Spent Convictions.

 

The Criminal Justice (Spent Convictions and Certain Disclosures) Act of 2016 has been in force since the 29^th April 2016 .   At the time Minister for Justice and Equality Francis Fitzgerald stated……. “the effect of the Act will be that where persons are applying for employment (other than employment which is exempt from the provisions of the Act) the person will not be obliged to disclose certain convictions which are over 7 years old…….”  In accordance with the provisions of the Act the following convictions will be spent;

 

1. All convictions in the District Court for motor offences which are more than 7 years old will be spent subject to the proviso that spent convictions for dangerous driving are limited to one single conviction.
2. All convictions in the District Court for minor Public Order Offences ( as set out in S.5(5) of the 2016 Act which are more than 7 years old will be spent.
3. In addition, where a person has one, and only one conviction (other than a motoring or public order offence as above) which resulted in a term of imprisonment of less than 12 months (or a fine) that conviction will also be spent after 7 years.  The provision will apply to either a District Court or a Circuit Court conviction.
4. Sexual offences as defined in the 1^st Schedule of the 2016 Act or convictions in the Central Criminal Court are not eligible to become spent convictions.”

 

1. The person shall be a natural person and 18 years or over at the date of the commission of the offence which is the subject matter of the conviction concerned.

 

The Act however does require a more careful study and reading to tease out the situation concerning any particular conviction.  It should likewise be read in conjunction with the National Vetting Bureau (Children and Vulnerable Persons) Act of 2012 which also commenced on the 29^th of April 2016.

 

The  2016 Act goes on to give a specific definition of what a custodial sentence consists of and likewise what sentences are “excluded sentences” both in Section 4 of the Act. Likewise in the First Schedule of the Act it defines what is a sexual offence.   It is important to realise therefore that it is only the sexual offences listed in the First Schedule of the Act that are “excluded sentences” for the purposes of the Act.  For example, an offence of prostitution by a person under the age of 17 years, under Section 6 of the Criminal Law (Sexual Offences) Act 1993 (Soliciting or Importuning for purposes of commission of sexual offences) is an excluded sentence for the purpose of the Spent Convictions Act but an offence under Section 7 of that Sexual Offences Act of 1993 “Common Prostitution” by an adult is not an excluded sentence for the purposes of the Spent Convictions Act and therefore if over 7 years old is a spent conviction, if all the other criteria as set out in the 2016 Act apply.

 

See however S.258 of the Children Act, 2001 in relation to an offence committed before the person attained the age of 18 years…pages 12-14 of this Lecture.

 

While the Minister for Justice therefore stated that sexual offences are Excluded Sentences for the purposes of the Act it is important to refer to the First Schedule of the Act and to check whether the sexual offence in question is in fact listed in that Schedule.  If it is not so listed then it is an offence to which the Spent Convictions Act will apply.

 

Section 5 of the Act sets out which convictions may be regarded as spent convictions. For example it does not apply to a conviction imposed on a company or body corporate, it only applies to convictions imposed on a natural person who was 18 years or older at the date of the commission of the offence which is the subject of the conviction concerned.  More than 7 years must have passed since the effective date of conviction and this phrase is given a specific meaning in the Act and is relevant as far as to whether custodial and / or non-custodial sentences are concerned.

 

Sentences imposed by the Court must not be an Excluded Sentence again this is defined in Section 4 of the Act

 

Non-custodial sentences are defined in the Act and a close reading of it shows that a spent conviction may apply in a situation where a sentence of imprisonment for a term of 2 years or less was handed down by the Court, if the whole of the sentence is suspended for a period specified by the Court, and, that suspension is not subsequently revoked in whole or in part by the Court. It is important to note therefore, that although the Act generally refers to spent convictions as consisting of a term of imprisonment for a period of 12 months or less, in the above case the Act is still relevant where the term of imprisonment for a term of 2 years is imposed but is suspended.

