Legislation providing for the expunging of convictions so that they might become ‘spent’ after a period of time recognises two objectives: firstly, that a person who has committed crimes can be rehabilitated; secondly, that in order for that person to become fully rehabilitated and reintegrated into society, they must be allowed to move on from past behaviours to education and gainful employment. In short, a criminal record is a clear barrier to progression.
The human condition
Ireland has lagged shamefully behind our European counterparts when it comes to spent convictions, and while the the Criminal Justice (Spent Convictions Act) 2016 was welcome step toward addressing this failure, it did, by general consensus, not go far enough.
Compared with countries like Germany and Spain – and the common-law jurisdictions of Northern Ireland, Scotland, England and Wales – the Irish legislation on spent convictions is narrow, disproportionate and ineffective. In recognition of this, the Department of Justice has embarked on an exercise, by way of public consultation, to update and improve our ‘spent convictions’ regime.
All criminal defence lawyers have to advise people who are disproportionately affected by the existence of convictions in relation to work, travel, employment and education. Experience suggests that the current legislation does not sufficiently protect those who have, in many instances, worked very hard to rehabilitate themselves.
We tend, unfortunately, to have to rely on experience, because (as the Oireachtas Joint Committee rather drily noted in its recent report) statistical evidence maintained by the department is deficient.
Blot their maps
While the 2018 private member’s bill is an improvement on the 2016 act, we suggest that it still does not go far enough to bring Ireland up to best international practice.
At present, the types of convictions that can become spent are limited to those that resulted in a custodial sentence of less than 12 months, or a non-custodial (that is, suspended) sentence of less than 24 months. The 2018 bill proposes to increase this to custodial sentences of 24 months and non-custodial sentences of 48 months.
While this increase is welcome, we believe it to be inadequate. We submit that the correct approach is to assume that all offences will become spent after defined periods of time, save for specific exceptions – for example, sexual offences or convictions imposed by the Central Criminal Court.
The difficulty with limiting the type of convictions that can become spent by reference to the sentence received is most apparent when convictions imposed for offences under section 15A of the Misuse of Drugs Act are considered.
Terms of imprisonment imposed for these types of offences are frequently lengthy, regardless of the personal circumstances of the individual or the number of previous convictions – often none – they already have, as they involve statutory minimum mandatory sentences.
Most persons convicted of offences under this legislation receive sentences that would not be eligible to become spent, even under the 2018 bill, even though, post-release, they have not come to adverse garda attention for very many years and have been entirely rehabilitated. Notwithstanding this, under current legislation and the 2018 bill, these convictions will follow them for the rest of their lives.
Future painted with a fog
If the starting point is that all convictions will become spent save for certain exceptions, the Oireachtas can legislate to appropriately exclude convictions for serious offences, while giving those persons who have been genuinely rehabilitated the benefit of spent convictions.
Section 5(3) of the 2016 act provides that, save for minor convictions under road traffic or public order legislation, only one conviction can become spent, regardless of how much time may have passed since a person last offended.
This is entirely at odds with the accepted principle that a person can be rehabilitated, and ignores the reality that, in the vast majority of cases (in particular where people have been convicted of minor theft or drug offences), the offending is a symptom of personal circumstances – poverty, addiction, homelessness or mental-health difficulties – and a number of convictions may be accrued in a period of time.
Many people are successful in addressing the reasons for their offending behaviour, and move away from petty crime. However, on the basis of the current legislation, their convictions can never become spent, meaning that the person who received two convictions for shoplifting when they were homeless and living in poverty 20 years ago will still have those convictions on their record, and will have to disclose them when requested by employers, educators or when traveling.
The 2018 bill proposes to increase the number of convictions that can become spent from one to two convictions for offences committed as adults (being 24-plus years of age), and from one to three convictions for offences committed as young adults (18-24 years of age).
A distinction in how convictions for offences committed as adults and young adults are treated is welcome, but it is submitted that the increase in the number of offences that can become spent in the 2018 bill does not go far enough.
Ultima ratio regum
As good Europeans, should we not adopt the approach taken in Germany, where there is no limit on the number of eligible convictions that can become spent after a period of time? Surely this is the only approach that supports the principle of rehabilitation. We note that, in other common-law jurisdictions, for example, New Zealand, there is no such numerical limit.
A similar situation applies in many European countries, and the Joint Committee on Justice and Equality references this in their Report on Spent Convictions, suggesting that, on the continent, the emphasis is on privacy perspectives rather than public safety. Individuals can apply for a ‘certificate of good conduct’, which elides many past convictions, although the most serious crimes are not automatically excluded.
The principle of proportionality that is introduced by the 2018 bill is to be welcomed. This principle can be applied alongside the suggestion above, that all, bar specific sentences, will become spent after a defined period of time.
