended the periods now proposed. Moreover, it noted that a conviction-free period of ten years is required in New Zealand. However, I am considering whether the conviction-free period required when a non-custodial sentence was imposed should be reduced slightly to, for example, four years.
The question of whether the specified period must be free of all convictions, even those of a very minor type, is also being considered. While there may be scope for some flexibility on this point on grounds of proportionality, lest there be any misunderstanding, the scope for movement probably is limited. It may be possible, for example, to make a concession where the penalty for the subsequent offence is a fine. However, I consider that such a concession should be allowed once only.
The Bill sets out a number of "exclusions" in terms both of offences and certain employments. In the case of offences, convictions for sexual offences always must be disclosed. Similarly, convictions for offences reserved for trial by the Central Criminal Court always must be disclosed. These offences include rape and serious sexual assaults, as well as murder. I will re-examine the manner in which the Bill expresses this provision as it may benefit from more explicit definition. For instance, all indictable offences are, strictly speaking, triable by the Central Criminal Court, since the Constitution provides that the High Court, or, in its criminal role, the Central Criminal Court, is a court of full and original jurisdiction. Therefore, on a strict reading of the Constitution, almost all cases are triable by the Central Criminal Court and could, therefore, be regarded as "excluded" cases for the purposes of this Bill. As that is not the Bill's intention, I will have the matter clarified. It has also been drawn to my attention that, for example, certain offences under the Competition Act 2002 are reserved for trial in the Central Criminal Court. I will examine that aspect to ensure the Bill refers only to those offences that are of particular relevance and importance. I also wish to take account of the fact that while certain offences are reserved for trial in the Central Criminal Court, some, such as murder, also may be tried in the Special Criminal Court.
As regards "excluded" employments, the Bill provides it should always be necessary to declare convictions when seeking employment in specified areas of employment. Section 5(2) of the Bill contains a list of such areas. Although I accept the principle that certain areas of employment should be excluded from the terms of the Bill, I will examine that list to ensure all the areas listed are appropriate and, equally, that none has been left out that should be included. In this regard, I accept the suggestion that there is a strong case for including non-paid voluntary work in certain sectors, as well as areas of employment that come within the remit of, for example, the Private Security Authority or the Taxi Regulator.
Apart from the "excluded" employments, the Bill requires the disclosure of all convictions in certain other specified instances. I already have mentioned that previous convictions are to be disclosed at the sentencing stage in criminal proceedings. Section 6 sets out other circumstances in which disclosure may be required, including court proceedings relating to adoption and guardianship of children, as well as cases in which a court considers disclosure is necessary to ensure justice is done. While the details of section 6 seem reasonable and acceptable in the main, I will consider other areas, such as the requirements that a person who has been arrested and detained in respect of a criminal investigation should not be entitled to avail of the non-disclosure provisions. Persons making applications under the immigration laws also should be expected to disclose past convictions.
The Bill proposes that the entitlement not to disclose a conviction should be automatic once the conditions relating to excluded offences and employments, the sentence thresholds and the conviction-free period had been observed. The case for such an approach is well argued by the Law Reform Commission and I agree with its proposal, as reflected in the Bill. Automatic application of the arrangements is preferable to one that is more demanding of time and resources. An application system, especially one that would entail applications to a court, would also present the real risk of drawing attention all over again to a conviction that the person hoped was behind him or her, thus defeating the purpose of the Bill. The automatic system now proposed avoids such shortcomings. It may be worth noting that the provisions about which I have been speaking regarding thresholds, excluded offences and employments, as well as the automatic application of the arrangements, are mirrored in the arrangements already in place under section 258 of the Children Act. Apart from the duration of the conviction-free period the offender is required to observe, a high level of consistency in approach as between adults and children will be achieved.
Some Members may remark on the absence from the Bill of any sanction for non-compliance. In general, the sanction lies in the consequences of being found out, which may, for example, result in the loss of employment. However, I realise that further assurance is needed, especially in respect of employment in certain sensitive posts. I therefore remind Deputies that the Bill does not entail a wiping out of criminal records, which will continue to exist and will be available to, for example, the vetting authorities. I already have mentioned that in the case of certain employments, convictions must be disclosed. In cases in which vetting arises and disclosure is required but the person fails to disclose a conviction, the existence of the conviction will be highlighted in the vetting process. This happens already under the current vetting arrangements and underlines the necessity of having such arrangements.
Employment vetting has been ongoing in Ireland for several years. Members will be aware its purpose is to ensure that employers, especially those in sensitive areas of activity, are in possession of all the relevant information about potential employees. It is important to understand that the vetting authorities are not the arbiters of whether a person gets, or holds on to, a job. Their function is to provide the employer or other specified body, such as the Health Service Executive, with all relevant information on convictions, as well as such additional information as may be permitted to be released. It then is a matter for the employer to come to a decision on whether to proceed with the offer of employment.
An expert group reported in 2004 on the current arrangements operated by the Garda in co-operation with other agencies such as the Health Service Executive. The group's report recommended that the vetting system should be put on a statutory footing and that it should address the question of soft information as well as hard information. Meanwhile, as Members are aware, a joint committee has been considering children's rights and it recently recommended the introduction of legislation to put on a statutory footing the vetting arrangements. This recommendation will be pursued as a matter of urgency in the coming months.
