When a person is convicted of a crime, there is a legitimate expectation of punishment, with the most serious consequence being the loss of liberty. In fact the punishment continues after release – the offender is affected for the rest of his or her life.
Having to declare a criminal record presents a significant, sometimes insurmountable, obstacle to accessing employment, training and education.
It often precludes young men and women in Ireland from pursuing work opportunities in Australia, Canada and the US. It means higher premiums on car insurance policies. In the case of home insurance, partners and parents of people with convictions also face higher premiums.
There is no doubt that in the case of certain serious crimes, it is never appropriate to forget the fact of a conviction. Recognising this, the Vetting Act 2012 provides for the vetting of persons who work with children and vulnerable adults. In many other situations, the failure to escape from the label of “ex-convict” causes great unfairness.
As a matter of public policy, it is also unwise – studies have shown how the negative impact of disclosing a criminal record leads some people back into crime. Our European neighbours have long recognised this and they have all adopted so-called “spent convictions” laws that wipe the slate clean for many convictions after a specified number of years.
Ireland is now getting around to enacting its own spent convictions Bill. While the initiative is to be welcomed, the Bill is in need of improvement and the Oireachtas will have the opportunity to get it right when it comes back to committee stage in coming weeks.
Minister for Justice Frances Fitzgerald has acknowledged the importance of the legislation and has stated her intention to enact the Criminal Justice (Spent Convictions) Bill 2012 by this summer.
Amendments to the legislation, which previously reached final report stage in March 2013, are being drafted with the stated intent of bringing the Bill into line with Ireland’s international human rights law obligations. Account needs also to be taken of a recent UK court judgment, applying the European Convention on Human Rights, that any duty to disclose criminal convictions must be relevant and proportionate.
Disclosure requirements for minor past convictions engage human rights law obligations because they involve release of sensitive personal information (an aspect of private life) and because disclosure may stigmatise and impede access to education and employment, hampering reintegration and rehabilitation.
In March 2014, an Administrative Filter for Garda Vetting Disclosures was introduced which provides that certain minor offences over seven years old need no longer be disclosed. It applies to all convictions received in district courts for motoring offences and certain public order offences, plus one other conviction where the person has committed one such offence. It does not apply to offences against the person or to sexual offences.
Worryingly, the provisions seem to form the basis of the amended spent convictions Bill. If this is the case, the legislation will be at odds with human rights because of the way it rules out whole categories of criminal records without paying attention to individual circumstances and contexts.
It is worth noting the administrative filter considers that “old minor motoring offences would not be relevant due to the passage of time”.
Thus, the legislation will benefit car owners with multiple speeding convictions, an offence which presents immediate and serious life danger to others. It will not benefit someone who has two shoplifting convictions, no matter how long ago those crimes were committed or under what personal circumstances.
If it is accepted that road traffic offenders can change their behaviour, why should this not apply equally to other categories of offender?
In marked contrast with the position in the Republic, the Rehabilitation of Offenders (NI) Order 1978 has been in place for more than 35 years and provides for rehabilitation periods of between six months and 10 years, linked proportionately with the nature of sanction imposed for the particular offence and covers all those who receive sentences of 30 months or less. Mention of Northern Ireland brings to mind the 1998 Belfast Agreement, which requires that the Republic introduce measures to "ensure at least an equivalent level of protection of human rights as will pertain in Northern Ireland".
What is more, the Belfast Agreement specifically references “the importance of measures to facilitate the reintegration of prisoners into the community by providing support both prior to and after release, including assistance directed towards availing of employment opportunities, retraining and/or reskilling, and further education”.
The Oireachtas now has the opportunity to do right by a marginalised and unpopular group in our community; this is as sure a test as any of its commitment to ensuring all human rights for all.
Prof Michael O’Flaherty is chairman of the Irish Prison Reform Trust