Question on convictions

pillphil

I'm curious about the wording of a question on a volunteer site I was looking at.

Have you ever committed a criminal act or have you any convictions, spent or completed in Ireland or overseas?

It seems like an attempt to circumvent the spent convictions bill?

Would you have to answer this truthfully if you did have any spent conviction? Would you have to answer truthfully if you had committed a criminal act for which you weren't prosecuted?


It also doesn't seem to ask if you have any non spent convictions?

Fred Swanson

This post has been deleted.

Pro Hoc Vice

Fred Swanson wrote: »

If you have spent convictions, you don't have to declare them.

Depends!

On the type of conviction
On the time since conviction
On how many convictions
On the purpose of the request

All in the act.

Fred Swanson

This post has been deleted.

Pro Hoc Vice

Fred Swanson wrote: »

Of course it depends on if they are actually spent.

Which is very restricted. In as in this case a voluntary job (I might assume working with childrenor otherwise vulnerable people) many convictions may never be spent.

simonsez

Pro Hoc Vice wrote: »

Which is very restricted. In as in this case a voluntary job (I might assume working with childrenor otherwise vulnerable people) many convictions may never be spent.

check act

Pro Hoc Vice

simonsez wrote: »

check act

I have and I believe section 10 excludes the effect of section 6 in many circumstances including work with children as set out in the schedule to the vetting act 2012. Do you have a different view.

Speedwell

As an immigrant who plans to apply for citizenship in a couple of years, I am aware that the same question exists on the citizenship application, and the spent convictions bill does not apply (that is, the law specifically exempts citizenship applications and you must declare everything). Whether the people who check and approve the application use the spent convictions bill as a guideline when evaluating whether your convictions disqualify you is something I suspect but don't know.

Pro Hoc Vice

Speedwell wrote: »

As an immigrant who plans to apply for citizenship in a couple of years, I am aware that the same question exists on the citizenship application, and the spent convictions bill does not apply (that is, the law specifically exempts citizenship applications and you must declare everything). Whether the people who check and approve the application use the spent convictions bill as a guideline when evaluating whether your convictions disqualify you is something I suspect but don't know.

Minor convictions are ignored currently but best to declare all. I have in the past seen a refusal because of a very minor road traffic offence and I mean very minor.

Little CuChulainn

So if an application asks if you have ever been convicted of a crime the Spent Convictions Bill allows you to make a false declaration in the application?

Pro Hoc Vice

Little CuChulainn wrote: »

So if an application asks if you have ever been convicted of a crime the Spent Convictions Bill allows you to make a false declaration in the application?

No it cannot be a false declaration if it is in fact spent. The act is so restrictive in reality it will have limited use.

Little CuChulainn

Pro Hoc Vice wrote: »

No it cannot be a false declaration if it is in fact spent. The act is so restrictive in reality it will have limited use.

But the question isn't "Do you have any convictions?" it's "Have you ever been convicted?" The answer to that is yes, no matter if it is spent or not.

Pro Hoc Vice

Little CuChulainn wrote: »

But the question isn't "Do you have any convictions?" it's "Have you ever been convicted?" The answer to that is yes, no matter if it is spent or not.

And if the conviction is spent then you can answer no.


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.


.....,,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.

The question have you ever been convicted would be covered by s.6.

Little CuChulainn

Pro Hoc Vice wrote: »

And if the conviction is spent then you can answer no.


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.


The question have you ever been convicted would be covered by s.6.

So it effectively allows you to lie.

Pro Hoc Vice

Little CuChulainn wrote: »

So it effectively allows you to lie.

No as its not a lie. By operation of law you never had a conviction as its now spent.

Little CuChulainn

Pro Hoc Vice wrote: »

No as its not a lie. By operation of law you never had a conviction as its now spent.

The law can't change an actual occurrence though. The matter of the conviction is a fact. If an employer did some research it would still be possible to find a record of it. The fact that it is now spent does not change the fact it existed. The legislation does not change the conviction, it just allows you to conceal it.

