Tuesday, 17 December 2019
Criminal Records (Exchange of Information) Bill 2019: Committee and Remaining Stages
I move amendment No. 1:
In page 6, between lines 8 and 9, to insert the following: “(2) Where the Central Authority receives information in accordance with subsection (1)relating to a conviction made against a person by a Member State which would, if the conviction occurred in the State, be a conviction which:(a) could be regarded as spent by virtue of section 5 of the Criminal Justice (Spent Convictions and Certain Disclosures) Act 2016, orthan as appropriate, it shall be eligible to become spent in accordance with the Criminal Justice (Spent Convictions and Certain Disclosures) Act 2016 or it shall be a conviction to which Section 14A of the National Vetting Bureau (Children and Vulnerable Persons) Act 2012 can apply.”.
(b) for the purposes of Garda vetting, that it could be a conviction to which Section 14A of the National Vetting Bureau (Children and Vulnerable Persons) Act 2012 applies;
I thank the Minister for coming before the Seanad. Am I right in saying this session will be guillotined?
I wish to state for the record that last week there was absolute uproar and talk of the fall of democracy here at the thought of a guillotine after 100 or so hours of debate on a certain piece of legislation but that today there was not a single whisper about the introduction of a guillotine on a Bill before the House for the first time.
I am just acknowledging the shaming that happened last week in the Chamber.
I welcome the Bill to the House. It is relatively straightforward, enacting in Irish law a 2009 Council decision relating to the exchange of criminal record information between EU member states through the European criminal records information system, more commonly referred to as ECRIS. It provides for the exchange and format of such information and is an important part of record sharing between countries in this important area. The primary policy underpinning the Bill is that there needs to be a certain form of equivalence in the methods by which information on foreign recognition of convictions are transmitted between members states, in line with general European principles of equal treatment for European citizens in different member states insofar as is possible. It is very much in this spirit that I table my two amendments.
As the Minister will be aware, I have conducted considerable work in the Seanad on spent convictions and on legislating for the circumstances under which a criminal record must and should be disclosed, having regard to the interests of the public and the privacy rights of the individual in this regard when deciding the balance. I am grateful to the Minister and his Government for their support for this legislation as it has progressed through the House. As the Minister will also be aware, we essentially have two different schemes for spent convictions in Irish law: a general regime under the Criminal Justice (Spent Convictions and Certain Disclosures) Act 2016, which can apply to District Court and Circuit Court convictions, and a specific regime for Garda vetting under section 14A of the National Vetting Bureau Act 2012, which applies to District Court convictions. The general rule is that after seven years, and without reoffending, a single conviction can come off one's record. A problem arises, however, where an Irish national receives a conviction in another member state and that information is transmitted to the Garda through ECRIS. As no account is made for foreign convictions in our domestic law, one can receive a conviction in another EU country that if one were to be convicted of here would qualify to become spent. As a result of this gap in our laws, however, that conviction will never qualify to become spent, no matter how minor the crime. In a Bill that at its very heart provides for the principle of European communication, equivalence and equality of treatment between how convictions are recorded in member states, this is a major gap in the Bill and must be addressed.
As an example of this in action, I was recently contacted by a constituent, following the passage through Committee Stage of my Private Members' Bill in this area, who had had this exact issue. While on Erasmus as a young undergraduate student in the Netherlands and at a difficult time in his personal life, he engaged in extremely minor shoplifting to the value of €5. Despite immediately repaying the value and being released from custody on the same day, the student received a €100 fine and a misdemeanour-style conviction, the lowest form of penalty under the Dutch penal code. This conviction is clearly equivalent to a District Court conviction and if received in Ireland would clearly be eligible to become spent after a period of non-offending under our laws. When it was transmitted to the Irish authorities, however, my constituent was informed there will never be an opportunity for this extraordinarily minor conviction to become spent as there is no recognition of this when the information is being transmitted. There is therefore clearly a problem here. My constituent then contacted the Dutch policing authority about having the record expunged on the Dutch end. However, because the Netherlands takes a different legislative approach to record expungement, which is embedded in privacy rights and involves certificates of good behaviour, etc., an approach more common in countries that do not use common law, he was told that because there was not an equivalent in the legislative framework used here in Ireland, the Irish authorities could never view his conviction as spent, and that even if same was transmitted to the Irish authorities, they would still refuse to treat it as such.
This is my motivation for tabling amendment No. 1, which creates a recognition of foreign convictions and allows for such convictions as received by my constituent to be spent. It is simply not fair or proportionate for him to be disadvantaged for his entire adult life, particularly as he enters the labour market, for an extraordinarily minor infraction that if it were to happen in Ireland would be eligible to become spent.If this Bill intends to deal comprehensively with European equivalency and equality of treatment in the area, this major flaw in the legislation could be fixed with my amendment. I urge the Minister to take the opportunity to fix this gap.
