As Crimes Go Bye

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This essay by Matthew Holmes first appeared in the Law Society Gazette and is republished with the kind permission of the editor of the Law Society Gazette. Matthew Holmes is Lecturer in DIT and a practising barrister. He is the author of the Nutshells book on administrative law.

Matthew Holmes Lecturer Barrister

On the 29th of April 2016 the Criminal Justice (Spent Convictions and Certain Disclosures) Act 2016 came into force. This act allows for criminal convictions to become spent, meaning they are effectively ignored. If a conviction is spent you are treated as never having been found guilty of, or prosecuted for or even having committed it. You are not obliged to disclose it to anyone, even future employers.

WHEN ARE CONVICTIONS SPENT?

WHERE THE CLIENT IS AN ADULT

A number of criteria have to be met for a conviction to be spent

This is a one-time deal. If you have more than conviction you do not get the benefit of a spent conviction unless those convictions are for minor public order offences or road traffic offences other than dangerous driving. Excluded sentences include anything where the client was imprisoned for more than a year, sexual offences and Central Criminal Court offences (Rape, Murder, Piracy, Treason, Genocide and perhaps worst of all breach of Competition Law). If your client was convicted of 2 or more offences arising out of the same incident then this is regarded as one conviction.

WHERE THE CLIENT IS A CHILD

Section 258 of the Children Act 2001 provides that offences committed by those under eighteen years of age can be expunged from the record. The same criteria essentially apply but the time limit is 3 years rather than 7. Children can benefit from this even if they have breached court orders or failed to pay fines. Children get more than one chance, but this does not apply if an offence was committed within the three year period after the first offence.

Once the criteria for an adult or child are met the convictions are automatically considered to be spent. There is no need to apply to court or anywhere else to get rid of them.

EFFECT OF A SPENT CONVICTION

As a general requirement you are not required to disclose a spent conviction to anyone and evidence of the conviction is inadmissible in court. There are of course many exceptions to this in the Act. Evidence of spent convictions can be admitted if the court is satisfied in all the circumstances that justice cannot be done except by so admitting the evidence, although the court may make such orders as it considers necessary to prevent or restrict publication of the convictions. This is very similar to the test used in the UK (Thomas v Commissioner of Police for the Metropolis [1997] QB 813). There are exceptions covering admission of spent convictions specifically criminal and family cases. This also does not apply to:

This act also does not apply abroad, Irish law only applies to Ireland after all. Just because you do not have to tell anyone in Ireland doesn’t mean you can get away without telling, say, American or Australian authorities. Section 1(2) of the Probation of Offenders Act 1907 is considered a non-custodial sentence for the purpose of this Act, although s1 (1) is not addressed. It may be then that clients may be entitled to s1 (1) after 7 years although English case law says that you cannot claim to have good character with a spent conviction. Given that many courts are prepared to grant s1.1 where there are previous convictions this may be academic.

ENGLISH APPROACH

In England the Rehabilitation of Offenders Act 1974 is their equivalent legislation. Ours is largely based on theirs, however there are some significant differences. In England crimes become spent after a rehabilitation period, the length of which varies between a year and seven years depending on the length of sentence. Unlike Ireland convictions with sentences of up to 4 years can become spent. The biggest difference between Ireland and England is that unlike Ireland, spent convictions are not a one-time deal. More than one conviction can become spent. This recognises that people can go through a bad period in their lives, even a lengthy bad period, before going on to turn their lives around. Where there are multiple offences they do not become spent until the end of the rehabilitation period for the last offence. Repeat offenders are therefore unlikely to benefit from spent convictions where they continue to offend and are therefore given another incentive to stop offending.

USEFUL ENGLISH CASE LAW

In R v Nye 75 Cr. App. R the court rejected the submission that someone with a spent conviction should be able to present themselves as having good character if tried for an offence.

In R v Evans [1992] Crim LR 125 CA a conviction was quashed where the trial judge refused to permit cross examination of an alleged victim of violence about his previous spent convictions. Here there was a head on conflict of evidence between the appellant and the chief prosecution witness and the jury were entitled to know of the latter’s record.

In R v O’Shea, The Times June 8 1993 CA it was said that whatever formula the judge adopts the jury cannot be misled and cannot be told the defendant has no previous convictions.

In R v Smallman [1982] Crim LR 175 prosecuting counsel referred to a defence witness’s spent conviction during cross-examination without leave of the judge. The judge directed the jury to leave the resulting prejudice out of account. The COA held that this could not be grounds for quashing an otherwise proper conviction.

CONCLUSION

This new Act is to be welcomed. Courts are told every day that convictions are out of character or that clients are turning their lives around. This measure goes one step further to recognise this and rewards those who manage to stay out of trouble. It is unfortunate that the more liberal English approach was not adopted as this recognises that people can commit a few offences before they go on to try to turn themselves around.