Wednesday, 8 June 2011
Dáil Éireann Debate
Central to the matter of spent convictions is the philosophy which believes in our capacity to change and that, having made a mistake, committed a crime and done wrong once or perhaps several times, we are capable of reform, learning from our mistakes and getting our lives back on track. Ireland does not have legislation providing for expungement of minor criminal convictions. Every other country in the European Union has such second chance legislation and its existence has not resulted in chaos in the countries in question. What Ireland has is a revolving door with the same people from predominately the same areas going in and out of prison like clockwork. For this reason, we need more incentives to discourage people from pursuing a life of crime and experiencing the revolving door to prison.
A criminal record is a barrier to employment, education, training, travel and insurance and banking services. The current position means the punishment lasts a lifetime. The Irish Penal Reform Trust believes the absence of legislation of this nature is “a recipe for reoffending and for people being trapped in a cycle of poverty and exclusion for the rest of their lives”. We do not want to leave those who offend thinking there is no point in trying to change. We give prisoners the right to vote, but we do not give them enough chances to get themselves back into the community where they can play a meaningful role.
I wish to look at the issue of people with drug convictions. Many families and communities have been affected by drugs, with some being convicted of possessing drugs. They are trying to get their lives back on track, but a conviction casts a long shadow even though it could date from a time when they were younger. Nonetheless, they have paid the penalty, gone through supported training and adult education, and may have families. They are trying to play a part in family life while giving something back to the community where they may earlier have caused havoc. In addition, they often try to be an inspiration to others.
The north inner city has many programmes offering rehabilitation, personal development, further education and training. There are incredible success stories involving individuals who are now reaching their potential and making great progress. However, they will be blocked from further advancement by the lack of such legislation and therefore I am asking that they should get a second chance. The private sector has been active with a mentoring system in business, so we need the public sector to take that on also. We basically want to keep people out of prison and this is one way of doing so.
Deputy Thomas Pringle: I support this Bill which is welcome and timely. In reality, such legislation should have been passed years ago by this House in order to give people a second chance by expunging their records. I welcome the fact that the Government has accepted the Bill and that it can be amended on Committee Stage. However, the six month sentence period for spent convictions is too short and conflicts with the Community Service Orders Act passed by the Dáil some weeks ago. It should be increased to 12 months at least, with consideration given to extending it to two or two and a half years.
The Bill contains a list of excluded employments for which it will still be necessary to declare a conviction. I estimate that every public sector job is excluded under this Bill, so there are approximately 500,000 jobs for which people with previous convictions could not apply. More thought needs to be put into the type of exclusions listed and where they should apply. For example, there is no reason somebody who had a public order conviction should be excluded from being an accountant. Therefore more thought should be put into the proposed exclusions and what jobs they may relate to. That matter should be given serious consideration in preparation for Committee Stage.
Deputy Mick Wallace: The Bill is definitely welcome and will certainly improve how we run the country. The idea that the Irish will embrace the notion of forgiveness is to be welcomed also because, at the moment, it does appear that we are a pretty unforgiving lot. If a person commits a crime we punish him, but the principle behind such a punishment was, first, to deter reoffending and, second, to rehabilitate the offender. If we are to welcome such a person back into society, we must give him a clean bill of health in order to start again. If such a person is to have a tag forever, it reminds me of Nathaniel Hawthorne’s novel The Scarlet Letter. In that story, a girl who was presumed to have committed an offence was obliged to wear a letter on her dress for three years to signify the crime she had committed. In the context of this Bill, a lack of forgiveness is very unfair. The six month period is a bit crazy as well. All crime needs to be forgiven unless it is very serious and the offender is a danger to society. The blanket ban on certain areas of employment is completely unfair also. If we want to give people an incentive to reform, we must offer them a chance to move back into society with a clean bill.
I will finish on the notion of forgiveness. Members may have read in the newspapers that there is a possibility I could be declared bankrupt and, if so, I will get thrown out of this place. I think it is an absolutely ludicrous idea, however. In this State one is bankrupt for 12 years, which is very unforgiving. It is one year in Britain and America for most bankruptcy offences. One can commit many different crimes and still not be thrown out of this House, but if one is declared bankrupt one is, seemingly, not fit for purpose here. When they brought in the law in 1923, one was considered a moral degenerate if one happened to become bankrupt, and one was no longer fit to be in the ethical House.
Deputy Catherine Murphy: I broadly support the concept of the Bill. As others have said, it is not perfect but it is a start and can be amended. The very purpose of the criminal justice system is to deter undesirable behaviour through sanctions, to remove persons from society whose behaviour is thought to pose a threat to the common good, and to rehabilitate those individuals in order that they can be reintegrated into society. It is vital to consider if there is a benefit to society in retaining conviction records indefinitely and if not how long we should retain them. If society does not benefit from retaining these records indefinitely and the individual is precluded from participating fully in society by not being allowed to work in certain professions, such records become a negative element against the very purpose of the criminal justice system. The Bill is an opportunity to amend the law so individuals who have served their sentences and pose no threat to the common good can be allowed to participate fully in society.
The Bill contains a list of exclusions but many people who have committed white collar crimes over the years have not attracted convictions. The latter group would not be subject to the same kind of sanctions. For example, however, one cannot be a public servant under the list of prescribed exclusions and so one could not sweep the streets or work as a hospital porter or in a post room. Even menial but important jobs, such as cleaning or bin collection, would be excluded for people who may have committed a minor offence when they were younger. In later life, however, when they may have a family to support, they could be excluded from holding such jobs. Such people should be encouraged to re-engage in society, but cannot do so if these exclusions are to be introduced. That matter will have to be dealt with on Committee Stage.
