Trevor Ó Clochartaigh (Sinn Fein) | Oireachtas source

I formally second the amendment.

We have put forward a number of amendments which are very much in line with what Senator van Turnhout has outlined. One of our amendments suggests that lines 31 to 33 on page 5 of the Bill be deleted and replaced with the following formation, namely, "(a) of imprisonment for a term of more than 48 months, irrespective of whether that sentence is suspended in whole or in part". As the legislation currently stands, only those who have had a custodial sentence of less than 12 months imposed can have their convictions deemed spent. We are opposed to this and are thus seeking an amendment to extend the period to 48 months. On Committee Stage we stated that it should be 30 months but we have revised the figure upwards on the basis of the submission of the Irish Penal Reform Trust, IPRT, on the legislation. The period in Britain and the North is 48 months and it is important that we should have consistency, as far as possible, between North and South. The Good Friday Agreement requires equivalence in terms of human rights protections and this is also a consideration, particularly as the legislation before the House relates to the right of prisoners to be reintegrated into society.

There has been a solid system of spent convictions in Britain for 40 years since the enactment of the Rehabilitation of Offenders Act 1974. It was only on the basis of experience that the British extended the period to 48 months. This is because they were of the view that 30 months was too restrictive. However, we are only considering a period of 12 months in this regard. There is no public safety issue discernible in this instance and we are of the view that the proposed period is too restrictive.

The primary purpose of the Bill is to ensure that minor offences will not follow an individual for his or her life or hinder a person in gaining employment. Getting people into gainful employment is crucial in the context of tackling recidivism and offers an incentive to individuals to prove they are reformed and can return to being productive members of society. It therefore offers people an incentive to avoid crime. As the IPRT has highlighted, this limit could be raised without any risk to public safety or of diminishing the punishments handed down by the courts.

The idea of spent convictions is to ensure rehabilitation. We must support successful efforts to move on from offending behaviour by removing barriers to participation in employment, education and other aspects of daily life. The barriers to which I refer are real. Studies indicate that 48% of employers would not take on somebody with a criminal record. A survey carried out by the Small Firms Association shows that between 76% and 87% of firms would not employ an ex-offender. In such circumstances, it is not easy to achieve reintegration. As Senator Cullinane highlighted on Committee Stage, the Minister has improved on the original, restrictive form the Bill took. The period should be extended further. While not neglecting the fact that these sentences could be the consequence of serious offences, they could also be the outcome of offences which would not indicate that those who committed them are an ongoing threat to the public. Very often, such people do not pose such a threat.

On Committee Stage, the Minister of State, Deputy Kathleen Lynch - who was standing in for the Minister, Deputy Shatter - stated that the Government is not prepared to go further than the maximum 12-month custodial sentence. That is regrettable and I urge the Minister to reconsider the position. The Minister of State indicated her view that the British legislation is the most liberal in common law jurisdictions. However, the IPRT has emphasised that such comparisons are not particularly useful. Australia is a federal state with no uniform approach to crime, punishment or the reintegration of offenders. New Zealand makes greater use of restorative justice methods, thereby offering offenders a second chance very early on in the criminal process and ensuring that prison is seen as a sentence of last resort only. While civil law systems are legally distinct, the principles and policy objectives are the same nonetheless.

According to a 2009 research report by KPMG entitled Disclosure of Criminal Records in Overseas Jurisdictions, which dealt with expungement schemes, in countries such as France, Germany, Finland, Denmark, Sweden, Spain and Italy the individual who is the subject of the criminal record search is generally the only person allowed to request the information. The report also states that the European emphasis - particularly in France - is more on an individual's right to be forgotten than on the employer's right to know, which is the common law model that has inspired the Irish approach.

Similar approaches exist all over Europe. I ask the Minister to consider this point and to accept our amendments. My colleague, Deputy Pádraig Mac Lochlainn, will be considering an amendment to the effect that the definition of "relevant non-custodial sentences" in section 1 of the Bill will include all sentences which are suspended in whole and which are not subsequently revoked. There is a clear point to be considered in that regard in that these sentences have been suspended for a reason. However, that issue can await further discussion on Committee Stage in the Dáil.

If we truly believe in the ability of our prison system to achieve any form of rehabilitation we need to ensure that prisoners can reintegrate in cases where they are not a threat. Employment is absolutely central in that regard. It is crucial to ensure the reintegration of former prisoners who have genuinely sought to improve their lives upon release. Our amendment No. 3 states:

In page 4, to delete lines 2 to 38 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 in respect of the offence 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,
(c) a sentence of imprisonment for a term of 48 months or less, the execution of a part of which is suspended 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 in 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 part by the court;
(f) 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 and that suspension is not subsequently revoked in whole or in part by the court,?.

This has the same effect as the previous amendment in that we are making the same argument in this case. It will help people to have the opportunity to get their lives back on track and to enter the workplace. Tá súil agam go mbeidh an tAire ábalta na moltaí seo a thógáil ar bord agus glacadh leo le gach dea-mhéin, agus tá súil agam go dtógfaidh sé ar bord iad sa reachtaíocht.