Speedwell

Remember that the question should be read from the point of view of the law. So in the case of the Part that Pro Hoc Vice quotes, the question as posed is short for, "Except for convictions that you are not obliged to disclose, have you ever been convicted?" Spent convictions are not available, as far as I know, to an employer search of the records unless the nature of the prospective employment falls within certain narrowly defined boundaries. Facebook and Google, of course, may yield information if it exists (say, in a newspaper at the time), but the offense is still spent.

When I was in the US, a boyfriend's sister was caught with a small amount of "someone else's drugs" in her possession. It would have been enough to have sent her to jail briefly, but she had a squeaky-clean record, was in college and had a job, and had people attest to her general good character otherwise. The judge exercised a "first offender" option and gave her unsupervised probation; in combination the sentence amounted to a statement of "if you stay off our radar for X months, for all intents and purposes you can legally pretend you were never convicted". She is not required to refer to the incident on job applications and such, and the record is sealed. The same state also allows certain convictions to be expunged, which means that the record is essentially wiped, but I don't know anything much about that.

Pro Hoc Vice

Little CuChulainn wrote: »

The law can't change an actual occurrence though. The matter of the conviction is a fact. If an employer did some research it would still be possible to find a record of it. The fact that it is now spent does not change the fact it existed. The legislation does not change the conviction, it just allows you to conceal it.

And if the employer discovers it years later and fires the person with out the act the person would have difficulty bring a case with the act the person would be successful.

Also the probation of offenders act 1908 after conviction dismisses the charge so is exactly the same. A lie requires a level of dishonesty none is legally present. If you disagree with the law advocate it's repeal.

Little CuChulainn

Pro Hoc Vice wrote: »

And if the employer discovers it years later and fires the person with out the act the person would have difficulty bring a case with the act the person would be successful.

Also the probation of offenders act 1908 after conviction dismisses the charge so is exactly the same. A lie requires a level of dishonesty none is legally present. If you disagree with the law advocate it's repeal.

I don't disagree with the law, I simply disagree with your interpretation of what it does. It does not get rid of your conviction, it simply allows you to conceal it. It has nothing to do with the Probation of Offenders Act so I'm not sure why you are bringing that up. Being legally allowed to do something does not make it an honest action either. The fact is the legislation allows you to legally answer a question with a falsehood.

Speedwell

Little CuChulainn wrote: »

I don't disagree with the law, I simply disagree with your interpretation of what it does. It does not get rid of your conviction, it simply allows you to conceal it. It has nothing to do with the Probation of Offenders Act so I'm not sure why you are bringing that up. Being legally allowed to do something does not make it an honest action either. The fact is the legislation allows you to legally answer a question with a falsehood.

Yes, and the marriage ceremony requires you to vow that you are taking the vows "for as long as you both shall live", and those vows are considered legal, despite the presence of the possibility of legal separation and divorce. "The law is a whore" for many reasons, only one of which is that "she smiles for the person with the most money".

You are scrupulous, and that's fine. The law is there to allow paladins like yourself and ordinary mortals such as the rest of us to rub shoulders in a mutually beneficial society of compromise and interdependence.

Pro Hoc Vice

Little CuChulainn wrote: »

I don't disagree with the law, I simply disagree with your interpretation of what it does. It does not get rid of your conviction, it simply allows you to conceal it. It has nothing to do with the Probation of Offenders Act so I'm not sure why you are bringing that up. Being legally allowed to do something does not make it an honest action either. The fact is the legislation allows you to legally answer a question with a falsehood.

And I disagree with your interpretation that it's a falsehood.

The reason I mention the probation of offender is that if section 1 is applied that is after conviction once it's applied the effect is the convicted person can act as if the conviction never happened as the matter is struck out.

Little CuChulainn

Speedwell wrote: »

Yes, and the marriage ceremony requires you to vow that you are taking the vows "for as long as you both shall live", and those vows are considered legal, despite the presence of the possibility of legal separation and divorce. "The law is a whore" for many reasons, only one of which is that "she smiles for the person with the most money".

You are scrupulous, and that's fine. The law is there to allow paladins like yourself and ordinary mortals such as the rest of us to rub shoulders in a mutually beneficial society of compromise and interdependence.

That analogy is not even close to being relevant.

Pro Hoc Vice wrote: »

And I disagree with your interpretation that it's a falsehood.