In respect of vetting, I wish to add that I am examining whether it is necessary to provide in this Bill that the responsibility of the Garda vetting unit will be to provide information on convictions on the basis permitted by this Bill, bearing in mind that the vetting unit has full access to the criminal records. I do not want a situation to develop whereby requests are made to the vetting unit that are designed to elicit information about a prospective employee which that prospective employee is entitled to withhold under this Bill. Such a scenario would undermine the whole basis for the regime being established by this Bill and would be a wasteful abuse of the time and resources of the unit. I stress that any amendment along the lines I have mentioned will not result in information being withheld where it must be made available, for example, on employment where there is access to children.
Before I conclude, I want to add a few remarks about the Bill's provisions in so far as they are relevant to our anti-discrimination laws and to foreign travel requirements. In its report on spent convictions, the Law Reform Commission looked at the question of including a person's criminal history among the grounds on which discrimination should be prohibited under our equality legislation. The commission decided not to make recommendations on the issue, as it raised matters such as access to services, accommodation and insurance that it felt were outside the scope of its brief. My colleague, the Minister for Justice, Equality and Law Reform, Deputy Dermot Ahern, tells me that he will, in due course, be carrying out a review of the Equality Act and the issue can be looked at in that context.
Finally, the existence of a conviction can also impact adversely on a person's freedom to travel. Within the EU, there is, as we are aware, very substantial and unrestricted travel entitlements for all but the most exceptional cases. The presence of a conviction, certainly a minor one, will therefore generally not present any restriction on internal EU travel. However, as regards travel outside the EU, entry requirements are a matter for the host state. This Bill applies only within this jurisdiction; it has no function in any entry requirements set down by other states on the granting of holiday visas, work permits or any other entry requirements.
I again acknowledge and thank the Law Reform Commission for its report. It has given us an opportunity to address an important issue, which can bring real benefit to the individuals concerned and to society as a whole. I also thank Mr. Michael Tuite BL who assisted me in the preparation of the Bill in the previous Dáil. I am happy to commend the Bill to the House.
I thank the Minister of State, Deputy Barry Andrews, for presenting this short but, nevertheless, important piece of legislation which has the broad support of the Fine Gael Party.
In July 2007, the Law Reform Commission published the report on spent convictions which included a draft Bill in the document. At that time, the then Minister for Justice, Equality and Law Reform, Deputy Brian Lenihan, welcomed the proposals contained in the report to expunge after seven years the criminal records of those convicted of minor offences. In October 2007, the draft Bill from the Law Reform Commission was published verbatim in a Private Members' Bill in the name of the Minister of State, Deputy Barry Andrews. Other than a key difference on the length of eligible sentence, and, indeed, the ordering of the sections, the Bill is almost identical to the one published by the Law Reform Commission.
In a survey of over 20 jurisdictions undertaken by the British Home Office in 2002, it emerged that of those jurisdictions only Ireland and Slovenia had no scheme in place in respect of adult offenders. The Law Reform Commission also highlighted the fact that Ireland is in a small minority at European and international levels in so far as it is one of the few states that does not have some form of arrangement in respect of spent convictions. This Bill will go some way towards addressing that issue.
The Bill includes a category of rehabilitated persons who will not have to divulge information about a conviction that is considered to have been spent or disposed of in some respect. Excluded sentences which will not qualify under the Bill include sentences imposed relating to sexual offences or sentences which involve a term of imprisonment exceeding six months.
This Bill will only include crimes for which people have been sentenced, including suspended sentencing, of six months or less. The Minister of State stated that there were a number of specific exclusions, and I agree with him, particularly on the disclosure of sexual offences. He spoke of the disclosure of persons coming into this country, particularly those who wish to take up residence in this country. It brings to mind the issue of the absence of an EU-wide sex offenders register, which is a matter to which this House has adverted on numerous occasions in the past and yet progress on which has been particularly slow. I would ask, perhaps in the context of progress of advancing this legislation, that the Minister of State and his Government colleagues might avail of the opportunity to impress upon EU colleagues, and this jurisdiction, the need to promote and bring into being an EU-wide offenders register, particularly in the areas of sexual offences and having regard to the increased social mobility of recent years.
The scheme in this Bill applies to persons not serving an excluded sentence and who have remained conviction free for the appropriate period of rehabilitation. I suppose it is true to say that the Bill will be aimed primarily at once-off offenders who had convictions for minor, no-violent offences, such as road traffic offences.
I note that the rehabilitation period will be seven years in respect of a custodial sentence for a term not exceeding six months, and five years for non-custodial sentences. Excluded employment, which is not covered by the Bill, will include those who work with children or those working with the intellectually disabled; those in health care work; those in the legal profession; all who work in the civil and public sectors; and some in financial related employment under the regulation of the Financial Regulator.
We will have an opportunity on Committee Stage to deal in considerable detail with the Bill. However, section 4 states that the general effect of a spent conviction is to ensure that a rehabilitated person will be treated for all purposes in law as a person who has not committed or been charged with or prosecuted for or convicted of or sentenced for the offence or offences which were the subject of that conviction.
An eminent barrister, Ms Caroline O'Connor BL, summed up what we are at in an article I read recently. She stated that the reality is that persons convicted of minor offences, and who receive fines and a criminal recorded, are often unaware that they have a criminal record for life, that a criminal record, however minor, can have adverse consequences in respect of, among other things, visas, employment, insurance, entry to professions and a vicious spiral may develop in that the ex-offenders are often unable to obtain a legitimate source of income and may resort to a life or crime or obtaining a livelihood by illegal means. This obviously leads to the possibility of further charges being brought, further convictions being recorded and perhaps even a spell of imprisonment. That is why I welcome the Minister of State's initiative and the manner in which he introduced the Bill from the backbenches. It is pleasing for him, as well as for the House, that he, as a Minister of State, is taking Second Stage.
