Pre-Contract
CRIMINAL JUSTICE (SPENT CONVICTIONS AND CERTAIN DISCLOSURES) ACT 2016
PART 2
Spent Convictions
Interpretation
4. (1) In this Part —
“child” means a person under the age of 18 years;
“community service order” has the meaning assigned to it by section 3 of the Criminal Justice (Community Service) Act 1983 ;
“conviction”, in relation to a person, means the conviction by a court of the person of an offence or, in the case of an appeal (whether against conviction or sentence, or both), the final determination by a court of the appeal or the withdrawal of the appeal;
“court” means any court in the State exercising criminal or civil jurisdiction and includes a Special Criminal Court but does not include a court martial;
“custodial sentence”, in relation to a person convicted of an offence, means any sentence of imprisonment imposed by the District Court or a sentence of imprisonment for a term of 12 months or less imposed by any other court on the person in respect of the offence (whether or not a fine is also imposed on the person in respect of the offence) and includes—
(a) a sentence that is imposed concurrently with another sentence or sentences of imprisonment provided that the longer, or the longest, of the sentences is 12 months or less,
(b) a sentence that is imposed consecutively with another sentence or sentences of imprisonment provided that the total period of imprisonment is 12 months or less,
(c) a sentence of imprisonment for a term of 12 months or less, the execution of a part of which is suspended for a period specified by the court,
(d) a sentence of imprisonment for a term of 12 months or less, the execution of a part of which is suspended for a period specified by the court but which suspension is subsequently revoked in whole or in part by the court,
(e) a sentence of imprisonment for a term of 12 months or less, the execution of the whole of which is suspended for a period specified by the court but which suspension is subsequently revoked in whole or in part by the court, or
(f) a sentence of imprisonment for a term of 12 months or less which is imposed on the person in relation to the offence following a revocation under section 8 or 11, as the case may be, of the Criminal Justice (Community Service) Act 1983 of a community service order in respect of the offence;
“effective date of conviction”, means the date on which a custodial sentence or a non-custodial sentence, as the case may be, becomes operative in accordance with the order of the court concerned;
“excluded sentence” means a sentence imposed by a court, other than the District Court —
(a) of imprisonment for a term of more than 12 months unless it is a sentence specified in paragraph (a) of the definition of “ non-custodial sentence”,
(b) for an offence that is reserved by law to be tried by the Central Criminal Court, or
(c) for a sexual offence;
“ non-custodial sentence”, in relation to a person convicted of an offence, means a sentence imposed by a court on the person in respect of an offence that is not a custodial sentence and is not in addition to a custodial sentence and includes—
(a) a sentence of imprisonment for a term of 2 years or less, the execution of the whole of which is suspended for a period specified by the court and that suspension is not subsequently revoked in whole or in part by the court,
(b) a fine,
(c) an order under section 1 (2) of the Probation of Offenders Act 1907 ,
(d) a community service order made by a court that—
(i) is not revoked, or
(ii) if revoked under section 8 or 11, as the case may be, of the Criminal Justice (Community Service) Act 1983 , is not replaced by a custodial sentence,
or
(e) a restriction on movement order made under section 101 of the Criminal Justice Act 2006 ;
“relevant sentence” means a custodial sentence or a non-custodial sentence or both, as the case may be;
“sexual offence” shall be construed in accordance with Schedule 1;
“spent conviction” shall be construed in accordance with section 5;
“state”, in relation to a state other than the State, includes a territory, whether in the state or outside it, for whose external relations the state or its government is wholly or partly responsible and references to a state shall be construed as including references to a subdivision of the government of the state or a national, regional or local entity of the state.
(2) For the purposes of this Part, the following circumstances are circumstances ancillary to a conviction:
(a) the offence which is the subject of the conviction;
(b) the conduct constituting that offence;
(c) any process or proceedings preliminary to the conviction;
(d) any penalty imposed in respect of the offence which is the subject of the conviction;
(e) any proceedings (whether by way of appeal or otherwise) for reviewing the conviction or penalty imposed for it;
(f) anything done in pursuance of, or undergone in compliance with, any order made in connection with or as a result of the conviction.
(3) For the purposes of this Part, a conviction of a person by the District Court—
(a) which is appealed by the person to the Circuit Court, and
(b) is affirmed or varied by the Circuit Court,
shall, as so affirmed or varied by the Circuit Court be treated as if it were a conviction imposed by the District Court.
Convictions which may be regarded as spent in certain circumstances
5. (1) Where a person is convicted of an offence, whether before or after the commencement of this Part, and the conditions specified in subsection (2) are satisfied, then subject to provisions of this Part, the conviction may be regarded as a spent conviction.
