Frances Fitzgerald (Dublin Mid West, Fine Gael) | Oireachtas source

I move amendment No. 30:

In page 5, to delete lines 3 to 6.

These amendments are the most substantive before us today.I would like to explain in detail the reasons for the changes I am proposing in the Bill and in the National Vetting Bureau (Children and Vulnerable Persons) Act 2012. The Criminal Justice (Spent Convictions) Bill and the commencement of the National Vetting Bureau (Children and Vulnerable Persons) Act 2012 have been significantly delayed due to the outcomes of important legal cases based on the right to privacy provisions set out in Article 8 of the European Convention on Human Rights. The UK Court of Appeal case, known as the case of R (on the application of T) v.Chief Constable of Greater Manchester and others, found that the indiscriminate disclosure of all criminal records is incompatible with the right to privacy under this article of the European Convention on Human Rights. The appeals court found that the disclosure of criminal convictions must be based on principles of relevance and proportionality. Moreover, there must be a degree of coherence between the legislation providing for spent convictions and any legislation providing for the disclosure of criminal convictions for certain categories of employment. Since this specific case, further cases have arisen in the UK due to the fact that the UK Rehabilitation of Offenders Act and the legislation providing for the Disclosure and Barring Service procedures are at odds with each other. Put simply, any offences excluded from vetting disclosures because they are not relevant should also be spent convictions. Equally, there must be some consistency in policy regarding convictions under each piece of legislation.

The proposed amendments to the vetting Act 2012, which I am bringing forward today, will provide, as I have outlined to the House, for a range of convictions that will now not be disclosed by the Garda vetting unit. I have given the list to the House. It includes motoring and minor public order offences more than seven years old. Where a person has one and only one district court conviction other than motoring or public order convictions, that conviction also will not be disclosed after seven years, except for the two exemptions I mentioned earlier in regard to sexual offences. Where there is bona fide concern that a threat would be posed to a child or vulnerable person, offences would continue to be disclosed, and these are listed in Schedule 3 to the Bill. The provision will apply to well over 80% of all cases heard in the District Court. The Garda vetting unit has been in operation for the past year, and the non-disclosure procedures have been working satisfactorily.

I would like to explain the rationale for allowing all district court convictions for motoring and public order offences to be non-disclosable after seven years and why that time period was selected. Currently, the road transport operator regulations provide that any minor traffic offence over ten years old is not taken into account when people are applying for road transport operator licences. Similar provisions apply to taxi licensing. Following discussions between my Department and the Department of Transport, Tourism and Sport, it has been agreed that the seven-year limit being proposed in these amendments can also be applied to the Department of Transport, Tourism and Sport, with some minor modifications in regard to road transport and related regulations.

The reason it is not feasible to bring the reckoning period below seven years is the range of conflicts we would have with the road traffic Acts in regard to the periods of mandatory driving, which can be up to six years. We also want to avoid conflict with the penalty point system which is already in place in the road transport Acts. We cannot create a provision in this Bill which would allow a person applying for a job as a driver or a delivery person, for example, to state that he or she has no criminal convictions when he or she has penalty points on his or her licence in respect of a criminal conviction or is currently subject to a driving ban.

The 2007 Law Reform Commission report recommended that convictions should be spent after seven years. I can only assume that cut-off point was recommended because of the relevant provisions in the road transport Acts to which I have referred. It follows from this line of reasoning that the motoring offences which are not relevant for employment involving driving would not have relevance for non-motoring jobs such as those covered by the vetting Act. It is logical in what we are doing today to harmonise the provisions of the road transport regulations, the vetting Act and the spent convictions Bill in this regard. Amendments Nos. 35 and 84 make this provision.

In consultation between my Department and the Garda, it has been proposed that similar provisions should apply to the minor public order offences listed in amendments Nos. 35 and 84. These are offences in which there is no offence against a third party and it is therefore considered quite safe that these offences should be disregarded after seven years.

By taking the District Court motoring and public order offences out of the equation, we allow the great majority of convictions to become spent. However, we are left with offences that involves an offence against a third party, such as theft, robbery and criminal damage. They are more problematic because victims' rights are involved. In a year in which we will introduce the EU victims directive, we have to be very conscious of that. Therefore, we have to consider the rights of victims as well as those of offenders. There is also greater relevance for employment purposes. For this reason, I propose that a person should only be allowed to have one such conviction spent.

As a consequence of the amendments proposed for the National Vetting Bureau Act 2012, it follows that District Court convictions which will not be disclosed under the amended provisions of that Act should also become spent convictions under the Bill.

Similar provisions are therefore proposed for the Criminal Justice (Spent Convictions) Bill.

In addition, I am mindful that the Criminal Justice (Spent Convictions) Bill, as amended in the Seanad, already allows that a conviction in the Circuit Court which results in a sentence of up to 12 months' imprisonment is eligible to be spent. We have looked at the Circuit Court as well, and I will retain that provision, which was an amendment in the Seanad, but with the proviso that only one such Circuit Court conviction can be eligible to be spent because we are dealing with more serious offences in this regard.

