merrion street

A Cheann Comhairle,

I am standing in for Minister Shatter who is in Brussels to chair a meeting of the Justice and Home Affairs Council.

I am pleased on his behalf to be able to present the Criminal Justice (Spent Convictions) Bill 2012 to the House today.

Over the years many interest groups have called for the introduction of spent convictions legislation in Ireland. Their calls got a major leg-up when the Law Reform Commission published its landmark Report on Spent Convictions in 2007. That Report was based on robust analysis and provided a solid platform from which the matter was catapulted onto the floor of this House on two occasions. The Report, as you know, contained a draft Bill which has been before this House twice. First, Deputy Barry Andrews introduced it as a Private Members Bill which was taken over by the then Government, but which lapsed on the dissolution of the last Dáil. In May 2011, Deputy Calleary brought the Bill forward as a Private Members Bill in the form of the Spent Convictions Bill 2011. While those Bills contained the flaws that had been identified in the draft produced by the Law Reform Commission, they had the effect of keeping the issue on the agenda and when Minister Shatter replied to the Second Stage Debate on Deputy Calleary’s Bill on the 7^th of June 2011, he announced that the Government would not be opposing the Bill at Second Stage but indicated that the Government would be bringing forward its own Bill, without delay. This we did with the publication of the Criminal Justice (Spent Convictions) Bill 2012 last May.

In drafting this Bill during the latter part of 2011 and in early 2012, the Minister was keen to take on board the views of members of the Oireachtas and the various interests parties outside these Houses. I want to particularly mention on his behalf, the Irish Human Rights Commission and the Irish Penal Reform Trust, both of whom have produced considered reasoned analyses of our proposals. The Minister has reflected on the issues they have raised and where possible has taken them into account in the drafting of the Bill. Deputies will be aware also that the Bill before this House today has been amended in a number of significant respects in the other House to take on board the views expressed on the Bill as published.

The Minister has come to this Bill with an open mind. Open to the extent that he is convinced that our criminal justice system must achieve a number of complementary objectives. It 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 deserve no less. But 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 "normal" society and the offender is liable to be filled by more offending. This we must avoid by a focus on youth diversion, and by the use of non-custodial options, such as probation, community service and restorative justice. The House will know that the Minister has made it a priority in his time as Minister to resource non-custodial alternatives to imprisonment. None of this is to say that we are not in favour of sending people to jail. But we believe that imprisonment has its place in a properly planned and resourced penal system, something we expect to see emerge from the work of the Penal Policy Review Group that is currently sitting.

If I might digress for a moment, I want to mention in this regard that the Minister is hoping that the Fines (Amendment) Bill can be published and enacted this year so that imprisonment for the non-payment of fines can be consigned to history, where it belongs. As I said earlier, jail should only be used where appropriate. It is not the place for the person who can’t pay their television licence. Other alternatives are needed to deal with the person who either can’t or won’t 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.

Back to the Spent Convictions Bill. As I was saying, we must do everything in our 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. Well the best antidote to criminality is full and active participation in society and insofar as employment is an element of this, then a job and the discipline that goes with that is critically important. This Bill has the capacity to assist people in securing and retaining employment.

The discourse on the Law Reform Commission Report and on the Bills produced on foot of it, and 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 I 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 somewhat unique feature of this legislation is that when it is compared to the original Law Reform Commission draft Bill, almost all of the changes are in the direction of making the Bill more "liberal", if that’s the right word, in relation to most of its key provisions. As the Minister has said previously, it is his strong view that, if legislation like this is to have any meaningful impact, then 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 wants to get on with his or her life. It is important to say that the Bill is not a Criminal or Police Records Bill. It does not change a person’s criminal record in any way. Instead, it focuses on what the offender is required to disclose if they are asked whether they have a criminal conviction, say when they are applying for a job. In that respect, it is a self-administered regime. A person applies the law to their own circumstances and determines if their convictions are spent or not 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 that, he has asked his officials to ensure that when the Act is commenced, explanatory material is available on the Department of Justice’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. We all know people who are 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 feel that 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 feel this way is something that we, as legislators, must take seriously. I should say 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 we are putting 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 it was published, have all been in the direction of making it accessible to the greatest number of people, the Minister has always taken the view that there are certain convictions that can never become spent. In particular, convictions for serious crimes (defined in the Bill as convictions for offences that fall to be tried by the Central Criminal Court (murder, manslaughter, rape, etc) or sexual offences covered by provisions of the Sex Offenders 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 that 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.