(2) The conditions referred to in subsection (1) are the following, namely:
(a) the person shall be a natural person and shall have attained the age of 18 years at the date of the commission of the offence which is the subject of the conviction concerned;
(b) not less than 7 years shall have passed since the effective date of conviction;
(c) the sentence imposed by the court in respect of the conviction shall not be an excluded sentence;
(d) the person shall have served or otherwise undergone or complied with any sentence imposed, or order made by the court in dealing with the person in respect of the conviction concerned.
(3) Subject to subsection (5), no more than one conviction may be regarded as a spent conviction and if a person has more than one conviction, this section shall not apply to that person.
(4) Where in any proceedings before a court, a person is convicted of 2 or more offences which are committed simultaneously or arise from the same incident, and the court in passing sentence, imposes more than one relevant sentence in respect of those offences, the convictions shall be regarded as one single conviction.
(5) Subsection (3) shall not apply to a relevant sentence imposed by the District Court on a person in respect of an offence under—
(a) the Road Traffic Acts 1961 to 2015, other than section 53 of the Road Traffic Act 1961 ,
(b) section 37A of the Intoxicating Liquor Act 1988 ,
(c) section 4 , 5 , 6 , 7 , 8 , 8A(4) or 9 of the Criminal Justice (Public Order) Act 1994 .
General effect of spent conviction
6. (1) Subject to the provisions of this Part, where a person has a conviction which is, in accordance with this Part, regarded as a spent conviction, he or she shall not be required by—
(a) any rule of law, or
(b) by the provisions of any agreement or arrangement which purport to require the person to disclose the conviction or any circumstances ancillary to the conviction,
to disclose that conviction or the circumstances ancillary thereto.
(2) Where, otherwise than before a court, a question is put to a person purporting to seek information in relation to the person’s previous convictions or the circumstances ancillary thereto and the person has a conviction which is, in accordance with this Part, regarded as a spent conviction, then, subject to the provisions of this Part —
(a) the question shall be regarded as not applying to the spent conviction and the person may respond accordingly, and
(b) the person shall not incur any liability or be otherwise prejudiced in law because he or she did not disclose the spent conviction or the circumstances ancillary to that conviction.
General effect of spent conviction — court proceedings
7. (1) Subject to subsections (2) and (3), in any proceedings before a court—
(a) no evidence shall be admissible to show that a person, who has a conviction which is, in accordance with this Part, regarded as a spent conviction, has committed or been charged with or prosecuted for or convicted of or sentenced in respect of an offence which is the subject of the spent conviction, and
(b) no question shall be asked in any such proceedings and if asked, the person shall not be required to answer, any question relating to his or her past which cannot be answered without disclosing the spent conviction or the circumstances ancillary to that conviction.
(2) A court, in any proceedings before it and at any stage during those proceedings, may, notwithstanding subsection (1), admit or require evidence relating to a person’s spent conviction or the circumstances ancillary thereto if the court is satisfied in all the circumstances that justice cannot be done except by so admitting or requiring the evidence concerned but, where such evidence is admitted or required, the court may make such orders as the court considers necessary to prevent or restrict publication of that evidence.
(3) Nothing in this Part shall affect the determination of any issue, or prevent the admission or requirement of any evidence, relating to a person’s spent conviction or to the circumstances ancillary to the conviction—
(a) in any criminal proceedings before a court, including any appeal or other application relating to those proceedings in which the person is a party to the proceedings,
(b) in any proceedings concerning the adoption, guardianship or custody of, or access to, a child, including proceedings under th e Child Care Acts 1991 to 2015,
(c) in any proceedings relating to the provision by any person of accommodation, care, training or education for a child,
(d) in any proceedings relating to the provision by any person of accommodation, care, training or education for a vulnerable person,
(e) in any proceedings under section 21 of the Nursing Homes Support Scheme Act 2009 , or
(f) in any proceedings in which the person is a party or 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 his or her spent conviction or to the circumstances ancillary to the conviction, as the case may be.
Limitation of section 6
8. (1) Section 6 shall not apply where a requirement is made of a person to disclose any previous convictions or the circumstances ancillary thereto—
(a) in any interview of the person conducted by a member of the Garda Síochána following the arrest of that person in connection with the investigation of an offence,
(b) in respect of an application by the person—
(i) to enter, be or remain in the State, or
(ii) for Irish citizenship,
or
(c) in respect of any application pursuant to, or any investigation under, Part 3 of the Central Bank Reform Act 2010 .
(2) A person who is convicted of fraud, deceit or dishonesty in respect of a claim under a policy of insurance or a policy of assurance shall not be excused under section 6 from disclosing any such conviction on any insurance proposal or form or any assurance proposal or form, as the case may be.