I am conscious that these offences dealt with in the Circuit Court are the more serious offences in their category. The road traffic offences routinely dealt with in the Circuit Court include, for example, the unauthorised taking of a vehicle or dangerous driving offences. The offences against the person dealt with also tend to be at the more serious end of the spectrum, involving harm or serious harm to the victim. Having regard to the seriousness of these offences, I therefore propose limiting the spent convictions provisions for such convictions to a single conviction only. Where a person has multiple convictions in the Circuit Court, such convictions will remain as unspent convictions. This policy meets the criteria, which has been articulated in regard to the UK cases at European level, for relevance and proportionality. I believe that in the interests of rehabilitation of offenders, it is proportionate to allow that where the penalty is less than 12 months' imprisonment, a single offence, for example, of burglary, theft, assault causing harm, dangerous driving causing harm or possession of drugs with intent to supply is eligible to become spent under what I propose. However, where a person has more than one such conviction, I believe the rights of the employer come into play. I do not believe it is safe to legislate for persons with multiple convictions for serious offences to be able to inform an employer they have no such convictions. I also do not believe that there would be public acceptance for such an approach.

It is worth noting, and Deputies mentioned this, that what we are proposing is more generous than the spent convictions regimes in some other countries. For example, in Australia or New Zealand, only convictions which do not result in imprisonment are eligible to become spent. The Law Reform Commission recommended that spent convictions should be confined to a single conviction resulting in a penalty of six months' imprisonment or less, and the Bill exceeds that recommendation in allowing the one-year period of imprisonment.

To put these arguments more succinctly, by taking the approach I propose in these amendments, we can achieve a number of things. Any and all District Court motoring convictions and public order offences can become spent. That is very advantageous to a greater number of people because these offences account for such a high proportion of cases that come before the courts, and under this legislation they can become spent. We also avoid creating any conflict with the mandatory penalty points and driving bans under the road traffic legislation. This legislation must be compatible with that. We achieve coherence between the Criminal Justice (Spent Convictions) Bill and the provisions regarding the non-disclosure of certain offences in the National Vetting Bureau (Children and Vulnerable Persons) Act, so the provisions under the Criminal Justice (Spent Convictions) Bill and the National Vetting Bureau (Children and Vulnerable Persons) Act have to be coherent. By ensuring that, we make both Acts more understandable to the average person applying for work or for Garda vetting. We can adopt similar provisions regarding disclosures of criminal convictions which are outside the remit of the Acts. This includes disclosure required by road transport regulations, for example, and disclosures in police certificates for people working abroad.

With regard to the specific amendments, I am proposing amendments Nos. 30, 38 and 39 to delete the reference to the "relevant period" in the Bill as I am proposing that a common relevant period of seven years will apply in all cases. Amendment No. 35 sets out the provisions I am proposing for spent convictions, as I have outlined.

Amendments Nos. 36 and 37 are in the names of Deputy Pringle and Deputy Mac Lochlainn. Deputy Pringle proposed that there would be no limit on the number of convictions that could be spent. While one might make an argument for that in regard to the motoring offences and the public order offences, for the reasons outlined I do not believe it would be appropriate for more serious offences.

Amendment No. 84 sets out the proposal for non-disclosure of certain offences under the National Vetting Bureau (Children and Vulnerable Persons) Act , and I have outlined that. Amendment No. 92 lists the offences it is proposed will require disclosure under the provisions of the National Vetting Bureau (Children and Vulnerable Persons) Act, that is, in regard to vulnerable children, for example, because they are offences which may be dealt with in the District Court but which could cause a concern that a person might cause harm to a vulnerable person. It should be noted that although these offences will be disclosed where persons are working with children or vulnerable people, they will still be eligible to be spent convictions with respect to other employments. They are targeted at ensuring that if the person works with children, their employer would have to be informed, but not in regard to other employments.

Deputy Mac Lochlainn is not here but I will deal with his amendments. They propose that convictions where fines are imposed and there is no custodial sentence would be deemed spent in one year for a class A fine or two years for other fines. I regret that I could not agree to this as the most common such offences are motoring offences and for the reasons I have already set out, we need to harmonise those provisions with the provisions in the road transport regulations. If I were to accept the two-year proposal, it would immediately come into conflict with all the legislation in regard to penalty points and driving bans. We need to harmonise the provisions in regard to motoring offences with the provisions that apply to persons applying for work governed by road transport and similar regulations. These amendments would be such that motoring offences would be deemed spent while persons would still have penalty points in respect of the offences.

I hope that rather lengthy description has given Deputies a clear idea of the connections between the vetting legislation and the road traffic legislation and why these are the terms we have put in place in this legislation.

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