IHRC calls for Extension of Spent Convictions Scheme to Rehabilitate more People who have had a Minor Criminal Conviction
The Irish Human Rights Commission (IHRC), today, published its observations on the Spent Convictions Bill 2007. While offering a strong welcome for the proposed system under which people convicted of a minor offence do not have to disclose that offence, the IHRC considers that the Bill’s provisions may be too restrictive and calls for its ambit to be extended to rehabilitate a broader range of people who have completed their sentences. The IHRC has submitted its observations to the Minister for Justice, Equality and Law Reform following referral of the Bill to the IHRC.
The IHRC considers that the requirement to disclose a criminal record can raise concerns relating to a person’s right to respect for private life and the right to work and earn a livelihood.
Interference with these rights should be proportionate and should pursue a legitimate aim such as the protection of public safety or the prevention of disorder and crime.
Dr Maurice Manning, President of the IHRC said, "the Bill is a welcome initiative to rehabilitate and re-integrate people who have served their sentences back into society, in line with Ireland’s commitments under international human rights law. Once a criminal conviction is imposed it can follow a person for life, and can inhibit their access to employment, their ability to obtain licences and can place restrictions on their travel, which is why a scheme such as this is so important."
The IHRC considers that the Bill could enable a broader range of offenders to avail of the spent convictions scheme, without jeopardising the legitimate and vital safeguards designed to protect vulnerable people.
Dr Manning said "in the IHRC’s view excluding people who receive a sentence exceeding six months from this scheme is too restrictive. To maximise the benefit of the Spent Convictions Bill to reintegrate as many people as possible, the IHRC would like to see increases in the threshold for sentences beyond 6 months for people who have committed less-serious offences. For people who have completed their sentences for more serious offences, a system should be introduced where they can apply to the District Court to have their conviction considered spent. The IHRC considers that there are sufficient safeguards contained in the Bill to allow for such an increased threshold."
The IHRC considers that any difference in treatment of people on the basis of a previous criminal conviction must have an objective and reasonable justification and should be proportionate to the aim sought to be achieved by such difference in treatment. Care must be taken that there is no unjust discrimination against people who have served their time when they come to seek employment.
Mr Éamonn Mac Aodha, Chief Executive of the IHRC also strongly welcomed the Government’s initiative in introducing the Bill. He said, "the Spent Conviction Bill offers people a chance to start over and to reintegrate into society. However, 7 years is too long to have to wait to have a minor criminal record considered spent for an offence that imposed a sentence of less than 6 months. The requirement to disclose a criminal record for up to seven years following the conviction could greatly reduce a person’s chances of securing employment."
Mr Mac Aodha continued "the IHRC also considers the blanket restrictions on the employment of people who have had a criminal conviction in the civil and public service, which requires a person to always declare a past conviction even where such conviction was non-custodial or for 6 months or less, is too restrictive. It is the public sector that should be leading the way in rehabilitating people provided they have completed their sentences. In particular, there are a range of jobs in the civil and public service, which do not involve access to vulnerable people or access to sensitive issues of national security such as would require such a restriction to remain in place throughout a person’s life. Furthermore, the Employment Equality Act 1998 should be extended to include discrimination so that people cannot be discriminated against on the basis of a criminal conviction – particularly where such a conviction was for a minor offence."
The IHRC’s Key Recommendations
1. Shorter Rehabilitation Periods to Maximise Spent Conviction Scheme
Under the provisions of the Bill a person can benefit from the scheme if he or she is conviction free for a period of 7 years (the ‘rehabilitation period’) following a custodial sentence of 6 months or less, or 5 years in the case of a non-custodial sentence. A rehabilitation period is undoubtedly important so that a convicted person demonstrates his or her commitment to a law abiding life.
The IHRC recommends that the legislation should provide for periods of rehabilitation which are shorter than 7 years and are proportionate to the sentence imposed, so as to maximise the potential of the spent convictions scheme and ensure that it strikes a fair balance for people who are convicted of minor offences.
2. Expand Sentencing Threshold for Scheme to Benefit more People who have had a Criminal Conviction
The Bill provides that a criminal conviction which imposes a custodial sentence for a term exceeding six months will be excluded from the spent convictions scheme.
The IHRC recommends that to aid the rehabilitation of a broader range of offenders consideration should be given to extending the six month sentencing threshold in the Bill. More serious offenders whose sentences come within the revised sentence threshold should be able to apply to a District Court judge to have their sentences considered spent.
3. Extend Categories of Employment Options
The Bill lists a broad range of categories of employment where a person convicted of any offence will not be able to avail of the scheme and will be required to disclose any previous conviction, including among other professions all civil and public service positions and traffic wardens. The IHRC considers that these blanket restrictions are too broad. While restrictions for specified employments in the interests of protecting vulnerable members of society and in the interests of state security are necessary and welcome, there are many positions in the civil service and public sector that do not involve access to children and vulnerable persons, or access to sensitive issues of national security.
The IHRC recommends that the Bill be re-drafted to expand the categories of employment, only excluding those jobs where there is a legitimate reason to do so.
4. Extend Employment Equality Act 1998 to include Discrimination on basis of Criminal Conviction
The IHRC also reiterated its recommendation that the Employment Equality Act 1998 should be extended to include discrimination on the basis of a criminal conviction.
ENDS/
For further information please contact
Fidelma Joyce, IHRC, Tel: 01 8589601 Mob: 087 7834939
Notes to the Editor
- The 2007 Bill has been debated at second stage in the Dáil and an order has been made for it to be referred to the Select Committee on Justice, Equality, Defence and Women’s Rights.
- Under Article 40.3 of the Constitution and Article 8 of the European Convention for the Protection of Human Rights and Fundamental Freedoms (ECHR) Ireland is obligated to protect the right to private life. An interference with an individual’s right to private life can only be justified on the grounds that it is necessary in a democratic society in the interests of national security, public safety or for the prevention of disorder. Such interference should be proportionate to the legitimate aim pursued. The requirement to disclose a criminal record can raise concerns relating to a person’s right to respect for private life and such a requirement must pursue a legitimate aim and be proportionate. Under Article 14 of the ECHR any difference in treatment of people in relation to a right under the ECHR must have an objective and reasonable justification and should be proportionate to the aim sought to be achieved by such difference in treatment. Therefore, care must be taken that there is no unjust discrimination against people who have a criminal conviction when they are required to disclose a previous criminal conviction.
- Furthermore the requirement to disclose a criminal record can raise concerns relating to a person’s right to earn a livelihood protected under Article 40.3 of the Irish Constitution and any interference with this right should be proportionate and should not be discriminatory.
- Under Article 10(3) of the International Covenant of Civil and Political Rights (ICCPR) Ireland is obligated to seek the reformation and social rehabilitation of prisoners. Putting in place systems to provide assistance to prisoners after their release is viewed as part of rehabilitation process.[1]
- The sentencing threshold in the United Kingdom, under the Rehabilitation of Offenders Act 1974, is 30 months. Therefore a person who receives a prison sentence of up to two and a half years is eligible for the Spent Conviction Scheme in the UK. The Home Office Review of the 1974 Act in 2002 recommended that the cut-off point of 30 months custodial sentences should be removed so that the scheme applies to all ex-offender who have served their sentence. In making this recommendation the Review Group noted the successful rehabilitation work undertaken by the Prison and Probation Service with long-term prisoners.
[1] General Comment 21 of the UN Human Rights Committee, Replaces general comment 9 concerning humane treatment of persons deprived of liberty (Article 10), (1992), at para. 10.