Brian Lenihan Jnr (Dublin West, Fianna Fail)

It would be useful to clarify the terminology used in this area. Terms such as "spent conviction", "expunging of convictions" and "clean slate" are regularly used. A "clean slate" is considered to mean a wiping away of a criminal record. "Expunge" is similarly used to indicate the deletion of old convictions. "Spent conviction", however, indicates that the law allows people to decline to disclose their old convictions. This approach assumes that the conviction will remain on the record but it encourages the rehabilitation of ex-offenders by, for example, opening up certain employment opportunities that might not otherwise be available to them if the record had to be revealed. This is the approach advocated by the Law Reform Commission, LRC.

Currently, no general provision in Irish law allows for the deletion of criminal convictions from Garda records. However, with the introduction of the Children Act 2001, provision was made for a limited "wiping of the slate" in respect of most offences committed by persons under 18, once certain conditions have been met. The provision in the Children Act, which came into operation on 1 May 2002, limits, as far as possible, the effects of a judgment of guilt, where the relevant conditions have been met, by treating the person for all purposes in law as a person who has not committed, been charged with, prosecuted for, found guilty of or dealt with for an offence.

The second programme of the LRC for the period 2000 to 2007 proposes, as part of an examination of the law on privacy, to consider longevity of criminal records and expunging of convictions for certain offences from the records. The Law Reform Commission's 2004 Consultation Paper on the Court Poor Box conducted a preliminary examination of the issue of spent convictions. In July of this year, the commission published its report on spent convictions, which included a draft spent convictions Bill to implement its recommendations. The commission proposes the following in the report: the type of offences to be excluded completely from any proposed legislation on spent convictions include (i) any offence triable by the Central Criminal Court; (ii) any offence under the Sexual Offenders Act 2001; and (iii) any offence where a sentence of imprisonment of at least six months, including suspended sentences, has been imposed by a court.

In addition, it proposes that a person will qualify for "conviction free" status after seven years from the date of convictions where a custodial sentence of less than six months was imposed or after five years where a non-custodial sentence was imposed. The LRC's proposal is, therefore, aimed at relatively minor offences and at offenders who do not re-offend during the following seven years.

It further proposes that all convictions, including spent convictions, will be disclosed at a sentencing hearing and in some non-criminal cases, for example, vetting procedures involving access to children; and that the system would be automatic rather than application-based. In other words, the person in question would benefit automatically once he or she met the conditions and in those cases the person would not be obliged to apply to avail of the right not to mention a previous conviction.

Additional Information not given on the floor of the House.

The report also makes more detailed recommendations regarding the issue of vetting and disclosure of criminal history for certain purposes. The commission recommends that the current Garda vetting system be put on a statutory footing. The report also recommends that certain sensitive posts would require full disclosure of all convictions, including spent convictions. These would include any post involving care of children or vulnerable adults; any health care post; judges, barristers, solicitors, court clerks, court registrars and employees of the Courts Service; civil servants; members of the Defence Forces, prison officers, members of the probation service and of An Garda Síochána; accountants; and director, controller or manager of a financial institution or of any financial service provider which is regulated by the financial regulator.

The report, its recommendations and proposals for legislation are being examined closely in my Department with a view to determining whether legislative proposals should be prepared on this issue. My own initial view is that the report is seeking to find a fair balance in the approach to an issue that is taking on increasing importance. I am sure the House would also seek to ensure such a balance when it considers the long-term implications of having a criminal record, albeit for a minor offence. In considering this issue, we must be mindful not only of the need to provide the convicted person with an opportunity to make a fresh start, but also of the effects of crime, even relatively minor crime, on victims. However, I will await the outcome of the current examination before commenting further on the topic.

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