Barry Andrews (Dún Laoghaire, Fianna Fail)

I am pleased to present the Spent Convictions Bill 2007 to the House as a Government supported Bill. I am especially pleased for the opportunity since I introduced it as a Private Members' Bill in October last year.

The core message in the Bill concerns the need to facilitate the rehabilitation of convicted persons and to do so in a way that not only benefits the individuals concerned, but that takes account of the wider interests of society, especially the protection of vulnerable persons. In particular, the Bill will facilitate rehabilitation through the reintegration of convicted persons into the workforce, and will allow them to build new careers.

I have held an interest in this area for some time. Previously, I introduced the Rehabilitation of Offenders Bill in March 2007, but it fell in the normal way following the general election in 2007. The Bill takes account of the very valuable and insightful report from the Law Reform Commission published in July 2007. In producing its proposals for reform, the Commission undertook a very wide-ranging examination of the issues involved, including a very useful review of arrangements in other jurisdictions. As a result, the report is comprehensive. Its conclusions are well argued and take full account of Irish conditions. I am satisfied, therefore, that we can have confidence in the proposals for reform contained in the report. It was this belief that led me to introduce the Bill. The Law Reform Commission consulted very widely in preparing the report.

The Bill began as a Private Members' Bill. As a private Member, I did not have access to the advisory and drafting services of the office of the Attorney General. However, since it has been adopted by the Government, the necessary legal and drafting expertise has been available. The Bill is being examined and this will probably result in some amendments during later the stages. The amendments will clarify and expand some of the Bill's provisions. I will, in so far as possible, identify in my remarks today those matters that may require amendment, but the primary objective of the Bill, that is, the achievement of rehabilitation through employment, remains intact.

Based on its preliminary assessment of the Bill, I confirm that the office of the Attorney General is of the view that there is no constitutional bar to its enactment. The central point of the Bill is to provide to persons having a conviction for a minor offence the opportunity of not disclosing that conviction when seeking employment. There are several limitations and exclusions where disclosure will always be required, the most notable relating to employment where there is access to children. However, the fundamental point is that the Bill recognises that the most effective means of rehabilitation is through gainful employment. Employment restores the person's self esteem, it enhances his or her status among family, friends and the wider community and, as has been shown many times, it reduces very considerably the likelihood of re-offending. Securing employment is, clearly, a very effective way of achieving the reintegration of convicted persons into society. The Bill, therefore, addresses a significant gap in our present arrangements. At present we have no means of regarding a conviction as "spent", apart from the limited regime for non-disclosure available to minors under section 258 of the Children Act 2001. This Bill provides us, therefore, with the means to put a structured system in place for not disclosing convictions.

I accept that, in general, people should be allowed to move on with their lives after completing their term of imprisonment or the payment of the fine.

Unfortunately, experience demonstrates that the possibility of securing employment is greatly reduced once a prospective employer becomes aware of the existence of a criminal record and in the absence of any general statutory non-disclosure arrangement, the prospective employee often is obliged, when asked, to reveal the information recorded on the Garda criminal records. The effect of the current situation is that the person who was over 18 when the offence was committed must carry with him or her the consequences of even a minor offence long after the debt to society has been repaid. Most Members will agree that this situation offends their view of what is proportionate, fair and reasonable.

Although I agree the present arrangements should be altered, I also am anxious that a proper balance should be maintained between the interests of society generally on one hand and, on the other, the need to allow those who are prepared to rebuild their lives a reasonable opportunity to do so. In arriving at an appropriate balance, it is necessary to pay particular attention to the protection of vulnerable people. I will re-examine the definition of vulnerable persons in section 5(2) of the Bill to expand it to include persons who are vulnerable by virtue of their age and physical impairments, as well as intellectual impairment. While I am satisfied there should be disclosure of past convictions when seeking employment that entails access to any of those groups, it also must be said that disclosure of a conviction does not mean the offer of employment has to be or will be withdrawn. It does mean, however, that the employer can make a more informed decision in each such case.

There are other instances where disclosure of previous convictions also seems appropriate. For instance, in criminal proceedings, a court is entitled to be informed of previous convictions before sentence is passed for the offence being tried. In this way, the court is in possession of all the relevant facts and consequently can impose a sentence that is appropriate to the offender. It also means the court can properly distinguish between repeat and one-off offenders, which is how it should be.

