Second Stage Reply by Minister for Justice and Equality, Mr Charlie Flanagan TD, to the Private Members’ Bill: Criminal Justice (Rehabilitative Periods) Bill 2018

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First, I wish to thank Senator Ruane for introducing this Bill to the House on 20 December, 2018. I would also like to thank Senator Higgins for supporting its presentation to the House. This is an important issue not only for those who have convictions but also for society as a whole.

I support the principle of this Bill which is to assist those people with convictions who have moved away from offending and want to get on with their lives. This is important and valuable for individuals, for their families and for society as a whole.

My officials met with Senator Ruane this week to discuss these proposals and, at that time, they flagged that as the proposals represent a considerable extension of recently enacted legislation, they will require careful analysis and consideration. However, I am very open to analysis and consideration.

The Spent Convictions Act came into force just under three years ago. The Act, which had been championed by Minister Shatter during his time as Justice Minister and introduced to the statute book by Minister Fitzgerald, underwent extensive consultation and scrutiny both within the Oireachtas and with other stakeholders. In fact, the Bill as it was then was amended several times as it progressed through the Houses of the Oireachtas.

That said, I am conscious of the views of the Oireachtas Committee on Justice and Equality and the Irish Penal Reform Trust on the application and scope of the provisions set out in the 2016 Act and the presentation of Senator Ruane’s Private Member’s Bill to the Seanad is a welcome development in this regard.

It will assist my department and me in carefully considering the effectiveness and balance of the provisions of the 2016 Act so that the fairest possible outcome can be achieved for all our citizens. It is important that this Act is kept under review so that it continues to benefit our citizens in a measured and equitable way – and so that it is effective in achieving its goals.

The Bill proposes significant amendments to the 2016 Act. It is not only proposing the extension of spent convictions legislation to non-custodial sentences up to 48 months, but also custodial sentences up to 24 months. The Bill also raises the number of convictions, which could become spent.

Along with these changes, it introduces the principle of proportionality when it comes to determining when a conviction is spent. This would introduce a sliding scale of periods before which a conviction can be considered spent. This sliding scale is based on the type of conviction involved.

In this context, the Bill treats young adults aged 18 to 24 years more favourably than others. As part of this scale, it reduces further the periods before their convictions are spent. Lastly, but significantly, these amendments create consequential amendments to the National Vetting Bureau (Children and Vulnerable Person) Act 2012.

I am very conscious of the arguments in favour of liberalising our spent convictions regime, in particular that such an approach reduces the extent to which individuals are restricted in life opportunities by convictions, including their access to education, work, volunteering and better enables them to move on in their lives. In this context, I know that Senator Ruane works very closely with many individuals who are trying to transform their lives and I sincerely commend her for that really important and valuable work.

I know that Senator Ruane has been working with the Irish Penal Reform Trust in developing this legislation and that the IRPT published a survey on the impact of past convictions on people who are moving on with their lives. This survey is based on 148 people being surveyed, but its findings are a useful contribution to the debate.

The changes being proposed in the Bill reflect the issues, which are the subject of debate around spent convictions legislation, its purpose and its impact.

These proposed changes do raise questions which will need careful consideration and I would define these questions as follows:

• whether current spent convictions legislation is proportionate?
• in this context, how are those people with custodial sentences being treated in comparison with people given non-custodial sentences?
• whether young adults should be treated differently to others with convictions?
• what impact would this have given a significant proportion of offences are committed in the age bracket 18 to 24 years?
• would treating these young adults differently have any knock-on effects on other legislation?
• do two convictions represent a pattern of offending?
• when is re-offending a risk to the public?
• in expanding the scope of this legislation, what offences would now be included?
• would any of these offences be considered serious in a legal context?
• how would victims of any of such offences view these changes?

I also understand comparisons have been made with other common law states and specifically England and Wales. I also note that in recent studies on this matter, reference is made to the impact of data protection law, the effect of the internet and the right to privacy.

I understand that there have been significant judgements in the UK and Europe in relation to these matters. In particular, I note the Supreme Court judgement in the England last month in relation to spent conviction legislation, where that Court rejected the Home Office’s appeal with regard to the disclosure of convictions in four different cases.

However, I wish to highlight the fact that it is not the case that we have an absolute ‘single conviction rule’ in our legislation as the 2016 Act provides that certain categories of offences – for example a range of motoring and public order offences – may be regarded as spent even if there are multiple convictions of these on a person’s record.

Having said that, I look forward to examining the relevant proposals in this Private Member’s Bill so that I may consider whether the 2016 Act may be strengthened. I stress the balance that needs to be struck between protecting the public and rehabilitating the offender and it is through this prism that my department will be evaluating the proposals contained in Senator Ruane’s Private Member’s Bill and considering any relevant judgements in the UK and Europe, along with the questions outlined above. I refer to these matters, in order to highlight that this Bill and its proposed changes raise complex questions and issues which do need to be considered carefully.

As I already stated, the government do not oppose this Bill in principle. However, it would be important and reasonable to consider carefully the impact of such changes, not only on the individual who has convictions but any other possible and unanticipated implications. The Bill as proposed therefore needs careful examination, which has not been possible in the short time since its publication.

It would be important to have a clear understanding of all the effects these changes would have. Of particular importance, work needs to be done on the types of offences, which could become spent, and an opportunity to consider whether any such offences might not be considered minor. Extending the threshold for custodial sentences to 2 years imprisonment could, for example, bring relatively serious offences within the scope of the Act. In addition, the possible implications of these changes on vetting and the impact of recent judgements also need to be examined. Following this work, consideration can then be given to the case for amendments to deal with any concerns that may arise.

I want to thank Senator Ruane for agreeing to share her analysis and research with my department in order to assist my officials in this work. As Minister, I undertake to work with you to progress this Bill so that it is balanced and fair in its approach, from both the perspective of protecting the public and rehabilitating the offender.

Thank you.

ENDS