There are persons, many of whom are in long-term employment, who have deep-seated worries and fears that they did not disclose a conviction because they might not necessarily have been asked to do so, and they fear that if their employer was to find out that their past involved a conviction, they might face summary dismissal from their employment. The fear is that people might suffer economically and that they would also suffer the social stigma of carrying a conviction for a longer period of time than might have been envisaged, having regard to the circumstances of that conviction.
There are, however, a number of concerns which, in the course of dealing with the small print of the legislation, we will have an opportunity of processing and examining. The rehabilitation period of seven years for custodial and non-custodial sentences of six months or less is excessive. While the Law Reform Commission recommended this timeframe, I would say that a period of two or three years would be more reasonable and fair in the circumstances. This is a matter we might look at.
As I already mentioned, the Bill is aimed at once-off offenders and offenders who have convictions for minor and, more importantly, non-violent offences. These offences include road traffic offences, minor thefts, minor criminal damage or non-payment of fines, offences that hurt properties and pockets, but not necessarily people. It is entirely appropriate that people who commit such offences should have a genuine opportunity to overcome their past by having their sentences expunged in circumstances where they do not re-offend. However, two issues arise in regard to the way this is approached.
The Bill suggests that the period to elapse before a conviction can be expunged should be five years where a non-custodial sentence is imposed and seven years in the case of a prison sentence. I do not criticise the Minister of State, Deputy Andrews, for this measure but I believe the Law Reform Commission exercised a greater degree of caution than what might be considered reasonable in recommending these overly long periods of time. The practical effect would be that a person who received a four-month custodial sentence for the non-payment of a fine would have to wait a full 84 months before he or she could cleanly move on in circumstances where he or she has not re-offended.
Why are we using prison for minor and non-violent offences in the first place and why, in particular, are we imprisoning fine defaulters? We should take a more reasonable approach because the routine use of custodial sentences for default is somewhat outdated and sentencing policy needs to be brought into the 21st century. I regret the fact that yet another Dáil session is ending without the introduction of the long-awaited fines Bill. The Fines Bill 2004 was withdrawn last year for reasons that have not been fully explained. By enshrining in legislation a provision for the payment of fines in instalments, we would contribute to ending the expensive and fruitless practice of sending people to jail for defaulting on relatively small sums of money.
I suggest that a more useful approach to the issue would be to review and reduce the use of short-term custodial penalties. I would like the Law Reform Commission to produce a report on this if it has not already done so. The rationale for such an approach is clear in terms of the cost and the revolving door syndrome. It costs €91,000 to keep one prisoner in jail for one year and Ireland has some of the highest recidivism rates internationally, with 27.4% of released prisoners serving a new prison sentence within one year and habitual criminality rates rising to 49.2% after four years. In light of these startling figures, one would have thought that alternative means of addressing the issue would be considered. The current practice is ineffective, a waste of resources and brings more people into the criminal justice system than necessary. These people could serve a sentence that is of value to society by way, for example, of community service rather than imposing yet another cost on the State. Of those committed to prison in 2007, 85.7% were as a result of non-violent misdemeanours such as offences against property, public order offences, drug and road traffic offences and other such administrative offences. It is illogical to punish a violent murderer and an individual who failed to insure a car in the same manner, with the punishment varying only in duration.
Our penal system operates on the basis of a series of statistical contradictions. In 1999, Ireland had the second lowest number of recorded crimes among EU states but by 2007 we were ranked as one of Europe's hotspots for crime in an EU survey. Our imprisonment rate per recorded crime is higher than other European countries but 85.7% of prisoners in 2007 were serving sentences for non-violent offences. Even as I speak, however, serious criminals are avoiding prison. The legislation on bail needs to be further tightened and a farcical situation has arisen in respect of bench warrants, tens of thousands of which remain outstanding.
Despite these failings, a record number of people are being held in prison. Figures released this week show that, with 4,042 people held in prison, we have for the first time exceeded the 4,000 mark. Prisoners are sleeping in the reception area of Mountjoy Prison and the governor will almost be required to put a "no vacancy" sign on the doors. Similar conditions can be experienced in other prisons throughout the State. The Minister for Justice, Equality and Law Reform has proposed additional places for Portlaoise, Castlerea and Wheatfield prisons. One wonders why, on the one hand, serious criminals do not appear to be serving full sentences while, on the other, people are being given short custodial terms for road traffic and other non-violent offences.
Prisons in Ireland are enormously expensive but offer little or no deterrent. Rather than developing a proper sentence management programme for each prisoner, cutbacks are being imposed on prisons' rehabilitative functions in regard to training and employment preparation.
I welcome the initiatives that have been made on restorative justice and commend Judge Mary Martin in that regard. However, I wonder what effect budgetary constraints will have on the implementation of the recommendations of the interim report on restorative justice. I am also concerned about the lack of tiered funding for the probation and welfare service. It is essential that the appropriate level of resources is directed at the service, with particular reference to the concept of restorative justice. Statistical data indicate that the latter has a good record for participation and due process.