The reason I mention the probation of offender is that if section 1 is applied that is after conviction once it's applied the effect is the convicted person can act as if the conviction never happened as the matter is struck out.

We'll just have to agree to disagree so.

Speedwell

Little CuChulainn wrote: »

That analogy is not even close to being relevant.

If you think so, you're missing the whole idea. Of course, idealism is all well and good, but you're attempting to force your idealistic square peg into the practical round hole of the law.

Little CuChulainn

Speedwell wrote: »

If you think so, you're missing the whole idea. Of course, idealism is all well and good, but you're attempting to force your idealistic square peg into the practical round hole of the law.

You're equating a religious vow to a legal exemption. I'm not trying to force anything, I just think it should be seen for what it is, a legal exemption on the truth. And while it is effective in Ireland as it's legally protected, it may not be so effective or accepted outside of Ireland.

Pro Hoc Vice

Little CuChulainn wrote: »

You're equating a religious vow to a legal exemption. I'm not trying to force anything, I just think it should be seen for what it is, a legal exemption on the truth. And while it is effective in Ireland as it's legally protected, it may not be so effective or accepted outside of Ireland.

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.

Can I ask a question have you read the act?

Little CuChulainn

Pro Hoc Vice wrote: »

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.

Can I ask a question have you read the act?

Yes. Why did you feel the need to quote section 9 when it simply says in legal terms what I said in laymans terms?

Pro Hoc Vice

Little CuChulainn wrote: »

Yes. Why did you feel the need to quote section 9 when it simply says in legal terms what I said in laymans terms?

What you said "t may not be so effective or accepted outside of Ireland." as a matter of law it is not effective nor is it legally accepted outside of Ireland.

batistuta9

does this act allow all convictions (covered ones) to be spent or only one per section or just the one?

NUTLEY BOY

Little CuChulainn wrote: »

So it effectively allows you to lie.

The way I learned it in the UK context was that if a conviction was spent this allowed you to tell a factual lie but a legal truth. Hope this helps...

NUTLEY BOY

Pro Hoc Vice wrote: »

What you said "t may not be so effective or accepted outside of Ireland." as a matter of law it is not effective nor is it legally accepted outside of Ireland.

If the spent conviction was imposed in Ireland for an offence committed in Ireland are you not correctly entitled to answer in the negative anywhere in the world - in relation to Irish convictions - or is that entitlement confined to the jurisdiction of Ireland ?

Pro Hoc Vice

NUTLEY BOY wrote: »

If the spent conviction was imposed in Ireland for an offence committed in Ireland are you not correctly entitled to answer in the negative anywhere in the world - in relation to Irish convictions - or is that entitlement confined to the jurisdiction of Ireland ?

In my opinion section 9 says only applies in Ireland.

Kings Inns or bust

Interesting point there about a lie not being a lie. Personally I think it turns on whether they're asking about a spent conviction. Interesting semantics aside, which I'm sure will be clarified by eventual case law the result is the same and as Pro Hoc Vice has outlined (IMHO).

...__...

Maybe someone can clarify this,

(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.

Does that mean one sitting per say?
So if Mr X was charged with x,y,z all arising from the same incident (but what if something was later found etc? and he was charged with it at the same sitting and all offences resulted in one sentence) is this considered spent under s4

Like if I broke a window (I didnt) and I get charged for possession of a hammer and later get charged for damage to the window.

Pro Hoc Vice

...__... wrote: »

Maybe someone can clarify this,

(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.

Does that mean one sitting per say?
So if Mr X was charged with x,y,z all arising from the same incident (but what if something was later found etc? and he was charged with it at the same sitting and all offences resulted in one sentence) is this considered spent under s4

Like if I broke a window (I didnt) and I get charged for possession of a hammer and later get charged for damage to the window.

it will be up to the court to decide if the two or more charges arise out of one incident. If I was in court I would for the purpose of the act ask the judge to s/o all but one charge or take into consideration the extra charges to make it clear.

But it would seem in your example it would be the same incident.

batistuta9

batistuta9 wrote: »

does this act allow all convictions (covered ones) to be spent or only one per section or just the one?

Anyone on this?

