Law Society Gazette: Let there be light

17th March 2021

In ‘Let there be light’ (12 March 2021), featured in the Law Society Gazette, Dara Robinson SC and Aoife McNicholl examine Ireland’s spent convictions regime, set against the international developments. Ultimately, they conclude that Ireland lags “shamefully behind” others in Europe when it comes to spent convictions. While the authors acknowledge that the Criminal Justice (Spent Convictions Act) 2016 was a welcome step toward addressing Ireland’s lack of mechanism allowing certain convictions to become spent, it did not go far enough.

McNicholl and Robinson note that 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. The article notes that while the Criminal Justice (Rehabilitative Periods) Bill 2018 [PMB] is an improvement on the 2016 act, it still does not go far enough to bring Ireland up to best international practice. This is a position shared by IPRT.

Central to the argument in this article is that all offences should become spent after defined periods of time, save for specific exceptions – for example, sexual offences or convictions imposed by the Central Criminal Court. The authors note that 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.

The article states that the provisions effectively allowing one conviction to become spent in the 2016 legislation (apart from certain public order and motoring offences) regardless of how much time may have passed since a person last offended, is entirely at odds with the accepted principle that a person can be rehabilitated. The authors argue that the only approach that supports the principle of rehabilitation is to adopt the approach, similar to that taken in Germany, where there is no limit on the number of eligible convictions that can become spent after a period of time.

The authors also discuss challenges with the interaction of ‘the right to be forgotten', provided for in article 17 of the General Data Protection Regulation, with entitlements under any spent convictions legislation. This gives a person the right to apply to organisations, for example, search engines, to delete personal information held by them.

McNicoll and Robinson stress that 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. In this regard, McNicholl and Robinson note that 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.

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. Progressive examples listed in the article include those in Germany and the Netherlands, where 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. The authors consider whether a similar procedures should be introduced in Ireland, to allow a person who has a previous conviction of the kind that would not normally become spent apply to have their record expunged.

In conclusion, McNicholl and Robinson note that “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.”

Read ‘Let there be light’ in the Law Society Gazette here.

For more information on IPRT’s longstanding campaign for a fair spent convictions regime, visit iprt.ie/spent-convictions