Michael Creed (Cork North West, Fine Gael)
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Question 380: To ask the Minister for Justice, Equality and Law Reform if he has proposals to change the law whereby persons with a criminal record who have not offended for a long number of years will have their criminal record set aside; and if he will make a statement on the matter. [15276/08]

Brian Lenihan Jnr (Dublin West, Fianna Fail)
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I am pleased to let the Deputy know that earlier this year the Government accepted my proposal that it should take over the Spent Convictions Bill 2007, introduced into the Dáil in October 2007 as a Private Members' Bill by Deputy Barry Andrews, and adopt it as a Government Bill. It is my intention to bring the necessary motion to the House at the appropriate time to give effect to the Government's decision.

The Bill reflects the recommendations contained in the Law Reform Commission's report on spent convictions which was published in July 2007. The report recognises that securing employment can be a very effective way of achieving the rehabilitation of convicted persons and it seeks to facilitate that objective by the introduction of a procedure whereby certain convictions may be regarded as 'spent'. As a result, the report recommends the establishment of a procedure that will allow for the non-disclosure of certain convictions where certain conditions are met, i.e. the convictions may, in those circumstances, be regarded as 'spent'. The procedure proposed by the Commission and reflected in the Bill does not, however, entail a deletion of the conviction from the Garda records.

The report recommends that:

The following categories of offences should be excluded completely from any proposed legislation on spent convictions: (i) any offence triable by the Central Criminal Court; (ii) any offence under the Sexual Offenders Act 2001; (iii) any offence where a sentence of at least 6 months (including suspended sentences) has been imposed by a court.

A conviction may be regard as 'spent' 7 years from the date of conviction where a custodial sentence of less than 6 months was imposed and where the person has not re-offended in the meantime, or after 5 years in the case of a non-custodial sentence.

All convictions, including spent convictions, must be disclosed at a sentencing hearing for any subsequent offence and in some non-criminal procedures (e.g. adoption proceedings, vetting procedures involving access to children).

The procedure should operate on an automatic basis. This means that convictions become 'spent' automatically after the requirements of the scheme have been met, i.e. a person will not have to make an application to qualify for 'conviction free status'.

The report also makes specific recommendations regarding the issue of vetting and disclosure of criminal history for certain purposes. The Commission recommends that the current Garda vetting system be put on a statutory footing. The report also recommends that certain sensitive posts would require full disclosure of all convictions, including spent convictions. It lists the following posts:

Any post involving care of children or vulnerable adults,

Any health care post,

Judges, barristers, solicitors, court clerks, court registrars and employees of the Courts Service,

Members of the Defence Forces, Prison Officers, members of the Probation Service and An Garda Síochána,

Accountants,

Director, controller or manager of a financial institution or of any financial service provider which is regulated by the Financial Regulator.

Pending the enactment of the Bill, there is no general provision in Irish law allowing for the deletion or otherwise of criminal convictions from the Garda criminal records. However, section 258 of the Children Act 2001 (which came into effect on 1 May 2002) provides a limited but significant procedure in respect of most offences committed by persons under 18, once certain conditions have been met. As a result, the effects of a conviction are limited where the relevant conditions have been met. The person in question is regarded for all purposes in law as a person who has not committed, been charged with, prosecuted for, found guilty or dealt with for an offence. Any individual who comes within the terms of section 258 is not required to disclose the criminal conviction under any circumstances even if asked to do so. The section is fully retrospective so that it applies whether the offence occurred before or after the coming into force of the section. It is envisaged that the Spent Convictions Bill would operate in broadly similar terms to section 258 in the case of adult offenders.