 

Subject to Section 5 of the Act no more than one conviction may be regarded as a spent conviction.  The Act goes on to say in Section 5(4)….. where in any proceedings before a Court a person is convicted of 2 or more offences which are committed simultaneously or arise from the same incident and the Court in passing sentence imposes more than one relevant sentence in respect of those offences the convictions shall be regarded as one single conviction.

 

Section 5(5)  sets out the exceptions to the rule that no more than one conviction shall be regarded as a spent conviction. This relates to any relevant sentence imposed by the District Court in respect of an offence under the Road Traffic Acts 1961-2015 (other than Section 53 of the Road Traffic Act 1961 to 2015,Dangerous Driving), any conviction under Section 37A of the Intoxicating Liquor Act 1998 (where a adult is convicted of an offence involving the consumption of drink by a person under 18), and any convictions under Section 4, 5, 6, 7 ,8(a)(4) or 9 of the Criminal Justice (Pubic Order) Act 1994.

 

Definition;

 

Section 4 –  Intoxicated in a  Public Place

Section 5 – Disorderly Conduct in a Public Place

Section 6 – Threatening, Abusive or Insulting Behaviour in a Public Place

Section 7 – Distribution or Display in a Public Place of threatening or abusive or insulting or obscene material

Section 8 –       Failure to comply with direction of a member of An Garda Siochana

Section 9 – Wilful obstruction of any person or vehicle in a public place

 

Section 6 of the Act sets out the general effect of spent convictions and states that where a person has a conviction which is regarding as a spent conviction he or she shall not be required by any rule of law or any agreement or arrangement which purports to require a disclosure of that conviction to disclose the conviction or the circumstances ancillary thereto.

 

It goes on to state that where, otherwise and before a Court, a question is put to a person seeking information in relation to a conviction that is spent then the person can deem the question as not applying to a spent conviction and can respond accordingly and that the person shall not incur any liability or otherwise to prejudice in law because he or she did not disclose the spent convictions.

 

Section 7 deals with the general effect of spent convictions in Court proceedings and in sub-section 1 states that no evidence shall be admissible to show that a person who has a spent conviction or has committed or been charged or prosecuted or convicted or sentenced in respect of that spent conviction, and if a question is asked in any such proceeding relating to a spent conviction the person shall not be required to answer the question.   The above however is subject to the important limitations as contained in sub-sections 2 and 3.

 

Sub-section 2 states that a Court….”in any proceedings before it at any stage…….” can admit evidence of spent convictions or circumstances ancillary thereto if the Court is satisfied in all the circumstances that justice cannot be done except by so admitting the evidence of spent convictions, but Orders can be made by the Court preventing or restricting the publication of that evidence.

 

Section 7(3) is probably the most relevant section of the Act as far as criminal practitioners are concerned and it is worth setting it out (in part).

 

Section 7(3) – nothing in this Part shall affect the determination of any issue or prevent the admission or requirement of any evidence, relating to a person’s spent conviction or the circumstances ancillary to the conviction –

 

• Any criminal proceedings before a Court, including any appeal or other application relating to those proceedings in which the person is a party to the proceedings
• Any proceedings concerning the adoption, guardianship or custody of, or access to, a child, including proceedings under the Child Care Acts 1991 to 2015.

 

Similarly S7(3) goes on to state that spent convictions are admissible in any proceedings concerning Adoption, Guardianship, Access or Custody or under the Childcare Acts and proceedings relating to provision by any person of accommodation care, training or education for a Child or Vulnerable Person or in relation to section 21 of the Nursing Homes Support Scheme Act 2009.

 

Section 8 states that a person is required to disclose previous convictions in an interview by the Gardaí, following arrest, relating to an application for a person to enter or remain in the State or to apply for Irish Citizenship or in respect of an investigation by the Central Bank and similarly there is an obligation of persons to disclose previous convictions relating to fraud, deceit or dishonesty under policy of insurance or assurance.

 

Section 8 also states that if there are ongoing provisions or consequences of a conviction still applying to a person and the conviction itself is more than 7 years old then such a conviction is not deemed to be a spent conviction.

 

Section 9 states that where information is sought by a State other than Ireland in relation to a person’s convictions then the concept of spent convictions does not apply.