There are many people who have been a danger to this country and for whose decisions we will pay a huge price, yet they may never end up with a conviction. If a blind eye is to be turned or if it will not be possible to prosecute them, there must be a better arrangement for those who may have made a mistake early in their lives and who are paying a disproportionate price for that later on.
An Leas-Cheann Comhairle: I call Deputy Joe McHugh who I understand is sharing time with the Minister of State, Deputy John Perry, and Deputies Seán Kenny, Michael McNamara and Terence Flanagan. There will be six minutes per Deputy. Is that agreed? Agreed.
Deputy Joe McHugh: I welcome the opportunity to speak on this motion. It is worth noting that while Deputy Calleary has been vocal on this matter, his former ministerial colleague Barry Andrews was also proactive in this area. We can all talk in unison if we are looking at giving people a second chance in various walks of life. Everybody should have that opportunity. There are sensitivities, anomalies and complexities within this legislation that need to be addressed. The possibility of non-disclosure will arise only after seven years have passed without a further conviction when a sentence of imprisonment has been imposed or after five years in other cases.
The Minister, Deputy Shatter, will be proactive and he has made indications to that effect in the first few weeks of this Dáil term. In response to a parliamentary question I tabled, he referenced the Children Act whereby teenagers under the age of 18 have an opportunity for non-disclosure in this respect when applying for certain jobs or seeking to travel abroad. Obviously there are certain crimes where the non-disclosure aspect would not kick in. However, a person who has a black mark against him or her for a misdemeanour that warranted imprisonment for a period of less than 12 months or a fine but who did not have previous convictions, on reaching the age of 18, will not come within this reference provision and will have to carry that black mark against him or her for the rest of his or her life. That is where the challenge lies in this respect. We must examine the proposals in the Bill and acknowledge the possibility of non-disclosure for an individual with a five year clean slate and a seven year period in the case of an individual who had a sentence of over 12 months. That will have to be worked out. A consultation process headed by the Minister is ongoing. He has committed to legislation on this in the legislative programme.
I cite the example of a person I will be careful not to name. He has done well. He was over 18 years of age when he committed a minor misdemeanour and he is carrying that black mark against his name and is conscious he will continue to carry it. It was a first offence. He was in a group setting. He was not given adequate and responsible legal advice that would have resulted in him realising a different outcome from the one he got. However, he continued to see the positive side and was ambitious in going back to college. He continued to be proactive in trying to better himself. He now has a job that requires him to travel all over the world. He has a special skill for which there is a major demand throughout the world and is required to travel to many countries but he is under pressure every time he goes through certain airports wondering if somebody is looking over his shoulder or where he stands in regard to this conviction. That example is a case study of a person who took the progressive route of trying to better himself and is somebody who deserves a second chance.
My second point is on foot of many conversations I have had with social workers. For those who have been given a third strike and have gone through the JLO system for offenders under the age of 18 years, there is not enough support in terms of social intervention. It is not good enough to send people to Mountjoy and St. Patrick’s Institution if there is a proper alternative, which would be some form of a community setting whereby in respect of such minor misdemeanours an arrangement could be made at a local level.
Deputy Joe McHugh: ——focused or biased in terms of a classification of people who end up in the wrong group at the wrong time in the wrong company and usually the predominant recurring theme is that there was drink or drugs involved. If that was the case, the social interventions that should follow, namely, some form of social support from social workers are not in place because the obvious and only alternative is for them to go to the AA. There is not a positive intervention in that respect. There should be social interventions for minors through social work and proper rehabilitation. They are not in place and that is something on which we must be sharply focused.
Minister of State at the Department of Jobs, Enterprise and Innovation (Deputy John Perry): I am pleased to have the opportunity to speak on the Spent Convictions Bill 2011. I am glad that my colleague, the Minister for Justice and Equality, Deputy Alan Shatter, has decided not to oppose the Bill and supports the principle underpinning it, that the rehabilitation and integration of persons with past convictions is worthy of encouragement. I understand his Department is currently engaged in extensive consultations with other Departments and relevant agencies with a view to finalising a Bill for submission to Government in the near future.
It is important to note that this Bill does not provide for the removal of offences from a person’s record. For those who may benefit from the provisions of the Bill, it means they will not have to disclose that they have a conviction. There are people who have been convicted of relatively minor offences years ago and have not had any convictions since, yet they feel those convictions still hang over them like the sword of Damocles. It is important that this matter must be examined. However, not all convictions will benefit from the provisions of this Bill and it is important to note that serious offences such as sexual offences or other offences which receive long sentences cannot be covered by this legislation, the purpose of which is to remove obstacles to employment. In terms of job creation in these times, it is important that people who have been convicted of a minor offence will be given a second chance, as Deputy McHugh stated. Sex offences must always be disclosed, irrespective of the length of sentence imposed or the subsequent conviction free period. No employer or potential employer should be put at risk by the introduction of this legislation nor should any vulnerable person be put at risk. It is vitally important that employment involving children or any vulnerable persons is excluded from the remit of this legislation and I believe it is the intention of the Minister for Justice and Equality to incorporate that important fact in his Bill.
