Commission Recommends Change in Equality Law to Tackle Convictions Discrimination
A more inclusive spent convictions scheme with increased sentence thresholds and a review mechanism for more serious offences, would significantly aid offenders rehabilitation and reintegration into society, The Irish Human Rights and Equality Commission (“The Commission”) has stated today.
The Commission has today published its recommendations to Government on the review of the Criminal Justice (Spent Convictions and Certain Disclosure) Act 2016.
As Ireland’s national equality body, the Commission is recommending that equality legislation be changed to include discrimination on the ground of criminal conviction. Such a change in law would reflect the impact a criminal conviction can have on someone’s life when accessing employment, housing, education and services like insurance, even decades later (See examples of people’s experiences in Editor’s notes).
Ireland’s current scheme is too restrictive, and many offences and offenders (with multiple convictions) are excluded from benefiting from the scheme. There is a need to strike the correct balance between seeking the rehabilitation and reintegration of convicted persons and the broader societal interest of public safety, prevention of crime. Any proposed reform must ensure that victims’ rights are safeguarded.
The Commission believes the 2016 Act needs to adopt more proportionate and balanced approaches. To address the inclusion of more serious offences, the Commission recommends that the expungement of more serious offences could be considered by review on an individualised basis of risk, by an independent board.
Tony Geoghegan, Commission Member of the Irish Human Rights and Equality Commission stated:
“The prospect of rehabilitation is linked to human dignity, promoting equality and benefits all of society.
“However, in Ireland, the current scheme is exclusionary and disproportionately impacts on specific groups, on the ground of disability, age, socio-economic status, and homelessness who have their futures stifled because of their pasts.
“I have personally worked with many men and women with histories battling drug addiction, homelessness or living with severe mental health difficulties, without adequate supports, who fell into the criminal justice system.
“Reform of the scheme must take into account the over-representation of disadvantaged groups in the criminal justice system and work to broaden access to rehabilitation and reintegration.”
The Commission makes specific recommendations, regarding:
Issue 1: Discrimination on the ground of criminal conviction (pp 7-8):
The Commission recommends that reform to the 2016 Act should include amendments to the equality legislation to include a broad prohibition on discrimination on the ground of criminal conviction.
Issue 2: The sentencing length limits for spent convictions (pp 8-10):
The Commission recommends that a more inclusive spent convictions scheme (with higher sentencing thresholds) would significantly aid the rehabilitation and reintegration of a broader range of offenders.
The Commission further recommends that the expungement of more serious offences (captured within an extended sentencing regime) should be considered on an individual basis of risk by an independent board, or court.
Issue 3: The number of convictions that can be considered spent (pp 10):
The Commission recommends that no limitation is placed on the number of convictions per person.
The Commission recommends that the Minister ensure that reform in this area address the discriminatory impact on certain groups, and that a comprehensive equality impact assessment be carried out on the current 2016 Act, and on any proposed reform.
Issue 4: The principle of proportionality and spent convictions (pp 10-12):
The Commission recommends that in line with the principle of proportionality and to maximise the possibility of rehabilitation of persons with previous convictions, the proposed legislation should provide shorter periods of rehabilitation that are proportionate to the offence and sentence imposed.
The Commission further recommends that the Minister review the 2016 Act’s wider impact on the retention and storage of conviction records (which can be held indefinitely) to ensure compliance with the GDPR and the ECHR.
Issue 5: Incorporating a Youth Justice Perspective (pp 12-13):
The Commission recommends that there should be no limitation placed on the number of convictions per person.
The Commission recommends that the sentence threshold should be extended and for more serious offences (captured within an extended sentencing regime) there should be a review mechanism to apply to have the conviction expunged by an independent board or court that is based on an individual risk assessment of the offender.
Issue 6: The Victims Perspective (pp 13-14):
The Commission recommends that reform to the spent convictions scheme must incorporate the safeguards of the Victims’ Directive as necessary.
The Commission refers to its recommendation to establish a mechanism for the expungement of serious offences on application to an independent board, or court. In this respect, the Commission recommends that this process be informed and guided by the principles enshrined by the EU Victims’ Directive, and in particular Article 12.
Issue 7: “Specified work” (pp 14-15):
The Commission recommends that the categories of “specified work” listed under the 2016 Act are reviewed to ensure that only categories of employment currently excluded are excluded for legitimate reasons on grounds which include, the protection of national security or public safety, or the prevention of disorder or crime.
Issue 8: Convictions outside the State (pp 15):
The Commission recommends that s. 4(1) of the 2016 Act is amended to ensure compliance with the principle of equality and EU law.
ENDS
For further information, please contact:
Brian Dawson, IHREC Communications Manager,
01 8589601 / 087 0697095
bdawson@ihrec.ie
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Editor’s Note
The policy statement from the Irish Human Rights and Equality Commission is available at the following link:
https://www.ihrec.ie/app/uploads/2020/11/IHREC-Submission-to-Consultation-on-Spent-Convictions.pdf
The Commission has published these legislative observations in line with its mandate to keep under review the adequacy and effectiveness of law and practice in the State relating to the protection of human rights and equality, and to make recommendations to the Government to strengthen and uphold human rights and equality in the State.
Examples of queries reported to the Commission’s Your Rights Information Service (relating to criminal convictions in context of access to employment, housing, education and other services):
Access to Employment
An individual who had been accepted for a job expressed the view that the offer was withdrawn due to a disclosure of a conviction. The job offer had been made pending the results from a vetting procedure. The offer was withdrawn due to an offence 20 years ago in another jurisdiction where it was spent.
Access to Housing
An individual reported that after securing private rental accommodation the offer was withdrawn due to a family member having past criminal convictions. The person with the past convictions was not a prospective tenant.
Access to Services
An individual reported that he went to get car insurance but they would not quote him as he had an unspecified conviction in the last ten years.
Access to Education
An individual reported that his College was preventing him from finishing his degree because of previous convictions. He had 100+ convictions for crimes including burglary, larceny etc. He stated that this was due to suffering from a drug addiction. The individual reported that the college would not allow him to finish his degree as a result.
Irish Human Rights and Equality Commission
The Irish Human Rights and Equality Commission is an independent public body, appointed by the President and directly accountable to the Oireachtas. The Commission has a statutory remit set out under the Irish Human Rights and Equality Commission Act (2014) to protect and promote human rights and equality in Ireland, and build a culture of respect for human rights, equality and intercultural understanding in the State.
The Irish Human Rights and Equality Commission is Ireland’s national human rights institution and is recognised as such by the United Nations. The Commission is also Ireland’s national equality body for the purpose of a range of EU anti-discrimination measures.