Could someone clear this up for me please? Probation Act

EamoS

I've been given the benefit of the probation act for section 2 assault. From what I've read this means that I do not have a criminal record? How then, can the guards/US customs see that i have been arrested for said crime in the first place?

It seems to me that I do have a criminal record, but on that record it says I was given the benefit of the probation act in relation to said offense?

Or perhaps there are 2 databases? The Garda pulse system and a separate criminal record system?

Ultimately, what I'd like to know however is what exactly can US and Australian systems find out about my criminal past?

Any help would be greatly appreciated!

Reloc8

Howya,

Section 2 Non-fatal offences against the person is a summary charge. That means if it is the only charge, or all other charges are also summary (read minor - relatively) it can only be prosecuted in the District Court.

That means if a person charged with this is told they have been 'given the benefit of the probation act' Section 1(1) of the Dublin (Probation of Offenders) Act 1908 (DPOA) has been applied. The formal wording of the section provides that the Judge has found the facts alleged proven, without proceeding to convict, and dismissed the charge or charges with the benefit of the DPOA.

In a criminal case, a district court judge who hears the evidence can make only two orders as to outcome, - convict or dismiss. (following on from conviction lots of other orders can be made as well - fine, imprisonment, even S. 1(1) DPOA can be applied at this stage but those are the two)

Strictly speaking therefore having S. 1(1) DPOA applied is a dismissal, and is most certainly not a conviction.

However, where S. 1(1) as above is applied, it is custom and practice that the prosecuting garda enters a note on the PULSE system (there are not two separate systems, although older offences pre-dating PULSE are often maintained in hard copy format only by Court offices and local garda stations) - that this has been done.

The current view is that there nothing unlawful in this record being kept. Bear in mind that although on one level a dismiss is a dismiss is a dismiss, in a S. 1(1) case, the facts have been found to be proven so this view is most likely correct, although the reason for maintaining the record is primarily so as to advise a court who deals with the same person again that they've already had their 'one chance' so to speak.

What this means is that if you have had the benefit of S. 1(1) there will 99.9% likely be a record of that fact on PULSE (unless in case of administrative error or the incident was dealt with in court years ago - say close to or over 20), and any authority which is entitled to carry out a check for criminal record will be advised of the entry. Invariably the entitlement to carry out this check will derive solely from your consent to this happening - usually sought in a non-tourist VISA app and many job apps.

If you wanted to be certain of what is entered against your name, date of birth and address on PULSE, you could try presenting at your local Garda Station with a passport or driving license and asking the Gardai on duty to check against your name, date of birth and address(es) (ID so as to prove that its yourself who's asking so to speak).

They might well refuse this but you can but ask, so the only way to be sure in that instance would be an FOI request directed to the Superintendent responsible for the district in which you were prosecuted - ring the garda station from which the prosecution was instigated and ask.

Summary

- there is just one database.
- an entry will be made and disclosed in the circumstances set out above.
- this is considered lawful

What I am unsure about is whether in fact your consent to a background check is sought when trying to travel to US/Australia. I have a feeling that it is not in case of a tourist visa, but I think it is if you were seeking a longer stay.

When I say 'you' above I mean people in this position generally in a hypothetical sense.

Hope that helps.

p.s if the charge was dealt with on indictment by the Circuit or Central Criminal Court the order made would been made under S. 1(2) DPOA 1908 and this is indeed a criminal conviction. That is most unlikely to have happened.

edit : I had a final thought that if in fact the request for a formal background check was framed as 'does this person have any criminal convictions' the response ought very much to be in the negative. I think I'd have to check what form the request is made in to be fully accurate on this question...I'll post back if I turn something up.

EamoS

Thanks that kind of clears it up. i'd love to know exactly what it says regarding this on the PULSE system.

This was the only charge. I wonder how serious US/Australian customs consider section 2 assault to be? Would it be considered much more seriosu than a public order offense do you think? Probably hard to say. If this is anything to go by maybe I'll be okay:

http://en.wikipedia.org/wiki/Moral_turpitude#Interpretation_of_moral_turpitude

Reloc8

It would depend on the Public Order offence in question.

Sections 4(drunk disorderly), 5 (offensive conduct) 6 (breach of the peace), 8 (failure to comply with a direction of garda) - S. 2 Assault is more serious. But say section 15 Violent Disorder - S. 2 Assault is less serious on its face. S. 19 (Assault peace officer in course of duty) - s. 2 is less serious.

What customs would make of it - genuinely no idea. That wiki link looks positive.

Anyway, if you went to the local station and asked nicely for them to look you up, and say that its informal and you don't want a print out or anything, and that you'll sign something to say you wanted it done (they have to log in and have to have a reason to look at anyone) there is some chance your friendly neighborhood garda will do that for you. Otherwise FOI is your option.

'luck with it.

Whitewater-AGS

Coler wrote: »

It would depend on the Public Order offence in question.

Sections 4(drunk disorderly), 5 (offensive conduct) 6 (breach of the peace), 8 (failure to comply with a direction of garda) - S. 2 Assault is more serious. But say section 15 Violent Disorder - S. 2 Assault is less serious on its face. S. 19 (Assault peace officer in course of duty) - s. 2 is less serious.

What customs would make of it - genuinely no idea. That wiki link looks positive.

Anyway, if you went to the local station and asked nicely for them to look you up, and say that its informal and you don't want a print out or anything, and that you'll sign something to say you wanted it done (they have to log in and have to have a reason to look at anyone) there is some chance your friendly neighborhood garda will do that for you. Otherwise FOI is your option.

'luck with it.

You are seriously barking up the wrong tree going to your local station and requesting such infomation, giving you that info would be at least a serious disciplinary offence. You will have to make a FOI request.

dermot_sheehan

Section 1(1) of the probation act 1908 indicates that the court accepts the case against you has been proved, but since you're of good character has decided not to enter a conviction.

It would show up on pulse as you getting the benefit of the probation act for an offense, so the guards can tell a court in future you've already got the probation act for an offence.

The only exception is if it was while you were a juvenile and its been more then 3 years since the offence in which case the record is wiped.

U.S. immigration ask if you've been convicted or arrested however. And assault is a crime or moral turpitude which means you need a visa if they find out.

It's unclear whether they are in any way linked to pulse, and the most likely way of them finding you appeared in court for this offense is you admitting it to them.

Tom Young

I've ranted about Pulse before. It was chucked royally out of New Zealand for being awful. I suspect Data Protection rules re. deletions may not apply. Can't prove that though.

Reloc8

Whitewater-AGS wrote: »

You are seriously barking up the wrong tree going to your local station and requesting such infomation, giving you that info would be at least a serious disciplinary offence. You will have to make a FOI request.

Sorry...I'm missing the point here...telling somebody what is on their record is a disciplinary offence ? Well...I suppose all I'll say is it does happen - but if it was me looking for me own and I was told no way I wouldn't be pushing the boat out.