MANY OF US made mistakes or did things we may regret, when we were young. For most of us, thankfully, those mistakes don’t follow us for the rest of our lives.
For some people though, who have a criminal record for minor offences committed in their youth their mistakes do follow them through life.
When a person has gone through a substantial period of rehabilitation and then tries to get back into employment, is it fair that a minor conviction sustained years earlier still has a profound effect on their options?
As a community worker, I witnessed people being refused entry to degree programmes to which they would have brought a wealth of experience and lived reality such as youth-work and social work.
They were refused because of minor offences on their criminal record; offences that were simply no longer relevant due to a combination of the passage of time, changes in behaviour and circumstance and major, substantive rehabilitation.
Spent Convictions
A ‘spent conviction’, sometimes also called an expungement, is a conviction that does not have to be disclosed to potential employers during the Garda vetting process.
Garda vetting takes place for certain employment and education opportunities so the idea behind spent convictions is the principle that a person who has committed an offence in the past should be provided with the opportunity to reintegrate into society.
The need for a spent conviction regime is rooted in the principles of rehabilitative justice, that is that after a certain period of time, individuals deserve a ‘second chance’ and the opportunity to move on without the inevitable negative effects involved in disclosing a criminal conviction.
This is especially true for young people where a criminal conviction can have a disproportionate impact on life prospects.
It is commonly accepted that society benefits both socially and economically from the reintegration and rehabilitation of those with a conviction by reducing recidivism; a spent convictions regime must have these principles at its core.
Current Law
Ireland was the last European Union country to introduce a spent convictions regime with the passage of Criminal Justice (Spent Convictions and Certain Disclosures) Act in 2016 but its rehabilitative nature is limited, both in practice and also when compared with other European countries.
The maximum length of a custodial sentence that can become spent is 12 months or less and for a non-custodial sentence, the upper limit is 24 months or less. The Act also places a limit so that only one conviction can ever become spent.
The Act also sets the rehabilitative period after which a conviction becomes spent at a blanket seven years, without distinction as to the nature of the sentence and with no proportionality between the length of the sentence and the following rehabilitative period.
The Act also contains no recognition of the disproportionate impact of a conviction on the prospects on a young person.
Debates
Several pieces of spent convictions legislation were debated from 2007 onwards and it has been widely acknowledged both within and outside the Oireachtas that the provisions of our current regime are restrictive.
During a second stage debate on the Spent Convictions Bill 2007, the current Minister for Justice, Charlie Flanagan TD, suggested that the conviction free period of 7 years for a custodial sentence and 5 years for a non-custodial sentence were too long.
In the debate on the identical Spent Convictions Bill 2011, later introduced as an opposition bill by Fianna Fail, these issues were also raised.
Even during the Oireachtas debate on what was to become our current law, Deputy Niall Collins stated that the cut-off for eligible custodial sentences of 12 months was too short and should be extended to 30 months. By comparison, it was 30 months in England and Wales at the time and has since been extended further in those jurisdictions.
Time and time again throughout the course of these debates, it was stated that the provisions of our current regime do not get the balance right between the rehabilitation of individuals and the protection of society as a whole.
When the 2016 Act was being debated, we were told that since this was the first time any form of spent conviction law was introduced in Ireland, we needed to tread carefully.
We’ve now had almost three years and it’s time to make changes that ensure our spent convictions law are actually achieving their rehabilitative aims.
Restrictive rules on spent convictions, do not help to protect society. Society is best protected by the re-integration and rehabilitation of minor offenders.
Proposals
On the final day of the Seanad before we broke for the Christmas break, I introduced new legislation with the intention of addressing some of these issues and which would provide for broader and fairer access to spent convictions.
My proposed law is entitled the Criminal Justice (Rehabilitative Periods) Bill 2018 and will have its first Oireachtas debate in the spring. I’m aiming to make four substantive amendments to the 2016 Act:
Time for Change
I know first-hand how beneficial it is, if the people working in professions like addictions treatment, homelessness and social work, have relevant life experience.
Some of the best community workers and drug workers I have known had previous minor convictions themselves before going through a process of rehabilitation and changing their lives.
I’m aware of cases where students have reached the second or third year of their degrees in the social sciences but have then been refused work placement because of old, minor offences still being on their record.
This is not only harmful to the individual but detrimental to society too as our laws are literally forcing such people out of education and employment which flies in the face of rehabilitation.
I am hopeful we can change this in 2019 and work towards a criminal justice system that is fair, promotes rehabilitation and progression and is in line with other European countries.
Lynn Ruane is an Independent Senator.
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