It seems unfair that people who were convicted of relatively minor offences years ago should carry that burden for the rest of their lives as these are not repeat or serious offenders and some of them may have progressed in their careers in the intervening years, as in the example cited by Deputy McHugh. It is important that people who may have committed a minor offence in their youth and have had that offence on their record when they have sought employment would be given a second chance. While the offence has occurred and the conviction will remain on the person’s criminal record there will be no obligation to disclose it in certain circumstances. However, the obligation to disclose a conviction will remain in the case of certain employment applications such as child care, public service etc.
I understand the new Bill will build on the recommendations in the 2007 Law Reform Commission Report, an important document, and will seek to achieve a fair balance between incentivising offenders to remain conviction free and enabling them to get on with their lives on the one hand while on the other hand ensuring public safety.
I look forward to the debate on the Bill which will be brought forward by the Minister following the conclusion of the consultations currently under way by his Department. I thank Deputy Calleary for introducing this Bill at this time and I have no doubt he and his colleagues will make significant contributions to the debate during the various Stages of it. It is important that people are given a second chance and it is worthy that following rehabilitation they can get meaningful employment. I thank Deputy Calleary for bringing forward this Bill.
Deputy Seán Kenny: I very much welcome the Bill, which will allow for the reintegration of ex-offenders into society where the sentence they were handed down is under six months imprisonment or a fine. The conviction under certain circumstances can be regarded as spent. I also very much welcome the thoughtful contributions of a number of parties, the Irish Human Rights Commission and the Irish Penal Reform Trust, which will be reflected in the Bill.
This Bill is very much a step in the right direction for citizens and for Ireland’s standing in the world. Ireland is almost unique in the EU in lacking legal provision in this area. Given that the largest proportion of those who were sentenced by Irish courts received short-term prison sentences, fines or community-based sanctions for non-violent offences, the lack of a possibility to have a criminal conviction deemed spent after a certain period is a disproportionate consequence, arguably one that constitutes an additional punishment that lasts a lifetime.
This situation has far-reaching consequences for those who are sentenced for criminal offences. Individuals with even minor criminal convictions face ongoing restrictions and barriers in employment, training, education, travel, taking out insurance and many other areas of life. These are people who were convicted of relatively minor offences many years ago and who have since had no contact with the criminal justice system. Some have moved on to good careers, but still believe their convictions are hanging over them. Others fear that, if they try to move job, their past will come back to haunt them. These are people who made mistakes at an earlier point in their lives and were convicted of relatively minor offences.
According to the Minister, since taking office he has been struck by the number of people who have written to him urging the progression of this legislation. Indeed, I have recently been dealing with a constituent, a young man who is having difficulties getting a visa in a non-European jurisdiction because he has one conviction from almost a decade ago that resulted in a fine for drunk and disorderly behaviour. In these difficult times, we must sadly watch our young people emigrate. Surely it is only fair that, when a person emigrates, he or she is able to get his or her life back on track without an old conviction for a minor offence hanging over him or her.
There must be a balance in the legislation. I wish to make a number of points in this regard. First, after a reasonable period, a person should be able to move on and not need to declare a previous conviction for relatively minor offences, particularly when applying for a job. This is the point of the legislation, namely, that our criminal justice system should not only punish where appropriate, but also rehabilitate. Second, certain offences such as sexual offences must always be disclosed, no matter the length of the prison sentence imposed or the amount of time since release that the person has been free of convictions. Third, certain sensitive types of work, such as work involving children and vulnerable people in society, in the field of justice and in State security, should be excluded from this legislation.
The final two points support employers. No employers should be expected to operate in the dark and risk the reputation of their businesses as a result of the introduction of legislation of this kind. Neither can it put vulnerable persons at risk. This is why only minor offences are considered in the legislation; sexual and other serious offences are excluded. This is in the interest of the public and the State. The public must be able to feel safe and, to that effect, the proposals on spent convictions would undermine the legitimate requirement that those who wish to work for the State in sensitive roles or for the providers of care will still be subject to vetting. The Government Bill explicitly provides that An Garda Síochána may disclose spent convictions where information is requested by an employer in respect of any excluded employment. For the avoidance of doubt, I will repeat that individuals convicted of sexual offences will not be able to benefit from the Bill’s provisions. There can be no allowance in this regard, something that the Bill makes crystal clear.
The Bill is fundamentally about people with convictions gaining access to employment, but it is necessary to preclude some types. This should not mean that somebody convicted of an offence that would be deemed spent were the job in a particular field should be debarred from employment. Reasonable employers should consider whether convictions are relevant to the jobs on offer and, where they are not, should not allow them to influence their decisions. Prospective employers have a key role to play in the rehabilitation of offenders, including their integration into the workforce. This legislation supports employers, but it should also support employees.
Deputy Michael McNamara: I do not propose to break with the unanimity of the Chamber in supporting the Bill. I join with my colleagues on this side of the House in commending Deputy Calleary on reintroducing this welcome proposal. While it requires considerable work before it can be enacted, it is an important step in the right direction.
We are all aware of the importance of rehabilitation in our criminal justice system. It is one of our sentencing regime’s four purposes. That persons are or can be discriminated against for the duration of their lives when seeking employment because of something that, as Deputy McHugh described, got out of hand in their early years is a situation with which the entirety of the House disagrees. On that basis, the Bill is a welcome step. However, it has some shortcomings that will need to be redressed on Committee Stage.
