Charles Flanagan (Laois-Offaly, Fine Gael)

I thank the Minister of State, Deputy Barry Andrews, for presenting this short but, nevertheless, important piece of legislation which has the broad support of the Fine Gael Party.

In July 2007, the Law Reform Commission published the report on spent convictions which included a draft Bill in the document. At that time, the then Minister for Justice, Equality and Law Reform, Deputy Brian Lenihan, welcomed the proposals contained in the report to expunge after seven years the criminal records of those convicted of minor offences. In October 2007, the draft Bill from the Law Reform Commission was published verbatim in a Private Members' Bill in the name of the Minister of State, Deputy Barry Andrews. Other than a key difference on the length of eligible sentence, and, indeed, the ordering of the sections, the Bill is almost identical to the one published by the Law Reform Commission.

In a survey of over 20 jurisdictions undertaken by the British Home Office in 2002, it emerged that of those jurisdictions only Ireland and Slovenia had no scheme in place in respect of adult offenders. The Law Reform Commission also highlighted the fact that Ireland is in a small minority at European and international levels in so far as it is one of the few states that does not have some form of arrangement in respect of spent convictions. This Bill will go some way towards addressing that issue.

The Bill includes a category of rehabilitated persons who will not have to divulge information about a conviction that is considered to have been spent or disposed of in some respect. Excluded sentences which will not qualify under the Bill include sentences imposed relating to sexual offences or sentences which involve a term of imprisonment exceeding six months.

This Bill will only include crimes for which people have been sentenced, including suspended sentencing, of six months or less. The Minister of State stated that there were a number of specific exclusions, and I agree with him, particularly on the disclosure of sexual offences. He spoke of the disclosure of persons coming into this country, particularly those who wish to take up residence in this country. It brings to mind the issue of the absence of an EU-wide sex offenders register, which is a matter to which this House has adverted on numerous occasions in the past and yet progress on which has been particularly slow. I would ask, perhaps in the context of progress of advancing this legislation, that the Minister of State and his Government colleagues might avail of the opportunity to impress upon EU colleagues, and this jurisdiction, the need to promote and bring into being an EU-wide offenders register, particularly in the areas of sexual offences and having regard to the increased social mobility of recent years.

The scheme in this Bill applies to persons not serving an excluded sentence and who have remained conviction free for the appropriate period of rehabilitation. I suppose it is true to say that the Bill will be aimed primarily at once-off offenders who had convictions for minor, no-violent offences, such as road traffic offences.

I note that the rehabilitation period will be seven years in respect of a custodial sentence for a term not exceeding six months, and five years for non-custodial sentences. Excluded employment, which is not covered by the Bill, will include those who work with children or those working with the intellectually disabled; those in health care work; those in the legal profession; all who work in the civil and public sectors; and some in financial related employment under the regulation of the Financial Regulator.

We will have an opportunity on Committee Stage to deal in considerable detail with the Bill. However, section 4 states that the general effect of a spent conviction is to ensure that a rehabilitated person will be treated for all purposes in law as a person who has not committed or been charged with or prosecuted for or convicted of or sentenced for the offence or offences which were the subject of that conviction.

An eminent barrister, Ms Caroline O'Connor BL, summed up what we are at in an article I read recently. She stated that the reality is that persons convicted of minor offences, and who receive fines and a criminal recorded, are often unaware that they have a criminal record for life, that a criminal record, however minor, can have adverse consequences in respect of, among other things, visas, employment, insurance, entry to professions and a vicious spiral may develop in that the ex-offenders are often unable to obtain a legitimate source of income and may resort to a life or crime or obtaining a livelihood by illegal means. This obviously leads to the possibility of further charges being brought, further convictions being recorded and perhaps even a spell of imprisonment. That is why I welcome the Minister of State's initiative and the manner in which he introduced the Bill from the backbenches. It is pleasing for him, as well as for the House, that he, as a Minister of State, is taking Second Stage.

There are persons, many of whom are in long-term employment, who have deep-seated worries and fears that they did not disclose a conviction because they might not necessarily have been asked to do so, and they fear that if their employer was to find out that their past involved a conviction, they might face summary dismissal from their employment. The fear is that people might suffer economically and that they would also suffer the social stigma of carrying a conviction for a longer period of time than might have been envisaged, having regard to the circumstances of that conviction.

There are, however, a number of concerns which, in the course of dealing with the small print of the legislation, we will have an opportunity of processing and examining. The rehabilitation period of seven years for custodial and non-custodial sentences of six months or less is excessive. While the Law Reform Commission recommended this timeframe, I would say that a period of two or three years would be more reasonable and fair in the circumstances. This is a matter we might look at.

As I already mentioned, the Bill is aimed at once-off offenders and offenders who have convictions for minor and, more importantly, non-violent offences. These offences include road traffic offences, minor thefts, minor criminal damage or non-payment of fines, offences that hurt properties and pockets, but not necessarily people. It is entirely appropriate that people who commit such offences should have a genuine opportunity to overcome their past by having their sentences expunged in circumstances where they do not re-offend. However, two issues arise in regard to the way this is approached.