The spent convictions project group, which comprises representatives from the Northside Community Law Centre, the Ballymun Community Law Centre, the Ballymun Local Drugs Task Force, Business in the Community and the human rights committee of the Law Society is also of the view that the scheme proposed by the Law Reform Commission is overly restrictive and limited and will make no significant impact on the rehabilitation of offenders or the reduction of recidivism rates. I may propose on Committee Stage a broader scheme which would be open to all offenders. Although this proposal could prove controversial, it nonetheless deserves detailed examination.
Fine Gael supports the introduction of this Bill and we pay tribute to the Minister of State, Deputy Barry Andrews, for introducing it. However, we are strongly of the opinion that the period of rehabilitation is too long and should be reduced. The Minister should take the opportunity to look at the short sentences being given to offenders by the courts and served within the prison system. Such people may be punished by alternative means and we can consider such arrangements.
I am also concerned about data protection and the manner in which, for example, job applications could be open to question for would-be applicants. Voluntary requests may be forced on potential employers on the one hand or potential employees on the other. How would such a provision of information, through the vetting unit or otherwise, sit in terms of data protection and has advice or guidance been sought from the Data Protection Commissioner on the manner of possibly compulsory disclosure or the nature of such a request?
For example, a question from a would-be employer might require access to Garda records with regard to past convictions. An example would be a query as to whether an applicant has availed of the provisions of the spent convictions legislation, if and when it is enshrined in law. That would defeat the purpose of the legislation and give rise to a serious issue for a person who may otherwise wish to avail of the provisions of the legislation. I look forward to further debate on this matter on Committee Stage.
I am happy to welcome the principle of the Bill introduced by the Minister of State, Deputy Barry Andrews. I am bound to say he has taken me by surprise somewhat as I thought that after insertion of a debate on banking this morning, we would not reach the Spent Convictions Bill until the new year.
I thought so too. I was in a meeting when it came up in the Chamber.
My colleagues dealing with previous legislation are clearly wearied after a very long session and as a result we are now dealing with the Spent Convictions Bill.
The Bill started life as a Private Members' Bill and I welcome its principle and commend the Minister of State, Deputy Andrews, for bringing the Bill forward. It is somewhat surprising that it has taken until the last days of 2008 to address this issue. The British Home Office did a survey some time ago of 21 different jurisdictions and, from my memory, only Ireland and Slovenia did not have some form of legislation dealing with the issue of spent convictions. The United Kingdom Rehabilitation of Offenders Act goes back to the mid 1970s — I believe it was 1974 — and it has taken us a long time to bring forward a relatively simple and straightforward measure that has considerable potential in the rehabilitation of young offenders in particular.
In his statement, the Minister of State indicated the central point of the Bill is to provide to persons having a conviction for a minor offence the opportunity of not disclosing that conviction when seeking employment. Any of us with knowledge of people convicted of minor offences know the route back to employment is difficult. It is very well to speak theoretically about rehabilitation and re-integration to society but the way to readjust to normal society is through employment.
We should be honest about the fact that a conviction, albeit for a minor offence of the kind anticipated by the Minister of State, Deputy Andrews, in this Bill weighs heavily on the minds of many prospective employers. They would not proceed to the stage of employment if a young person that might otherwise be suitable has a conviction on record.
For that reason I am concerned about the exclusion of the public service from the provisions. I apologise to the Minister of State as I was not in the House to hear his rationale in this respect but I have difficulty understanding the exclusion of the Civil Service. I know the Law Reform Commission went along with the exclusion but the logic seems to be that it is fine for us to require private sector employers to take this risk of employing somebody with a record but in the State sector, it is not to be considered under any circumstances. I do not know if this is logical.
In his statement the Minister of State went on to indicate that there are several limitations and exclusions where disclosure will always be required. He instances as the most notable of those cases where there is access to children. We must consider the area of limitations and exclusions on Committee Stage. In certain sensitive positions there must be exclusions, but I wonder if the provisions must be as wide as the Minister provides for in his Bill. The exclusion of the Civil Service seems to be a major issue before we get down to discussing the nature of certain offences.
Deputy Charles Flanagan referred to the group that came into existence — it may have been formed as a result of the Minister of State's Private Members' Bill or the Law Reform Commission report — that has done a good deal of work with this issue. It comprises people at the coalface and with direct experience, including lawyers. These include the Coolock law centre. The group has direct experience, especially with young people and of the phenomenon we are addressing here. It has put together quite a significant submission.
I do not know if the Minister of State has met representatives of the group or if he has had the opportunity to study the submission, but I recommend it to him. On Committee Stage we must tease out some of the issues raised by the group, including the exclusionary clauses. For example, it states:
Further safeguards would be introduced by the provision for exclusion from the scheme in respect of sensitive posts, positions or professions so that applicants would be required to disclose all previous convictions when applying for such positions. The group would recommend exclusions along similar lines to those proposed by the Law Reform Commission, including, for example, those working with vulnerable members of society.
So they accept that in certain sensitive cases exclusions are desirable, but we must be very careful. Having brought forward a piece of legislation that was introduced as a Private Members' Bill and has now been adopted by the Government, we are not likely to revisit this issue easily, having left it for so long. The Penal Reform Trust, the Law Society and the combination of organisations in the project group to which Deputy Charles Flanagan referred, have direct experience so they should be heard. I hope that the Minister will engage with them directly. The Select Committee on Justice, Equality, Defence and Women's Rights ought to hear from them directly also because the legislation is now on Second Stage. We owe them that much.