One of the Bill’s main features is that it applies to sentences of no more than six months imprisonment or where fines are imposed. It is not entirely clear that it would apply to community service orders, but whether this is the case will become more explicit. That the Bill only applies to sentences of six months duration is particularly problematic, as any of the great number of offences triable in the Circuit Court will be excluded.
The possibility of non-disclosure applies only after a conviction-free period of seven years, which is a long time following, for example, a suspended sentence of one year. People involved in the criminal justice system would regard such a sentence as being relatively minor. It is important to note that non-disclosure does not apply to certain offences, in particular, offences triable in the Central Criminal Court. These include serious offences such as rape and murder. They would not be covered anyway because of the six-month rule, since they would attract sentences considerably in excess of six months upon conviction, but they are being specifically excluded, which is an important measure.
The Bill requires that persons who are applying for practically any public service position would need to declare their convictions. While there are justifications where the positions are sensitive, such as the administration of justice or the courts system or caring for or working with children, it is difficult to see how such a blanket exemption in respect of the entirety of the public sector is justifiable. In the current circumstances, it is arguably discriminatory that all public service positions should be covered in this way.
The Spent Convictions Bill will regard certain convictions as being spent for certain purposes where the convicted person has not been convicted of any other offence within a specified period. When implemented, the net effect of the Bill will be that, while a conviction will remain on a person’s record, he or she will not be obliged to disclose it when applying for a job. This is a good provision that moves with the times and gives someone a second chance in life, which is important.
The Bill introduces the concept of a rehabilitated person, that is, someone who will not need to disclose a spent conviction during, for example, a court case in which he or she is involved. It is important when people are applying for jobs in this most difficult climate that nothing holds them back. This legislation, when enacted, will allow people to be judged on their merits rather than on any particular mistake they made in the past.
The rehabilitative period in regard to a person who has been imprisoned is seven years and in respect of a person who has been fined or received a non-custodial sentence is five years. However, this timeframe will be extended if the person is caught up in another conviction. A shortcoming of this Bill to which the Minister, Deputy Shatter, referred is that it does not mention the number of convictions that may be spent.
On exclusion of particular convictions, a person who appears before the Central Criminal Court or is convicted of a sexual offence with a minor will be excluded from the provisions of this legislation. It is necessary we do not legislate to allow such people non-disclosure of what they have done in the past. Also, we cannot legislate to allow people in sensitive positions, in particular people working in the Health Service Executive dealing with children, who have committed an offence relating to children to have their convictions in that regard spent. Insurance fraud has been a big problem here in the past. It is only right that there be utmost disclosure on insurance proposal forms when a person has been involved in insurance fraud.
The Law Reform Commission has been seeking enactment of this legislation for some time. It is timely that Deputy Calleary has brought forward this Bill, which presents the Government with the opportunity to change the law in this area. This legislation will remove barriers to employment and give people a second chance, in particular those rehabilitated back into society. As mentioned by a previous speaker, Ireland is lagging behind in terms of our not having enacted this legislation. Under the data protection legislation records must be kept for seven years. This puts people here convicted of minor offences at a severe disadvantage with people in other European States.
Like most Members I agree with the thrust of the Bill. The Minister, Deputy Shatter, referred last night to the fact that the Bill makes no provision in regard to taxi licences or the private security industry. We all know of particular venues and taxi drivers in respect of whom there are issues in terms of their past. All of these matters must be addressed. People are afraid and we must ensure better regulation and disclosure in this area. The Minister also stated that the seven and five year rehabilitative periods are unduly long. The Irish Human Rights Commission has also expressed reservations in this regard. It is for these reasons the Bill is not being accepted.
I welcome the cross-party support for the reintroduction of the Spent Convictions Bill 2011 which was first introduced in Private Members’ time by former Deputy Barry Andrews in 2007, with the Second Stage debate taking place in early 2008. Former Deputy Andrews is to be commended on his initiative in bringing forward this legislation under Private Members’ time and in taking the initiative to bring forward a Bill which addressed the issue of spent convictions in respect of which there was, and continues to be, no system in this country. When introduced by former Deputy Andrews, the Bill received widespread support among the parties. I am glad it has continued in this vein.
I acknowledge the positive approach taken some weeks ago by Government to Fianna Fáil’s agriculture motion, also taken in Private Members’ time. It is hoped the Government will continue in that vein whenever positive motions are brought forward by the Opposition. Fianna Fáil intends to be constructive and to try to contribute in a meaningful fashion to the manner in which this House is run. It intends the same with regard to its approach to national policy.
A number of Deputies raised in their contributions the question of whether the threshold for spent convictions should be seven years or five years. This debate highlights the inadequacy of our current system, which provides no such threshold. It is hoped we will be able to devote more time to this issue on Committee Stage. The Bill provides that persons who have a conviction for minor offences do not have to disclose that conviction when seeking employment. It recognises that the most effective means of rehabilitation is through employment, thus allowing the person to reintegrate into his-her community and society. Employment is probably the best way of restoring a person’s self-esteem and enhancing his-her status among family, friends and the wider community. It has been shown many times that it considerably reduces the likelihood of reoffending.
Securing employment is an effective way of achieving the reintegration of convicted persons into society. This Bill also takes into account the wider interests of society, in particular the protection of vulnerable persons. The Bill also deals with convictions in respect of which disclosure will always be required, which is important. While what we are about is ensuring that people who have made minor mistakes get a second chance, we must at the same time ensure that we put in place safeguards to ensure the safety of those citizens who depend on others.
