Oireachtas Joint and Select Committees
Wednesday, 20 March 2013
Select Committee on Justice, Defence and Equality
Criminal Justice (Spent Convictions) Bill 2012: Committee Stage
Amendments Nos. 1 to 11, inclusive are related, amendment No. 2 is an alternative to amendment No. 1 and amendments Nos. 4 to 10, inclusive, are alternatives to amendment No. 3. Therefore, amendments Nos. 1 to 11, inclusive, will be discussed together.
I move amendment No. 1:
As the Minister of State will know, the Government is proposing that the period to be considered spent is 12 months or less. Britain has substantial experience of this area spanning more than 38 years. Overall, I welcome the Bill. It is a step in the right direction, particularly in assisting the rehabilitation process for people who have been convicted, served sentences and paid their debt to society. In Britain, the period considered spent was 30 months at one stage and that has been increased to 48 months, which provides more scope.
In page 3, subsection (1), line 28, to delete "12 months" and substitute "48 months".
I wish to read into the record the relevant sections of a case study by the Irish Penal Reform Trust. It is the case study of an individual called Liam. He received a six-year sentence with the final two years suspended. He completed his leaving certificate in prison along with various other courses and upon release he successfully completed the Trinity Access programme and a degree in social science in NUI Maynooth, following which he did a postgraduate diploma in adult and community education. He is now qualified to teach various courses, as recognised by the Teaching Council. That is just one example of an individual who would be ruled out under what is proposed in the legislation, as would many more like him. Those are people who have genuinely rehabilitated themselves and are success stories, but they will be excluded under what is proposed in the legislation.
I note also that the Irish Penal Reform Trust, which we would all respect as an advocate for change and with which the committee has worked on our penal reform recommendations, which will be launched soon, recommends that we consider a period of 48 months in this respect. That is the context for my amendment. I trust the Minister of State will consider accepting it.
The argument to be made for the inclusion of our amendment is the same as that articulated by Deputy Mac Lochlainn. We have been informed on it by some of the deliberations and commentary of the Irish Penal Reform Trust. We did not go quite as far as proposing a period of 48 months. We propose to substitute the period of 12 months with two years to allow for greater flexibility. Deputy Mac Lochlainn alluded to a case study. As I said on Second Stage, the general thrust of the legislation is very much welcomed. I attended Limerick Institute of Technology recently and heard from a number of students who are finding it difficult to get placements by virtue of the fact that they have previous minor convictions on their record. Obtaining Garda clearance and all that goes with it is proving to be an obstacle to them. The period of 12 months is a little restrictive. If the Minister of State is minded to extend the period to two years that would be great, or if he wants to go along with Deputy Mac Lochlainn's proposal to extend the period to 48 months, I would withdraw my amendment on that basis.
I thank the Deputies for their support for the Bill. There is a cross-party perspective regarding the Bill and that is welcome. We have given the amendments proposed by both Deputies a good deal of consideration. As the members will be aware, the law in England and Wales has been amended recently to provided that sentences up to four years are covered by their Rehabilitation of Offenders Act. Some say that this should be the benchmark by which we should devise our own scheme. The Deputies have settled on a period of two years and four years, respectively. It is worth saying that the English and Welsh legislation, which does not apply in Northern Ireland, is now probably the most liberal in the common law world. Meanwhile what we are proposing, when compared with Australia and New Zealand, is at the more liberal end of the spectrum. In most Australian states only prison sentences of six months or less are covered while in New Zealand no one who is sentenced to imprisonment can benefit from their corresponding legislation. In Northern Ireland where sentences of up to 30 months are covered, the rehabilitation period for a six months sentence is seven years from the end of the sentence, as against four years from the date of conviction provided under the Bill.
It is worth recalling also that the genesis of this legislation was the highly regarded Law Reform Commission report on spent convictions, which we all have seen. That report recommended only sentences of six months or less should be covered.
In preparing the legislation the Government decided to go the extra mile and cover sentences of up to 12 months. In that respect, the Government is going further. The 12 month cut-off covers more than 85% of all custodial sentences handed down by the courts in Ireland. By any yardstick, a regime that allows a proportion of custodial sentences to become spent, as in this case, is generous. The 12-month cut-off aligns the regime with the sentencing jurisdiction of the District Court where summary offences are prosecuted.
There will always be opinions on the cut-off point, whether it be 12 months, 24 months or 48 months. From a Government perspective, we are definitely going to stick with a 12-month cut-off. Having spoken to the Minister, Deputy Shatter, and discussed the matter at length, we will revisit this in the coming years and see how it is working. After a number of years we may return to it having regard to some of the suggestions that have been made, but we have to start off somewhere. Given the fact that the cut-off point we propose covers the percentage of convictions that I mentioned, a 12-month cut-off point is appropriate at this time.
While the Bill is welcome, the challenge in the legislation is to find proportionality between the need to rehabilitate a person and the need to protect citizens and vulnerable people, employers and employees. I gave a particular case study of a person who has made a huge effort in education over a sustained period and has not only repaid his debt to society but has actively sought to do more than that. We have to strike that balance.