Pro Hoc Vice

batistuta9 wrote: »

Anyone on this?

The act is clear as it says no more than one conviction. A conviction is a conviction it sets out clearly the only circumstance where multiple convictions from one incident will apply.

batistuta9

Pro Hoc Vice wrote: »

The act is clear as it says no more than one conviction. A conviction is a conviction it sets out clearly the only circumstance where multiple convictions from one incident will apply.

this part below you mean? it's not great either is it?

5.(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.

...__...

That is where my confusion comes in.
So for any number of offences if say 100 hours community service was applied all in one sitting. It counts as one conviction?

Kings Inns or bust

...__... wrote: »

That is where my confusion comes in.
So for any number of offences if say 100 hours community service was applied all in one sitting. It counts as one conviction?

100 hours community service would be the application of the probation act I believe, so no conviction. I welcome the correction of my admittedly extremely patchy knowledge on the subject.

However nit picking aside, let's say you got an €80 fine for pissing in the street, 2 weeks for pissing on the guard and ordered to pay €200 for pissing in the van. The totality of the pissing incident would be considered as one conviction for the purposes of the act.

Incidentally, any thought on whether the poor box is going to suffer as a result of this new act?

Pro Hoc Vice

Kings Inns or bust wrote: »

100 hours community service would be the application of the probation act I believe, so no conviction. I welcome the correction of my admittedly extremely patchy knowledge on the subject.

However nit picking aside, let's say you got an €80 fine for pissing in the street, 2 weeks for pissing on the guard and ordered to pay €200 for pissing in the van. The totality of the pissing incident would be considered as one conviction for the purposes of the act.

Incidentally, any thought on whether the poor box is going to suffer as a result of this new act?

100 hours CS is a conviction http://www.irishstatutebook.ie/eli/1907/act/17/enacted/en/print

When people talk about no conviction and Probation Act they are talking about section 1 of the above act usually 1 1 i

1.—(1) Where any person is charged before a court of summary jurisdiction with an offence punishable by such court, and the court thinks that the charge is proved, but is of opinion that, having regard to the character, antecedents, age, health, or mental condition of the person charged, or to the trivial nature of the offence, or to the extenuating circumstances under which the offence was committed, it is inexpedient to inflict any punishment or any other than a nominal punishment, or that it is expedient to release the offender on probation, the court may, without proceeding to conviction, make an order either—

(i) dismissing the information or charge; or


The important bit is (i) after the wording "the court may, without proceeding to conviction"

To impose CS the court would have to convict.

Kings Inns or bust

Many Thanks Pro Hoc Vice.

If I may impose further? Any other reading on the probation act off the top of your head?

Pro Hoc Vice

Kings Inns or bust wrote: »

Many Thanks Pro Hoc Vice.

If I may impose further? Any other reading on the probation act off the top of your head?

How do you mean? Sorry understand now! There should be some good articles on it but it's such a central part of criminal practice a good lesson in it is to visit local DC.

Pro Hoc Vice

http://m.herald.ie/news/courts/gardai-told-to-stop-calling-probation-act-a-conviction-27890365.html

...__...

I have to say I'm not in law but find it fascinating I love these kind of threads.

Speedwell

Pro Hoc Vice wrote: »

http://m.herald.ie/news/courts/gardai-told-to-stop-calling-probation-act-a-conviction-27890365.html

That's interesting. So the girl in my previous example (the one sentenced to first-offender unsupervised probation) had something analogous to the Probation Act applied to her; that is, it would not have been considered a "conviction" if it had all taken place in Ireland. Would she be required to put it down as a conviction if she were, say, to join me and my husband in Ireland and subsequently apply for citizenship?

Pro Hoc Vice

Speedwell wrote: »

That's interesting. So the girl in my previous example (the one sentenced to first-offender unsupervised probation) had something analogous to the Probation Act applied to her; that is, it would not have been considered a "conviction" if it had all taken place in Ireland. Would she be required to put it down as a conviction if she were, say, to join me and my husband in Ireland and subsequently apply for citizenship?

If there is supervised probation then conviction, preparation of a welfare report is a different matter again and is just a report from the probation service to assist the judge and finally if after sentence the probation service are involved then that is a conviction.