The Bill addresses a significant gap in our law. There is currently no system in place to deal with spent convictions, apart from the limited regime provided in respect of non-disclosure in section 258 of the Children’s Act 2001. The Bill provides us with the means to put in place a structured system for non-disclosure of convictions. This will allow people to move on with their lives, having completed their term of imprisonment or paid their fines or dues to society. As the law stands, the possibility of those who have a conviction securing employment is diminished.
Indeed, it is taken into account by employers when it comes to giving out a job. The effect of the current situation is that a person who is over 18 when the offence was committed must carry with him or her the consequences of even a minor offence long after the debt to society has been repaid. This situation offends a view of what is proportionate, fair and reasonable.
If we consider the number captured by the Bill, more than 60% of sentences in Ireland are on average for a period of six months or less, thus the provision in the Bill will capture a very large section of people. While this does not mean we should give up on the other 40% in terms of rehabilitation, this measure will be available to those offenders who have short custodial sentences.
There is no doubt but that the recidivism rate in Ireland is high. The Bill does not pretend to address that but it certainly offers some level of hope to those who may make a mistake and be faced with the prospect of carrying it and having to declare it for the rest of their lives. The intention is that the Bill will be used by judges, probation officers and those working with ex-offenders, in particular by judges when taking into account what sentence to hand down to a person. When punishing an individual, they must know the threshold of six months for the conviction to become spent and the impact whatever sentence they hand down may have on the person’s life. The Bill will be a useful measure which will allow a judge to advise an offender on conviction and sentence that there exists a facility through which he or she can restore himself or herself to society. Equally, it will be a useful measure for those working with offenders.
In general, detention must be a last resort in sentencing under our criminal justice system. The Probation Act is widely used by judges and the youth diversion programme is widely used by the Garda Síochána. However, we must begin to place more emphasis on restorative justice. This means that those in custody are not put there lightly. We do not like to detain people and will use this measure only as a means of last resort.
The rationale for this approach is clear in terms of the cost of our penal system, given it costs €91,000 to keep one prisoner in jail for one year. With that, we still have some of the highest recidivism rates internationally, with 27% of released prisoners serving a new prison sentence within one year and habitual criminality rates rising to 49% after four years. This shows the current practice is ineffective, wasteful of resources and brings more people into the criminal justice system than is necessary. These people could serve a sentence that is of value to society by way, for example, of community service rather than imposing yet further costs on the State.
The major objective of the Bill is to facilitate the rehabilitation of offenders. It is a worthy objective that benefits not only the individual concerned but also the communities in which they live. It is in the interests of society that we break the cycle of crime. There are many ways of doing that but securing steady, gainful employment has to be a key aspect. That the Bill introduces a method for people to decide when they are obliged to disclose convictions is a key aspect and will reduce the barriers to their re-entry to the workforce.
The effect of a conviction being regarded as spent is set out is section 4. Where a conviction is spent, the person will be treated as a person who has not committed, been charged with, prosecuted for, convicted of or sentenced for the offence in question. However, the Bill will not entail any deletion of the criminal records held by the Garda Síochána. The record will continue to exist and the Bill will merely specify those situations in which the details of that record are or are not to be disclosed. It will apply in cases where a sentence of imprisonment not exceeding six months or a fine or other penalty has been imposed. The Law Reform Commission report on spent convictions of 2007 gave significant and thorough examination to the sentence threshold and concluded, based on our national policy and practice, that a six-month threshold was appropriate in our circumstances.
The possibility of non-disclosure under the Bill will only arise after seven years has passed without a further conviction when a sentence of imprisonment had been imposed or after at least five years in other cases. The Law Reform Commission’s report examined this issue carefully and recommended the periods now proposed. There is a view across the House that this is an issue to which we can give attention on Committee Stage and there is certainly merit to the arguments concerning the timescale for the application of spent convictions.
The Bill sets out a number of exclusions in terms both of offences and certain employments. In the case of offences, convictions for sexual offences must always be disclosed. Similarly, convictions for offences reserved for trial by the Central Criminal Court must always be disclosed. These offences include rape and serious sexual assaults, as well as murder. As regards excluded employments, the Bill provides it should always be necessary to declare convictions when seeking employment in specified areas of employment. Section 5(2) of the Bill contains a list of such areas. Apart from the excluded employments, the Bill requires full disclosure of all convictions in certain other specified instances. Previous convictions are to be disclosed at the sentencing stage in criminal proceedings. There are many other circumstances where disclosure may be required, including court proceedings relating to adoption and guardianship of children, as well as cases in which a court considers disclosure is necessary to ensure justice is done.
Deputy Robert Troy: I welcome the opportunity to speak on the Bill and I thank Deputy Calleary for bringing it to the House. I welcome the fact the Government, while not embracing the Bill fully, has given a clear indication it will bring forward a similar Bill in the not too distant future. I hope the Government will remain true to its word as it is important that the reintroduction of this Bill is not put on the long finger. We have heard during the debate various Members from all sides of the House outlining the various reasons this Bill should be prioritised and brought before the House. I hope we will not be waiting for a long time to see it before us again.
Is there one of us, or one of our families, who could put a hand on their heart and say they have never made a mistake in the past? Is there any Member here who can claim to be perfect? There is not. The current situation is that persons who were more than 18 years of age when they committed an offence must carry that offence for the rest of their lives. It does not matter how minor the offence was or whether they have repaid their debt to society. That situation is very unfair. Any of us who think back to our college days will know only too well how easy it is to get involved in some affair which would not happen in the clear light of day. It is very important to have the Bill before the House today.