I now wish to turn to the provisions of the Bill. The effect of a conviction being regarded as "spent" is set out is section 4. Where a conviction is "spent", the person will be treated as a person who has not committed, been charged with, prosecuted for, convicted of or sentenced for the offence in question. However, I must add the Bill does not entail any deletion of the criminal records held by the Garda Síochána. The record will continue to exist and the Bill will merely specify circumstances in which the details of that record are or are not to be disclosed.

The Bill will apply only in cases where a sentence of imprisonment not exceeding six months or a fine or other penalty has been imposed. The Law Reform Commission gave detailed consideration to the sentence threshold and concluded, based on Irish sentencing policy and practice, that a six-month threshold was appropriate in our circumstances. While I find the commission's argument to be persuasive, I am open to consideration of a slightly different threshold. The Bill refers to "prohibitions" and "disqualifications" when referring to other penalties. It is likely that I will seek to amend those terms to give them more precise meaning. I also will clarify, by way of an amendment, that the arrangements in this Bill apply only in the case of those who were 18 years or over when the offence was committed. In other words, this Bill will not affect the operation of section 258 of the Children Act 2001. I also intend to make clear that the Bill will apply equally to persons who were convicted prior to and after its enactment. In the case of those who were convicted prior to the Bill's enactment, they may benefit from its terms if they satisfy them.

The possibility of non-disclosure only will arise after seven years has passed without a further conviction when a sentence of imprisonment had been imposed or after five years in other cases. It might be argued that such periods are too long and that the best hope of rehabilitation arises where the offender secures employment very shortly after completion of his or her sentence. Undoubtedly there is merit in that view but a balance must be found between the needs of the offender and the need to protect society. One must therefore be satisfied that sufficient time has passed before society can feel assured that the offender has demonstrated his or her willingness to embrace society in a positive way. I am aware the Law Reform Commission's report examined this issue carefully and recommended the periods now proposed. Moreover, it noted that a conviction-free period of ten years is required in New Zealand. However, I am considering whether the conviction-free period required when a non-custodial sentence was imposed should be reduced slightly to, for example, four years.

The question of whether the specified period must be free of all convictions, even those of a very minor type, is also being considered. While there may be scope for some flexibility on this point on grounds of proportionality, lest there be any misunderstanding, the scope for movement probably is limited. It may be possible, for example, to make a concession where the penalty for the subsequent offence is a fine. However, I consider that such a concession should be allowed once only.

The Bill sets out a number of "exclusions" in terms both of offences and certain employments. In the case of offences, convictions for sexual offences always must be disclosed. Similarly, convictions for offences reserved for trial by the Central Criminal Court always must be disclosed. These offences include rape and serious sexual assaults, as well as murder. I will re-examine the manner in which the Bill expresses this provision as it may benefit from more explicit definition. For instance, all indictable offences are, strictly speaking, triable by the Central Criminal Court, since the Constitution provides that the High Court, or, in its criminal role, the Central Criminal Court, is a court of full and original jurisdiction. Therefore, on a strict reading of the Constitution, almost all cases are triable by the Central Criminal Court and could, therefore, be regarded as "excluded" cases for the purposes of this Bill. As that is not the Bill's intention, I will have the matter clarified. It has also been drawn to my attention that, for example, certain offences under the Competition Act 2002 are reserved for trial in the Central Criminal Court. I will examine that aspect to ensure the Bill refers only to those offences that are of particular relevance and importance. I also wish to take account of the fact that while certain offences are reserved for trial in the Central Criminal Court, some, such as murder, also may be tried in the Special Criminal Court.

As regards "excluded" employments, the Bill provides it should always be necessary to declare convictions when seeking employment in specified areas of employment. Section 5(2) of the Bill contains a list of such areas. Although I accept the principle that certain areas of employment should be excluded from the terms of the Bill, I will examine that list to ensure all the areas listed are appropriate and, equally, that none has been left out that should be included. In this regard, I accept the suggestion that there is a strong case for including non-paid voluntary work in certain sectors, as well as areas of employment that come within the remit of, for example, the Private Security Authority or the Taxi Regulator.

Apart from the "excluded" employments, the Bill requires the disclosure of all convictions in certain other specified instances. I already have mentioned that previous convictions are to be disclosed at the sentencing stage in criminal proceedings. Section 6 sets out other circumstances in which disclosure may be required, including court proceedings relating to adoption and guardianship of children, as well as cases in which a court considers disclosure is necessary to ensure justice is done. While the details of section 6 seem reasonable and acceptable in the main, I will consider other areas, such as the requirements that a person who has been arrested and detained in respect of a criminal investigation should not be entitled to avail of the non-disclosure provisions. Persons making applications under the immigration laws also should be expected to disclose past convictions.

