Criminal Justice (Spent Convictions and Certain Disclosures) Act 2016
Acts of the Oireachtas
Source: Acts of the Oireachtas

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paragraphs: (1) This Act may be cited as the Criminal Justice (Spent Convictions and Certain Disclosures) Act 2016.
(2) The National Vetting Bureau (Children and Vulnerable Persons) Act 2012 and Part 3 may be cited together as the National Vetting Bureau (Children and Vulnerable Persons) Acts 2012 to 2016 and shall be construed together as one Act.
(3) This Act shall come into operation on such day or days as the Minister may appoint by order or orders either generally or with reference to any particular purpose or provision and different days may be so appointed for different purposes or provisions.
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paragraphs: In this Act “Minister” means the Minister for Justice and Equality.
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paragraphs: The expenses incurred by the Minister in the administration of this Act shall, to such extent as may be sanctioned by the Minister for Public Expenditure and Reform, be paid out of moneys provided by the Oireachtas.
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paragraphs: (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;
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paragraphs: (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 .
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paragraphs: (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.
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paragraphs: (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.
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paragraphs: (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 SÃ­ochÃ¡na 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.
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paragraphs: 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.
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paragraphs: (1) Section 6 shall not apply where a person—
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paragraphs: (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.
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paragraphs: 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 SÃ­ochÃ¡na for a copy of his or her criminal record, the Garda SÃ­ochÃ¡na 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).
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paragraphs: 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.
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paragraphs: In this Part “Act of 2012” means the National Vetting Bureau (Children and Vulnerable Persons) Act 2012 .
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paragraphs: Section 3(1) of the Act of 2012 is amended by—
(a) the substitution of “or vulnerable persons;” for “or vulnerable persons.”, and
(b) the insertion of the following paragraph after paragraph (c):
“(d) the employment of, or entering into a contract for services with, a person either by or on behalf of the State Examinations Commission, for the purposes of the performance by the person on a temporary basis of any functions in respect of the conduct and delivery of examinations to which Part VIII of the Education Act 1998 applies.”.
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paragraphs: Section 7 of the Act of 2012 is amended, in subsection (2)(f), by the substitution of “scheduled organisations” for “scheduled bodies”.
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paragraphs: Section 9 of the Act of 2012 is amended—
(a) in subsection (3), by the substitution of the following paragraph for paragraph (k):
“(k) subject to subsection (9), in a case where he or she has a criminal record, particulars of such record;”,
and
(b) by the insertion of the following subsection after subsection (8):
“(9) A person shall not be obliged to provide details of any convictions to which section 14A applies.”.
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paragraphs: Section 12 of the Act of 2012 is amended by—
(a) the insertion of the following subsection after subsection (3):
“(3A) Where 2 or more relevant organisations jointly agree in writing to the employment, contracting, permitting or placement of a person to undertake relevant work or activities, it shall be a defence in any proceedings brought against a person for an offence under subsection (2) to show that another relevant organisation who was party to the agreement received a vetting disclosure in respect of the employment, contract, permission or placement of the person concerned.”,
(b) the substitution of the following subsection for subsection (4):
“(4) In the case of the employment of, entering into a contract for services with, permitting or placement of any person to undertake relevant work on a casual or part-time recurring but non-continuous basis with the same relevant organisation, the obligations placed on a relevant organisation pursuant to subsection (1) shall, subject to section 20, be regarded as being satisfied where the relevant organisation concerned received a vetting disclosure in respect of the person in respect of that initial employment, contract, permission or placement, as the case may be.”,
and
(c) the substitution of the following subsection for subsection (5):
“(5) This section shall not apply to the following:
(a) any employment, contract, permission or placement that commenced or was entered into, given or made, as the case may be, before the commencement of this section;
(b) any employment, contract, permission or placement on a casual or part-time recurring but non-continuous basis with the same employer where the initial employment, contract, permission or placement, as the case may be was entered into, given or made as the case may be, before the commencement of this section;
(c) any employment, contract, permission or placement, including a casual or part-time recurring but non-continuous employment which was not entered into before the commencement of this Act but in respect of which a relevant organisation had, before that commencement, requested and received vetting information in respect of the person who was the subject of the employment, contract, permission or placement concerned from the national unit of the Garda SÃ­ochÃ¡na known as the Garda Central Vetting Unit.”.
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paragraphs: Section 13 of the Act of 2012 is amended—
(a) by the substitution of the following subsection for subsection (2) :
“(2) A relevant organisation may submit an application for vetting disclosure under this section on its own behalf or on behalf of another relevant organisation that the organisation represents for the purposes of the vetting procedures under this Act and, where a relevant organisation submits an application on behalf of another relevant organisation, it shall—
(a) inform the Bureau of that fact and provide the Bureau with the particulars referred to in section 8(5), and
(b) provide or make available, in written or electronic form, a copy of the vetting disclosure received from the Bureau to the relevant organisation that it represents or on whose behalf the application for vetting was made.”,
(b) in subsection (5), by the substitution of the following paragraph for paragraph (l):
“(l) subject to subsection (6A), in a case where he or she has a criminal record, particulars of such record;”,
and
(c) by the insertion of the following subsection after subsection (6):
“(6A) A person shall not be obliged to provide details of any convictions to which section 14A applies.”.