The aim of the Spent Convictions Bill 2011 is to provide persons who have a conviction for a minor offence the opportunity of not being obliged to disclose that conviction when seeking employment. Of course, there are exemptions where disclosure will always be required, most notably those relating to employment where there is access to children. This Bill recognises that the most effective means of rehabilitation is through gainful employment. Employment restores a person’s self-esteem, enhances his or her status among family, friends and the wider community, and has been shown many times to reduce very considerably the likelihood of reoffending. Securing employment is clearly a very effective way of achieving the reintegration of convicted persons into society.
I was in Buswells Hotel today at a presentation given by Philanthropy Ireland. The man who made the presentation gave me a statistic which surprised me. He told me that the cost of keeping a prisoner for one year in this country is equivalent to the cost of educating a student to graduate level. That shows the importance of rehabilitation, of keeping people out of prison and getting them back to work within society, contributing to it rather than drawing on it. Employment is the key way to ensure reintegration into society. Unfortunately, some employers who hear disclosure of certain past minor indiscretions will automatically discard candidates, regardless of how good they are.
There is another issue. People may wish to travel but will have restrictions imposed, again because of some minor offence. They may wish to travel for a variety of reasons, perhaps to experience a different culture or see the world, or they may wish to travel to find employment. Unfortunately, we all know of people who must emigrate to find employment in the current situation. There may be cases where such people can travel on temporary visas. However, when people move to other countries, meet a partner or set up a family, they find it extremely difficult to get a permanent visa because of a minor offence committed in the distant past.
This Bill addresses a significant gap in the present arrangements. At present there is no means of regarding a conviction as “spent”, apart from the limited regime for non-disclosure available to minors under section 258 of the Children Act 21001. This Bill, based on Irish sentencing policy and practice, proposes that a six-month imprisonment threshold is appropriate in our circumstances. The possibility of non-disclosure would only arise when seven years have passed without a further conviction when a sentence of imprisonment was imposed, or after five years in other cases. I note that previous speakers consider that the times proposed are too strict and that we should consider having shorter timeframes. However, they are generous compared with, for example, the conviction periods of ten years in New Zealand
It is important to say that although there is universal support for this Bill and for the present arrangements to be altered, a proper balance should be maintained between the interests of society generally, on the one hand and, on the other, the need to allow those who are prepared to rebuild their lives a reasonable opportunity to do so. Therefore, there are certain exclusions set out in the Bill, in terms of offences and certain employments. Convictions for sexual offences must always be disclosed. Similarly, convictions for offences, including rape, serious sexual assaults and murder, which are reserved for trial by the Central Criminal Court must always be disclosed. In respect of excluded employments, the Bill provides it should always be necessary to declare convictions when seeking employment in specified areas. Section 5(2) contains a list of such areas.
There is one issue we may debate to a greater degree when the Bill returns to the House. The Bill makes no reference to people who seek to join the Defence Forces and we should consider this point. I know many fine men and women who may have committed a minor indiscretion or offence who would love to serve in our Defence Forces but cannot do so. No such rule on conviction for minor offences disqualifies people from becoming legislators, elected to the Houses of the Oireachtas. People have been elected who have committed minor offences. If this situation is adequate for legislators it should be all right for enforcers of the law. That is an issue for the Government to consider when it introduces its own Bill.
I refer to an issue that was raised by previous speakers, namely, Garda vetting. I am led to believe the current situation is somewhat farcical. If Westmeath County Council is vetting all applicants for social housing, as is right and proper, and wishes to acquire a Garda report, it sends the application to Mullingar Garda station which sends it to Templemore. Templemore sends an order back to Mullingar to carry out the vetting and when this is done Mullingar sends the result to Templemore for eventual return to Westmeath County Council. Talk about duplication. I know of one instance where a man’s housing allocation was held up for the guts of four or five months because a Garda vetting report was awaited. A measure such as was proposed would help to speed up Garda vetting and is another reason we should welcome this Bill.
Deputy Seamus Kirk: I am glad of the opportunity to pass some remarks on this important legislation which was introduced to the House in Private Members’ time by my party’s spokesman on justice and law reform, Deputy Dara Calleary. The proposals contained in the legislation are urgently needed to address a number of issues that affect young, and perhaps not so young, people in society.
For a range of reasons, with which all of us in political life will be familiar, as will others, early in their lives many people commit minor offences that can land them in court with a consequent conviction and a blight on their character for the remainder of their lives. Having learned hard lessons and gained life experience, it can be very daunting for such people to try to regain their place in society’s pecking order. Depending on the familial and societal positions of the individuals in question, it can be quite difficult.
It goes without saying one’s self-esteem and peer status is helped enormously if one has an opportunity to get into gainful and meaningful employment in society. It is much easier to reintegrate into society if there is no prospect of a further offence. It is helpful if one’s parents and other people are concerned about one’s well-being in society. If one can get into employment, in effect it means the problem of recidivism does not arise in most cases.
I would like to speak about the reintroduction of this Bill. It is important to keep all of these things in perspective. This legislation does not entail any deletion of the criminal records held by the Garda Síochána. The record will continue to exist, but this Bill will specify circumstances in which the details of that record should not be disclosed. The Bill will apply only in cases where a sentence of imprisonment not exceeding six months, a fine or another penalty has been imposed.
