Written answers

Wednesday, 18 November 2015

Department of Justice and Equality

Legislative Process

Photo of Thomas PringleThomas Pringle (Donegal South West, Independent)
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109. To ask the Minister for Justice and Equality when the Spent Convictions Bill 2012 will be brought before Dáil Éireann; if Government amendments will seek to amend the Bill to such a degree that would warrant the Bill going back to Committee Stage for effective debate; if Opposition Members will be given adequate time to review those amendments and make their own proposals; and if she will make a statement on the matter. [40768/15]

Photo of Frances FitzgeraldFrances Fitzgerald (Dublin Mid West, Fine Gael)
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I anticipate that the Spent Convictions Bill 2012 will be brought before the Dáil within the next month. I anticipate that it will require recommital to Committee stage in order to allow a full and considered discussion of the amendments that I intend to bring, and to allow the opposition to fully consider those amendments.

Before the Bill could be enacted, a 2013 UK Court of Appeal judgment necessitated a review of the disclosure provisions in both the National Vetting Bureau (Children and Vulnerable Persons) Act 2012 and the Spent Convictions Bill. This judgment in the UK Courts found that the policy of disclosure of allcriminal convictions under the UK's vetting legislation was contrary to Article 8 of the European Convention of Human Rights. The UK Courts found that there must be some assessment of the relevance and proportionality of offences, in particular old, minor offences. The UK Courts also found that there must be a coherence between vetting legislation and legislation dealing with spent convictions. The Court found that the rules governing vetting or spent convictions must be sufficiently clear and understandable as to allow any person applying for vetting, or relying on spent convictions provisions, to be aware what convictions will and will not be disclosed/deemed spent.

Following the Court of Appeal Decision the Government agreed that the provisions of both the Spent Convictions Bill and the Vetting Act would both require amendment to harmonise their provisions within the principles set out in the UK Court decision.

As I have indicated in previous replies to PQs, following a very detailed review of procedures an Administrative Filter for Garda Vetting Disclosures has been introduced, which provides that certain minor offences that are over 7 years old are no longer disclosed. This Administrative Filter already gives effect to most of the main provisions likely to be contained in the amended Act. I would point out that under the provisions of this filter well over 80% of all convictions will no longer be disclosed and these same provisions will also apply in regard to Spent Convictions. I should also point out that these provisions are more generous than those currently in the Spent Convictions Bill as this Administrative Filter removes the limit on the number of minor motoring and minor public order convictions that can become spent. Since such motoring and public order convictions account for a very high proportion of all convictions in the courts this will provide a considerably more generous provision in regard to spent convictions. Although the Administrative Filter requires disclosure of all Circuit Court Convictions where a person is applying to work with children or vulnerable adults, I should state that it is my intention that the Spent Convictions Bill will allow certain Circuit Court convictions to become spent for other purposes.

A copy of this Administrative Filter is set out.

Garda Vetting Procedures

Administrative Filter

In anticipation of the amendment and commencement of the National Vetting Bureau Act 2012, an administrative filter in respect of Garda Vetting Unit Disclosures will operate in accordance with the following procedural guidelines.

A. Criminal Convictions to be disclosed in all cases:

1) Offences Against the Person.

2) Sexual Offences

3) Convictions on indictment.

B. District Court Convictions which will not be disclosed:

1) Motoring Offences:

District Courtconvictions for motoring offences will not be disclosed after 7 years even where more recent offences have been committed. This is because it is considered that old minor motoring offences would not be relevant due to the passage of time.

2) Minor Public Order Offences:

The following convictions under the Criminal Justice (Public Order) Act 1994 will not be disclosed ifthe offence is over 7 years old even where more recent offences have been committed:

- Section 4 (Intoxication),

- Section 5 (Disorderly conduct),

- Section 6 (Threatening, abusive or insulting behaviour),

- Section 7 (Distribution or display of material which is offensive),

- Section 8 (Failure to comply with direction of Garda),

- Section 9 (Wilful obstruction).

3) Other minor offences – 1 Only:

District Courtconvictions for any other minor offence will not be disclosed after 7 years where the person has one such offence only (excluding motoring or public order offences over 7 years old). This provision does not apply to offences against the person or to sexual offences.

C. Probation Act Provisions

Where persons have been dealt with by a district court in accordance with the provisions of section 1(1) (i) or 1 (1) (ii) of the Probation Act 1907, the offences will not be disclosed exceptin cases where the circumstances of the offence gives rise to a bona fide concern that the person concerned may harm a child or vulnerable person.

Where persons have been dealt with by a court in accordance with section 1 (2) of the Probation Act, these will be disclosed in all cases. (Section 1 (2) relates solely to persons “convicted on indictment”.)

D. Offences in respect of which a person is charged but subsequently not prosecuted or acquitted.

Non convictions will be consideredfor disclosure where the circumstances of an offence gives rise to a bona fide concern that the person concerned may harm a child or vulnerable person. This information will only be disclosed if the information is of such a nature that its disclosure is necessary, proportionate and reasonable in the circumstances for the protection of children or vulnerable persons, or both, as the case may be.

The Garda Central Vetting Unit will make such decision in the context of:

- The information concerned

- The relevance of the information to the type of work/activity

- The source and reliability of the information

- The rights of the vetting applicant and any submissions made by them.

Where the GCVU makes a determination to disclose information under this section the GCVU will:

- Notify the person who is the subject of the application for the vetting disclosure concerned, in writing, of its determination and of the reasons for it,

- Provide to the person a copy of the information to be disclosed,

- Notify the person of the intention to disclose the information to an Authorised Signatory for the registered organisation concerned after the expiry of 14 days from the date of notification, and

- Allow the applicant the opportunity to make a written submission.

- There will also be an appeals process in respect of a decision to disclose the information.

The GCVU will not issue a vetting disclosure in respect of a person until this process has been completed.


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