Spent Convictions – Off the Record

WORKING WITH CONVICTION

Consider this: the Irish Spent Convictions legislation (properly known as the Criminal Justice (Spent Convictions and Certain Disclosures) Act 2016 that came into force in 2016, followed hot on the heels of the UK legislation, passed… some 42 years ago (the Rehabilitation of Offenders Act 1974).

So we certainly can’t accuse Irish legislators of legislating in haste.

(Quick recap: the idea of a criminal conviction being considered as ‘spent’ is tied to the idea that, after a certain period of time, a (usually minor) conviction can be ignored, so that it doesn’t affect someone’s life forever. It’s about the rehabilitation of offenders; basically, giving people a second chance in life).

WHAT’S THE POINT OF GARDA VETTING?

Well there’s more than one way to look at it, but I’ve found this to be a helpful approach to understanding criminal background checking.

Consider vetting as the checking of the register of criminal records, to see if an applicant has a criminal record that should preclude them from taking up a particular position.

But is that how it’s seen today?

Many people see vetting checks as akin to vetting ‘clearance’ (the ‘thumbs up’ that they’re ‘good to go!’); and yet it’s supposed to only be one part of an overall safe recruitment process (albeit a necessary and important part).

To understand why people can still consider Garda vetting as ‘clearance’, it’s important to consider this: that the National Vetting Acts 2012-2016 were only commenced in 2016.

Until that time, vetting was carried out on a non-statutory basis by the then Garda Vetting Bureau (that is effectively today the National Vetting Bureau).

Which is where, stage left, we see the entry of the Irish Penal Reform Trust.

Now, like the old Ron Seal ads that once graced our screens, the Irish Penal Reform Trust does what it says on the tin.

It’s the leading Irish NGO campaigning for rights in the penal system, in parallel with the progressive reform of Irish penal policy.

(They put together a nifty poster about Spent Convictions: you can download it by clicking the image below).

So it was real interest that I accepted an invitation from the IPRT to attend a seminar in the Chester Beatty Library at Dublin Castle at the end of September.

The seminar was entitled ‘Working with Conviction’. It highlighted that Ireland introduced ‘Spent Convictions’ legislation in 2016, “which means that certain convictions can now becomes spent, while others can continue to present bariers to work, education, training, insurance and travel”:

Helpfully, after the seminar the IPRT shared two videos about spent convictions and the expungement of convictions, under a different piece of legislation (the Children Act 2001). For completeness I'll share those now, prepared as they were by the good folks at SpunOut.ie:

KEYNOTE SPEAKER: JAMES TIMPSON

Keynote speaker was James Timpson, CEO of the Timpson Group of companies in the UK, whose companies include cobblers (shoe repairs), locksmiths, dry cleaners and photo development. They have 1,850 shops, £250M turnover and over 5,200 employees.

To put that in an Irish context, the whole of Dublin Bus has a revenue of €280M, with c.3,000 employees.

Timpsons is huge.

And they’re the biggest employer of ex-offenders in the UK.

The seminar’s purpose was to:

“create a wide discourse around the following areas:

• Employment of former prisoners;
• Employment of people with convictions histories;
• Barriers to insurance for people with convictions histories;
• Barriers to accessing further education for those with convictions histories”.

Panellists included:

• Paddy Richardson, Chief Executive of IASIO (Irish Association for the Social Integration of Offenders)
• Niall Walsh, Manager of Pathways
• Philip Richardson, Youth Cultivator, formerly of Solas Project
• Mairéad Deevy, Barrister-at-law
• Kieran Moylan, Principal, Care & Rehabilitation Directorate, Irish Prison Service

PRIDE, NOT PREJUDICE

If there was one takeaway from the seminar, it was this:

Focus on ability, not prejudice.

Apparently some 11 million or 16.5% of UK population have a criminal record, most of which are considered spent under UK legislation.

We don’t currently have comparable data in Ireland, but if we extrapolate the data across into Ireland (population 4.7m) we can suggest that if 16.5% of that population have a criminal record, some 780,000 people in Ireland would currently have a criminal record.

780,000.

Now let’s put that into some context. That’s the equivalent of the entire populations of the following Irish counties:

(Note that these are my own figures extrapolated after the seminar, for illustration purposes only. I could have course instead said it’s like everyone in the city of Dublin (population: 527,000) and then half as many people again. No reflection intended on any county).

But it does surely give us pause for thought.

Of this figure of 780,000 people potentially with criminal records, it was suggested that there could be up to about 300,000 people in Ireland who hold criminal records who would be affected by the new Spent Convictions legislation.

And within that overall group of people with a criminal record, there are about 4,000 people who are in prison in Ireland.

OFF THE RECORD

The key point for Timpson and indeed the IPRT was this: how does society support people who want to move on from a previous journey of offending?

There’s a cycle of disadvantage that has to be broken, one in which employers can create opportunities for people with criminal records, supported by the government through effective legislation.

Timpson had some great lines in his talk, which helped to fix the audience’s attention.

I enjoyed his business philosophy that it’s about business and its people first and foremost, with the consideration of a person’s prior criminal record being a matter that comes second (my words not his). Or, as Timpson put it more pithily:

Running a retail business with great people, some of whom happen to be ex-offenders.

RUNNING YOUR BUSINESS UPSIDE DOWN

Timpson talked about running your business upside down, about developing a culture of doing things differently. Upside down management being all about trusting the people who serve your customers, trusting them to do the right thing.

