Alan Shatter (Dublin South, Fine Gael)

I am pleased to present the Criminal Justice (Spent Convictions) Bill 2012. The Government appreciates 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 this Bill delivers. The commission's report included a draft Bill that 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 of this Bill, it is widely recognised they were deficient in a number of key respects. In drafting the Bill, we have taken on board the views of various interested parties. I am confident 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's report and the Bills produced on foot thereof has been marked by its maturity. I look forward to the same considered approach in this House during the passage of this Bill. I assure Members that I am open to proposals that would improve the Bill.

A somewhat unique feature of this legislation is that the changes being made to the original Law Reform Commission's draft Bill are almost all in the direction of what some would say would make the Bill more liberal - if that is the correct word - in regard to most of its key provisions. It is my strong view that if legislation like this is to have any meaningful impact, it must err on the side of generosity to the offender who has paid his or her debt to society, has left criminality behind him and just wants to move on. The provisions of the Bill are an antidote to recidivism and support the rehabilitation and reintegration of offenders. The passage of the legislation will be an important step in the development of an 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, detect crimes when they occur, prosecute them and impose appropriate sanctions on offenders. There can be no debate about this but, once a person has paid his or her debt to society, it is very much in society's interest and that of the offender that the latter be 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, society, and the offender himself. Effectively, no one wins.

The Bill is an important contribution to reintegration. It strikes the right balance and does not 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 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 that the general approach to the drafting of this Bill has been to make it as accessible as possible to those about whom I have spoken. Having said that, I believe it is broadly agreed that certain convictions can never become spent. In particular, I propose that convictions secured in the Central Criminal Court and convictions in respect of sexual offences be excluded from the benefits of the legislation.

Spent convictions legislation has three key variables: sentences eligible to become spent; the length of time a person must remain crime-free before the conviction is deemed spent; and the range of employments covered by the legislation or, alternatively, the ones excluded. Turning, first, to the sentences eligible to become spent, the Law Reform Commission's report had recommended that only custodial sentences of six months or less could become spent. I have reflected on this matter and considered the views of interest groups. As Senators will see, the Bill provides that prison sentences of 12 months or less are covered by the regime, compared to the six month threshold recommended by the Law Reform Commission. The 12 month threshold I am proposing would, if they had had no other convictions, have covered 90% of all persons committed to jail in Ireland in 2010. The remaining 10% who would not have benefited from the legislation are, by definition, persons jailed for serious offences. I emphasise the legislation is not aimed at these persons.

The second key variable is the rehabilitation period, that is, the period during which a person must remain conviction-free in order for a conviction to become spent. The Law Reform Commission's report provided for a straightforward regime in which non-custodial sentences would attract a five year rehabilitation period and custodial sentences a seven year period. These periods are too long and the decision to move to include sentences of up to one year requires a graduated approach. In the legislation I am providing that for custodial sentences of six months or less, the rehabilitation period will be five years; for sentences of between six and nine months, the period will be six years; and for sentences of between nine and 12 months, the period will be seven years. For non-custodial sentences, the rehabilitation periods will range from three years to five.

The third variable is the range of excluded employments. This is a 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 material use to those who want to move on to gainful employment, the range of excluded employments must be kept to a minimum. With this 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 is excluded. Outside of this, most employments are covered by the provisions of the legislation. The Law Reform Commission's report proposed that the entire civil and public service be excluded. I have decided against this approach and instead targeted the exclusions at sensitive employments in the Civil Service and 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 such as this and the 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.

On excluded employments, even where an employment is excluded, a minor conviction that has no bearing on the employment opportunity on offer should not be held against a 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 past 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 these 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. The amendment is aimed, for example, at the person who is convicted of a number of road 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 his or her life.

The Irish Human Rights Commission and the Irish Penal Reform Trust also raise the interaction between the 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, this can be achieved with appropriate cross-referencing between the two, as recommended by the Irish 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 now turn to the main provisions of the Bill. Section 1 is the standard provision containing the definitions of terms used in the Bill. I draw the attention of Senators, in particular, to the definition of "excluded conviction" as a conviction resulting in a jail sentence of more than one year; a conviction in respect of an offence reserved by law to be tried by the Central Criminal Court; and a conviction in respect of a sexual offence. The custodial sentences covered by the legislation are listed. Essentially, the legislation covers any sentence of one year or less, whether imposed as one sentence; as consecutive sentences, totalling one year or less; or as concurrent sentences, the longer or longest of which is one year or less. Non-custodial sentences are defined as including suspended sentences of up to one year; fines; probation orders; community service orders; and restriction on movement orders.