It is sad to see young males, in particular, who cross the line and end up with a criminal conviction, even though it may be for a minor offence. It is sad to see the implications of that early transgression for their future livelihoods and careers. The measure proposed by the Minister of State, Deputy Barry Andrews, will expunge that record for some of these young people. However, we could easily settle for a somewhat more radical and inclusive measure.
I was struck by the project group tackling sexual offences head on. As I entered the Chamber, I heard the Minister of State make some reference to that. The group acknowledges that the question of sex offenders is likely to prove controversial. It went on to contend that sex offenders would be entitled to avail of the scheme, stating:
. . . there would appear to be an innate prejudice against sex offenders, no doubt attributable to the heinous nature of their crimes, which leads to an assumption that they are predisposed to offend and are incapable of rehabilitation. This view, however, is not supported by research in this area. A recent UCD study found that sex offenders are less likely to reoffend than most other groups. It must be borne in mind that under the proposed scheme, sex offenders will have to establish before a central authority that they have been rehabilitated and this should go towards reassuring the public.
Quite honestly, I do not know enough about that issue to draw conclusions on it today. I would like to hear evidence on that aspect, however, which has been raised by people who have given some thought to this. Is there not already a provision in the Children Act for expunging criminal convictions for minor offenders?
There is a provision for all offences in the Children Act.
What does that say for the principle in terms of adults? Do we exclude adults in all cases in this particular category? Am I right in saying there does not appear to be any differentiation in the Bill between suspended sentences and jail sentences? As far as I can see from a quick reading of the Bill, both are regarded as custodial. If that is right, there ought to be a differentiation. That raises the question referred to by Deputy Charles Flanagan about the duration of the period for which someone must be conviction free. Seven and five years' duration seems a very long time indeed. The Law Reform Commission took a fairly conservative position on this matter. I really wonder whether seven and five-year periods are warranted. That is something we will have an opportunity to deal with on Committee Stage.
The fundamental question is why so many young people end up in custodial care for comparatively minor offences. It is a complex issue which we have been debating in other contexts during this parliamentary session, but we seem to have decided to provide more and more prison places rather than addressing questions of rehabilitation and reintegration into society. Some prison accommodation is badly in need of upgrading or replacement. However, the Thornton Hall venture is a massive prison project whose intention, clearly, is that custodial sentences are in prospect for non-violent and relatively minor offences. On the other scale of the criminal justice system, many normally liberal people would say that sentencing policy for far more serious and violent crime is inadequate in terms of the prison sentences meted out. Surely the thrust of our approach ought to be to keep people who are only guilty of minor infractions out of the custodial system. That question is at the very basis of what we are discussing here.
I hope that those who have gone to the trouble of doing some detailed research and who have taken time out to point up what they see as some of the weaknesses in the Bill before us, will be given an audience before we go into committee. On Committee Stage, we will have the opportunity to address in more detail some of the points that have arisen in the context of the Bill. I unreservedly welcome the principle of the Bill. It has taken a long time for us to get this far, but the legislation will be welcomed by tens of thousands of parents around the country whose young fellow, for whatever reason and at a young age, found himself in circumstances where unwittingly he now carries a criminal conviction. For the purposes of future careers, including employment applications, such convictions will be considered spent after a reasonable period. We may have to consider what a reasonable period or timeframe is because not all offences are the same. A six-month sentence threshold seems reasonable, but if one goes beyond that one may have difficulties. However, the significant variations within that rubric of six months should be reflected in the timeframe.
I look forward to the opportunity to tease out some of these issues on Committee Stage. I commend the Minister of State, Deputy Barry Andrews, on his effort and on managing to use his position, in a seat I once occupied, to set to one side the claims of his ministerial colleagues and secure time on the floor of the House to introduce this Bill.
Gabhaim buíochas leis an gCathaoir as ucht an deis seo a thabhairt dom labhairt ar an mBille um Chiontuithe Spíonta 2007, atá an-tábhachtach. Nuair a d'fhoilsigh an tAire an reachtaíocht seo anuraidh, ghabh mé comhghairdeas leis. Dúirt mé ag an am cé gur aontaigh mé leis an mBille, ba chóir dó dul i bhfad níos faide. Labhróidh mé mar gheall ar na fadhbanna atá agam leis an reachtaíocht níos déanaí. I dtús báire, díreoidh mé ar ghnéithe maithe an Bhille, atá thar am teacht os comhair na Dála.
This Bill provides for a non-disclosure regime whereby certain convictions would be considered spent rather than expunged and would not need to be disclosed to a prospective employer after a set period of conviction-free living, defined in the Bill as a rehabilitation period. The provision only applies to minor convictions involving a sentence not exceeding six months' imprisonment. Where a custodial sentence is involved, the conviction-free period must be seven years. In the case of a conviction that did not result in a prison order, the period is set at five years. A range of offences and employment types are expressly excluded.
I welcome the Bill, which represents the first time outside the Children Act that the State has recognised that a minor conviction should not hang over a person for the rest of his or her life. People make mistakes. Many of those who will be covered by the Bill made one mistake and suffered the consequences, namely, the courts and the judge's sentence. However, the conviction hangs over them for the rest of their lives. Not only do their choice of jobs become limited, but they are also limited in society.
I hope the Bill is the start of an understanding whereby, if a court finds against someone, the sentence handed down should not incur another sentence thereafter. The Dáil has taken the position that certain sentences must stand forever and be placed on a record of sorts, such as the sex offenders' and drug dealers' registers. I am not suggesting that there should be major changes made to either of those.