The Bill suggests that the period to elapse before a conviction can be expunged should be five years where a non-custodial sentence is imposed and seven years in the case of a prison sentence. I do not criticise the Minister of State, Deputy Andrews, for this measure but I believe the Law Reform Commission exercised a greater degree of caution than what might be considered reasonable in recommending these overly long periods of time. The practical effect would be that a person who received a four-month custodial sentence for the non-payment of a fine would have to wait a full 84 months before he or she could cleanly move on in circumstances where he or she has not re-offended.

Why are we using prison for minor and non-violent offences in the first place and why, in particular, are we imprisoning fine defaulters? We should take a more reasonable approach because the routine use of custodial sentences for default is somewhat outdated and sentencing policy needs to be brought into the 21st century. I regret the fact that yet another Dáil session is ending without the introduction of the long-awaited fines Bill. The Fines Bill 2004 was withdrawn last year for reasons that have not been fully explained. By enshrining in legislation a provision for the payment of fines in instalments, we would contribute to ending the expensive and fruitless practice of sending people to jail for defaulting on relatively small sums of money.

I suggest that a more useful approach to the issue would be to review and reduce the use of short-term custodial penalties. I would like the Law Reform Commission to produce a report on this if it has not already done so. The rationale for such an approach is clear in terms of the cost and the revolving door syndrome. It costs €91,000 to keep one prisoner in jail for one year and Ireland has some of the highest recidivism rates internationally, with 27.4% of released prisoners serving a new prison sentence within one year and habitual criminality rates rising to 49.2% after four years. In light of these startling figures, one would have thought that alternative means of addressing the issue would be considered. The current practice is ineffective, a waste of resources and brings more people into the criminal justice system than necessary. These people could serve a sentence that is of value to society by way, for example, of community service rather than imposing yet another cost on the State. Of those committed to prison in 2007, 85.7% were as a result of non-violent misdemeanours such as offences against property, public order offences, drug and road traffic offences and other such administrative offences. It is illogical to punish a violent murderer and an individual who failed to insure a car in the same manner, with the punishment varying only in duration.

Our penal system operates on the basis of a series of statistical contradictions. In 1999, Ireland had the second lowest number of recorded crimes among EU states but by 2007 we were ranked as one of Europe's hotspots for crime in an EU survey. Our imprisonment rate per recorded crime is higher than other European countries but 85.7% of prisoners in 2007 were serving sentences for non-violent offences. Even as I speak, however, serious criminals are avoiding prison. The legislation on bail needs to be further tightened and a farcical situation has arisen in respect of bench warrants, tens of thousands of which remain outstanding.

Despite these failings, a record number of people are being held in prison. Figures released this week show that, with 4,042 people held in prison, we have for the first time exceeded the 4,000 mark. Prisoners are sleeping in the reception area of Mountjoy Prison and the governor will almost be required to put a "no vacancy" sign on the doors. Similar conditions can be experienced in other prisons throughout the State. The Minister for Justice, Equality and Law Reform has proposed additional places for Portlaoise, Castlerea and Wheatfield prisons. One wonders why, on the one hand, serious criminals do not appear to be serving full sentences while, on the other, people are being given short custodial terms for road traffic and other non-violent offences.

Prisons in Ireland are enormously expensive but offer little or no deterrent. Rather than developing a proper sentence management programme for each prisoner, cutbacks are being imposed on prisons' rehabilitative functions in regard to training and employment preparation.

I welcome the initiatives that have been made on restorative justice and commend Judge Mary Martin in that regard. However, I wonder what effect budgetary constraints will have on the implementation of the recommendations of the interim report on restorative justice. I am also concerned about the lack of tiered funding for the probation and welfare service. It is essential that the appropriate level of resources is directed at the service, with particular reference to the concept of restorative justice. Statistical data indicate that the latter has a good record for participation and due process.

The spent convictions project group, which comprises representatives from the Northside Community Law Centre, the Ballymun Community Law Centre, the Ballymun Local Drugs Task Force, Business in the Community and the human rights committee of the Law Society is also of the view that the scheme proposed by the Law Reform Commission is overly restrictive and limited and will make no significant impact on the rehabilitation of offenders or the reduction of recidivism rates. I may propose on Committee Stage a broader scheme which would be open to all offenders. Although this proposal could prove controversial, it nonetheless deserves detailed examination.

Fine Gael supports the introduction of this Bill and we pay tribute to the Minister of State, Deputy Barry Andrews, for introducing it. However, we are strongly of the opinion that the period of rehabilitation is too long and should be reduced. The Minister should take the opportunity to look at the short sentences being given to offenders by the courts and served within the prison system. Such people may be punished by alternative means and we can consider such arrangements.

I am also concerned about data protection and the manner in which, for example, job applications could be open to question for would-be applicants. Voluntary requests may be forced on potential employers on the one hand or potential employees on the other. How would such a provision of information, through the vetting unit or otherwise, sit in terms of data protection and has advice or guidance been sought from the Data Protection Commissioner on the manner of possibly compulsory disclosure or the nature of such a request?

For example, a question from a would-be employer might require access to Garda records with regard to past convictions. An example would be a query as to whether an applicant has availed of the provisions of the spent convictions legislation, if and when it is enshrined in law. That would defeat the purpose of the legislation and give rise to a serious issue for a person who may otherwise wish to avail of the provisions of the legislation. I look forward to further debate on this matter on Committee Stage.

See this speech in context