I thank Senator Ruane for her interest in this legislation and for tabling the amendment. I am unable to accept the amendment because it is not open to our national central authority to convert the criminal record information that comes here into our own national interpretation. I consulted with the Attorney General on this and the advice was that it would be imprudent to accept the amendment. However, Members will recall we had a debate on Senator Ruane's Private Members' Bill on the matter of spent convictions. With both these amendments I will see how we could incorporate some of the matters raised by Senator Ruane into her own Private Members' Bill as it progresses through the House to see if we can accord the point she makes in respect of spent convictions. I am unable to accept the amendment in its current form.
I concur with that comment. I am willing to look at where in the legislation this provision would be most appropriate. If the Minister is saying he is willing to consider it in my legislation, I would be happy to work with him in that regard.
I move amendment No. 2:
In page 11, between lines 9 and 10, to insert the following:
"Non-disclosure of information
13.For the avoidance of doubt, the Central Authority shall not transmit to the requesting Member State information relating to convictions in the State contained in the Criminal Records database in accordance with this Act where— (a) the conviction is regarded as spent by virtue of section 5 of the Criminal Justice (Spent Convictions and Certain Disclosures) Act 2016,
(b) for a purpose specified in Schedule 3, the conviction is one to which Section 14A of the National Vetting Bureau (Children and Vulnerable Persons) Act 2012 applies,
(c) it is a finding of guilt to which section 258 of the Children Act 2001 applies.".
This is tabled in the same spirit as amendment No. 1 and the general equality of treatment principles that underlay the legislation. It relates to the treatment of convictions that have become spent under Irish law and the obligation to transmit such spent convictions to other European Union member states in accordance with this Act. If our laws deem a conviction to be spent, I would be of the strong view that information relating to such a conviction should not be transmitted under this Act. We have told the individual concerned that after a set period of not offending, this convection would no longer be relevant and it would no longer be a factor. It stands to reason, therefore, that this would extend to information sent to other jurisdictions, especially as our laws only apply to minor convictions received in the District Court and the Circuit Court.
There is no explicit mention in this Bill of any such arrangements or for how convictions received by those under 18 would be treated. This amendment would give statutory effect to those concerns. I recognise there may be sensitive matters that could require a more detailed disclosure of information and that these are set out in Schedule 3 to the Bill. I have, therefore, set out that in respect of these matters, it would be section 14A of the National Vetting Bureau Act that would apply to these convictions as these are the equivalent measures used for more sensitive issues here in Ireland.
I know this matter was raised with the Minister in the Dáil, and whether the legislation would apply to spent convictions and whether they would be transmitted was raised by Deputies Catherine Connolly and Martin Kenny on Committee Stage at the Select Committee on Justice and Equality. The Minister's view at the time was that the Bill would not apply to spent convictions and that he would take it up with the central authority to make sure. However, as no amendments were tabled to the Bill on Report Stage in the Dáil, there is a need for this provision to be made explicit in the Bill. I urge the Minister to take on the amendment, which I see as a key part of the reform of spent convictions.
I thank Senator Ruane again for her engagement. The legal position is that we are obliged to disclose information relating to spent convictions with our European Union counterparts through the National Vetting Bureau Acts.Similarly, central authorities in other member states share their spent convictions information, where it may exist, with our central authority. This ties in with the earlier point I made, which is that a member state's concept of what is recorded in its criminal records must be respected. The law at European and national level does not allow me the latitude to manipulate, as it were, the treatment of such information when shared in an international context.
I will not accept the amendment, but it is an issue that we might be able to revisit in our discussion on Senator Ruane's Bill. I would be happy to have my officials discuss this point with the Senator in the context of the ongoing discussions on that Bill. In the meantime, I ask the Senator to withdraw her amendment for the purposes of enacting this legislation today.
One amendment deals with the information that goes out of the country and the other relates to the information that comes in. Even though the points are similar, how we address them might be a little different. If we consider something to be spent here, it should be removed completely from every system that exists here. The Garda vetting bureau or the central authority should not be able to see it or be able to relay to another country that it exists. We are into a conversation on whether something is spent at all if an institution or a state can still access it. I am willing to withdraw the amendment, but we must examine the nuances. What we are going to consider spent in another country is one thing, but if we consider the conviction is spent here we must be able to ensure, for the individuals who receive a conviction that is spent, that it is well and truly spent, regardless of how another country deals with spent convictions. I look forward to teasing that out with the Minister and his officials over the coming months.