Alan Shatter (Dublin South, Fine Gael) | Oireachtas source

I thank Senators for their contributions and accept that they are anxious to ensure this legislation has the intended effect. I am also conscious that as this is our first time to enact legislation in the State on spent convictions, we must be careful how we deal with it and ensure we approach matters in an appropriate way.

It has been suggested Northern Ireland has applied the UK regime. It has not. Not only has it not applied it, but I also understand there is no intention of applying it. It is not the case, therefore, that in Northern Ireland the timeframes which have been articulated as being applicable in England are also applicable there.

The Government gave a great deal of consideration to the length of custodial sentence to be covered by the Bill. I discussed this issue on Second Stage. It is dealt with primarily through the definition of "excluded sentence" and "relevant custodial sentence" in the Bill. With regard to the length of sentence to be covered or the length of time a person must wait before a conviction becomes spent, there is no absolute answer or piece of research which states a specific and the only way to go. As is clear from the brief survey carried out by Senator Jillian van Turnhout, there are different provisions in place in different parts of the world. I could spend some time detailing the variety of provisions in other jurisdictions that have not yet been mentioned.

I respect the sincerity of Senators in seeking to refine the proposal made in the Bill. I realise they genuinely wish to ensure the Bill will be of the greatest possible benefit to those it aims to assist. That is also my objective. However, it is worth going back to the beginning to outline how we arrived at the 12 month limit on the length of custodial sentence. The genesis of the spent convictions legislation dates back to the Law Reform Commission report of 2007 which was based on the usual high quality research and analysis that characterise the work of the commission. It found that in most Australian states only sentences of six months or less were covered, while in New Zealand custodial sentences could never be spent. In other countries such as Canada a person must apply to the courts to have a conviction declared spent and there is no automatic granting of the order.

The Law Reform Commission report was written at a time when the United Kingdom allowed sentences of up 30 months to be spent. I understand that is the provision in place in Northern Ireland. The Law Reform Commission recommended that in the case of Ireland only sentences of six months or less should be covered and advised against an application based system. An automatic system is provided for in the circumstances detailed in the Bill, without the necessity of persons reverting to the courts. The Government gave much thought to the balance to be achieved. There are two variables when considering the question of sentences - the length of sentence covered by the scheme and the length of time before the sentence can become spent. The Law Reform Commission report recommended that sentences of up to six months or less be covered and that an offender who was sentenced to six months imprisonment wait seven years before the conviction could become spent.

The Government decided to err on the side of generosity. Where the length of sentence to be covered was concerned, it settled on a figure of 12 months, double the duration recommended by the Law Reform Commission. A consideration for the Government in settling on the figure of 12 months was that it was the maximum sentence that could be handed down at District Court level, an important fault line between serious and less serious offences. With regard to the waiting periods, the Bill also went further than what the commission had recommended. I tabled amendments on Committee Stage which was dealt with by the Minister of State, Deputy Kathleen Lynch, in the House last week which reduced the waiting periods further. The waiting period of seven years recommended by the Law Reform Commission in the case of a six month sentence is now four.

The case for covering longer sentences put forward by Senators is based on some suggestion that the Government's approach is conservative. The Government's approach is conservative only if compared to the recent reform in the United Kingdom. Even then, the charge of conservatism is open to question. I seriously challenge it. In reality, what we are proposing is liberal by comparison with measures in the rest of the common-law world and the recommendations of the Law Reform Commission. Even in regard to the United Kingdom, there is evidence that suggests that its sentences are longer and that its 48-month threshold covers only a marginally higher proportion of prisoners than our 12-month limit.

Some 75% of prisoners committed to Irish prisons are serving sentences of six months or less. According to the UK Ministry of Justice's offender management statistics quarterly bulletin, for the third quarter of last year, just 50% of prisoners in English and Welsh prisons had been sentenced to six months or less. Therefore, there is a 25% difference in that context. Eighty nine per cent of those received in prison in England and Wales had been sentenced to four years or less, whereas our 12-month cut-off would have covered 86% of committals to Irish prisons in 2011. If one is examining the proportion to which there is a possibility of a conviction being spent, one will realise there is almost a state of concurrence between our system and that in the United Kingdom. The UK courts have a different sentencing policy and, at the lower end, it appears they impose higher sanctions than ours. Our proposal is not a conservative approach that some have claimed it to be. It is liberal and generous and stands comparison with what most will agree is the most liberal regime in the common-law world, namely, that of England.

The Government is not prepared to accept amendments Nos. 1 to 10, inclusive, for the following reasons. The Bill is already finely balanced between the sentences that are excluded and the waiting period before sentences become spent. The 12-month limit aligns the Bill with the jurisdiction of the District Court, which deals with less serious summary offences. The 12-month limit on sentences covers 86% of committals to Irish prisons and stands fair comparison with the regime in England and Wales. Most common-law countries cover shorter sentences and have far longer waiting periods. The proposal is balanced, fair and generous.

As Minister for Justice and Equality, I must be conscious that a sentence that is serious enough to warrant trial by jury is one that should not be readily spent. There are various reasons for this. We could have an interesting debate in this House on whether the objectives of penal policy are rehabilitative or reforming, and whether they serve as a deterrent. I am also conscious that the criminal justice system must be accepted by the wider community. It sees deterrents as comprising an important objective, in addition to the objectives that we in the Houses all want to see, namely, less recidivism and people emerging from prison concluding, for one reason or another, that continuing with a life of crime is not necessarily good for them and that it is clearly bad the community. There has to be a deterrent. If people feel a very serious crime will be wiped off the record within four or five years such that they can then get on with their lives, they may feel that the consequences will not really be that drastic if they are caught. This reduces the level of deterrence. It could create problems in circumstances where convictions are spent and where one is offered employment by well-meaning individuals who know nothing of one's background and who find that background concealed from them. It is a matter of achieving a balance, and there is no monopoly of wisdom on that.

Amendment No. 11, in the names of Senators van Turnhout and Mac Conghail, is consequential on amendments Nos. 4 to 10. I am not in a position to accept it either. Since this is new legislation, since no such legislation was enacted successfully by a previous Government, and since we have not had experience of it working, it is important that we do something different from the Law Reform Commission said, ensure that it applies generally to those who may find they would be sentenced in the District Court. As we know, the Circuit Criminal Court may impose a sentence of one year or less. It is not compulsory that it impose a sentence.

We need to gain experience of how this legislation works, to see it settle down, to monitor how it works, to have some sense over a period of years of whether the fact that convictions become spent after a particular period results in individuals returning to criminality and of how acceptable it is to employers. For a whole range of reasons which I have given, I am sorry to say I cannot accept the amendments tabled. I hope Senators will welcome the fact that this is a fundamental reform in our criminal law which is designed to facilitate people in getting back an additional bit of their lives, that is, their reputation, after experiencing a prison sentence but then behaving themselves by not being convicted again for a period of time. This will effect a fundamental change and we need it to bed down and be acceptable to the wider community. This may be an issue that may have to be revisited in five or six years time after the legislation has been enacted when there is a sense of how it is working in practice.