I draw the attention of the Minister of State to the case of Cox v. Ireland which went to the Supreme Court. The court ruled that section 34 of the Offences against the State Act 1939, which applied to public servants, was too broad and discriminated against those affected. In this legislation the Minister of State and the Department of Justice and Equality should be mindful that wherever they set the level, it must be balanced with the right of the citizen who has rehabilitated himself or herself in a demonstrable way to have a chance to return and actively participate. This concerns the whole area of employment rights - that the person's rights to work, to a pension and in other issues are not affected. I accept the Minister of State has made clear he will not go beyond 12 months but I appeal to him to engage with the Minister after today's meeting to see if he is entirely satisfied that what he suggests is in compliance with Article 40.3 of the Constitution, namely, the right to work or earn a livelihood.
I move amendment No. 3:
In page 4, subsection (1), to delete lines 2 to 30 and substitute the following:
““relevant custodial sentence”, in relation to a person convicted of an offence, means a sentence or sentences of imprisonment for a term of 48 months or less imposed by a court on the person in respect of the offence (whether or not a fine is also imposed on the person in respect of the offence) and includes—
(a) a sentence that is imposed concurrently with another sentence or sentences of imprisonment provided that the longer, or the longest, of the sentences is 48 months or less,
(b) a sentence that is imposed consecutively with another sentence or sentences of imprisonment provided that the total period of imprisonment is 48 months or less,
(c) a sentence of imprisonment for a term of 48 months or less, the execution of a part of which is suspended for a period specified by the court,
(d) a sentence of imprisonment for a term of 48 months or less, the execution of a part of which is suspended for a period specified by the court but which suspension is subsequently revoked in whole or part by the court,
(e) a sentence of imprisonment for a term of 48 months or less, the execution of the whole of which is suspended for a period specified by the court but which suspension is subsequently revoked in whole or in part by the court, or
(f) a sentence of imprisonment for a term of 48 months or less which is imposed on the person in relation to the offence following a revocation under section 8 or 11, as the case may be, of the Criminal Justice (Community Service) Act 1983 of a community service order in respect of the offence;”.
I move amendment No. 12:
The Chairman is very kind to allow me to speak. The Minister of State may be aware that the Irish Penal Reform Trust has raised this issue. The Bill states that the case of a person with more than two convictions will not be considered. The Minister of State will know that in some cases a number of convictions are lumped together and considered as one. We hope to have this section deleted, thereby addressing the issue. The Minister of State must accept there are exceptional circumstances where a person has three or four convictions that were put together or intended to be considered at a future date. However, even if the person in question has served his or her debt to society, the Bill makes no allowance for that. I ask the Minister of State to agree to the deletion of the section. He may prefer to consider the issue on Report Stage. Where a number of convictions take place on a single ruling of a court, and in cases where the person concerned has served his or her time, we ask that in those exceptional circumstances allowance be given.
In page 6, subsection (2), lines 19 and 20, to delete paragraph (e).
We have made it clear from the start that this legislation is aimed at the person who has made a mistake, perhaps in his or her youth, and now wants to get on with life. We all know of such stories. It is clear this is not a charter for criminality and a line must be drawn somewhere. The line drawn is as per the two-conviction limit and is based on the premise that people deserve a second or third chance. The Minister, Deputy Shatter, introduced an amendment in the Seanad that will allow a person with a number of convictions to have them all deemed spent, provided they relate to two incidents. The people we are trying to assist are genuine, something I believe all of us in this room accept, and are not career criminals. Few people would suggest that the scheme should be opened further and I do not believe anybody present is suggesting that. The people spoken about during the debates on this Bill are decent people who have made one or two mistakes, probably in their youth. They want to move on and have no intention of coming to the attention of the authorities again.
The Deputy's amendment would provide no deterrence to criminality but instead would hold out the prospect that no matter how often a person offends, a day will come in the future when his or her convictions will be spent. I do not believe this is in the interests of either the offender or of society. We want people to stop committing crime; we do not want people re-offending. In so far as this Bill can assist in discouraging recidivism, the limit on the number of convictions that can become spent has a positive contribution to make to the rehabilitation and re-integration of qualifying persons.
I suggest that the Deputy revisits his proposal. The entire Bill shows how we can deal with this situation, collectively and politically.
None of us should see this as being open-ended. A line has to be drawn somewhere and I believe the two-conviction limit is a fair one.
The Irish Penal Reform Trust, IRPT, put forward proposals in this regard that are fair. I will give the Minister a case study from the IPRT on this. Conor is now in his late 40s. When he was 18 years of age he was before the courts for failure to stop at the scene of a traffic accident, dangerous driving and no insurance. He was disqualified from driving for three months and had his licence endorsed. As he received three convictions on three different charges at the one sitting, he will be ruled out of having his convictions considered spent under the Bill. In Britain, the system there has 38 years of experience of dealing with spent convictions and it has no such limit. Will the Minister reconsider this?