Section 2 is a key section of 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 of when they occurred. No more than two 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 two convictions, the first two qualifying convictions, in date order, are the two that can become spent. I have indicated my intention to bring forward an amendment to cover a 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 that must elapse before a conviction can become spent. The relevant periods are set out in tables in Schedule 2, Part 1 of which deals with custodial sentences, while Part 2 deals with non-custodial sentences. Subsection (3) states the relevant period commences on the effective date of conviction which 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 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 three year rehabilitation period and during that three years the person is again convicted of an offence carrying a five year rehabilitation period, in this scenario the rehabilitation period for the first conviction will be extended to the end of the five year period applying to the second conviction and both will become spent together at that time. The rule in section 2(2)(e) stating no more than two convictions may be deemed spent continues to apply.

Section 5 provides that, in general, a person who has a spent conviction may not be required to disclose it. Section 6 deals with how spent convictions are to be treated in the course of court proceedings. Subsection (1) states no evidence of a spent conviction is admissible in court proceedings and that no question can be asked regarding a spent conviction and that, if asked, it need not be answered. However, subsection (2) provides that a court may require the disclosure of a spent conviction if justice demands it, but it 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)(b) states a person must also disclose a spent conviction to the 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. Let us take the example of someone who is convicted under the Companies Act and receives a suspended sentence. He or she may be also disqualified as a company director and this disqualification continues in force regardless of when the conviction becomes spent.

Section 8 deals with information sought by another state. As the Bill applies only to Ireland, a person may be still required to disclose convictions if the laws of the state making the request or in respect of which the request is made require disclosure. This section does no more than restate the law as it stands. The Oireachtas cannot legislate extraterritorially 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 explained that we have taken a much more liberal approach to excluded employments than the Law Reform Commission recommended. My sense from previous debates on the issue in the other House is that there was support for this approach. However, 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, as a society we should encourage the person to move on and integrate himself or herself into normal society and his or her community. Employers have a duty to consider everyone who applies for a job on his or her merits. Where a person is applying for a job in an excluded employment, including in the public service, there is an onus on the employer to take into account only the fact of a conviction, where this is declared, in so far as it calls into question the capacity of the person to carry out the job. For example, there is a raft of minor convictions that one would have to disclose when applying for a position with children which would not have any bearing on one's fitness to do the job and a prospective employer should not allow his or her judgment to be jaundiced by the fact of a conviction that has no relevance.

Section 10 mirrors the provisions in section 9 in the case of licences. Persons applying for certain licences, including public service vehicle, private security, taxi and firearms licences, must disclose their convictions.

Section 11 provides that where a person requests a copy of his or her criminal record from the Garda Síochána, the record is to be provided in two parts, with the spent convictions provided separately. This means that in most cases a person who is required to provide a copy of his or her criminal record will be able to produce a clean record, provided that if he or she has been convicted, his or her conviction or convictions are spent. Sections 12 to 14, inclusive, are general provisions relating to expenses, transitional arrangements and the Short Title.

In framing this legislation the Government has tried as far as possible to make it accessible to those who may benefit from its provisions. This is a relatively straightforward, self-administered scheme. Unlike in other jurisdictions, there is no application process, tribunal to attend, judge to satisfy, bureaucracy or unnecessary cost. This is the way the process 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 seven years previously. Such a 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. 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 frequently asked questionnaire will set out the position in layman's terms for a range of circumstances in which people find themselves and will be added to over time as new scenarios emerge.

This is a landmark Bill which allows Ireland to join the majority of its European Union 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 to facilitate reintegration into society. The Bill is targeted at the person who makes a mistake and wants to move on. It encourages good behaviour but does not provide succour to the repeat offender. It is a balanced proposal designed to deliver on its principal objectives without incurring unnecessary public expenditure or introducing unnecessary procedural complexity. I commend the Bill to the House.