 

Section 10 requires disclosure of spent convictions when a person is applying for specified work.  Specified work is set out in Schedule 2 of the Act and refers to work with the Defence Forces, Gardaí, Criminal Assets Bureau, Court Services, Central Bank, Office of the President, etc.  It also restricts the application of the Act to persons who are seeking or who are offered relevant work or activities as defined in Part 1 of 2 of Schedule 1 of the National Vetting Bureau (Children and Vulnerable Persons)
Section 11 requires disclosure by a person that seeks various licences under the Road Traffic and Transports Acts for authorisation as a driver tester or taxi driver or private security or for permission to hold a fire arm.

 

Section 12 obliges the Gardaí, when a person makes a request for disclosure or a copy of his / her criminal record that information regarding the persons spent convictions (if any) shall be provided separately for information concerning the persons other convictions (if any).

 

 

 

 

Aide memoire in deciding whether a conviction can be deemed to be a spent conviction or not

 

1. Was the accused under or over 18 years or age at the date of commission of the offence?

 

If the accused was under the age of 18 at that time then see the provisions of Section 258 of the Children Act 2001.

 

If the accused was over the age of 18 at the date of commission of the offence then refer to the Spent Convictions Act 2016.

 

1. The Spent Convictions Act applies to offences committed by an natural person only (ie not by a company), Section 5(2)(a).

 

1. Not less than 7 years must have passed since the effective date of the conviction Section 5 (2) (b).  Since time is of the essence here and people’s memories can fade as to when they were in Court, it is essential that you insist on the client brings in a copy of the Court Order that imposed the conviction.

 

1. Did the accused commit one or more than one offences?  In this regard see Section 5(3) (4), and (5).

 

1. Is the sentence an “excluded sentence”?  See definition of excluded sentence under Section 4(1)(f) which includes a sentence imposed by a Court other than the District Court of a term of imprisonment of more than 12 months unless the sentance is “non-custodial sentence”.  This phrase is also defined in Section 4(1)(f).

 

Excluded sentences also refer to offences that are reserved by law to be tried by the Central Criminal Court or sexual offences.  Sexual offences are given a specific listing under Schedule 1 of the Spent Convictions Act 2016, pages 22-26 inclusive of the Act.

 

1. In relation to court proceedings will Section 7(2) (Judicial Discretion) come into play?

 

1. See article in Law Society Gazette, July 2016 by Matthew Holmes BL which is useful in that he quotes UK case Law on the English Courts interpretation of their equivalent statute ( Rehabilitation of Offenders Act 1974)

 

1. How will Section 7(3) and particularly 7(3)(a) affect criminal proceedings?

 

1. The limitations of the application of Sections 6 and 7(General Effect of Spent Convictions) particularly S7(2( and (3);

 

Section 8; the requirement of a person to disclose any previous convictions in an interview by the Gardaí following arrest. Similar disclosure requirement in respect of immigration matters, Central Bank matters, and where the accused has been convicted of insurance fraud.

 

Section 9; the general effect of Spent Convictions (Section 6) will not apply to information sought by a State other than Ireland (Section 9).

 

Section 10(1)…Section 6 will not apply where person looks for or is offered any “specified work” as specified in Schedule 2 of the Act, pages 26/27 of the Act which includes work in the Defence Forces, Gardaí, Courts Service and others including the Garda Reserve or Defence Forces Reserve.

 

Section 10(2)…Likewise Sections 6 will not apply in relation to a person looking for or being offered work referred to as “relevant work”.  Relevant work is not defined in the Spent Convictions Act of 2016 but is set out in Schedule 1, Parts 1 and 2 of the National Vetting Bureau (Children and Vulnerable Persons) Act 2012, pages 32-36 of that Act, which includes preschool services, hospital or healthcare service, work in a school or in a centre of education, work that is funded by the Department of Education and known as Home Tuition Scheme or work that consists of treatment or counselling of children or involve the care and supervision of children.