Section 2(4), which was inserted in the Seanad, provides for where a person gets more than one conviction in respect of one incident, then it can be treated as one order of conviction. In the case study the Deputy just outlined, Conor will be covered by the legislation.
It means with a spent conviction, they can apply for employment they may not have previously considered. It also gives people a second chance. We all know of cases whereby people have done foolish and silly things when they were young. Within certain conditions, this will give them a clean slate and allow them to operate like everyone else. There are certain provisions which exempt such cases but they are in place for good reason. By and large, we know the overall thrust of the legislation is a good idea and acknowledges a human dimension.
I move amendment No. 13:
The intention of this amendment is to strengthen section 9 and it proposes convictions considered spent for the purposes of this legislation would not have to be declared to another jurisdiction if a person was applying for employment there.
In page 9, before section 9, to insert the following new section:“9.—Convictions obtained outside of the State, that would for the purposes of the provisions of this legislation be considered “spent” were they obtained within the State shall be considered spent convictions.”.
I know what the Deputy is referring to but it is a difficult area as one is dealing with how other states would manage this. Unless states have reciprocal arrangements for the recognition of spent convictions, they do not recognise each other's. This is for the good reason that penal systems vary greatly across the world. What may merit a lenient sentence in one country may merit a harsh one in another and vice versa. The legislation defines “conviction” in section 1 as the conviction by a court of a person. “Court” is defined as any court in this State. This clearly locates the regime provided for by the Bill in this State. For this reason, the Government cannot accept the amendment.
Some form of arrangement will be worked on but it will be very much after the legislation is enacted. The Department will work with jurisdictions which have similar sentencing regimes. This will bring Ireland up to that level which we all appreciate.
I move amendment No. 14:
When dealing with the National Vetting Bureau (Children And Vulnerable Persons) Act 2012, it was suggested it would be tied into this legislation for obvious reasons. I am concerned that even though someone's convictions are spent, potential employers may be able to access the information
In page 10, before section 10, to insert the following new section:“10.—Notwithstanding the provisions of this section, all persons shall be precluded from making specific requests in order to secure information regarding spent convictions so as not to circumvent this legislation.”.
Again, I know what the Deputy is referring to but I believe his amendment is unnecessary. The Bill already contains several safeguards regarding requests for information. In the first instance under section 5, a person cannot be required to disclose a spent conviction or the circumstances ancillary thereto. Section 5(2) states when a person is asked about a previous conviction, he or she may regard it as not applying to a spent conviction. If a person were asked if they had any spent conviction, they can say “No” and be protected under this Bill.
Under section 11, where a person seeks his or her criminal record, possibly at the request of an employer, the Garda Síochána is required to provide the record in two parts, namely, one with the spent convictions and the other with non-spent convictions, if any. Where a person only has spent convictions, he or she can provide the requester with the clean record. In these circumstances, the Government will not accept this amendment.
While I accept one cannot legislate to prevent people from asking questions, the Bill does provide criteria to protect people as to how they answer questions regarding spent convictions.
It also provides a methodology for the documentation to be provided to ensure they can do so in a way that is protected under law.
I move amendment No. 15:
This relates to the matrix of columns at the back that are provided to outline periods of rehabilitation. What the amendments are trying to achieve is self-evident. We believe the periods of rehabilitation for more minor offences should be reduced, as set down in the two amendments.
In page 16, line 16, column 3, to delete “2 years” and substitute “1 year”.
Amendments Nos. 15 and 16 are designed to reduce the rehabilitation period for fines from two years to one year for a fine of €5,000 or less, or, for a fine of more than €5,000, from three years to two years. This is a matter of judgment, similar to many other parts of the Bill, and it may need to be reviewed in years to come. At this point we will not be accepting the amendment. The two-year minimum rehabilitation period that applies in the Bill should be seen in the context of the Law Reform Commission proposal that the minimum should be five years and of the period in the Bill as originally published, which was a three-year minimum. The Minister substantially changed the rehabilitation period when the Bill was in the Seanad and he is satisfied that the regime works as a whole. Accordingly, the Government is not in a position to accept the amendments. However, I put it to the Deputy that this is something that may need to be looked at again in some years' time, possibly following further work carried out on analysing the results with regard to how this is used and, further, following progress made by the Department of Justice and Equality in working with other jurisdictions on correlating spent convictions.
We carried out some investigations into the work of community courts in New York and elsewhere recently. It was interesting, because there is a six month cooling-off period at the community court level for misdemeanours, minor violations and so on. Matters that arise are dealt with immediately and the system is most impressive. Perhaps that should be considered at a future date in the context of this legislation.
I am aware that some of that work is quite good. It is important to bear in mind that a good deal of this comes down to judgment. We will have to review this in the future based on the empirical data that will arise a as result of the analysis carried out over several years. We will learn from that. There is political coming together on the issue and it is the common-sense thing to do. From the Government point of view, now that this has finally been done, there is likely to be a willingness to take that approach.