The primary objective of a justice policy must be to reduce crime, but it must also prevent re-offending. While the first purpose of handing down a prison sentence is to punish someone for wrongdoing, the second is to try to rehabilitate the individual. I hope the Bill adds incentives to prevent someone from re-offending. Too often, individuals go to prison on a small sentence, fall in with a bad crowd and stay with it when they get out. There does not seem to be an incentive. In their eyes, they have been labelled for life. I hope the Bill will reduce this consequence or explain that, if someone goes to prison on a small sentence or is handed down a non-custodial sentence, the label could be removed if he or she subsequently lives a crime-free lifestyle for a period of seven years or five years, respectively. This will ensure that people who have a desire to acquire gainful employment or some other position will understand that they have a duty to themselves and society to remain crime free. In so doing, they will benefit under the Bill.
Unwarranted barriers to employment and discrimination must be proactively removed. A range of barriers serve to inhibit the rehabilitation and reintegration of ex-prisoners in particular. The fields in which discrimination operates to exclude those with a prior conviction include employment, accommodation, travel and adoption, depending on the sentence. The judge in a number of cases in the 1980s was mindful of the circumstances of those before him and tried to encourage them to leave the State. Instead of giving a sentence, he gave them the Probation Act in case they ever wanted to go to America. It was a blatant hint. The judge gave people the opportunity to emigrate to America because if they had a conviction on record, they would not have been able to do so. Here we are again giving people an opportunity if they have committed a one-off mistake, such as being in the wrong place at the wrong time, fuelled by drink or so on. If they are genuinely remorseful, they will understand the terms set out in the Bill.
People with a conviction are discriminated against. The extent of the discrimination should not be either overestimated or underestimated, but a recent study found that 48% of employers would not employ someone with a criminal record. These barriers serve to exacerbate Ireland's high recidivism rate. If so many employers will not employ someone with a criminal record, irrespective of the nature of that record, the people to be addressed by the Bill will be excluded from a number of areas of employment. The Bill is welcome in this respect.
However, as a first step the Bill is small in scope and late. Britain has had a spent conviction regime since the 1970s, but we are still waiting for one. I hope the Bill will progress quickly so that we can catch up with other regimes. In February, the then Minister for Justice, Equality and Law Reform, Deputy Brian Lenihan, indicated that the Bill would be introduced in a matter of weeks, but it was not to be.
I hope the Bill will pass Second Stage quickly, but we must spend a bit of time on Committee Stage, as Deputy Rabbitte stated, to determine whether we can improve it without labouring the point. It must stand the test of time without being overly restrictive concerning those who have been convicted.
A more complex and proportionate regime than that contained in the Bill should be introduced. A scheme could be introduced whereby the duration of the rehabilitation period required would, depending on the length of sentence attached to the past conviction, vary. The current position is that the rehabilitation period in respect of a six-month sentence is seven years. Might it be possible to consider applying a ten-year rehabilitation period in respect of sentences of less than two years' duration?
Quite a number of individuals, particularly young people, serve sentences of more than six months. In that context, we should consider ways to encourage them to stay away from the characters they meet in prison and those who led them to be in prison in the first instance, and to avoid the type of activity that led to their incarceration. Knowing that their mistakes would be considered a thing of the past after ten years might provide such encouragement. It might then be possible to deal with sentences of more than two years' duration but the rehabilitation period relating thereto would obviously be much longer.
A further age-related tier, linked to the length of the rehabilitation period required, could be introduced in order that account might be taken of the age of those between, for example, 18 and 20 and 20 and 25. Under the overly cautious terms of the Bill, an 18 year old who commits a once-off minor offence may, as a result of the seven-year rehabilitation period, have a conviction hanging over him or her until he or she reaches 27 years of age because the rehabilitation period can commence up to two years after an offence is committed.
The rehabilitation period will only commence following incarceration. However, there are those who are arrested and subsequently convicted who do not avail of bail because they know they have been caught bang to rights and are willing to serve the first six to 12 months of a sentence because they have an idea of what will be the eventual duration of that sentence. These individuals will not benefit because the first 12 months detention before a trial takes place will not be taken into account. Perhaps time served prior to conviction in respect of the offence committed might be taken into account as part of the rehabilitation period.
Facing employment-related discrimination during the crucial years between conviction and the end of the rehabilitation period can be difficult, particularly for young people who may be trying to lay the foundations of a career. There can be lifelong consequences if these individuals are prevented from embarking on a set course of employment for seven years. I accept that such consequences result from the offence committed in the first instance. However, I am of the view that we should consider introducing a shorter rehabilitation period of perhaps five years in respect of those between the ages of 18 and 20.
We can tease this matter out further before Committee Stage, examine how similar regimes have worked in other countries and try to establish whether those regimes were tweaked in order to incorporate proposals such as that which I have put forward. We should also try to establish whether a shorter rehabilitation for younger people assists in reducing the rate of recidivism among them. The recidivism rate among young people in Ireland is one of the highest in Europe. I am not suggesting that we reward people for offences they have committed, I am concerned with ensuring that they do not reoffend and that they are given the opportunity to become upstanding members of society.
The provisions relating to excluded areas of employment in the Bill are too broad. It is crucial that work involving substantial access to children or vulnerable adults should be afforded special protection. No one denies that. However, because of the nature of this exemption from a spent conviction regime, I am of the view that the offence committed should have some relevance. For example, if a person is convicted of committing malicious damage or some similar crime, will he or she be excluded — for the remainder of his or her life or for the duration of the period in question — from accessing the opportunity to become a carer?
