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Ask Buachaill Your Own Question
Buachaill, Lawyer
Category: Republic of Ireland Law
Satisfied Customers: 10528
Experience:  Barrister 17 years experience
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Buachaill, The Rehabilitation of offenders act 1974 (i.e.

Customer Question

Hi Buachaill,
The Rehabilitation of offenders act 1974 (i.e. England & Wales) has clearly stated the scope/level of voluntarily discourse of unspent convictions when applying for financial services ; it has further detailed the scope of compulsory disclosure when applying for travel visas/ other services. And this applies to international/domestic convictions.
As far as I am concerned, the Probation Act 1907 (i.e. Republic of Ireland) has not specifically defined the level of voluntarily disclosure in relation to international convictions. In addition, the Irish Driving Authority does not recognize penalty points/convictions obtained from overseas jurisdiction saved for the areas which fall under the mutual recognition system.
Thus, the legal advice which I would need to seek is when applying for financial services within the Republic of Ireland, does one need to disclosure unspent/spent convictions from Overseas Jurisdiction? I understand the position when applying for visas / special jobs which includes the question of “ Have you been convicted in the ROI/ overseas/aboard?”, but what about disclosure of unspent convictions from an overseas jurisdiction when applying for legal services? What is the legal position?
Thank you for your time on the above matter.
Submitted: 1 year ago.
Category: Republic of Ireland Law
Expert:  Buachaill replied 1 year ago.

1. When applying for financial or legal services in Ireland, one needs only to make reference to unspent foreign convictions. There is no need to refer to spent convictions as here it is the law of the place where the offence occurred which determines the effect of that conviction. A spent conviction under UK law for instance, does not become a criminal offence just because you are in Ireland. So if a conviction becomes spent in UK law, then there is no need to refer to it when filling in an Irish form. It also means that under Irish law, it is more advantageous to have been convicted of misdemeanours in the UK than in Ireland, where there is still no such thing as a spent conviction, although legislation along these lines is proceedings through the Irish Dail or Parliament.

Customer: replied 1 year ago.
Buachaill, thank you for your reply.My question remains that the caculation of spent conivictions in accoradance with the Rehabilitation Act 1974 applies only in England & Wales and I felt that the term " make reference" is ambiguous provided that it is different to " legal requirement ".At the moment, I am in the progress of applying Insurance services/ other financial services in the Republic of Ireland , Am I under a legal duty to complusarily disclose any unspent non-motoring foreign convictions? If there was indeed a legal duty, which Sections of the Irish Law Acts require me to comply? If I failed to comply with the duty of disclosure, what are the legal consequences?Once again, I thank you for your time on this matter.
Expert:  Buachaill replied 1 year ago.

2. I don't know where you are getting the idea that Irish law does not recognise the Rehabilitation of Offenders Act and that it does apply to English crimes. Irish law only applies to Irish crimes. There is no such thing or idea or practice as Irish law setting aside the effect of the Rehabilitation of Offenders Act on English criminal offences. So spent English criminal offences do not have to be disclosed in Ireland. Similarly, you are under a duty to disclose unspent foreign offences and convictions. Finally, if you don't disclose, there is no penalty apart from that which applies to giving a false declaration.

Customer: replied 1 year ago.
Buachaill,The reasoning behind of why I had the impression of the scope of the Rehabilitation of Offenders Act 1974 ( England & Wales) does not apply in Ireland is because I am not aware of any mutual recognition system which exists between the two countries. From the official information of the Crown Prosecution Services UK , the existing mutual recognition system only applies within the arena of driving disqualifications (i.e. Section 31 of the Criminal Justice And Courts Act 2015) which explains why any penalty points which were incurred on the UK driving license are currently not recognised by the Irish Driving Licensing Authority in the event of a "UK to Irish" Driving License Application.During my previous experiences of seeking legal advices, I was given references in respect of the Law/ Act which I need to follow. And the question I would appreciate an answer is a question of law, when was the mutual recognition system of the Rehabilitation of Offenders Act 1974 introduced between the Republic of Ireland and the UK? What are the legal foundations of false declaration had the mutual recognition system not been formally introduced?Overall, my intention is not to breach the Irish Law and I would really appreciate an answer from you over my question of Law with supported Legal Evidences. And I cannot thank you more for your time in answering my "1" & "2" question.Kind regards
Expert:  Buachaill replied 1 year ago.

3. Absent crime of genocide and such like under public international law, all crimes are territorially based. However, in the recognition by one legal system of the crimes of another legal system, it is to the lex tori, or law of crimes or to the proper law of the crime that the law of one country such as Ireland looks in order to determine the effect of the crime and its significance in the domestic legal order. Accordingly, in Ireland, under conflicts of law rules, we look to the lex tori or the proper law of the crime in order to determine the effect of the crime. Accordingly, in Irish law, where a crime has been committed in England & Wales, the Irish courts look to the law of the place where the crime has been committed or lex tori or proper law of the crime in order to determine the effect of the conviction. Accordingly, if a conviction is "spent" under English law, then that is how Irish law treats it. There is no need for a system of mutual recognition for crimes and their effect to be recognised. It is in this regard, that your opinions are not correct. There is no need for a system of mutual recognition for the Rehabilitation of Offenders Act to have effect. It is simply the general rules of conflicts of law which apply.