Spent and unspent convictions - what is the difference?
We’ve all made mistakes, and for some people that ends up in a court appearance and a criminal record. Ireland is the only country within the European Union that does not have a method of giving people a second chance, however, under the provisions of the proposed National Vetting Bureau Act 2012 there will be the possibility of convictions becoming ‘spent’.
In advance of the act becoming law, the Garda have introduced the ‘administrative filter’ which is a way of excluding certain information from Garda Vetting Checks. In effect, this will mean that some convictions and prosecutions will not be required to be disclosed when applying for jobs, housing or insurance.
Prior to the introduction of the filter all convictions, whatever the age and all prosecutions whether they were successful or not would be included in a report.
What will be disclosed?
The easiest place to start is where items will appear on a Garda Vetting Unit Disclosure in all cases.
When a background check is completed the following things will always be shown;
1) Offences Against the Person.
2) Sexual Offences
3) Convictions on indictment.
What things won’t be shown?
There are a number of things that won’t be included due to the application of the administrative filter.
District court motoring offences that occurred more than 7 years in the past will not be shown, even where more recent motoring offences have been committed.
Minor public order offences under the Criminal Justice (Public Order) Act 1994 will also be excluded. These include convictions for Public Intoxication, Disorderly Conduct, Threatening Abusive or Insulting Behaviour, Distribution of Offensive Material, Wilful Obstruction and Failure to comply with Garda Instruction.
Again these will be excluded after 7 years even where further offences have been committed.
Other minor offences dealt with in the district court will be excluded, again after 7 years but only relating to one offence. This means that convictions older than 7 years won’t be shown unless a further offence is committed in which case all will be shown.
The minor offences provision does not include sexual offences or offences against the person which will always be shown on a Garda Vetting Unit Disclosure.
Offences dealt with by the district court under Probation Act 1907 will not be disclosed with no waiting time except where the offence may give rise to concerns that the offender may pose a danger to children or vulnerable persons.
Perhaps surprisingly the Garda Central Vetting Unit may also disclose matters where the accused was found not guilty or not even prosecuted. In this case, a disclosure will be made only according to strict guidelines.
The first test is that there needs to be a genuine concern that the person concerned could pose a danger to children or vulnerable people.
Secondly, the information disclosed needs to be necessary, proportionate and reasonable. In essence, the disclosure must only include information that will help people decide whether the person poses a risk.
Thirdly the Garda will need to make the decision to disclose information based on the relevance of the information to the type of work being sought, the source and reliability of the information, the rights of the vetting applicant and any submissions made by them and finally the type of information concerned.
Should the Garda Vetting Unit decide to disclose then it will inform the subject of the application of the decision and provide them with a copy of any information concerned. The subject will then have 14 days in which to make a submission and to initiate an appeals process. Any disclosure will only be made once the appeals process has run its course.
Guidance for employers
As always if there is any specific area that potential employees or employers are unsure about then it is vital to take qualified legal advice.
It is also important to note that employers wishing to carry out will have to register with the Garda Vetting Unit and comply with their regulations.
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