Are there offences which, if committed, should exclude people from working as teachers, special needs assistants, carers, youth workers, etc? Some of the individuals in question are often best placed to understand the young people with whom they would like to work because they understand the pitfalls of life better than those who have not been exposed to the justice system. We must be careful that we do not continue the type of exclusion that exists in many instances at present.
The available evidence suggests that the blanket exclusion relating to all posts in health care and the Civil Service and certain legal and financial-related posts is not justified. I accept that there may be certain offences which might exclude a person from taking up a position in the area of finance. For example, very few banks would employ someone who had committed a robbery. However, if the person in question were convicted of a public order offence, should he or she be excluded from occupying financial-related or legal posts? Having gone before the courts and been sentenced, he or she would probably have a better understanding of the legal system than many of those employed in the legal profession at present. Perhaps employing a few more former convicted felons in this profession might shake up the legal system and bring an air of reality to it. Where the nature of a past conviction is not relevant following a rehabilitation period, employers or others should not be presented with the unwarranted opportunity to discriminate.
A range of issues is not addressed in the Bill. The Minister of State must either produce separate legislation or incorporate new provisions in the Bill to address the situation relating to former political prisoners. The British-Irish Agreement was concluded ten years ago, but former political prisoners are still subject to grave discrimination in respect of many areas ranging from employment to adoption. I recently communicated with the Minister for Justice, Equality and Law Reform in respect of someone who was prevented from becoming a carer because the vetting process announced his former conviction to all and sundry and the HSE took a dim view of the situation. Even though the Minister stated that the conviction did not, in itself, bar it from employing the person, the HSE used it as such.
The Spent Convictions Bill does not go far enough in respect of the people to whom I refer. In light of what is contained in the British-Irish Agreement, the expunging of these records would send out a signal that Ireland has put the past behind us and moved on. The Government must tackle this issue head on.
A former Republican prisoner was annoyed when he and his partner were denied the opportunity to adopt a child based on a conviction which was more than 20 years old. There has been dramatic changes in our society and political make-up during the past 20 years. This person has served his prison time, which is sentence enough, and is now regarded by all and sundry as an upstanding citizen. The political nature of the conflict in Ireland must be recognised and this recognition must be extended to political ex-prisoners against whom discrimination must end.
As I stated, while this Bill may not be the appropriate legislation to address this issue, it nevertheless deals with related matters. I believe the Bill provides us with an opportunity to address that issue, for which I will argue on Committee Stage. In addition, prior to Committee Stage I will try to formulate an amendment which the Government may be able to take on board. Sinn Féin is not alone in arguing this point. The Human Rights Commission has proposed that equality legislation be extended to include the status of ex-prisoners as a prohibitive ground in terms of discrimination. This would also include political prisoners.
I welcome the Bill which, if passed as it stands, will be a welcome step. My desire is to have a better Bill, one that is extended to cover the issues I mentioned. Given the significant cost to the State of incarceration, anything we can do to prevent recidivism and further incarceration of people who have already served a sentence will augur well. By this I mean that we must put in place a proper rehabilitative scheme within the prison system which provides education and training to those wishing to better themselves during the period of their detention, thus benefiting the State thereafter. Unless this is followed up with a regime which permits such people to obtain full employment and to once again become full members of society who are not discriminated against owing to their past records, to the degree they have been to date, that will be money badly spent. This Bill will, it is hoped, save the State money and benefit society as a whole. If the Government takes on board the suggestions I have made, society will benefit and more ex-prisoners will be able to play a better and more productive role in society.
If this Bill is to contribute in a significant way to a long-term reduction in crime, it will require extensive amendment. I made some suggestions in this regard earlier and will make others in the future. The Minister would do well to reconsider prior to Committee Stage the proposals from the Irish Penal Reform Trust. While I could quote chapter and verse in that regard, I do not agree 100% with all that is contained in its submission. It is good that we are having this debate given the current climate outside the prison system. Crime, and in particular violent crime, is on the rise. This is associated with drug taking and drug dealing which is at an all time high. Our society is becoming more violent.
While we send out the message that we will be tough on those who commit crime, we must also send out the message that those people caught up in a once-off situation, who make a mistake and who are genuinely remorseful after an incident, will be given the opportunity to rehabilitate. As I said earlier, this is, at the end of the day, the role of our justice system. We must permit people following completion of a prison sentence imposed by a court to once again become a full member of society. A person against whom society discriminates is not a full member of society. There are offenders who, given their nature and the likelihood of re-offending, in particular sex offenders, must be monitored and tracked to ensure they do not have an opportunity to re-offend. Many people are sentenced to prison for relatively short periods and relatively minor offences. There is no incentive, other than the goodwill of society or the threat of a greater sentence, for them not to re-offend. Often people who have been in their view harshly sentenced have a desire to get back at society. We must ensure that under the new regime there is, as stated by the Irish Penal Reform Trust, sufficient flexibility of proportionality in this regard.
It is hoped that through our discussions on Committee Stage we will succeed in ensuring that the Bill, when passed, will be something of which we can all be proud.
I thank Deputies for their contributions and for their welcome for the Bill.
The intention is that the Bill will be used by judges, probation officers and those working with ex-offenders, including prison officers. Judges when considering what sentence to hand down to a person must have regard to the need to punish an individual, the need to deter others, the need to protect society and to rehabilitate. The Bill is a useful measure which will allow a judge to advise an offender on conviction and sentence that there exists a facility through which he or she can restore himself or herself to society. Equally, it will be a useful measure for those working with offenders.
