Criminal Justice (Spent Convictions) Bill 2012: Report and Final Stages

Tuesday, 5th February 2013

Part 1

I note that two important amendments I raised on Second Stage and tabled as amendments on Committee Stage have been incorporated into the Bill by the Government. I thank the Minister for that.

It is very important that we now have clarity about the application of the legislation with respect to multiple convictions arising out of one incident or offence. I strongly welcome the extension from 12 months to two years of the maximum applicable sentence for a relevant non-custodial sentence. I hope at a future review of the legislation that this limit will be extended further to allow a greater number of people to avail of the clean-slate second chance the legislation aims to provide.

I thank the Oireachtas Library and Research Service for an excellent Bills Digest and for conducting additional research at my request, which I will be sharing with the House shortly. I also thank the Irish Penal Reform Trust for providing background information on the case studies, which have helped us all and have certainly helped to strengthen my resolve in calling for the most liberal and generous spent convictions legislation possible. For me, this is not about being soft on crime or unduly lenient on offenders. It is about showing foresight and an appreciation of the long-term holistic benefits of encouraging the rehabilitation and re-integration of ex-offenders back into society.

The Minister will be aware, since my initial statement on Second Stage, that I had hoped the Bill would go further. I have tabled a suite of amendments which would see the maximum applicable sentence for a relevant custodial sentence extended from 12 months to two years. I have proposed two years as a compromise between the 12 months in the Bill and the 48 months applied under the UK legislation and now also proposed by my colleagues in Sinn Féin. I have listened carefully to the Government’s rationale for holding fast on the 12 months exclusion point. I want to welcome that it exceeds the six months that was recommended by the Law Reform Commission in 2007. Nevertheless, I maintain that 12 months does not go far enough and I will address some of the points that were raised during Committee Stage in this regard.

First, the Government has pointed out the UK legislation represents the most liberal spent convictions scheme in the common law world and that, in comparison to Australia and New Zealand, what is being proposed in this Bill is liberal. While this is indeed true, it is also true that the UK has had a 40-year head start on Ireland with regard to spent convictions legislation. During this time, the UK Ministry of Justice has strived to strike the appropriate balance between public safety and reducing barriers to re-integration for those who have moved on from offending behaviour. As the Minister knows, the UK Ministry of Justice commissioned a review of the Rehabilitation of Offenders Act, which was called “Breaking the Cycle: Effective Punishment, Rehabilitation and Sentencing of Offenders”. This report recommended that the limitation of the spent convictions scheme to 30-month sentences was too restrictive. In response, the UK Government, through the Legal Aid, Sentencing and Punishment of Offenders Act 2012, has reformed the relevant sections of the Rehabilitation of Offenders Act, setting the limit at 48 months – four years – which is four times the limit proposed in this Bill. On the flip side, I appreciate the schemes in Australia and New Zealand are more restrictive, but I do not see any convincing argument to align ourselves with their position.

We need to look at the purpose of the Bill, which is clearly set out in the memorandum as being “to assist the rehabilitation of offenders, who often experience difficulties securing employment as a result of having a conviction”, and thinking how best we can achieve this aim. The key question is identifying the maximum sentence for which an ex-offender should be able to avail of second-chance legislation. Surely the more people who fall under the remit of the legislation, the greater the positive impact on ex-offenders and society at large.

This leads me to my second point, which concerns the suggestion that the 12-month cut-off point covers almost 90% of all custodial sentences handed down by Irish courts.

In light of this figure, I sought information about the number of people who have been convicted of sentences of up to two years. No data is available on how many people have convictions of not more than 12 but fewer than 24 months. Between that one and two-year figure, I tried to see what we are talking about. The Courts Service records all sentences of imprisonment up to two years together and then breaks them down for the information based on the type of offences, like assault or theft. The data does not distinguish between sentences of up to 12 months and those of up to 24 months. Figures from the Irish Prison Service provide a partial picture of the amount of people with custodial sentences that may come within the scope of the Bill. However, these figures only look at those serving prison sentences. They are limited in their application as by definition, they exclude those who have received suspended sentences and other sanctions such as community service orders, fines and probation orders.