The Bill proposes that the entitlement not to disclose a conviction should be automatic once the conditions relating to excluded offences and employments, the sentence thresholds and the conviction-free period had been observed. The case for such an approach is well argued by the Law Reform Commission and I agree with its proposal, as reflected in the Bill. Automatic application of the arrangements is preferable to one that is more demanding of time and resources. An application system, especially one that would entail applications to a court, would also present the real risk of drawing attention all over again to a conviction that the person hoped was behind him or her, thus defeating the purpose of the Bill. The automatic system now proposed avoids such shortcomings. It may be worth noting that the provisions about which I have been speaking regarding thresholds, excluded offences and employments, as well as the automatic application of the arrangements, are mirrored in the arrangements already in place under section 258 of the Children Act. Apart from the duration of the conviction-free period the offender is required to observe, a high level of consistency in approach as between adults and children will be achieved.

Some Members may remark on the absence from the Bill of any sanction for non-compliance. In general, the sanction lies in the consequences of being found out, which may, for example, result in the loss of employment. However, I realise that further assurance is needed, especially in respect of employment in certain sensitive posts. I therefore remind Deputies that the Bill does not entail a wiping out of criminal records, which will continue to exist and will be available to, for example, the vetting authorities. I already have mentioned that in the case of certain employments, convictions must be disclosed. In cases in which vetting arises and disclosure is required but the person fails to disclose a conviction, the existence of the conviction will be highlighted in the vetting process. This happens already under the current vetting arrangements and underlines the necessity of having such arrangements.

Employment vetting has been ongoing in Ireland for several years. Members will be aware its purpose is to ensure that employers, especially those in sensitive areas of activity, are in possession of all the relevant information about potential employees. It is important to understand that the vetting authorities are not the arbiters of whether a person gets, or holds on to, a job. Their function is to provide the employer or other specified body, such as the Health Service Executive, with all relevant information on convictions, as well as such additional information as may be permitted to be released. It then is a matter for the employer to come to a decision on whether to proceed with the offer of employment.

An expert group reported in 2004 on the current arrangements operated by the Garda in co-operation with other agencies such as the Health Service Executive. The group's report recommended that the vetting system should be put on a statutory footing and that it should address the question of soft information as well as hard information. Meanwhile, as Members are aware, a joint committee has been considering children's rights and it recently recommended the introduction of legislation to put on a statutory footing the vetting arrangements. This recommendation will be pursued as a matter of urgency in the coming months.

In respect of vetting, I wish to add that I am examining whether it is necessary to provide in this Bill that the responsibility of the Garda vetting unit will be to provide information on convictions on the basis permitted by this Bill, bearing in mind that the vetting unit has full access to the criminal records. I do not want a situation to develop whereby requests are made to the vetting unit that are designed to elicit information about a prospective employee which that prospective employee is entitled to withhold under this Bill. Such a scenario would undermine the whole basis for the regime being established by this Bill and would be a wasteful abuse of the time and resources of the unit. I stress that any amendment along the lines I have mentioned will not result in information being withheld where it must be made available, for example, on employment where there is access to children.

Before I conclude, I want to add a few remarks about the Bill's provisions in so far as they are relevant to our anti-discrimination laws and to foreign travel requirements. In its report on spent convictions, the Law Reform Commission looked at the question of including a person's criminal history among the grounds on which discrimination should be prohibited under our equality legislation. The commission decided not to make recommendations on the issue, as it raised matters such as access to services, accommodation and insurance that it felt were outside the scope of its brief. My colleague, the Minister for Justice, Equality and Law Reform, Deputy Dermot Ahern, tells me that he will, in due course, be carrying out a review of the Equality Act and the issue can be looked at in that context.

Finally, the existence of a conviction can also impact adversely on a person's freedom to travel. Within the EU, there is, as we are aware, very substantial and unrestricted travel entitlements for all but the most exceptional cases. The presence of a conviction, certainly a minor one, will therefore generally not present any restriction on internal EU travel. However, as regards travel outside the EU, entry requirements are a matter for the host state. This Bill applies only within this jurisdiction; it has no function in any entry requirements set down by other states on the granting of holiday visas, work permits or any other entry requirements.

I again acknowledge and thank the Law Reform Commission for its report. It has given us an opportunity to address an important issue, which can bring real benefit to the individuals concerned and to society as a whole. I also thank Mr. Michael Tuite BL who assisted me in the preparation of the Bill in the previous Dáil. I am happy to commend the Bill to the House.

See this speech in context