Dr. T.J. McIntyre:

I am grateful for the opportunity to speak to the committee on the issue of spent convictions. It would be useful to discuss European law in that area and how it frames national responses.

Three areas of European law are important. One is the European Convention on Human Rights, of which Article 8 on private and family life shapes what the State can do and what our rehabilitation laws must look like. Two other areas which may be of interest to members of the committee and into which I am happy to go further if so they wish are the role of data protection law here - it goes beyond the role of the State - and what regulates what private actors do. The new GDPR limits what employers can ask for in relation to spent convictions and will limit what search engines can do. It give individuals a right, in some cases, to have search results using their name removed where they indicate past convictions. That is an important matter in practical terms.

Article 8 of the European Convention on Human Rights on private and family life specifies, in effect, that convictions can be part of someone's private life, such that disclosing them can, in some cases, infringe his or her right to privacy. That sounds very unusual in an Irish context in which, unlike in some civil law or continental jurisdictions where there is greater privacy in the trial process, trials are always presumptively held in public. They are widely reported in the media and individuals are named in an unredacted form. The point made by the European Court of Human Rights in a case dating from 2012, M.M. v.the United Kingdom, was that offences and convictions practically became obscure as they receded into the past such that they were no longer immediately visible to people dealing with individuals and that individuals should be given an opportunity to grow and move beyond past convictions. Where disclosing past convictions can have an adverse effect on people's rehabilitation or employment, we must ask whether it is proportionate. Is it necessary in a democratic society to use the language of Article 8? Is it necessary for public protection in being weighed against the impact on the former offender?

Three cases - M.M. v.the United Kingdom and two judgments of the English Supreme Court in R (T. & Anor) v.Secretary of State for the Home Department and R (P, G and W) and Anor v. Home Secretary - have since developed this principle to set out a number of criteria which can be taken into account in looking at national spent convictions rules. Under the European convention, there is considerable discretion for member states in deciding how they want to shape their national rehabilitation laws, but what is clear is that, at a minimum, they must have some national rehabilitation law and that the law must provide clear rules on when details of offences can be disclosed. The national rehabilitation rules do not necessarily have to provide for an individual review mechanism, in the sense that individuals are entitled to have a case by case determination on when information should be disclosed, but the law must nevertheless have, at a minimum, clear categories to minimise the risk of unfairness or arbitrary results and try to avoid disproportionate results in individual cases. The rules have to be proportionate. We have to be able to identify a purpose being served by the rules such as are we protecting the public in that regard. We must be able to show that the disclosure rules serve that purpose in order that they are not arbitrary. For example, we would not necessarily find compatible with Article 8 a rule that states all old convictions of whatever nature must be disclosed, if somebody is working with children, for instance. We could imagine somebody with an old conviction for dishonesty who had that conviction disclosed not necessarily being treated fairly, even though it might be appropriate to treat other types of conviction as suitable for disclosure.

In the two cases in which the UK Supreme Court has addressed this issue, namely, R (T. & Anor) v.Secretary of State for the Home Department and R (P, G and W) and Anor v. Home Secretary, it has pushed out the boundaries of the rule somewhat from what the European Court of Human Rights articulated in M.M v. the United Kingdom. In particular, it has stressed that it is not only state disclosure which matters but also disclosure in the context of questioning by employers, even in the context of purely private employment. Even though a job does not fit within the general vetting scheme and an employer might not have access to state records as such, Article 8 is still implicated if the employer is entitled to ask a person about his or her previous convictions and he or she is, in effect, compelled to disclose them, the reason being that if one fails to do so, one is open to punishment. Very often it will be a criminal offence to fail to disclose convictions in such a situation, or it could be exposure to disciplinary action or dismissal.

In addition to expanding these rules to the private employment context, the two UK Supreme Court decisions stressed that we must look closely at the way in which we graduate these rules and how we decide disclosure is appropriate. In both those cases, the UK Supreme Court found, contrary to Article 8, rules which provide for either blanket disclosure in, as was the case in MM v. United Kingdom, or rules which provide for blanket disclosure but based on crude criteria. For example, in the most recent case R (P, G and W) and Anor v. Secretary of State for the Home Department and Anor, the UK Supreme Court held that a single conviction rule, where, if individuals have more than one conviction, then all their past convictions must be revealed when somebody is applying for employment that requires a criminal records certificate, was essentially arbitrary and disproportionate. Why? It was based on the idea that having more than one conviction shows that one has a propensity or a track record of wrongdoing when, in fact, the second or third conviction might stem from the same incident or might relate to a small pattern of behaviour five, ten, 15 or 20 years ago. It does not tend to show anything at all about the ongoing likelihood or an ongoing propensity to commit crime.

Instead, therefore, the UK Supreme Court has said that national rules of this type, if they are to be compatible with Article 8, should be more fine-grained and should take into account several factors. For example, they should consider what was the specific nature of the offence; what were the circumstances around the offence, how old was the person when they committed it; what was the sentence imposed in respect of the offence; have there been further offences since; what length of time has elapsed since the offence; how relevant is the particular offence to the decision to be made, be it, for example, child protection or avoidance against offences of dishonesty.

When one measures the 2016 Act against those criteria, it shows several problems. First, as the previous speakers indicated, the single conviction rule in the 2016 Act is deeply problematic. To my mind, it is clearly incompatible with Article 8 of the European Convention on Human Rights and would be found so if challenged in the Irish courts for much the same reason given by the UK Supreme Court in the R (P, G and W) and Anor v. Secretary of State for the Home Department and Anor case.

Second, Irish law applies a crude cut-off in the limitation to a 12-month or 24-month custodial or non-custodial sentence. As with UK law, it is permissible to have a graduated response based on the severity of sentence. A simple cut-off of that sort, particularly where it is combined with the conviction rule, seems to me to be incompatible with Article 8 of the European Convention on Human Rights. That is the case in particular when one thinks about the different nature of Irish law compared to the UK rules. The UK rules at stake in the MM v. United Kingdom and R (P, G and W) and Anor v. Secretary of State for the Home Department and Anor cases applied to particular classes of employment. They were rules which applied where somebody had to have a criminal background check or a criminal record certificate issued. These were cases involving people working with, for example, children or in sensitive occupations. The UK rules generally regarding the rehabilitation of offenders are much wider than that. Those narrow UK rules were limited to particular sensitive situations. In Ireland, under the 2016 Act, the rules apply across the board, not just in that category.

Insofar as the 2016 Act adopts a rigid single offence rule subject to these so-called “middle-class” exceptions for motoring offences, for example, to the extent that the 2016 Act adopts a 12-month to 24-month custodial cut-off and a rigid seven-year rehabilitation period, the combination of those factors means that the scheme, as it stands, would be found contrary to Article 8 of the ECHR.