In general, detention is a last resort in sentencing under our criminal justice system. The Probation Act is widely used by judges and the youth diversion programme is widely used by the Garda Síochána. Also, more emphasis is now being placed on restorative justice. This means that those in custody are not put there lightly. We do not like to detain people and will use this measure only as a means of last resort.
The number of people captured by the Bill, in terms of the six month period set down, is substantial. More than 60% of sentences are on average for six months or less, thus meaning the provision will capture a large category of people. This does not mean that we will give up on the other 40% in terms of rehabilitation, but that this measure will be available to those offenders who have short custodial sentences. There is no doubt but that the recidivism rate in Ireland is high. This Bill does not represent a magic wand which will end this, but it will provide assistance to those people working with ex-offenders.
On Deputy Rabbitte's point, I have met with the Law Society which has its own committee on this issue. I have also spoken with representatives of the Irish Penal Reform Trust and businesses in the community who work closely with ex-offenders. They have given me some useful advice on this matter. On the employment situation, I must point out that although certain employments are excluded, this does not mean a person cannot obtain a job in them. That door is not closed to them. They must, however, disclose any conviction to a prospective employer, including in the public service, Civil Service and all other categories. Such people may still seek work but must, if asked, disclose any previous convictions. That is the only change that will be introduced. However, I will examine the question of the public service and whether we can narrow it down into a more targeted approach so that we can try to ensure individuals can access non-sensitive jobs in the public service and Civil Service.
I will not change the situation regarding sex offenders. Deputy Rabbitte made the point that they may be less likely to reoffend. That is perhaps true but the consequences of them reoffending are so great as to not permit me to ask any employer to take a risk on non-disclosure in those circumstances. In regard to suspended sentences, it is only the custodial part of a sentence that is considered in respect to the six months that is referred to in the Bill.
Regarding adoption, most adoptions currently are inter-country adoptions. Therefore, they are based on agreements with other countries and it would be asking a lot to expect other countries to have agreements with us concerning adoptions by ex-offenders. It may be a step too far. That said, I look forward to the Committee Stage debate on the issue.
Deputy Charlie Flanagan's remark that the rehabilitation period is too long was echoed by others. The thinking behind it is that the Children Act specifies a period of three years and the Law Reform Commission recommended at least double that in respect of adults. However, we will listen to the debate that takes place on those rehabilitation periods to see whether there is a justification for shortening them. There is no question of lengthening them.
The major objective of the Bill is to facilitate the rehabilitation of offenders. That is a worthy objective that benefits not only the individual concerned, but also society at large. It is in the interests of society generally that we break the cycle of crime. There are many ways of doing that but securing steady, gainful employment has been shown to be among the most effective and useful. The aim of the Bill is to reduce the barriers to the re-entry into the workforce of a person who has a conviction for a minor offence.
It is important to be clear about the precise manner in which the Bill approaches the matter of past convictions. The Bill does not entail a deletion or removal of the details of the conviction from the criminal records. Instead, it sets out the circumstances in which such details need not be disclosed. The Law Reform Commission summarised the position very well. Its report debates the balance between the individual and wider society. The individual will feel he has served his punishment and should be allowed to rebuild his life. He will be concerned that his privacy is breached each time he has to reveal an old conviction. However, society, on the other hand, has a proper interest in maintaining a permanent record of criminal convictions, in order to ensure reliable vetting for sensitive employment posts.
Following that debate, the commission has presented us with a proposal which I and the Government think is reasonable and acceptable and which finds the right balance between the interests involved. The proposal respects the needs of wider society while also moving a considerable distance to meet the legitimate concerns of minor offenders. It achieves that by permitting non-disclosure while placing reasonable limits on the circumstances where that may arise. The commission suggests that the limits are justified by reference to the nature of some convictions as well as the requirements attaching to certain types of employment. We all know of certain employments where information about past convictions is always a relevant consideration.
Many public service and Civil Service posts entail the job holder acting in a position of trust in regard to public funds or information that is confidential or sensitive and which must not be revealed either because it is personal or it would not be in the public interest to do so. It is important that the public retains trust and confidence in those to whom they entrust such information or who disburse the public's money. It is, therefore, important that people in public service and Civil Service posts are known and are seen to be above suspicion. Ensuring they have no criminal convictions is an important means of providing the assurance that the public requires.
There are also certain offences that must always be disclosed. Particular offences are selected by reference not just to the offence itself, but also by reference to the employment situations. It would never be acceptable, for example, that a person with even a minor conviction for a sexual offence would be allowed to work with children or vulnerable adults.
The Law Reform Commission's proposals and the Bill build on the regime already in place under the Children Act 2001. Although the regime for children is somewhat broader in terms of, for example, the offences that need not be disclosed, it nevertheless represents the same general approach that is found in the Bill. The difference in treatment can be explained and accepted on the basis of age and the need to avoid branding persons on the basis of their childhood activities.
I am aware that it will be necessary to amend the Bill in several respects and, in the course of my opening remarks, I have already identified several matters requiring amendment. It may take a little while to finalise the amendments. Nevertheless, I have no hesitation in saying that the overall approach being set out in the Bill is a good one that will benefit many thousands of people. The amendments will not alter the overall approach but will help clarify aspects of the Bill. For today's purposes, I am happy to wholeheartedly recommend the Bill to the House.
Question put and agreed to.