(3) Nothing in this Part shall affect—
(a) the enforcement by any process or proceedings in respect of any fine or other sum deemed payable by, or imposed on, a person in respect of a conviction, which is, if the requirements of this Part apply and are fulfilled, regarded as a spent conviction,
(b) the issue of any process for the purpose of proceedings in respect of any breach of a condition or requirement that applies to a sentence imposed in respect of a conviction which is, if the requirements of this Part apply and are fulfilled, regarded as a spent conviction, or
(c) the operation of an enactment under which, in consequence of any conviction, a person is subject, otherwise 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 such conviction.
(4) This Part is without prejudice to a person’s right to disclose his or her previous convictions or the circumstances ancillary thereto.
Information sought by state other than the State
9. A person who has a conviction which is, in accordance with this Part, regarded as a spent conviction, shall not be entitled to regard any question put to him or her seeking information in relation to his or her previous convictions as not applying to the spent conviction where—
(a) he or she is in a state, other than the State, and the information is sought pursuant to the exercise of the jurisdiction of the law of that state, or
(b) he or she is within the State but the information sought relates to a matter being dealt with pursuant to the law of a state other than the State.
Disclosure required for work
10. (1) Section 6 shall not apply where a person—
(a) applies for, seeks or is offered any employment, activity or service specified in Schedule 2 (in this section referred to as “specified work”),
(b) enters or proposes to enter into a contract of employment to do specified work,
(c) applies to another person to do specified work on that other person’s behalf (whether or not in return for payment or any other consideration), or
(d) enters or proposes to enter into a contract for services to do specified work.
(2) Section 6 shall not apply in respect of a person—
(a) who—
(i) applies for, seeks or is offered relevant work or activities specified in Part 1 or 2 of Schedule 1 to the Act of 2012 (in this section referred to as “relevant work”),
(ii) enters or proposes to enter into a contract of employment to do relevant work,
(iii) applies to another person to do relevant work on that other person’s behalf (whether or not in return for payment or any other consideration), or
(iv) enters or proposes to enter into a contract for services to do relevant work,
and
(b) who has a conviction, other than a conviction to which section 14A of the Act of 2012 applies.
(3) In this section—
“Act of 2012” means the National Vetting Bureau (Children and Vulnerable Persons) Act 2012 ;
“Civil Service” and “public service body” have the meanings they have in section 2 of the Public Service Management (Recruitment and Appointments) Act 2004 ;
“contract of employment” means—
(a) a contract of service or apprenticeship, or
(b) any other contract whereby an individual agrees with another person, who is carrying on the business of an employment agency within the meaning of the Employment Agency Act 1971 , and is acting in the course of that business, to do or perform personally any work or service for a third person (whether or not the third person is a party to the contract).
(4) In this section a reference to a person who applies for, seeks or is offered specified work or relevant work includes a reference to a person who applies for, seeks or is offered a new or different position that involves specified work or relevant work with his or her current employer.
(5) For the purposes of subsection (4), the Civil Service and other public service bodies shall be deemed to be a single employer.
Disclosure required for certain licences, etc.
11. (1) Without prejudice to any other enactment which provides for the disclosure of a person’s criminal convictions as part of an application by or on behalf of the person for a licence, permit or any other form of authorisation, approval or registration, section 6 shall not apply where a person applies in his or her own right or as a party to an application—
(a) for a licence under section 82 of the Road Traffic Act 1961 ,
(b) for a licence under section 18 of the Road Traffic Act 1968 ,
(c) for a licence under section 2 of the Road Traffic and Transport Act 2006 ,
(d) for an authorisation as a driver tester within the meaning of Regulation 3(1) of the Road Traffic (Licensing of Drivers) Regulations 2006 ( S.I. 537 of 2006 ),
(e) for a licence under section 34 of the Taxi Regulation Act 2003 ,
(f) for a licence under Part 3 of the Private Security Services Act 2004 ,
(g) for a certificate, licence or permit under the Firearms Acts 1925 to 2009, or
(h) for a licence or other form of authorisation or approval that is issued by the Central Bank of Ireland.
(2) In this section a reference to an application for a licence, permit or any other form of authorisation, approval or registration includes a reference to an application for a renewal, extension or variation of such a licence, permit or other form of authorisation, approval or registration.
Disclosure by Garda Síochána of criminal records held
12. Without prejudice to any other enactment which provides for the making of applications for the disclosure of personal data (within the meaning of the Data Protection Act 1988) , where a person makes a request to the Garda Síochána for a copy of his or her criminal record, the Garda Síochána shall provide information regarding the person’s spent convictions (if any) and, in so far as it is appropriate, circumstances ancillary to those convictions separately from information concerning that person’s other convictions (if any).
Transitional provision
13. This Part applies to a response given on or after the commencement of this Part to—
(a) a request made (either orally or in writing), or
(b) a requirement notified (either orally or in writing),
before the commencement of this Part seeking, or requiring, as the case may be, information in relation to a person’s previous convictions if, on the commencement of this Part, the information sought or required, as the case may be, relates to a conviction which is, in accordance with this Part, regarded as a spent conviction.