Turning first to the sentences that may become spent. The Law Reform Commission Report had recommended that only custodial sentences of 6 months or less could become spent. Having considered the various views expressed by interested parties, the Minister has taken the view that 6 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 in the Bill, this covers around 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 7 year rehabilitation or waiting period, and non-custodial sentences 5 years. In the period before and since the publication of the Bill last May, the Minister has considered the various viewpoints put forward suggesting that these periods are too long. The Bill as published provided for a more graduated approach but maintaining the 7 and 5 year thresholds. However, having considered the matter further, the Minister brought forward an amendment in the Seanad that reduced the maximum rehabilitation periods to 5 years for a 12 month custodial sentence and to 3 years for a fine exceeding €5,000. He also made consequential changes to the other rehabilitation periods and simplified the categorisations of sentences. The Minister is satisfied that the regime now before the House – with some rehabilitation periods as short as 2 years – is proportionate.

The third variable is the range of employments in respect of which a person seeking work would have to continue to disclose their convictions. Needless to say this is a very 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 employments to the minimum. They 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 employments 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 pieces of legislation makes it clear that the Spent Convictions Bill cannot be used to circumvent the intentions of the Vetting Act.

Outside of that, most employments 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 and 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 repeat 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 relation to 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 in relation to sensitive areas. We have consciously decided against excluding whole 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 the job.

I would now like to turn to the main provisions of the Bill.

Section 1

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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

Subsection 2(4) is a subsection that was added to the Bill in the Seanad. It provides that where a person is convicted of more than one offence at one sitting of the court, this may 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 that it is intended to assist.

Section 3

Section 4

Taking a relatively simple example where a person has a conviction with a 3 year rehabilitation period, and during that 3 years they are convicted again of an offence carrying a 5 year rehabilitation period. In this scenario, the rehabilitation period for the first conviction will be extended out to the end of the 5 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 2 convictions may be deemed spent, continues to apply.

Section 5

Section 6

Section 7

Section 8

While this section does no more than state the law, it is an important section and regrettably will result in some people not benefitting from the legislation as they may have hoped or indeed expected. Many of the people who contact us as public representatives in relation to this Bill are people who 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 American authorities may deal with the disclosure of a conviction, any person who is 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. So to avoid any confusion, if a person is asked by a foreign state to disclose all their convictions, in accordance with the laws of that state, a person cannot hide a spent conviction and rely on this legislation to do so.

Section 9

I have explained earlier that we have taken a much more liberal approach to excluded employments than the LRC recommended, and my sense from what I know of previous debates on the issue in this House and in the Seanad, is that there was support for this approach. But in a way, there is a more important point 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 be encouraging the person to move on and integrate themselves into normal society. Employers have a duty to consider everyone who applies for a job on their merits. Where they are applying 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, insofar as it calls into question the capacity of the person to carry out the job. For example, there are a whole raft of minor convictions that one would have to disclose when applying for a position with children, that would have no bearing at all on one’s fitness to do the job and a prospective employer should not allow their judgement to be jaundiced by the fact of a conviction that has no relevance.

Section 10

Section 11

Sections 12 – 14

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 straight-forward, self-administered scheme. Unlike in other jurisdictions, there is no application process, no tribunal to attend, no judge to satisfy, no bureaucracy, no cost. That is not to say that the Bill, no more than most legislation, is easily understood by the lay person, particularly where the person has more than one conviction. Generally speaking, for most people with one conviction that is more than 5 years old, that conviction will be spent once the Act is commenced. It gets more complex for people with multiple convictions, some of which may become spent under the legislation and some of which 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. This FAQ will set out the position in layman’s terms for a range of situations that people find themselves in and will be added to over time as new scenarios emerge.

In conclusion, this is a landmark Bill. It is complementary to the National Vetting Bureau Act and allows Ireland to join the vast majority of its EU 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. Instead, it is 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 said at the outset, society and the individual both benefit by the earliest rehabilitation and reintegration into society of the offender. I commend the Bill to the House.