Legal Analysis: Clarity needed on convictions that should be recorded and those declared ‘spent’

Most modern criminal justice systems give prominence to the idea of rehabilitation of offenders and acknowledge the need for their reintegration into society. In practical terms this often involves facilitating such people in obtaining training and employment with a view to reducing the chances of future offending.

The stigmatizing effect of any conviction is obvious. Many countries seek to address this problem by means of the concept of a “spent conviction”. In other words as time passes the relevance of a person’s previous convictions diminishes to the point that they should be ignored.

No such concept presently exists in Irish law. However, over the last number of years the Irish Penal Reform Trust has been to the forefront of a campaign to introduce legislation that would allow convictions for minor offences, other than those of a sexual nature, to become spent. This has resulted in the Criminal Justice (Spent Convictions) Bill, 2012 which is currently before the Oireachtas.

Unfortunately, that legislation has hit something of a roadblock as a result of recent litigation in the United Kingdom where the Court of Appeal gave a significant judgment in the case of T v Chief Constable of Greater Manchester on January 29th last.

Blanket requirement
The judgment dealt with three separate cases together. All of them concerned the blanket requirement under UK legislation that criminal convictions and cautions must be disclosed where a person had been vetted by police for certain types of work – typically working with young or vulnerable people. The legislation required disclosure irrespective of the nature and relevance of the convictions.

The lead applicant in the case, T, had received two police cautions in relation to stolen bicycles when he was 11 years old. These were disclosed as part of a vetting process that he had to undergo in order to undertake a sports studies degree course.

The disclosure led to very real problems for him and had an obvious impact on his prospects for employment even though the fact of the cautions was of little real relevance.

The central legal issue in the case was whether the requirement that all criminal convictions and cautions be disclosed for certain types of job application or position was objectionable.

The Court of Appeal had no difficulty in accepting that there were some very legitimate public policy considerations underlying a policy of full disclosure – specifically the policy of ensuring adequate vetting of those who might be employed to care for children or otherwise vulnerable people.

However, it ultimately concluded that a regime which required the disclosure of all convictions and cautions, including those that were so minor as to be irrelevant, was disproportionate to the underlying aim of protecting such people. The Court of Appeal considered that there would have to be some filtering mechanism to protect the Article 8 rights of those who had been convicted of such offences.

This was because the arbitrary disclosure of such information interfered with the right to private life and the capacity to earn a livelihood. In effect it found that a system that caused inherently irrelevant convictions to be disclosed was of itself disproportionate. It granted a declaration that the legislation was incompatible with the European Convention on Human Rights.

If the same logic were to be applied to the vetting regime in Ireland it would almost certainly be found wanting. Section 14 of the National Vetting Bureau (Children and Vulnerable Persons) Act 2012 similarly requires that all convictions of a person who is subject to vetting for such positions must be disclosed. No allowance is made for irrelevant convictions. As such it is ripe for challenge on the same grounds.

However, the ruling also has very real implications for the Spent Convictions Bill currently before the Oireachtas. One of the principal criticisms that has been leveled against it in its current form is that it only applies to the first two minor convictions that a person receives.

Obligation to disclose
This means that a person who is applying for a regular job, as opposed to one that involves working with children or vulnerable people, may be obliged to disclose all convictions except for the first two minor convictions. This may mean that there is an obligation to disclose convictions that are utterly irrelevant but may have the effect of seriously damaging the prospects of securing employment.

The logic of the UK Court of Appeal would tend to suggest that such a regime is also ripe for challenge. Minister for Justice and Defence Alan Shatter has frankly acknowledged as much. On 22nd May he indicated that the Government was considering the implications of the decision in T v Chief Constable of Greater Manchester before proceeding further with the Bill.

Obviously a decision by the UK Court of Appeal does not have any force here. However, it would be regarded as persuasive legal authority.

The decision has now been appealed to the UK Supreme Court and is due to be heard later this month. The outcome will be eagerly anticipated by the Government here and may well require a return to the drawing board. Even if the decision is overturned it is likely that the same issues will be litigated here in due course.

Remy Farrell is a senior counsel