I wish to set out the background to this measure. The 2007 Law Reform Commission report on spent convictions gave detailed consideration to the sentence threshold. Based on the experience of policy and practice in Ireland, a six-month threshold was deemed appropriate in our circumstances. The LRC report examined the issue and recommended the periods now proposed.
I noted that a conviction-free period is being proposed for these purposes. As Deputy Troy said, the relevant period that has been provided for in New Zealand is ten years. I suppose the proposal in this Bill takes account of the particular circumstances in Ireland. The Bill proposes that the entitlement not to disclose a conviction should be automatic as soon as conditions relating to excluded offences and employment, the sentence threshold and the conviction-free period have been observed.
The automatic application of these arrangements is preferable to a system that is more demanding of time and resources. It is clear that an application system that would entail applications to a court would present a real risk of drawing attention to a conviction that the person in question hoped was behind him or her. That would defeat the purpose of the legislation before the House.
Deputies on this side of the House are pleased that the Government recognises the urgent need for legislation, even if it does not intend to accept the Bill proposed by Deputy Calleary. We hope the Government’s legislative proposal will mirror closely the key points of Deputy Calleary’s proposal. If the Government assists those who have found themselves on the wrong side of the law for one reason or another in their early or not so early years, it will do a good day’s work for society as a whole.
Many people can find it hard to get employment, perhaps for family, community or society circumstances. It is important that any barriers to employment prospects are removed. If this Bill helps in that regard, it will be most welcome and we will have done a good day’s work for our community and for the economic well-being of the country. As a number of Deputies said, it will help considerably in reducing the cost of keeping people in prison, for example, by reducing recidivism and the subsequent commission of much more serious offences. It is important to have people in meaningful and gainful employment, in their own interests and the interests of the community and society as a whole.
Minister of State at the Department of Justice and Equality (Deputy Kathleen Lynch): The attitude to this Bill of the Government, particularly the Minister, Deputy Alan Shatter, is a demonstration of the fresh approach the new Administration is bringing to the business of the Dáil. As the Minister said last night, we will not adopt a knee-jerk reaction to sensible proposals from the Opposition benches. Indeed, we welcome such initiatives and will consider them on their merits.
Both Government parties supported this Bill on Second Stage in 2008. Therefore, we will not be opposing it tonight. Having said that, the Bill as published contains the same limitations and omissions that were highlighted during the debate in 2008 and again over the past two days. For that reason, the Government will publish a new and better criminal justice (spent convictions) Bill shortly.
During this debate, many Deputies have mentioned that as public representatives, we often encounter good citizens who have found that minor convictions from many years previously are following them and frustrating their efforts to gain employment. Those people, and society in general, will benefit if they can be fully integrated into society and be allowed to make a worthwhile contribution.
A small number of key variables distinguish this legislation and deserve to be debated. The first variable, critically, relates to the range of sentences the Bill will allow to become spent. Most people agree on that aspect of the matter. We all agree that convictions for sexual offences should never become spent. That is also the case for offences that are tried at the Central Criminal Court. There is common ground on the proposition that those seeking to work directly or indirectly with children or other vulnerable people must disclose their convictions.
There are differing views on the length of sentences that should be excluded from the benefits of this measure. The Bill before the House excludes sentences of more than six months from becoming spent. The Minister indicated last night that he is open to the suggestion that longer sentences should also be covered.
Another variable is the length of time that must pass before convictions can become spent. This Bill follows the Law Reform Commission recommendation that so-called “rehabilitation periods” of between five and seven years should elapse. A number of contributors have suggested that a minimum period of five years is too long. The Minister has made the case for a more nuanced approach. He has reflected on the observations of the Human Rights Commission and the Irish Penal Reform Trust in this regard.
The third significant variable is the list of excluded employments. The legislation we are considering excludes the entire civil and public service, in effect. This is excessive, as the Minister and others have said. It is difficult to sustain the argument that someone applying for a job in the private sector should not have to disclose a previous conviction, but the same person applying for a job in the public sector, regardless of its nature, should have to disclose such a conviction. The Government legislation will take a more measured approach to this issue.
The debate on this Bill has shown a maturity in the approach of this House to former offenders. We agree that crime must be prevented in the first instance and that where it occurs, the perpetrators must be brought to justice and pay their debt to society. On the other hand, there is general agreement that those who serve their sentences, particularly where minor offences are concerned, should not have the fact of their convictions hanging over them for the rest of their days.
I commend Deputy Calleary on bringing this Bill to the House. I thank the other contributors, including Deputy O’Brien, for their thoughtful contributions to the debate. I look forward to further debates when the Government legislation is published. I assure the House that the Government will approach the passage of that Bill with the same openness that has characterised its decision not to oppose this Bill tonight.
Deputy Éamon Ó Cuív: I welcome the Government’s contribution to the debate on this Bill. I refer in particular to the contribution of the Minister of State. I am delighted that the principle of the legislation has been accepted. As the Minister of State said, it is very important that people should not be condemned to a lifetime criminal record for something they may have done many years earlier.