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paragraphs: Section 14 of the Act of 2012 is amended—
(a) in subsection (4)(a)(i), by the substitution of “subject to subsection (4A), particulars of the criminal record” for “particulars of the criminal record”, and
(b) by the insertion of the following subsection after subsection (4):
“(4A) Where a person who is the subject of an application for vetting disclosure has a conviction to which section 14A applies, the conviction shall be excluded from the vetting disclosure made by the Bureau in respect of the person.”.
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paragraphs: The Act of 2012 is amended by the insertion of the following section after section 14:
“14A. (1) This section applies to a conviction by the District Court of a person in respect of an offence where the following conditions are met in respect of the conviction:
(a) the person to whom the conviction relates 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) the offence shall not be an excluded offence;
(c) not less than 7 years has passed since the effective date of conviction;
(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.
(2) Subject to subsection (4), this section shall apply in respect of one single conviction only and where a person has more than one conviction this section shall not apply to that person.
(3) 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 sentence in respect of those offences, the convictions imposed shall be regarded as one single conviction.
(4) Subsection (2) shall not apply to a conviction imposed on a person in respect of an offence—
(a) under the Road Traffic Acts 1961 to 2014, other than section 53 (2) of the Road Traffic Act 1961 ,
(b) under section 37A of the Intoxicating Liquor Act 1988 ,
(c) under section 4 , 5 , 6 , 7 , 8 , 8A(4) or 9 of the Criminal Justice (Public Order) Act 1994 .
(5) In this section—
‘effective date of conviction’ means, in relation to the imposition by the District Court of a sentence for an offence, the date on which the sentence becomes operative in accordance with the order of the court;
‘excluded offence’ means—
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paragraphs: Section 16 of the Act of 2012 is amended—
(a) in subsection (1), by the substitution of “a relevant organisation (other than a relevant organisation who applies for vetting on behalf of another relevant organisation in accordance with section 13(2) ) contains” for “a relevant organisation contains”,
(b) by the substitution of the following subsection for subsection (2):
“(2) A relevant organisation (including a relevant organisation who applies for a vetting disclosure on behalf of another relevant organisation in accordance with section 13(2)) to whom a vetting disclosure is made in accordance with this Act may—
(a) consider and take into account the information disclosed in the vetting disclosure when assessing the suitability of the person who is the subject of the disclosure to undertake relevant work or activities, and
(b) to the extent that it is so authorised by law other than by virtue of this section, consider and take into account, in accordance with such law, the information disclosed in the vetting disclosure when assessing the suitability of the person who is the subject of the vetting disclosure to be registered, licensed, considered fit to practice or otherwise authorised (howsoever described) to undertake relevant work or activities.”,
and
(c) in subsection (3), by the substitution of “otherwise than in accordance with this Act or as otherwise authorised by law” for “otherwise than in accordance with this Act”.
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paragraphs: Section 20 of the Act of 2012 is amended—
(a) in subsection (1) —
(i) by the substitution of “under this Act in respect of a person or, vetting information issued in respect of a person by the Garda Central Vetting Unit before the commencement of section 12,” for “under this Act in respect of a person,”, and
(ii) by the substitution of “application for vetting” for “further application for vetting”,
and
(b) in subsection (3), by the substitution of “without reasonable excuse fails to comply with” for “contravenes”.
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paragraphs: Section 21 of the Act of 2012 is amended—
(a) in subsection (1), by the substitution of “vetting disclosure under this Act or, a request made before the commencement of section 12 to the Garda Central Vetting Unit for vetting information in respect of the person concerned,” for “vetting disclosure under this Act,”, and
(b) in subsection (3), by the substitution of “without reasonable excuse fails to comply with” for “contravenes”.
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paragraphs: Section 31 of the Act of 2012 is amended by—
(a) the designation of that section as subsection (1),
(b) the substitution, in subsection (1), of “vetting information” for “vetting disclosure”, and
(c) the insertion of the following subsection after subsection (1):
“(2) Where, before the commencement of this section, a person had appealed a determination made by the Garda Central Vetting Unit in respect of the person but the appeal had not been concluded before that commencement, then the appeal shall be deemed to be an appeal under section 18 and shall be dealt with accordingly and, any step taken before such commencement in relation to the appeal (being a step required to be taken under this Act in relation to an appeal under this Act) shall be deemed to have been taken under this Act.”.
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paragraphs: The Garda SÃ­ochÃ¡na Act 2005 is amended by the insertion of the following section after section 127:
“Regulations relating to fees for provision of vetting services
127A. The Minister may—
(a) after consultation with the Garda Commissioner, and
(b) with the consent of the Minister for Public Expenditure and Reform,
make regulations prescribing fees in relation to the provision of vetting services in accordance with section 7(l).”.
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paragraphs: Schedule 1 to the Act of 2012 is amended—
(a) in paragraph 7 of Part 1, by the substitution of “any religious beliefs to children unless such work or activity is merely incidental to the advancement of religious beliefs to persons who are not children” for “any religious beliefs”, and
(b) in paragraph 7 of Part 2, by the substitution of “any religious beliefs to vulnerable persons unless such work or activity is merely incidental to the advancement of religious beliefs to persons who are not vulnerable persons” for “any religious beliefs”.
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paragraphs: Schedule 2 to the Act of 2012 is amended by the insertion of the following paragraph after paragraph 11:
“12. The Garda SÃ­ochÃ¡na Ombudsman Commission.”.
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paragraphs: The Act of 2012 is amended by the insertion of the following Schedule after Schedule 2: