CRIMINAL LAW (SPENT CONVICTIONS AND CERTAIN DISCLOSURES) ACT, 2016
“A SECOND CHANCE” OR A “RIGHT TO LIE”
The harrowing events surrounding the Ana Kriegel murder trial have caused us to think about “Boy A” and “Boy B.” Should they be allowed rebuild their lives after serving their sentences or should these events follow them to their graves?
David Browne examines the law relating to minor offences and how adults are treated.
Introduction:
A criminal conviction is a very serious matter. It can affect one’s right to earn a livelihood, one’s right to travel and one’s right to act as a Company Director in certain areas. Historically, a criminal conviction remained on the record for life. It has long since been the case however that children or young persons involved in minor offences have been given the right to build a new life once they have paid their penalty. This has been the situation in Irish Law since the Children’s Act 2001.
What about the situation for over 18’s? The Government addressed this question in 2016. They stated that the Act was “a conscious decision to make the scheme accessible to the greatest number of ex-offenders consistent with the protection of society at large.”
What is a Spent Conviction?
Where a person is over 18 years of age, having committed certain categories of offences, they may apply after a period of 7 years to have that conviction considered as spent. This means that where a question is put to that person seeking information in relation to their previous convictions, they are not obliged to reveal these convictions to a third party and in particular to an Employer.
Types of Offences:
This chance applies to minor offences where imprisonment of less than 12 months is involved. It does not apply to convictions in the Central Criminal Court including Murder or Rape. It does not apply to Sexual Offences.
Safeguards:
There are a number of safeguards and exceptions as to when a conviction can be considered spent. As one would expect, the conviction may sometimes be used in future Court proceedings but in limited circumstances concerning Childcare cases and Nursing Home cases.
A person is required to disclose a spent conviction to An Garda Siochana under arrest. Non-disclosure is not allowed when someone is applying for Irish Citizenship or permission to remain in the State. Similarly, a person under investigation by the Central Bank is obliged to disclose spent convictions.
If a person is convicted of fraud or similar offences, they are not excused from disclosing a conviction on Insurance Proposal Forms. In certain circumstances a person may be obliged to divulge their spent conviction when seeking to travel to another State such as the United States or Canada. While the main thrust of the legislation seems to be aimed at a second chance for employment this does not apply to work with the Defence Forces, An Garda Siochana or the Department of Justice. A conviction may not be hidden when applying for vetting concerning working with children or vulnerable persons. People with spent convictions must disclose them when applying for certain licences including Taxi licences, Firearm Certificates and Central Bank Financial Licences.
Other Countries:
The Irish Law constitutes a cautious response to an international problem. In Spain it is possible to seal a conviction record for any crime however serious. In England and Wales criminal sentences for up to 4 years may be expunged. In Northern Ireland convictions with imprisonment for up to 2 ½ years can be considered spent. In Germany nearly all convictions can be removed from a Certificate of Conduct.
It is too early to say whether the Irish response goes too far or not far enough. The ability to rebuild a life after committing a criminal offence is crucial to breaking the cycle of offending. Most people would consider it only fair that the peccadillos of one’s youth should not follow them indefinitely. It is remarkable however, that nearly all the restrictions and exceptions concern work for the State. It seems to generally permit covering up an offence or misleading any Employer in the private sector. It should work well generally for Public Order Offences or Minor Assaults. Some Employers may wish to know about convictions concerning dishonesty, however minor.
Remedies:
The legislation does not provide for any remedy for any person who feels they are discriminated against by an Employer or prospective Employer on the basis of their conviction or non-disclosure. Perhaps it would be preferable to have cards on the table. Why not have a regime where everything is disclosed but after 7 years it cannot be used against a person in any way?