The Spent Convictions Regime – “forgive and forget”
Criminal Justice (Spent Convictions and Certain Disclosures) Act 2016 (the "Spent Convictions Act")
What does it mean for employers?
- The recently enacted Spent Convictions Act which commenced on 29 April last, will fundamentally change what employees have to reveal about themselves to employers.
- An individual is not obliged to disclose certain criminal convictions which date back 7 years or more to a future or current employer.
- This will affect how employers screen employees and they may have to consider other ways of assessing potential hires through their recruitment policies.
Why is the legislation needed?
The Act brings Ireland in line with the practice in other Member States of the EU. We were the only EU country without some form of legislation allowing convictions to become "spent". The Act is premised on the concept of "forgive and forget" allowing past offenders to move on with their lives and not be tarnished by a previous offence.
The underlying theme running through the Act is the fundamental right to privacy of an individual under the European Convention of Human Rights (ECHR). It has taken four years since the Bill was presented originally in 2012. One of the reasons for the delay in implementing the regime was that the Government was waiting on the outcome of a UK case R (T) v Greater Manchester Chief Constable  which found that the blanket disclosure of all old minor records was incompatible with Article 8 of the ECHR (the right to privacy). It held that the requirement for disclosure must be justified on the basis of the principles of relevance and proportionality. The Act seeks to achieve a balance between the competing interests of the employee with a past conviction and the need for an employer to protect their business interest and reputation (i.e. by ensuring certain offences never become spent).
What is a spent conviction?
Where a person aged 18 years or older was convicted of an eligible offence and at least seven years has elapsed since the conviction, then the conviction can be regarded as "spent". The conviction need not be disclosed (except in certain limited circumstances where a Court directs the disclosure). The effect is that the individual has a clean slate in relation to previous convictions.
The Act applies to one conviction only so an individual with more than one criminal conviction will not have any of their convictions treated as spent. However, limited exceptions apply in the following circumstances:
- Where multiple convictions arise from a single incident or which occurred at the same time.
- Multiple convictions for certain minor public order offences and minor traffic offences may also be treated as spent.
The Act ensures that only certain convictions arising from minor offences can become "spent". The following offences will never become "spent":
- A conviction for a sexual offence;
- An offence tried in the Central Criminal Court; and
- An offence resulting in a prison sentence of greater than 12 months.
Employment exempt from the Act
Certain job sectors are exempt from disclosure (i.e. specified work). Specified work relates to employment with specified State entities in areas such as law, financial institutions and security i.e. the Garda, the Central Bank and the Defence Forces. Convictions will never be treated as spent in these areas. A spent conviction must also be disclosed if a potential recruit is to work with children or vulnerable adults unless they fall within a limited exception to this principle.
What does it mean for employers?
It is commonplace for employers to have self-declaration forms as part of their recruitment policies. The Act now significantly limits the usefulness of these forms as employees will not have to disclose a spent conviction. Employees cannot be penalised for not doing so. This means that employers may need to look at other ways of screening future employees. Employers may need to revise their hiring and recruitment procedures to overcome this obstacle.
For more information please contact your usual A&L Goodbody employment team contact.
Date published: 3rd May 2016