Conditions for Expiry
The Criminal Justice (Spent Convictions and Certain Disclosures) Act 2016 provides for spent convictions. Where a person is convicted in one offence, either before or after commencement of legislation and the below conditions are satisfied, then the conviction is regarded as spent.
The following conditions are applicable:
- the person must be a natural person over 18 at the date of the commission of the offence; there is a separate regime for spent convictions etc. in respect of juveniles and children under the Criminal Children’s Act 2001;
- at least seven years must have passed since the date of conviction.
the sentence must not be an excluded sentence (see below); the person must have served or otherwise undergone or complied with a sentence imposed or a court order in dealing with the person convicted.
One Conviction Only
No more than one conviction may be regarded as a spent conviction. Where a person has more than one conviction, then the provision regarding spent convictions does not apply. Where in proceedings, a person is convicted of two or more offences committed simultaneously or that arise from the same incident, the court in passing sentences imposes more than one sentence, the convictions are regarded as a single conviction for the purposes of the Act.
There are exclusions where the above, it does not apply
- to road traffic offences other than in section 53 RTA 1961;
- section 37A Intoxicating Liquor Act;
- section 4, 5, 6, 7, 8, 9 Criminal Justice (Public Order) Act
- (certain Road Traffic Acts and minor public disorder and drinking in public type offences).
Effect of Expiry
Where a person’s conviction has been spent, he is not to be required by law or by any agreement which requires disclosure of convictions or other ancillary circumstances to conviction to disclose that conviction or the circumstances relating to it.
Where otherwise than before a court a question is put to a person purporting to seek information in relation to previous convictions or circumstances ancillary and the conviction has become spent, then, the question shall be regarded as not applying to the spent conviction and the person may respond accordingly.
The person shall not incur any liability or be otherwise prejudiced at law because he did not disclose the spent conviction or the circumstances that apply to it. The circumstances ancillary to a conviction are following:
- the offence which is the subject of the conviction;
- the conduct constituting the offence; process or proceedings preliminary to the conviction;
- any penalty imposed in respect of the offence subject of the conviction;
- proceedings whether by way of appeal or otherwise, for reviewing the conviction or penalty;
- anything done in pursuance of or undergone in compliance with an order made as a result of the conviction.
Admission of Convictions
In any proceedings before a court, no evidence is to be admissible to show that a person, who has a conviction is, regarded as a spent conviction under the Act, has committed or been charged with or prosecuted for or convicted of or sentenced in respect of an offence which is concerned, no question shall be asked in proceedings and if asked, the person shall not be required to answer any question relating to his past which cannot be answered without disclosing the spent conviction or the circumstances ancillary to it.
A court, in any proceedings before it and at any stage during proceedings, may, notwithstanding the above, admit or require evidence relating to a spent conviction and the ancillary circumstances, if the court is satisfied that in all the circumstances that justice cannot be done except by so admitting or requiring the evidence concerned. Where such evidence is admitted or required, the court may make such orders it considers necessary to prevent or restrict publication of that evidence.
Nothing in the Act is to affect any issue or prevent the admission of evidence,
- relating to a person’s spent conviction or the ancillary circumstances in any criminal proceedings, including an appeal or other application relating to the proceedings in which the person is a party to the proceedings;
- in any proceedings concerning adoption, guardian, custody, or access to children, including proceedings under the Child Care Act;
- proceedings relating to the provision of accommodation, care, training and education for a child, or vulnerable person,
- in proceedings under the Nursing Homes Support Scheme,
- in any proceedings in which the person is party a witness, if he or she, on the occasion when the issue or the admission or requirement of the evidence falls to be determined, consents to the determination of the issue or, as may be appropriate, the admission or requirement of the evidence relating to a spent conviction or the ancillary circumstances, as the case may be.
The general provision on spent convictions does not apply where a requirement is made of a person to disclose previous convictions:
- in interviews by a Garda Síochána following arrest in connection with the investigation of an offence;
- in respect of applications for citizenship, leave to remain in the State, to enter the State;
- for banking, financial services enforcement investigations.
