A Chathaoirligh,

I am pleased to present the Criminal Justice (Spent Convictions) Bill 2012 to the House.

Let me at the outset record my appreciation and that of the Government for the work done on this issue by the Law Reform Commission, whose landmark report on Spent Convictions, published in 2007, provided the background research and a solid platform on which to build the robust legal regime, that I believe this Bill delivers.

The LRC Report included a draft Bill which subsequently became the Spent Convictions Bill 2007 and more recently the Spent Convictions Bill 2011, a Private Members Bill brought before the Dáil by Deputy Calleary. While those Bills contained many of the features contained in this Bill, it was widely recognised that they were deficient in a number of keys respects. In drafting the Bill, we have taken on board the views of various interested parties and I am confident that the Bill we are debating today, represents a balanced approach that is generous to those offenders who want to leave crime behind them while safeguarding the legitimate interests of society where serious serial criminals are concerned.

The discourse on the Law Reform Commission Report and on the Bills produced on foot of it, 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 that I am open to proposals that will improve the Bill.

A somewhat unique feature of this legislation is that the changes being made to the original Law Reform Commission draft Bill, are almost all in the direction of making the Bill more "liberal", if that’s the right word, in relation to most of its key provisions. It is my 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 an antidote to recidivism and support the rehabilitation and reintegration of offenders.

I believe that the passage of this legislation is an important step in the development of a holistic approach to criminal justice. It fits into a range of reforms in the approach to fines, community service and restorative justice, that seeks to focus on the reintegration of offenders once they have made reparations to society. Our criminal justice system, to be effective, must be fit for purpose. It must have the capacity to deter criminality, to detect crimes when they occur, to prosecute them, and to impose appropriate sanctions on offenders. There can be no debate about this. However, once a person has paid their debt to society, it is in society’s interest as well as being in the interest of the offender, that they are reintegrated into society as quickly as possible. The exclusion of ex-offenders from normal society, and particularly employment is in no-one’s interest. It begets repeat offending and ensures a vicious cycle of interaction with the criminal justice system. It is costly for the State, for society, and for the offender themselves. No-one wins.

The Bill before us today is an important contribution to reintegration. It strikes the right balance. It doesn’t wipe the slate clean. Offences remain on the record. What it does, is allow ex-offenders, after a certain period has elapsed since their sentences were imposed, to move on with their lives. This is particularly important where relatively minor offences, committed in one’s youth are concerned. It is worth mentioning here 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.

I mentioned earlier that the general approach to the drafting of this Bill has been to make it as accessible as possible to those I have just spoken about. Having said that, I think that it is broadly agreed that certain convictions can never become spent. I am proposing that, in particular, convictions secured in the Central Criminal Court, and convictions in respect of sexual offences are excluded from the benefits of the legislation.

Spent convictions legislation has three key variables: the sentences that are eligible to become spent; the length of time that a person must remain crime-free before the conviction is deemed spent; and the range of employments that are covered by the legislation, or alternatively the ones that are excluded.

Turning first to the sentences that are eligible to become spent. The Law Reform Commission Report had recommended that only custodial sentences of 6 months or less could become spent. I have reflected on this matter and have considered the views of different interest groups. As you will see, this Bill provides that prison sentences of 12 months or less are covered by the regime, compared to the 6 months threshold recommended by the LRC. The 12 month threshold that I am proposing would, if they had no other convictions, have covered 90% of all persons committed to jail in Ireland in 2010. The remaining 10% who would not benefit from the legislation are, by definition, people who are jailed for serious offences. This legislation is not aimed at those people.

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. Again, the LRC Report provided for a fairly straightforward regime where non-custodial sentences would attract a 5 year rehabilitation period and custodial sentences 7 years. I believe that these periods are too long and in any event, the decision to move to include sentences of up to 1 year requires a graduated approach. In the legislation, I am providing that for custodial sentences of 6 months or less, the rehabilitation period will be 5 years. For sentences of between 6 and 9 months, 6 years, and for sentences of between 9 and 12 months, 7 years. For non-custodial sentences, the rehabilitation periods will range from 3 years to 5 years.

The third variable is the range of excluded employments. This is a very complex area and good arguments can be made for excluding a wide range of employments. These arguments must however be balanced against the fact that if this legislation is to be of any material use to those who want to move on to gainful employment, then the range of excluded employments must be kept to a minimum. With that in mind, I have applied a few basic principles to the formulation of the list. Any employment involving direct or indirect contact with children or vulnerable adults is excluded. Equally any employment involving the conduct of the international relations of the state, the administration of justice or the security of the state are excluded. Outside of that most employments are covered by the provisions of the legislation. The LRC Report proposed that the entire civil and public service be excluded. I have decided against this approach and have instead targeted the exclusions to sensitive employments in the civil service and have provided that other sensitive posts can be added by Ministerial Order, but only on request from the Public Appointments Service – a body of integrity with a well-deserved reputation for probity and fairness. The public service, as a major employer can be reasonably expected to lead by example in an area of public policy like this, and I believe that this Bill follows a middle course that recognises the sensitive nature of certain posts in the public service while eschewing the tendency to assume that all public service jobs are ipso facto sensitive.

