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Criminal Justice (Spent Convictions) Bill 2012 [Seanad]: Second Stage (Resumed) (Continued)

Thursday, 14 March 2013

Dáil Éireann Debate
Vol. 796 No. 3

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(Speaker Continuing)

[Deputy Anne Ferris: Information on Anne Ferris Zoom on Anne Ferris] For some, being homeless led to crime which in turn led to imprisonment. For others, it was being released from prison that led directly to homelessness. The Mercy Law Centre states that the link between homelessness and crime cannot be ignored if either is to be successfully tackled, a statement with which I agree. In highlighting the benefits that this Bill can give to those seeking employment, I feel it is just as important to ensure that access to social housing is not unduly burdensome. As it stands, sections 14 and 15 of the Housing (Miscellaneous Provisions) Act 1997 and local authority policy allow for the exclusion of persons from availing of social housing on estate management grounds as a result of information received from the gardaí. We all understand that good estate management is important but the information disclosed must be proportionate with the aim. Currently, minor offences, cautions, investigations without charge or dismissals under the Probation Act 1907 can be disclosed. The Mercy Law Centre advocates that only information relating to unspent convictions be disclosed to the local authorities as it would protect the presumption of innocence and adhere to fair procedures, a position I am inclined to support.

The matter of enforcement has also been brought up and a question has arisen as to whether the investigative powers of the Data Protection Commissioner should be extended to complaints under this scheme. With these criticisms outlined, I must say that I do support the overall intent of this Bill and I look forward to its enactment.

People who have made minor mistakes in the past should have the right to move on with their lives without the constant reminder.

Deputy Michael McNamara: Information on Michael McNamara Zoom on Michael McNamara Like my colleagues, I commend certain aspects of this Bill. Unlike them, I do not look forward to its enactment because there is a real risk that it will not bring very much clarity to the law. This Bill is being introduced in Ireland in response to a recommendation of the Committee of Ministers of the Council of Europe on the criminal record and rehabilitation of convicted persons. That recommendation dates from 1984 so almost 30 years later this august Legislature finally gets around to addressing the matter. The recommendation advocates that provision be made for automatic rehabilitation after a reasonably short period of time.

  As Deputy Connaughton pointed out, the purpose of this Bill is quite similar to the Rehabilitation of Offenders Act in the UK, which was passed in 1974, almost 39 years ago. One could ask what on earth people in this Legislature were doing in the mean time but that is a different question. A fine is rehabilitated in the UK after 12 months after the date of conviction, a custodial sentence of six months or less is rehabilitated after 24 months, a custodial sentence of six to 30 months is rehabilitated after 48 months after completion, a compensation order is rehabilitated on the date on which the payment is made and a community rehabilitation order is rehabilitated 12 months after the last day of the effect of the order. This Bill provides for a period of three to four years in respect of a fine or community service order and three years for a non-custodial sentence.

  As pitifully late as it is, there must be a question as to whether or not it fulfils the requirement of providing for an automatic rehabilitation after a reasonably short period of time. The time periods provided in this Bill are an improvement on what went before which was nothing. It is not that difficult to improve on nothing but it is an improvement and should be welcomed. However, I wonder whether the drafters and framers of this Bill in the Department of Justice and Equality have taken account of recent case law in the UK. In MM v. The United Kingdom, which was heard in the European Court of Human Rights, the matter of respect for privacy and family rights relating to the recording of offences was considered in detail by the grand chamber. The judgment has handed down on 13 November 2012 and was considered by the Court of Appeal in the UK in the case of R. (T and others) v. Chief Constable of Greater Manchester Police and others. This judgment was handed down on 29 January 2013. T was born in 1991 and received two warnings from the Greater Manchester police force in connection with two stolen bicycles when he was 11. At the age of 21, he applied to do a university course in sport which would ultimately have led him to work with children. Therefore, the warning that he received in connection with two stolen bicycles was not spent because he would be dealing with children.

  A similar provision is contained in our Bill. Section 9 of the Bill provides that section 5 shall not apply where a person applies for, seeks or is offered relevant work. One must look at the opacity of the Irish drafting because relevant work is further defined instead of just being defined in the section as one might expect because legislation should be understandable to the greatest number of people. Relevant work includes work with children so somebody in a similar situation to T who receives a warning in connection with stolen bicycles at the age of 11, for example, and subsequently goes to university to study sports science at the University of Limerick would not have the conviction spent when they then go to work as sports science teachers because they are dealing with children. The fact that T's conviction was not spent was found to be disproportionate and, therefore, contrary to the European Convention on Human Rights. I very much hope that on the day this Chamber passes legislation after a very long delay, it is not found to be contrary to the provisions of the European Convention on Human Rights to which this State is bound.

  While I welcome the Bill for being an improvement on nothing, it could and should go much further in respect of the time periods in which particular convictions are spent, the requirement to divulge certain convictions and the fact that certain convictions should arguably be spent and not remain on the record in contravention of the European Convention on Human Rights.

Deputy Brendan Ryan: Information on Brendan Ryan Zoom on Brendan Ryan I welcome the opportunity to speak on this Bill. I think it is positive legislation which is long overdue. This Bill is designed to assist the rehabilitation of offenders in securing employment. It will bring us into line with the majority of EU member states in providing a system under which certain convictions can be disregarded after a number of years have elapsed since they were imposed. This is not job creation legislation. However, it will provide a small piece in the architecture of what this Government is trying to create, namely, a jobs-friendly economy. It will make it easier for people with minor past convictions to obtain and secure employment.

  I do have one issue regarding the Bill which I would like to focus on and that is the provision allowing for only two convictions to be spent. I believe the reasoning behind this provision is aimed at repeat offenders or so-called career criminals, however, I do believe there are a number of people who will undeservedly fall foul of this provision. I am speaking particularly of individuals who may have three convictions which relate to the one isolated event or transgression. One incident can include three or more relatively minor convictions. For example, an individual may have been involved in a traffic incident as a young person. That one transgression could lead to that person being convicted of three offences such as driving without insurance, leaving the scene of an accident and driving while on a mobile phone, which is fairly relevant today. I want to refer to an email relating to this issue which I received from a constituent. The email stated that:

Briefly my one incident was that I reversed into another car in the car park of a local disco as we were leaving the dance. I was uninsured and did not remain at the scene. The damage was minor. I broke my rear lens and damaged the other person's car wing. I fully compensated the other person. However, at court I was convicted on 3 charges:

1. Sec 106, RTA 1961. Failure to stop at scene of accident. 3 Months disqualification.

2. Sec 53, RTA 1961. Dangerous driving. Licence endorsed.

3. Sec 56, RTA 1961. No insurance. Licence endorsed.

That man was 18 when it happened and is now 50. It seems quite unfair that one person who demonstrates perhaps a pattern of crime or law breaking resulting in two convictions can have their convictions spent when someone who committed three offences within the one isolated incident will continue to carry those convictions with them. This individual may only have seen the inside of a courthouse once yet they carry three or more convictions for the one incident.

  It must be said that the safeguards within the Bill are strong and ensure that those with serious convictions including those in respect of sexual offences and offences tried by the Central Criminal Court are excluded from the benefits of the Bill.

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