A person convicted of fraud, deceit or dishonesty in relation to a claim in a policy of insurance shall not be excused from disclosing such conviction on a proposal form.
Effects of Conviction
The legislation is not to prevent
- the enforcement by any process or proceedings in respect of a fine or other sum deemed payable or imposed on a person in respect of a conviction, which is if the requirements are fulfilled, regarded as a spent conviction,
- the issue of process for the purpose of proceedings in respect of breach of a condition that applies to a sentence imposed in respect of a conviction, if the requirements of the Act apply and are fulfilled, will be regarded as a spent conviction,
- the operation of any legislation under which, in consequence of any conviction, a person is subject, other than by way of sentence, to any disqualification, disability, prohibition or other penalty or any registration requirement, whether or not the period of which extends beyond the relevant period applying to the sentence for the conviction.
Nothing is to the right of a person to disclose his or her previous convictions or the circumstances ancillary to them if wishes to do so.
Where a person is outside the State and information is sought pursuant to the law of another state or he is in the state but information sought relates to a matter being dealt with under the law of another state, then the provisions as to spent convictions and ancillary circumstances shall not operate in relation to questions put to him or information sought in that regard.
Working with Vulnerable Persons
The spent conviction provisions do not apply where a person applies for certain employments o “specified work” or “relevant work” as set out below. It does not apply where he
- enters or proposes to contract for such work,
- applies to do such work,
- or enters or proposes to enter a contract for services to do such work.
It does not apply to applications for or entry into contracts to do so-called relevant work, where persons have a conviction other than the conviction mentioned below.
“Specified work” is work with certain governmental and security bodies, including the Defence Forces, Gardai, Department of Justice, bodies associated with the Gardai, DPP, Office of the Attorney General, Criminal Assets Bureau, Departments of Foreign Affairs or Taoiseach, Central Bank, Office of the President, NTMA. It also includes any service or function in a financial service provider, which is a controlled function. It includes service as a member of the Reserve Defence Force or Garda Síochána.
It does not apply to “relevant “work. Relevant work is defined in the National Vetting Bureau (Children and Vulnerable Persons) Act encompassing respectively relevant work in relation to children and vulnerable persons. It includes
- most work in schools,
- children’s detention centre, children’s health centres, free school services, reception accommodation,
- services for asylum-seekers;
- home tuition services, treatment, care being counselling of children, work consisting of supervision of children unless supervision if incidental to the supervision of adults;
- the activity consists of educational training, cultural, leisure, social and physical activities whether for consideration to children unless it is incidental to the provision of such, the same for adults;
- work consisting of advice, guidance and development services for children including electric, interactive communications, unless incidental to the provisions for non-children worker activity as a minister or priest or person engaged in the advancement of religious beliefs, workers of public service vehicle, driver, provision of accommodation whether commercial or not for a child in his own house;
- research worker activities in educational institutions that involves contact with or access to children,
- managing a designated centre, assessing suitability for adoption, foster care or as a carer.
- work involving necessary and regular contact with children, as a Doctor, nurse, midwife, dentist, health and social care professional, a pharmacist in a pre-hospital context.
Equivalent provisions apply in respect of work involving access to or contact with vulnerable persons.
Disclosure is required of criminal convictions in connection with an application for certain licences, permits, approval or registration. The spent conviction provisions do not apply to an application for certain Road Traffic Act applications for licence, Road Transport Act driving tester, taxi licence, private security licence, firearm licence, financial services licence.
Where a person makes a request to a Garda Síochána for a copy of his criminal record, the Garda shall provide information regarding the person spent convictions, if any, insofar as appropriate and circumstances ancillary to those convictions separate from the information concerning the convictions.
The legislation applies to a response given on or after the commencement of the legislation (a) a request made (either orally or in writing), or a requirement notified (either orally or in writing),
- before the commencement of the Act seeking, or requiring, as the case may be,
- information in relation to a person’s previous convictions if, on the commencement of
- the Act, the information sought or required, as the case may be, relates to a conviction
- which is, in accordance with the Act, regarded as a spent conviction.