 

Section 11…Is disclosure required pursuant to Section 11 of the Act which states that Section 6 will not apply where a person is looking for various licences under the Road Traffic Acts including a taxi licence, driver tester, a licence in private security, or for a gun licence.

 

 

Finally, Sections 14-29 of the Spent Convictions Act 2016 amend the National Vetting Bureau Act of 2012.

 

Éamonn Fleming.

 

 

 

 

 

Aide memoire re;

National Vetting Bureau (Children and Vulnerable Persons) Act 2012

 

 

Although the original Bill in relation to this Act goes back to 2012 it commenced on the same date as the Spent Convictions Act, 29^th April 2016.  It seems to me that the Vetting Act was drawn up in 2012 and the Government realised that they should also then introduce a Spent Convictions Act but, for whatever reason, never got around to putting together the latter for a further 4 years.  It is unfortunate therefore that you have to cross reference both Acts since Sections 14-29 of The Spent Convictions Act contain a series of amendments to the Vetting Act.

 

In essence, the Vetting Act requires a Relevant Organisation through its Liaison Person to apply to the National Vetting Bureau for Vetting Disclosure in relation to any person in the organisation wishes to engage in relevant work or activities relating to children or vulnerable persons.

 

(All the terms in heavy print above have specific definitions in the 2012 Act).

 

Once an application is made to the Vetting Bureau, the Vetting Bureau then checks its database and makes enquiries from the Gardaí and issues a Disclosure Form which includes particulars of a criminal record (if any) and a statement of specified information (if any), or states that there is no criminal record or specified information in relation to that person.

 

Section 6 of the Act establishes a database system.  Section 22 of the Act appoints a Chief Bureau Officer. Section 9 of the Act requires a registered relevant organisation to nominate and register a Liaison Person of the Act.

 

Section 15 provides that where a matter is referred by a Relevant Origination to the National Vetting Bureau for assessment, the Bureau must notify the person the subject matter of the assessment and give him/her a summary in writing of the specified information it proposes to disclose.  That person can then make written submissions to the Bureau and if aggrieved by determination of the Bureau, lodge an Appeal to an Appeals Officer against the determination.

 

The following items might be particularly noteworthy:

 

• Section 21 of the 2016 Act inserts Section 14 (A) into the 2012 Act.  Section 14(A) in essence sets out the requirements of the 2016 Act for a conviction to be regarded as a Spent Conviction, with at least however one important difference.
•  Section 14(A) (1) (B) states that “the offence shall not be an excluded offence”. Excluded Offences are a creature of the 2012 Act, but are set out in Schedule 3 of the 2016 Act (page 21 of the 2016 Act).  In essence they contain a list of offences that under the terms of the 2016 Act could be deemed to be a Spent Conviction ( if the person had no more than one conviction for  these Scheduled 3 offences, and met the remainder of the relevant criteria of the 2016 Act ), but would still be disclosed by the National Vetting Bureau in a Vetting Disclosure.

 

In essence therefore, whilst certain convictions can be deemed to be Spent Convictions if they are a conviction as set out in Schedule 3 above, they will always be disclosed in National Vetting Bureau Disclosures.  Interestingly a first offence under Section 3 of the Misuse of Drugs Act will not be disclosed in a Vetting Disclosure, if it is deemed to be a Spent Conviction.  For all other offences under the Misuse of Drugs Acts whether they are deemed to be a spent conviction or not will be disclosed on Vetting Disclosure purpose.

 

Éamonn Fleming.

 

 

 

 

