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Thursday, 10 December 2009

Old convictions soon to be spent?

Waay back in March I mentioned that Victoria doesn't have a spent conviction scheme (aside from the ten-year limit on alleging Children's Court criminal histories, currently in Crimes Act s 376(4), and from 1 January 2010, in Criminal Procedure Act 2008 s 3 under the definition of previous conviction).

I think most, if not all, States and Territories (aside from Victoria) and the Commonwealth have a spent-convictions scheme. They're gaining favour because of the effect convictions can have on travel and employment. Stephen Warne also has a useful post on criminal records on the Australian Professional Liability Blog.

The UK Supreme Court blog has two interesting articles that raise some of the issues associated with spent-convictions schemes.

The first deals with police records of spent convictions and their disclosure to prospective employers. The second concerns a recently decided appeal about Enhanced Criminal Record Certificates, which seem to be similar to Victoria's Working With Children Checks.

In November 2007, the Standing Committee of Attorneys-General announced the release of a Model Spent Convictions Bill.

I can't find anything concrete on the Victorian Government's plans for this, but it's hard to believe our reformist Attorney-General will miss such an opportunity. So we might well see a Bill to implement some or all of model scheme, either next year or after the next election (subject to electoral vicissitudes).

Coincidentally, the UK's Home Office just recently published a report, Publicising Criminal Convictions, which argues for greater disclosure not less. I suspect that's part of the political law-and-order tussle occurring over there right now.

For my own part, I'm not sure where to draw the line between keeping and disclosing past convictions or considering them spent. I can see arguments for and against. After all, sentencing occurs in courts open to the public. (See for example Magistrates' Court Act s 125, which gives meaning to the great aphorism, "Justice should not only be done but should manifestly and undoubtedly be seen to be done," from R v Sussex JJ; Ex parte McCarthy [1924] 1 KB 256 at 259.) But that doesn't necessarily mean that court records resulting from that are necessarily public documents: Herald & Weekly Times Ltd v Magistrates' Court of Victoria (2000) 2 VR 346.)

But I do think that spent conviction schemes should not apply inside the court room, because they can deny sentencers the full range of information they ought to have when determining an appropriate penalty.

For example, it's settled law that a mature first-offender of previously good character is entitled to rely on that in mitigation of their punishment.

If a person has, in fact, previously been convicted but that conviction is 'spent' and not put before the sentencer, then the offender receives the same benefit as a genuine first-time offender despite their previous offending.

However, the model Bill drafted by SCAG accounts for that, providing in cl 3 of Schedule 2 (Exclusions) that the provisions about disregarding spent convictions and not disclosing them does not apply to proceedings before a judicial authority. That's appropriate, IMHO.

Wonder if we'll see this in Victoria in the near future?

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