Criminal Justice (Spent Convictions) Bill 2012

I am delighted to see a spent convictions Bill before the Dáil. I have long had an interest in this area and recall former Deputy Barry Andrews introducing a Private Members’ Bill in the last Dáil. As it did not see its way to the floor of the House on Second Stage, I am really pleased that the Government has brought it to this stage in a way that is more generous to offenders than even the approach recommended by the Law Reform Commission.

I know many may see this measure as a concession to offenders, but I see it as having widespread societal benefits. Most reasonable people would agree that minor offences should not carry a lifetime record, which is effectively a lifetime sentence for those who have offended in the past. It is easy to envisage a situation where a young person becomes involved in activities which, although resulting in a record, may be the result of being in the wrong place at the wrong time. A few years later he or she will become a model citizen. Most of us know young people who found themselves in these situations.

When the Bill was taken in the Seanad, many Senators referred to really minor offences such as fishing offences. This is not to minimise these offences, but they are minor in the scale of offending. They could include offences such as a failure to pay a television licence fee or incurring penalty points for minor offences, but they are time and circumstance-specific and, by definition in the Bill, are not repeated for five years. They are minor, once-off offences resulting, in many cases, from sheer youthful impetuosity or thoughtlessness, particular circumstances or sheer bad luck, for example, being in the wrong place at the wrong time. Even if there is intent and real culpability, the offences proposed to be regarded as spent under the Bill are minor according to the conditions of the case and those guilty of them have not reoffended for a number of years. By definition, they are part of a person’s past and I do not believe they should forever define their character and limit their prospects for the future.

It is not just offenders who will benefit from being allowed a clean slate and an opportunity to move on with the lives and reintegrate into society. There is a significant societal benefit for all of us in encouraging good behaviour, offering people the prize of leaving their record behind and rewarding their good behaviour. It gives people who have made one or possibly two past mistakes to change their life and start again. I think the Bill permits two past mistakes to be regarded as spent. It is right that the justice system sees its role as preventing future crimes and offering rehabilitative opportunities to all offenders but particularly those guilty of really minor crimes which are once-off events rather than reflective of the lifestyle of a career criminal. The Bill recognises this and as such, I very much welcome it. I am, however, disappointed that these crimes will remain on the record. I would like to see them expunged completely.

Alternatively, if a record must be kept, it should be closed in order that for all normal intents and purposes such as educational opportunities such as attending courses here or abroad, insurance or travel purposes and particularly obtaining visas, there was no crime committed. That surely is the principle behind the concept of a spent conviction for minor crimes.

As proposed in the Bill, it is limited and the benefit is only for employment purposes within the State. That is a valuable opportunity and I am not denigrating it in any way, but the Bill offers the opportunity to do more. I understand ensuring the record was closed or expunged entirely would involve a cost, whereas it is to be self-administered under the Bill. For the purposes of taking out insurance or applying for a licence or an education and training courses, minor crimes committed in years past could reasonably be ignored and taken entirely from the record. We are not talking about major crimes against the person which are outside the scope of the Bill. Otherwise, people will continue paying for minor crimes in many important areas throughout their entire life, including obtaining insurance, which is important. It seems unnecessarily penal and possibly counterproductive because it limits people’s life opportunities as a result of doing something very stupid in the past. Furthermore, they can never travel to the United States or many other countries. This is a significant restriction at any time, but it is particularly restrictive for young people when emigration offers the only opportunity they will ever have in many cases to find a job. To have that door closed to them forever is penal. It seems cruel that a moment of impetuosity or foolishness at the age of 18 years would forever prohibit them from availing of these opportunities.

I listened to Deputy Luke ‘Ming’ Flanagan who seems to have a support network when it comes to penalty points. Some people may obtain that number of penalty points on a single day. As it is a criminal offence, it will be on their record forever, with the result that they will not be allowed entry to the United States or anywhere else. If the record was closed, one could reasonably and honestly answer “No” to the question, “Do you have a criminal conviction?” which appears on US visa application forms. This would be consistent with the position where the State considers past crimes to be atoned for and, therefore, no longer relevant, either here or abroad. However, any question about a spent conviction must be answered honestly. We cannot control what other countries ask, but this is an independent state, which means we can decide on the existence of a criminal conviction. The principle of the spent conviction is that the conviction no longer applies, which means that the question about a criminal conviction can be answered with confidence. I ask the Minister to consider this measure which would add to the Bill and make a real difference to people’s lives. If it is regarded as a step too far in cases in which a custodial sentence has been imposed, I suggest it could be introduced in the first instance in the case of non-custodial sentences. I ask that suspended custodial sentences also be regarded as non-custodial sentences. I believe the Minister has already received such a recommendation.

The Bill allows for two records to be kept, only one of which will show the convictions. An offender seeking his or her record from the Garda Síochána will be provided with the two records. However, the Bill is silent on what will happen when others seek that information such as by way of a freedom of information request from the media or an individual. Anyone can submit a freedom of information request for information on convictions. Will it be an offence to reveal information on spent convictions? Does the system which will be self-administered preclude enforcement of a spent conviction? The absence of enforcement makes the new measure somewhat weaker and less effective. It raises the issue of defamation law and the legality of protecting information on spent convictions from the media, for instance. If some effort is not made to keep that information confidential or protected, the Bill may be meaningless in many ways. The information must be kept secret from those who, for whatever reason, may seek to obtain it. Enforcement of spent convictions is complex and it will be difficult to ensure the information is kept secret. A problem may arise with on-line information which is very difficult to monitor. For example, newspapers in Britain which may have reported crimes in the past are not required to remove that information from their on-line or archival records, but legislation prohibits them from writing about these crimes in the future. I question information on convictions being freely available on-line, a provision which is being introduced in some countries. I ask why the Bill is silent on such a provision which may be introduced here. Perhaps it should be included at this stage.

I appreciate that the British legislation has been in existence for 40 years; therefore, there has been an opportunity to refine and reform the regime in place there. The British legislation is a little more generous in that spent convictions are permitted in the case of longer sentences. However, the Minister has adopted a more generous approach than has previously been proposed.

I commend the motivation behind this legislation, but I would like it to include circumstances other than employment. We must consider the enforcement of the decision to regard a conviction as spent. If this is not done, it will become almost meaningless. This is ground-breaking legislation and it is a tosach maith. I commend the Bill to the House.