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Criminal Record?


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Just wondering can anyone offer any advice on the following.

I have a friend who's in the process of applying for a E2 Visa to go and work in Asia. As part of his VISA requirements, he has to get a police background check done. Unfortunately, though he was arrested once back in his rebelliousness youth around six or seven years ago. The case went to court but it was thrown out and he didn't receive a caution or anything of the sort. The whole case took a matter of minutes.

He's a little worried though that this will show up on his background check, thus denying him the chance of a VISA. Does his arrest mean that he has a criminal record? Will it be reported on the background check?

I've done a search on the net about this and the definition of a criminal record seems to vary from country to country. Also, I can find little in relation as to what exactly constitutes a criminal record in Ireland. In other words, does it solely mean a conviction or does it include an arrest. As an aside, I thing this area of law is quite an interesting one although a grey one from what I can tell.

I've told him that he has probably nothing to worry about but it would be great if anyone here could offer any advice in relation to the issue.
 

beanie

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His best bet would to be to ask his local Gardai, I'm sure they would oblige and check it out for him.
 

seanmacc

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I've been arrested on four occasions (3 political and one other incident involving impersonation of a garda, long story) and used to bump into special branch officers "randomly" around the place. My Green Card in the States required a police cert and I had no problem obtaining one. I sent my owl fella down to the local district pig pen, as my face was too well known there and they had no problem doing one up on my behalf on production of my birth cert.
It simply reads "For the information of the US consular authorities, Seanmacc has not been convicted of a crime in the republic of Ireland." Go for it. If one pig pen says no try the next one.
 
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His best bet would to be to ask his local Gardai, I'm sure they would oblige and check it out for him.
It's a catch 22. I don't think he wants to draw too much attention to himself by asking too many questions of the local Gardai. Someone may remember him :D

In any case, when he went to the local Gardai, they told him that they do not process background checks. Instead, he was referred to the Gardai Vetting Unit in Thurles and at the moment, he's in the process of trying to get a background check done there. Apparently, the whole process can take over a month.

What exactly constitutes a criminal record apart from a conviction itself is an interesting one? And even in the case of convictions (misdemeanours) - is that enough too to deny VISAS for some countries.

Surely P.ie has some lawyers who can help us out or even a few posters from the criminal fraternity who may or may not know these things ;)
 
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Watching that passport control t.v. documentary series set in Australia there was a young chap who admitted having served time for drug offences way back and after several hours the Aussies let him through as he had been clean since. He did not mention the old crime on his visa application, but did on the "landing form" as I call it passengers are given while still in flight.

Asia is a big place though. You could ring the embassy of the country your friend is visiting and ask them for their advice, keeping it anonymous of course.
 
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I've been arrested on four occasions (3 political and one other incident involving impersonation of a garda, long story) and used to bump into special branch officers "randomly" around the place. My Green Card in the States required a police cert and I had no problem obtaining one. I sent my owl fella down to the local district pig pen, as my face was too well known there and they had no problem doing one up on my behalf on production of my birth cert.
It simply reads "For the information of the US consular authorities, Seanmacc has not been convicted of a crime in the republic of Ireland." Go for it. If one pig pen says no try the next one.
How long ago was that? I think things may have tightened up a little with this Garda Vetting Unit, thingy me jiggy. Also, has the US not tightened up on immigration post 9/11.

For the purposes of an E2 visa, it catergorically states that one must not have a criminal record. So the two pertinent q's are; does an arrest, a court appearence but no conviction constitute a criminal record. Secondly, will the arrest show up on the background check? If it does, he's then purely at the mercy of the immigration authorities at the respective country and their rules and regulations in relation to entry.
 

seanmacc

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How long ago was that? I think things may have tightened up a little with this Garda Vetting Unit, thingy me jiggy. Also, has the US not tightened up on immigration post 9/11.
I started the immigration process in the US in 2006 and got the Green Card 2007 (since got pissed off with the place and came home). All of my run ins with Garai happened between 2002 and 2005. There's no criminal record unless you're sentenced by a judge. What they have on you on PULSE cannot be legally used against you.
 

beanie

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Would you tell us about the impersonating a garda? Sounds funny.
 
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Watching that passport control t.v. documentary series set in Australia there was a young chap who admitted having served time for drug offences way back and after several hours the Aussies let him through as he had been clean since. He did not mention the old crime on his visa application, but did on the "landing form" as I call it passengers are given while still in flight.

Asia is a big place though. You could ring the embassy of the country your friend is visiting and ask them for their advice, keeping it anonymous of course.
Yes, it mighn't be a bad idea to do that. I think he's holding out on the fact that the arrest will not be reported on his background check.

If it does, I think he's been hard done by. Whatever happened to actual innocence never mind presumption of innocence. If someone has no convictions, their criminal record should be clean. However, from the research, I've done into this so far - in some countries an arrest alone can mean that you have a criminal record.
 