1. It runs like this the accused pleads or is found guilty.
2. The judge decides to apply s. 1 1 (i) and dismiss the charge no conviction, or
3. The judge asks for a probation report after getting that the judge can go and do point 2, or
4. The judge does anything including fine, suspended sentence, supervised probation, enters into a bond (that can sometimes be recorded as no conviction) once the judge does anything other than a simple dismiss or applies the probation act, then a conviction.

It is important to remember there is a would of difference between "probation" and "applying the probation act"

Peregrinus

Speedwell wrote: »

That's interesting. So the girl in my previous example (the one sentenced to first-offender unsupervised probation) had something analogous to the Probation Act applied to her; that is, it would not have been considered a "conviction" if it had all taken place in Ireland. Would she be required to put it down as a conviction if she were, say, to join me and my husband in Ireland and subsequently apply for citizenship?

The way the Irish legislation is framed, its only Irish convictions - i.e. convictions by Irish courts - that are spent.

Plus, under section 8 of the Irish Act, there are a couple of exceptions - circumstances in which you do have to declare even Irish convictions - and one of the exceptions is in connection with applications to enter or remain in the State, or applications for citizenship.

So, if the girl in your example, in connection with a visa/migration/citizenship requirement, is asked "have you ever been convicted?", then (a) she does have to declare any Irish convictions, and (b) she does have to declare any foreign court verdicts that amount to a conviction. The fact that similar circumstances in Ireland might have led the court to apply s. 1 of the Probation Act is irrelevant; what would matter is the terms of the foreign legislation which the court did apply. A verdict which treats her as a "first offender" does seem to imply that she has been found to have committed an offence, and provisions for the conviction to be "sealed" or "expunged" do seem to suggest that, yes, there is a conviction. So I'd say, yeah, strictly speaking she does have to declare that conviction in her application to the Irish authorities. But if the circumstances ever arise in real life a close study of precise terms of the legislation under which she was dealt with would be advisable; it might, on examination, prove to be sufficiently like s. 1 of the Probation Act that she could justifiably not declare it.

Speedwell

Peregrinus wrote: »

The way the Irish legislation is framed, its only Irish convictions - i.e. convictions by Irish courts - that are spent.

Plus, under section 8 of the Irish Act, there are a couple of exceptions - circumstances in which you do have to declare even Irish convictions - and one of the exceptions is in connection with applications to enter or remain in the State, or applications for citizenship.

So, if the girl in your example, in connection with a visa/migration/citizenship requirement, is asked "have you ever been convicted?", then (a) she does have to declare any Irish convictions, and (b) she does have to declare any foreign court verdicts that amount to a conviction. The fact that similar circumstances in Ireland might have led the court to apply s. 1 of the Probation Act is irrelevant; what would matter is the terms of the foreign legislation which the court did apply. A verdict which treats her as a "first offender" does seem to imply that she has been found to have committed an offence, and provisions for the conviction to be "sealed" or "expunged" do seem to suggest that, yes, there is a conviction. So I'd say, yeah, strictly speaking she does have to declare that conviction in her application to the Irish authorities. But if the circumstances ever arise in real life a close study of precise terms of the legislation under which she was dealt with would be advisable; it might, on examination, prove to be sufficiently like s. 1 of the Probation Act that she could justifiably not declare it.

Ha, yeah, it would make an interesting case for a bored solicitor, I suppose. I doubt she will ever want to come here, since things are going much better for her back in America, but I hadn't even been aware that there was such a thing as "first offenders" treatment in America, so the case fascinated me. Thanks.

Kings Inns or bust

...__... wrote: »

I have to say I'm not in law but find it fascinating I love these kind of threads.

You're an outlaw? Badum tish... :pac:

...__...

hahaha very good some real legalese.

simonsez

Little CuChulainn wrote: »

Pro Hoc Vice wrote: »

No it cannot be a false declaration if it is in fact spent. The act is so restrictive in reality it will have limited use.

But the question isn't "Do you have any convictions?" it's "Have you ever been convicted?" The answer to that is yes, no matter if it is spent or not.

think the form in question needs be edited or it any be out of date and brought in line with current legislation and allow for spent convictions...