Plain fairness suggests that the period of rehabilitation should be associated with the length of the sentence, thereby reflecting the seriousness of the offence and the need to protect the public, while also balancing the interests of fairness to the accused who has been rehabilitated.
It is suggested that a model similar to that in England and Wales could be introduced, with additional provisions that apply to sentences over 48 months, allowing for them to become spent after a longer period of time.
Any time periods should be calculated with regard to empirical evidence obtained by criminologists and professionals working in rehabilitation and restorative justice. Those convictions that are too serious to become spent can be specifically provided for, and we submit that such convictions should not be determined by the length of the sentence imposed.
The image shattered
Spent convictions legislation also should prohibit any person (other than a judge in very specific circumstances where it is necessary for justice to be done) from being made aware of a conviction that has become spent or any ancillary information relating to it. While the current legislation allows a person to declare they have no criminal convictions if any such conviction is spent, it does not require the deletion of any reporting relating to this conviction.
This is particularly problematic when news stories relating to convictions that have become spent are reported online. While the legislation may protect a person from being required to divulge information about spent convictions, there is little to prevent any person (for example, a prospective employer) googling their name and reading all about them.
What is colloquially known as ‘the right to be forgotten’, provided for in article 17 of the General Data Protection Regulation, gives a person the right to apply to organisations, for example, search engines, to delete personal information held by them.
However, search engines can refuse this application on a number of grounds, including on the basis that the publication of the information is in exercise of the right to freedom of expression and information, or on the basis that it serves the public interest or historical research.
Mirrored multiplicity
To allow the continued publication of such information entirely contradicts the sentiment of the spent-convictions legislation and can render it effectively useless. We cannot be alone in feeling extremely frustrated in their dealings with the major search engines over this issue.
The shortcomings of the 2016 act are well illustrated by section 10 and schedule 2, allowing the Garda National Vetting Bureau to disclose previous convictions when a person applies for, seeks, or is offered any employment, activity or service specified in schedule 2, being many posts within the public sector. This appears unfair and disproportionate, in particular since any spent convictions being disclosed are, by definition, minor.
Clearly, in certain circumstances, it may be appropriate for more serious spent convictions to be disclosed to prospective employers, but these circumstances should be limited and specified. For the legislation to be meaningful, the starting point should be that spent convictions are automatically removed from a person’s vetting record. The relationship between the National Vetting Bureau (Children and Vulnerable Persons) Act 2012 and the spent convictions legislation needs to be reviewed as part of the current exercise.
It would appear that this position is supported by the decision of the European Court of Human Rights in MM v United Kingdom, where the court held that the blanket disclosure of ‘spent’ police cautions in Northern Ireland interfered with the right to privacy under article 8 of the European Convention on Human Rights.
The ratio of the MM case was followed in 2014 by the British Supreme Court in T & Anor v Secretary of State for the Home Department, which examined the legality of blanket and indiscriminate disclosure of previous convictions.
For the spent-convictions legislation to have maximum effect, it should provide that any recording or publication of any information relating to a person’s spent convictions or information ancillary thereto may constitute an offence.
History is theirs
Notably, section 14 of the New Zealand Criminal Record (Clean Slate) Act 2004 makes it an offence to make or ask a person to reveal ‘clean-slate’ convictions, other than in specific circumstances, which are provided for in the legislation.
Anyone who requires disclosure of clean-slate convictions can be fined up to $10,000. Perhaps similar sanctions should be included in Irish legislation – such sanctions also to apply to any person or organisation that publishes information relating to a person’s spent convictions.
Fair procedures require a right of appeal or review. While there is a mechanism to appeal a decision of the National Vetting Bureau to disclose information, there is no such appeal or review mechanism available in other situations, or where a person simply wishes to have their criminal record expunged.
In Germany and the Netherlands, a person can apply for a certificate of good conduct to remove all convictions, including life sentences. In the US, a person can apply for certificate of employability, relief or rehabilitation.
It may also be time for a similar procedure to be introduced here that would allow a person who has a previous conviction of the kind that would not normally become spent to apply to the District Court – or higher – to have their record expunged.
This would be an additional measure of proportionality and fairness that could be utilised by persons convicted of serious offences in the past, but who have not come to the attention of the gardaí for a long time and who can display that they are genuinely rehabilitated.
Noting the belated, and rather grudging, first attempt in 2016 at spent convictions legislation, in order truly to give credence to a commitment to rehabilitation, reintegration and reduction in recidivism this time around, the presumption must be that most, if not all, convictions will become spent automatically – and that means expunged entirely, with any necessary caveats for certain types of offences and time periods inserted thereafter.
The Oireachtas Committee report is a helpful starting point, and one hopes that the Department of Justice will pay attention to long overdue reform.
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