Children Act, 2001

		PART 13 Miscellaneous
	Non-disclosure of certain findings of guilt.	258.—(1) Where a person has been found guilty of an offence whether before or after the commencement of this section, and—
		(a) the offence was committed before the person attained the age of 18 years,
		(b) the offence is not an offence required to be tried by the Central Criminal Court,
		(c) a period of not less than 3 years has elapsed since the finding of guilt, and
		(d) the person has not been dealt with for an offence in that 3-year period,
		then, after the end of the 3-year period or, where the period ended before the commencement of this section, after the commencement of this section, the provisions of subsection (4) shall apply to the finding of guilt.
		(2) This section shall not apply to a person who is found guilty of an offence unless he or she has served a period of detention or otherwise complied with any court order imposed on him or her in respect of the finding of guilt.
		(3) Subsection (2) shall not prevent the application of this section to a person who—
		(a) failed to pay a fine or other sum adjudged to be paid by, or imposed on, the person on a finding of guilt or breach of a condition of a recognisance to keep the peace or to be of good behaviour, or
		(b) breached any condition or requirement applicable in relation to an order of a court which renders a person to whom it applies liable to be dealt with for the offence in respect of which the order was made.
		(4) (a)  A person to whom this section applies shall be treated for all purposes in law as a person who has not committed or been charged with or prosecuted for or found guilty of or dealt with for the offence or offences which were the subject of the finding of guilt; and, notwithstanding any other statutory provision or rule of law to the contrary but, subject as aforesaid—
		(i) no evidence shall be admissible in any proceedings before a judicial authority to prove that any such person has committed or been charged with or prosecuted for or found guilty of or dealt with for any offence which was the subject of that finding, and
		(ii) a person shall not, in any such proceedings, be asked, and, if asked, shall not be required to answer, any question relating to his or her past which cannot be answered without acknowledging or referring to a finding or findings to which this section refers or any circumstances ancillary thereto.
		(b)  Subject to any order made under paragraph (d), where a question seeking information with respect to a person’s previous finding of guilt, offences, conduct or circumstances is put to him or her or to any other person otherwise than in proceedings before a judicial authority—
		(i) the question shall be treated as not relating to findings to which this section applies or to any circumstances ancillary to such findings, and the answer thereto may be framed accordingly, and
		(ii) the person questioned shall not be subjected to any liability or otherwise prejudiced in law by reason of any failure to acknowledge or disclose any such findings or any circumstances ancillary to the findings in his or her answer to the question.
		(c)  Subject to any order made under paragraph (d)—
		(i) any obligation imposed on any person by any rule of law or by any agreement or arrangement to disclose any matters to any other person shall not extend to requiring him or her to disclose a finding to which this section applies or any circumstances ancillary to the finding (whether the finding is his her own or another’s), and
		(ii) a finding to which this section applies, or any circumstances ancillary thereto or any failure to acknowledge or disclose a finding to which this section applies or any such circumstances, shall not be a proper ground for dismissing or excluding a person from any office, profession, occupation or employment, or for prejudicing him or her in any way in any occupation or employment.
		(d)  The Minister may by order make such provision as in his or her opinion is appropriate—
		(i) for excluding or modifying the application of either or both of subparagraphs (i) and (ii) of paragraph (b) in relation to questions put in such circumstances as may be specified in the order, or
		(ii) for exceptions from the provisions of paragraph (c) in relation to such cases, and findings of such a description, as may be so specified.
		(5) An order under subsection (4)(d) may be amended or revoked by the Minister, including an order under this subsection.
		(6) A draft of any order proposed to be made under this section shall be laid before each House of the Oireachtas and the order shall not be made until a resolution approving of the draft has been passed by each such House.
		(7) For the purposes of this section any of the following circumstances are circumstances ancillary to a finding, that is to say:
		(a) the offence or offences which were the subject of the finding,
		(b) the conduct constituting that offence or those offences,
		(c) any process or proceedings preliminary to the finding,
		(d) any penalty imposed in respect of it,
		(e) any proceedings (whether by way of appeal or otherwise) for reviewing any such finding or penalty,
		(f) anything done in pursuance of or undergone in compliance with any such penalty.
		(8) For the purposes of this section “proceedings before a judicial authority” includes, in addition to proceedings before a court, proceedings before any tribunal, body or person having power—
		(a) by virtue of any statutory provision, law, custom or practice,
		(b) under the rules governing any association, institution, profession, occupation or employment, or
		(c) under any provision of an agreement providing for arbitration with respect to questions arising thereunder,
		to determine any question affecting the rights, privileges, obligations or liabilities of any person, or to receive evidence affecting the determination of any such question.