Mitsui

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I'm speaking in legal ignorance here, but surely having a criminal record means you've been convicted of a crime?

Otherwise everyone who's ever been arrested for any reason whatsoever would have one, even if the arrest was a mistake or the case never came to court. That would cause bureaucratic nightmares!

Common sense (at least) suggests that it all hinges on conviction - it is, after all, a criminal record, and while arrested people are presumably always suspects, only convicted people can sanely be classed as criminals.
 
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I started the immigration process in the US in 2006 and got the Green Card 2007 (since got pissed off with the place and came home). All of my run ins with Garai happened between 2002 and 2005. There's no criminal record unless you're sentenced by a judge. What they have on you on PULSE cannot be legally used against you.
Cheers Seanmacc, this info will help allay his fears. He's a harmless sort of a fella and I hope it works out for him.

As an aside, he did have a court appearance but as I've said no conviction, fine or caution. Did you not have any court appearance from any of them incidents?
 

seanmacc

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Would you tell us about the impersonating a garda? Sounds funny.
Oh how I'd love to have the time to type it. Long story involving a group of drunken eejits, a garda uniform and a make shift Garda checkpoint in North County Dublin. Would of been even funnier if the arresting garda didn't look us up on PULSE, see a couple of us were Sinn Fein activists, call in the special branch and after hours of interrogation where they tried to use he offenses against the state act against us we walked away with a caution and not the mandatory 7 years for membership of an illegal organisation.
 
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I'm speaking in legal ignorance here, but surely having a criminal record means you've been convicted of a crime?

Otherwise everyone who's ever been arrested for any reason whatsoever would have one, even if the arrest was a mistake or the case never came to court. That would cause bureaucratic nightmares!

Common sense (at least) suggests that it all hinges on conviction - it is, after all, a criminal record, and while arrested people are presumably always suspects, only convicted people can sanely be classed as criminals.
Yes, Mitsui, common sense would dictate that. But if you research into the matter - for the purpose of a VISA for some countries, you'll be asked specific questions like ; have you ever come to the attention of Garda? in addition to statements that an arrest can constitute a criminal record in the eyes of the respective immigration authorities.

It's getting late but I'll go now and try and dig out links to the aforementioned VISA restrictions.
 

seanmacc

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Cheers Seanmacc, this info will help allay his fears. He's a harmless sort of a fella and I hope it works out for him.

As an aside, he did have a court appearance but as I've said no conviction, fine or caution. Did you not have any court appearance from any of them incidents?
I didn't have a court appearence but I have been a major pain in the hole for the Gardai on several occasions. If the case was thrown out it can't be used against you but you may still have a PULSE record. Don't worry about that record, if they refuse on the grounds of that appearance that was thrown out, a quick call o the ombudsman would sort it out in a couple of hours. When it comes to police certs they just write them, I doubt they'll even check
 
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Police Certificate of Character-Information from CitizensInformation.ie

Citizeninformation - A "Police Certificate of Character" is a statement about you issued by the Gardai. The certificate, which is normally valid for one year, states your name, address, date of birth and also includes information about whether or not you have a criminal record or have ever come to the attention of the Gardai in Ireland.

You can only get a Police Certificate in certain circumstances. They are issued when required by Consular Authorities and foreign Adoptions Boards. For example, Police Certificates of Character are often required before you can apply for a visa to visit or travel to other countries.


Moral turpitude - Wikipedia, the free encyclopedia

Moral turpitude is a legal concept in the United States that refers to "conduct that is considered contrary to community standards of justice, honesty or good morals."[1]
It is of great importance for immigration purposes, as only those offenses which are defined as involving moral turpitude are considered bars to immigration into the U.S.

The first question on document I-94W for those visiting the U.S. on the Visa Waiver Program asks:

Have you ever been arrested or convicted for an offense or crime involving moral turpitude or a violation related to a controlled substance; or been arrested or convicted for two or more offenses for which the aggregate sentence to confinement was five years or more; or been controlled substance trafficker; or are you seeking entry to engage in criminal or immoral activities?

An arrest that does not lead to a conviction causes a person to be inadmissible to the United States if that arrest was for an offense or crime involving moral turpitude.


There are just two links. It's late and my net connection is crawling, so I'll post up other links tomorrow.

In relation to the citizen link, it states that the fact that you have come to the attention of Gardai at some point - it can come up on your police certificate of character. In the eyes of some Asian countries this mark alone can constitute a criminal record and be enough to deny one an E2 VISA for that particular country.

In relation to the second link, yeah, I know it's wikipedia but as I've said before it's late!.

The moral turpitude thing though and what exactly constitutes moral turpitude is quite interesting.
 
Last edited:

Andrew49

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AndrewSB49
I'm speaking in legal ignorance here, but surely having a criminal record means you've been convicted of a crime?