Taking out the sentences that cannot be spent because of their seriousness such as sexual offences and homicide, and bearing in mind that the data is based on the number of committals and not the number of people or sentences so that if people are released and recommitted to prison in a given year, they will be counted each time they are committed, 87.2% of the prison population in 2011 would be eligible to have their convictions spent as they are serving sentences of less than 12 months. A further 4.83% of prisoners could benefit from a spent convictions regime if a sentence of up to two years was eligible to be spent. That would bring the overall percentage of convictions covered by the spent convictions legislation to 92%. I am asking the Minister to move a further 2% in this legislation because he said that this will cover 90% and if we were to go for the two years, it would move it to 92%. It is very interesting that the Courts Service does not record the difference between one and two-year sentences which sends a very strong signal that it considers them to be grouped offences. It strengthens my argument in seeking for it to be extended to two years. Such an extension is in keeping with the spirit and purpose of the Bill and would have a significant and positive impact on the lives, futures and families of ex-offenders given sentences of two years and under.

In respect of the Schedule proposed by me, the overall rationale for this part of my amendment is that the currently proposed rehabilitative periods of four to five years and two to four years, respectively, for relative custodial and non-custodial sentences are much welcomed improvements on the periods proposed in the Bill as initiated. I do not intend to push this amendment to a vote. I feel strongly that in order to achieve the objective of the Bill, as set out in the accompanying explanatory memorandum, the Bill needs to be as generous as possible. I have wondered whether in taking the more conservative approach, the Government has been afraid of accusations of undue leniency and being soft on crime. I can understand the concerns given public concern over crime, the fear of crime and the impact of crime on people’s quality of life. This legislation, which encourages rehabilitation and re-integration of former offenders and must be implemented with a raft of other interventions such as rehabilitation, treatment and re-integration measures, is a tool to make society safer and fairer for us all. A less restrictive spent convictions regime negating as far as possible against the negative, far-reaching and often discriminatory consequences for ex-offenders and their families would also reflect the qualities of compassion and forgiveness in Irish society.

I am aware of research conducted by the Home Office in the UK into reconviction rates. This research suggests that if an individual has not re-offended in the first two years post-conviction, he or she is at equal risk of future offending as someone with a previous conviction. This finding is in keeping with the fact that in UK legislation, the conviction-free or rehabilitative period at the lowest end of the offending scale is two years. The length of time required for rehabilitation must be proportionate to the seriousness of the offence committed but it should not be so long as to constitute an additional and disproportionate punishment. It has been very clear on Second and Committee Stages that all of us in this House welcome and support this legislation. The amendments I am putting forward allow us to go that little bit further and give more people an opportunity to go for that pathway of rehabilitation and having a second chance and a new start in life.

That is why I urge the Minister to consider increasing the limit for an excluded sentence from 12 months to two years. I have examined the figures and am of the view that if the changes I have suggested were accepted, 92% would be covered by the legislation. I ask the Minister to give some in-depth consideration to this matter.

Part 2

All of us who have spoken have acknowledged that this is ground-breaking legislation, the fact that it will impact on so many people and their families and give them a second chance. As I have no doubt that if the Minister was in our position, he would try to push it that little bit further, I ask him to look at our amendments in that light. I have looked at other common law countries and certainly agree with his comparison. It is very difficult in that we cannot compare Ireland to civil law countries, but if we look at our partners in the European Union and having a consistent policy on giving offenders a second chance, this is not the most liberal and we could go a little further to give people a second chance and the opportunity to have a clean slate.

It is welcome that the Minister has said we need to put the legislation in place and monitor and evaluate it to see whether we can go further. I am very happy to share my research and figures in this regard. It is very interesting that the Courts Service does not distinguish between figures in the under two years category. There is something in this, which was partly my reason for choosing the period of two years in my amendment. Will the Minister look again at this issue before he brings the legislation to the Dáil?

I will not press my amendments today because I want to show my utmost and fullest support for the legislation. Equally I have tried to think of the people that are caught outside of the loop. As I said, it ranges from the 90% to 92% and I want to push it a little further in order that we would include up to two years. I support the legislation so I will not press my amendment. I am aware that the legislation must go through the Dáil and I ask the Minister to give it consideration.

Part 3

I thank the Minister for this historic legislation. It was long promised but he has delivered. This legislation on spent convictions has brought us into line with our European partners. I know that the Minister has played a strong role and hand in ensuring that we have a rehabilitation system and restorative justice. The legislation is testimony to that and I support it. During the debates in the House on Second Stage, Committee Stage and today on Report Stage we have shown how we can constructively engage in dialogue. Equally, I pay tribute to the Minister for engaging with us in that dialogue and for trying to tease through the arguments to ensure that we have the best legislation. I greatly appreciate that when he attends that he engages extremely constructively with us and I thank him for that.

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