Commencement of Spent Convictions Act and National Vetting Legislation

On the 29 April 2016 the Minister for Justice and Equality, Frances Fitzgerald T.D., announced the commencement of two Acts:

• The Criminal Justice (Spent Convictions and Certain Disclosures) Act 2016 
  
• The National Vetting Bureau (Children and Vulnerable Persons) Act 2012 
  

The Criminal Justice (Spent Convictions and Certain Disclosures) Act 2016

Prior to the commencement of the Criminal Justice (Spent Convictions and Certain Disclosures) Act 2016 (the "2016 Act"), Ireland was the only country in the EU not to have any scheme, whereby certain convictions could become spent after a rehabilitation period. The 2016 Act will remove barriers to employment, education, training, housing and insurance for individuals who have moved on from past offending behaviour. Minister Fitzgerald in her speech said that “It is in everyone’s interest that offenders who have paid their debt to society and want to leave crime behind are encouraged to do so. Insofar as this legislation can help, then it is to be welcomed by all."

The 2016 Act makes provision for the limitation of the effect of certain criminal convictions, in certain circumstances, after certain periods of time. Subject to certain exceptions, where a person has a conviction that can be categorised as a spent conviction they will not be required, by law, or by agreement, to disclose the conviction or the circumstances surrounding it.

The 2016 Act provides that a range of offences, such as minor motoring and public order offences, will become spent after seven years. The 2016 Act does not apply to any conviction for a sexual offence or an offence which was tried in the Central Criminal Court. In addition, where a person has one, and only one, conviction (other than a motoring or public order offence) which resulted in a term of imprisonment of less than 12 months (or a fine) that conviction will also be spent after 7 years. This provision will apply to either a District Court or Circuit Court conviction.

Pursuant to section 7(3) of the 2016 Act there are a number of circumstances in which the provisions of the 2016 Act will not apply, for example, in any adoption, guardianship, custody proceedings and in any proceedings relating to the provision by any person of accommodation, care, training or education for a child or vulnerable person. 

The National Vetting Bureau (Children and Vulnerable Persons) Act 2012

The National Vetting Bureau (Children and Vulnerable Persons) Act 2012 (the "2012 Act") provides a legislative basis for the vetting of persons who seek positions of employment relating to children or vulnerable persons. Previously, persons applying for such positions were vetted on a non-statutory basis. This Act makes vetting mandatory. Minister Fitzgerald said that “The Act will ensure that relevant criminal convictions or other information which gives rise to concerns regarding a person working with or seeking to work with children is disclosed in the appropriate manner."

The 2012 Act provides for the use of soft information in regard to vetting, referred to in the 2012 Act as “specified information”. Specified information is information other than a court determined criminal conviction and the 2012 Act provides that such “specified information” is only disclosed where it raises a bona-fide concern that a person poses a threat to children or vulnerable persons.

Types of work or activities that require vetting: 

These are set out in the schedule of the Act and include: 

• Childcare services
• Schools
• Hospitals and health services
• Residential services or accommodation for children or vulnerable persons
• Treatment, therapy or counselling services for children or vulnerable persons
• Provision of leisure, sporting or physical activities to children or vulnerable persons
• Promotion of religious beliefs.
  

The 2016 Act included amendments to the 2012 Act to provide that minor convictions will not be disclosed in Garda Vetting under the 2012 Act. However, because of the need to protect children or vulnerable persons, the non-disclosure provisions under that Act are more restrictive. It will still be the case that all offences against the person and all serious convictions will be disclosed where persons are applying to work with children or vulnerable persons.

For more information in relation to the implications of this legislation please contact Sinéad Kearney, Head of Health and Social Care or a member of the Health and Social Care Team