Otherwise everyone who's ever been arrested for any reason whatsoever would have one, even if the arrest was a mistake or the case never came to court. That would cause bureaucratic nightmares!

Common sense (at least) suggests that it all hinges on conviction - it is, after all, a criminal record, and while arrested people are presumably always suspects, only convicted people can sanely be classed as criminals.
All true. Being arrested is not the same as being convicted of a criminal record.
 

corelli

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If your "friend" was not convicted, he has no criminal record. If the Gardai say otherwise you can sue the pants off them. If they want to know did you ever come to the attention of the Gardai, thats another matter.
 
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Andrew and Corelli – yep, it’s true that in the true sense of the word that unless you have a conviction that you have a no criminal record. However, what I’m trying to say is that the definition of a criminal record can go beyond this and is in the eye of the beholder. Each country has its own definition and this is particularly true in relation to work visas. In addition, what we may consider as minor offences here in Ireland can take on a whole different meaning in another country. For instance, if you’re looking for a work permit in Thailand, try telling them that you were once fined for the possession of a minor drug and see where that gets you

Basically the key point is what does it say on a background check? For some Asian countries it states that in order to acquire a visa that your criminal background check must come back 'clear'. As such, even if your background check says arrested but cleared of charge/charges, it simply means to the countries immigration authorities in question that you do not have a ‘clear’ record and a visa will be denied. Some person in some office somewhere will not care as to the exact circumstances but will simply view your record as not being 'clear' regardless of any qualifications.

As such, what I’m trying to get at is will an arrest be placed on ones certificate of character from the Gardai or will it simply say no convictions recorded.

As an aside, Correli, when you describe coming to the attention of Gardai as being entirely another matter - by this do you mean serious matters. For instance, the Gardai have reason to believe that you're a drug dealer etc?


This area of criminal law is quite an interesting one. In the case of minor convictions, Ireland is one of the few countries in the world that does not have legislation to expunge minor offences from the record after a certain period of time;

http://www.lawsociety.ie/documents/committees/hr/conference_papers/Bronagh Maher.pdf

As such and at present a minor offence in Ireland by someone in the folly of their youth can hang like a millstone around their neck in terms of employment etc. The above report though does state that 52% of employers in Ireland would employ someone with a criminal record. Sorry but I find that statistic hard to believe and I think that in reality this would be lower.

In any case, we should have legislation in place in Ireland so that people can expunge certain sentences after a certain time period. The law reform commission made a recommendation for such legislation and when Brian Lenihan was Minister for Justice this was being mooted and a bill was subsequently put forward but it seems to have disappeared of the radar since.

Dil ireann - Volume 639 - 09 October, 2007 - Other Questions. - Proposed Legislation.


Does anyone know what on earth happened to the spent convictions bill? The last two references that I can find to the bill are these two links;

Spent Convictions Bill a welcome first step ? Ó Snodaigh | Sinn Féin

Minor offenders need more help to escape spectre of past crime - The Irish Times - Tue, Apr 28, 2009 -

“The Spent Convictions Bill proposes a scheme which would allow people who have been convicted of an offence which resulted in a fine or penalty, no imprisonment or imprisonment of less than six months, to have the conviction declared “spent” after five or seven years”.


Call for criminal convictions to be 'spent' - The Irish Times - Fri, May 15, 2009

Since then, nada, nothing, has this bill been parked or even dropped?
 
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evergrain

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If your "friend" was not convicted, he has no criminal record. If the Gardai say otherwise you can sue the pants off them. If they want to know did you ever come to the attention of the Gardai, thats another matter.
True, but I found this thread after returning from a holiday only to be 'mildly' harrassed on the way through passport control by a Garda who commented on the info on his screen that said I had been caught with €2000 of drugs (a crazy overestimation by the Gardai) in 1999. This was true, but I think this was info on PULSE, which is something most people aren't aware of - a computer system used by the Gardai to record ANY KIND of event they see fit, including for example being stopped on suspicion of anything, even if not charged or brought in - it is not a 'record' but still this is viewable by the Gardai (or anyone in passport control?)

My annoyance is that even though this was something well and truly in the past for me, 13 years ago, it is still viewable and can be cause for discrimination against me. Will I be stopped if I try go on holidays in the US? I really hope not, as it is my plans for the near future. I think it's an outrage that this kind of info can stay on any kind of record, and for how long??? I did 250 hours of community service (was my first offence) and I have not offended since. How long will this be held over me?
 
D

Dylan2010

Oh how I'd love to have the time to type it. Long story involving a group of drunken eejits, a garda uniform and a make shift Garda checkpoint in North County Dublin. Would of been even funnier if the arresting garda didn't look us up on PULSE, see a couple of us were Sinn Fein activists, call in the special branch and after hours of interrogation where they tried to use he offenses against the state act against us we walked away with a caution and not the mandatory 7 years for membership of an illegal organisation.
lol. what was your inner voice telling you at the time?
 
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