When one reflects further on this issue, one appreciates that younger people in more disadvantaged areas who did not get many opportunities in life are more likely to have convictions than those from more advantaged areas. When such people are looking for employment, they often face a double disadvantage. In addition to suffering from the lack of educational opportunities associated with where they come from, they may also have a minor conviction on their record. The combined effect of both of those factors can keep them out of the jobs market. I will never forget a young person who came to my office who many years previously had a conviction. Every time the person went for a job, he got so far and then, of course, the issue of the conviction came up. It was for a minor offence and still was on the record. As I stated, this is one case where we will do disproportionate good rather than harm in areas of high disadvantage where more young people wind up with some kind of a conviction for an offence, then mature and keep away completely from crime, but this legacy compounds other difficulties they might have faced in life.
Taking the points the Minister of State, Deputy Kathleen Lynch, raised, for example, that sexual offences would never be included here, I am very interested in the idea that she could talk about a longer term. All of those issues can be looked at constructively, on Committee Stage. For example, there is nothing to say the Bill could not provide that in the case of a sentence on conviction of a year one would need to be ten years crime free, but the more we allow people the opportunity not to have these showing up time and again for matters that have long past, the better. For example, a person who at age 20 was convicted of a crime, spent a year in prison and reformed completely, has the conviction dug up all the time when the person is aged 40, 45 or 50 even though he or she has probably done an even greater feat than those who never had a conviction by keeping out of crime, but still it hangs over them. I am very interested in what the Minister of State had to say on that issue.
I am also interested in what she had to say about a more nuanced approach. We can build on the basic idea here and come up with a better and more balanced measure, but it is important that whatever approach is taken is relatively simple for people to understand. Sometimes we make laws very complex in this House and it would take a barrister to understand what is going on. It is important when writing law that it would be nuanced and sensible, that it would take a rational and coherent approach but also that it would be easily understood.
I was interested also in what the Minister of State had to say about the public service. There is a basic point, for example, that a job in the public service might not be one with significant responsibility. It might be a job doing minor maintenance work around a public building. To say that such a job is totally different from a much more responsible job in the private sector by some magic formula is certainly worthwhile.
An aspect of the Government’s response is of interest. As somebody who worked in a Department, and meaning no offence to the good civil servants here, they are always warning one of the pitfalls and trying to make it more restrictive. It is good to hear where a proposal is being built on and there is talk of making it less restrictive than the original proposition. I had a device if I wanted to sell a new idea. I would always make it very tight in the beginning and if I thought that I was making headway, then I could move it outwards. On the other hand, if one made it very loose or “liberal” in the beginning, the proposal would be thrown out as being unworkable etc. In following that, it is good that we are talking about a Bill where the criticism is that it might be too tight and that we can loosen it a bit, rather than a Minister coming in stating it is far too dangerous, would be totally irresponsible and we must throw it out on its head. I am delighted with the reaction of the Government.
I would be interested in finding out the Government’s timescale on the alternative proposals it wants to bring forward building on this proposal because it is something we should just get on with. Every day we meet such people. We all know them. Let us be honest about it. If we look at the statistics, young people get into trouble. We all did crazy things when we were young — some of us did not get convictions for them but it does not mean that they were not crazy — and as we get older, in many cases we get wiser and more sensible. In a world where we realise that engagement in the workplace is so important, removing unnecessary barriers to the work place is vital.
Often I have stated that when I went into the Department of Social Protection one of the first questions I asked was the medical effects of unemployment on people. I asked for two pages and I got them. I thought I would get a long document; I did not. The Chief Medical Officer gave me the references to the best medical evidence available which was quite stunning and blunt, that is, those who are unemployed suffer from higher morbidity and higher mortality, they go to the doctor more often and they take more medicines. It was really gratifying to find out that those who are unemployed suffer more from depression and every kind of medical index one could think of was negative for unemployment, caused solely by unemployment. The good news in the document was that all of the medical evidence is that re-employment in 99% of cases causes 100% cure. I remember joking with then Minister for Health and Children, Deputy Harney, that if she gave me a good slice of her budget I could reduce much of the illness in the country by employing the many unemployed in doing something useful in society because it is not in the nature of a human being to be unemployed. We all know the considerable devastation in families and neighbourhoods caused by unemployment and anything we can do to remove the barriers to employment, particularly for those who might find it difficult to get employment, is valuable.
I very much welcome that the Bill is being accepted across the House and that there is cross-party agreement on this. It is the way this side should work where there is agreement. Obviously, there must be agreement across all parties on certain issues. The attitude being taken is responsible. I stated my main concern is when we will get this Bill enacted so that we can say to those who have convictions, who have served their time in one way or another through a fine, time in prison or whatever, and who have served their time in waiting having the conviction on the record that is shown for all employments and with the exceptions in the Bill, that this will not now be held against them in any future application for employment subject to the careful provisions of the Bill.
Is dóigh liom gur lá tábhachtach é seo don mBille. Tá a fhios agam gur glacadh le Billí de chuid an Aire, an Teachta Shatter, nuair a bhí sé mar Bhall den Fhreasúra. Tááthas orm go bhfuil sé sásta glacadh le Billí staidéartha agus ciallmhar uainn, go mórmhór reachtaíocht a tugadh faoi bhráid an Tí cheana agus a fuair tacaíocht. Mar a dúirt mé, tá súil agam go dtabharfar an Bille seo faoi bhráid Tithe an Oireachtais go luath agus go ndéanfar é a achtú agus a chur i bhfeidhm.
An Leas-Cheann Comhairle: As this is a Private Members’ Bill, it must be under Standing Order 118 referred to a select or special committee. Does Deputy Calleary wish to move the motion of referral now?
|Last Updated: 08/03/2013 21:19:15||Page of 182|