I should say, in relation to excluded employments, that even where an employment is excluded, a minor conviction that has no bearing on the employment opportunity on offer, should not be held against the person. Responsible and fair employers should pick the best person for the job and only allow a person's conviction to enter the equation where it is a material consideration.

Both the Irish Human Rights Commission and the Irish Penal Reform Trust have published commentaries on the Bill in the last week. Their observations are a valuable input into our deliberations on the Bill and I will give due consideration to the recommendations made by both bodies, many of which overlap. I can say at this stage that I will be bringing forward amendments to the Bill to address some of the recommendations made in those commentaries. For example, I intend to bring forward an amendment at Committee Stage to provide that where a person has a number of qualifying convictions imposed at one court sitting in relation to one incident or event, the convictions may be treated as one order of conviction. This amendment is aimed, for example, at the person who is convicted of a number of traffic offences in relation to one incident and who would but for such an amendment, have to carry forward all bar two of the convictions for the rest of their lives.

The Human Rights Commission and the Penal Reform Trust also raise the interaction between this Bill and the forthcoming National Vetting Bureau Bill which will put vetting in relation to positions involving children and vulnerable adults on a statutory footing. While it is essential that the two Bills work harmoniously, I believe that this can be achieved with appropriate cross-referencing between the two Bills, as recommended by the Human Rights Commission. The primary source of law on the important issue of vetting will be the National Vetting Bureau Bill and my only concern in relation to this Bill is that it does nothing that will undermine the intent of the Vetting Bill.

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

Section 1 is the standard provision containing the definitions of terms used in the Bill. I would draw Deputies’ attention, in particular, to the definition of excluded conviction as:

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 one year; fines; Probation Orders; Community Service Orders; and restriction on movement orders.

Section 2 is a key section in the Bill. 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 2 convictions may become spent. Subsection 2(c) provides that a person must have complied fully with any sentence imposed in order to benefit from the scheme. Subsection 2(e) provides that where a person has more than 2 convictions, the first two qualifying convictions, in date order, are the two that can become spent.

I have already indicated my intention to bring forward an amendment to cover the situation where a number of convictions are handed down in relation to the one incident or event.

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 in Schedule 2. Part 1 of the Schedule deals with custodial sentences and Part 2 with non-custodial sentences. Subsection (3) says that the relevant period commences on the effective date of conviction. The effective date of conviction is defined in section 1 as the date the sentence becomes operative.

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 in order 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.

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 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. Subsection (1) says that no evidence of a spent conviction is admissible in court proceedings, and that no question can be asked regarding a spent conviction, and if asked need not be answered. However, subsection (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. Subsection (3) sets out a number of situations 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. Subsection (1)(a) provides that a person convicted of insurance fraud must disclose their convictions when seeking insurance. Subsection (1)(b) says that a person must also disclose a spent conviction to An Garda Síochána, under questioning following arrest; in an interview with the Criminal Assets Bureau; and in an application or during an investigation under Part 3 of the Central Bank Reform Act 2010. Subsection (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. Say for example, someone is convicted under the Companies Act and gets a suspended sentence. He or she may also be disqualified as a company director. This disqualification continues in force regardless as to when the conviction becomes spent.

Section 8 deals with information sought by another state. The Bill only applies to Ireland, so 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.

Section 9 provides that certain employments are excluded under the legislation. Details on the employments concerned are set out in Schedule 3, Parts 1 and 2 of which deal with employments involving children and vulnerable adults respectively, while Part 3 deals with the civil and public service. Subsection (2) 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.

I have explained earlier that 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 the other House, 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 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 licences, private security licences, taxi licences and firearms licences.

Section 11 provides that where a person requests a copy of their 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 their criminal record will be able to produce a clean record, provided that if they have been convicted, their conviction or convictions are spent.

Sections 12 – 14 are general provisions relating to expenses, transitional arrangements and the short title of the Bill.

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 the way it has been designed and I make no apology for keeping it simple and easy to administer. Obviously, the provisions are most easily explained and understood by a person who has been convicted once of a relatively minor offence more than 7 years ago. That person does not need to disclose a conviction when applying for most employments. 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 I have asked my officials to begin preparing 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 allows Ireland to join the vast majority of its EU partners, in providing hope to many people who have felt themselves excluded from society by a past misdemeanour. It is another tile in the mosaic of measures introduced in recent times to reduce recidivism and facilitate reintegration into society. It is targeted at the person who makes a mistake and wants to move on. It encourages good behaviour but provides no succour to the repeat offender. It is a balanced proposal and I commend it to the House.

Ends.