He was looking for ‘sparky’ personalities; admittedly he made a lot of mistakes along the way. It wasn’t something he could do in isolation, he needed to take the advice of the prison service to filter the potential applicants prior to interview. And also needed to be more effective in the transition to work from release from prison.

But he didn’t stop there. Rather than just meeting an ex-offender on the steps of the prison on the day of their release, Timpsons went into prison itself, opening an Academy in a prison. The purpose? To provide training on the inside, to give skills and confidence, and change attitudes.

In his experience, Timpson found that the day release scheme (whereby someone was out on temporary licence, was a massive success, probably twice as successful as if they’d taken someone into employment only from the date of their release, rather than on the transitioned process of phased day release).

AT THE END OF THE DAY

Perhaps what was most startling for the audience was Timpson saying that he currently has 6 stores run in the south of England by managers, who are all out of day release.

That is, the shop manager wakes up in prison; goes out on day release, opens the shop, manages the team and serves the customers, lodges the cash takings at the end of the day; and then returns to prison at the end of the day.

But Timpsons aren’t alone in their approach. Apparently Halfords also run a bike-assembly workshop academy in another prison.

It’s about changing the culture and tone of a business: recruiting on ability, not on prejudice. For Timpson, that’s also about appreciating the values of loyalty, honesty, and commitment.

Intriguingly, Timpson went further, lifting the lid on what the employment of ex-offenders looks like in his company. That employment stretched not only into shop managers (as mentioned above), but also Area Managers, Directors, and in their Finance team: all had employees with convictions. At all levels.

One side note Timpson mentioned: women make up 5% of the UK prison population, but make up the bulk of Timpson’s recruitment.

This was a complex area according to Timpson (specifically addressing UK issues of a growing older population, big issue with sex offenders, and UK specific issue of IPP prisoners (indeterminate sentences known as Imprisonment for Public Protection sentences)).

But he talked about being guided by a saying: to ask yourself are you on the right side of panic, or the wrong side of panic?

Which I took to imply that there’s a healthy area to find oneself in, where you’re pushing the envelope, challenging the existing status quo in your organisation, which probably involves the significant ruffling of feathers along the way.

And then of course there’s being on the wrong side of panic (which is when everything’s falling apart around you).

For Timpson it seemed to sound like being as close to the right side of the ‘right side of panic’ was a healthy place to be; and probably the best place to be to challenge successfully the defenders of the status quo ante.

PANEL DISCUSSION

After Timpson’s keynote, there was a panel discussion, whose main points can be summarised below.

Paddy Richardson IASIO

Irish Association for Social Integration of Offenders

Niall Walsh, Manager, Pathways Centre

• Post-prison support of offenders through education.
• Placement on courses is difficult with convictions. In his view, Spent Convictions was a dropped ball.
• Volunteering restrictions. Very restrictive where can one volunteer today. It’s not Garda ‘clearance’ it’s Garda vetting. More organisations are dealing with it on a case by case basis.
• There are other issues including Insurance issues, where there are often hiked premia for people having to self-disclose a prior criminal conviction.
• Stigma of having a conviction. Not all doors should be closed.

Philip Richardson, formerly of Solas Project.

Disclosing 60 prior convictions, last in 1990. Mentoring 17-23 year olds.

His message: Don’t give up on them.

Mairead Deevy, BL

Barrister with interest in the Criminal Justice (Spent Convictions and Certain Disclosures) Act 2016

• Really it’s only dealing with once-off convictions. Lot of work to be done.
• Retrospective
• Over 18, at least 7 yrs has passed, and then lots of exclusions.
• Have to have served the sentence, and it’s basically a one-time deal
• But also offences that are excluded from the remit of the Spent Convictions legislation are offences that are:
  • More than 12 months in prison
  • Or suspended for 2y plus
  • Majority of sexual offences
  • Central criminal court

Differs for minors, 3 year time limit, Childrens Act 2001. More than 1 chance, but not if re-offended within that 3 year period.

And a key thing to look out for: the effective date is the operative date of the sentence (rather than the date of the conviction).

Kieran Moylan, Irish Prison Service

• Safe communities, fewer crimes, fewer victims
• Reducing crime, reducing recidivism
• Open to considering model talked about by Timpson.
• Looking for employer partners.
• Public procurement to explore: performance clauses in contracts (e.g. could add performance condition to employ and train ex-offenders). Up front.
• Also, new provision around social criteria, scoring of the tenderers can score for their social contribution (e.g. employment, training or work placements. Mutli-criteria analysis ,but helpful.
• Third one, reserve contract approach, where you restrict bidding only to organsiations who have active social criteria. Not done much in this area to date, but would be interesting to consider it as an approach. 

SUMMARY

The IPRT are to be commended for holding this ground-breaking seminar. The more understanding there is on this new area of law in Ireland, the better the chances are that organisations of all different types will have of attracting the right people for the right opportunity, whether that's paid or voluntary.

This essay is for general information and guidance purposes only and, just to be clear, does not constitute legal or other professional advice.

You should always seek your own specific legal advice, from a firm of solicitors, on the application of the law in a situation.

Whilst we used reasonable endeavours to ensure the accuracy of this content, we do not accept any liability for any omissions or errors; or for any action taken in reliance of the information in this essay.