After reading an article written within a national newspaper, we noted that a well-regarded columnist has been advising the public incorrectly regarding their duty to disclose previous convictions to insurers.
The Criminal Justice (Spent Convictions and Certain Disclosures) Act 2016 states otherwise. This Act came into force in April 2016 some four months prior to the publishing of the article. Under this act it has taken some 40 plus years for Ireland to follow the UK, but since April 2016 Ireland now has a similar version of the Rehabilitation of Offenders Legislation – the Criminal Justice (Spent Convictions and Certain Disclosures) Act 2016.a
The main element this Act now brings is that many offences are deemed to be “spent” after seven years. If the offender after that, with some exceptions may say or act as if they had not been convicted and basically does not have to disclose this fact.
What does not have to be stated, so that you still follow insurers requirements of “Duty to Disclose”?
Naturally convictions can be anything from Murder to parking fines, some are more serious that others, the new act is aimed at the less serious end of the convictions.
The act does not cover imprisonment for 12 months or more from a court higher that the District Court, any offence held within the Central Criminal Court, any sexual offence and suspended sentences of 2 or more years.
Other rules that must also be considered, with some important exceptions, only one offence can be spent. If an offender has multiple convictions for different incidents they must disclose. One of those exceptions is all bar one of the Road Traffic offences. The one offence that is the exception to that exception is, Dangerous Driving. The other classes of offences where multiple offences can be spent are public order and possession of alcohol offences, which are less serious than drink or drug driving. The Act does not allow a person convicted of insurance fraud to not disclose this matter.
What does this change?
A spent conviction, or the circumstances ancillary to it (for example the behaviour that led to it or the penalty imposed) does not have to be disclosed in most circumstances, and that includes a proposal for insurance. A proposer with a spent conviction can answer “no” to questions like “have you ever had a criminal conviction” without any consequences. With such complexity, an offender might not know whether or not their offence is spent. It is possible that a proposer with a spent conviction, despite the law allowing them not to, accidentally disclose their offence. What does a broker or insurer do about spent offences that are disclosed? For clarity, the Act does not prohibit anyone from acting on a disclosed but spent conviction, it simply prohibits any liability or prejudicial effect of not disclosing it. Indeed, the Act specifically allows that a person may still want to make such a disclosure.
For insurers and intermediaries, fairness and the principles of acting in the customer’s interests, enshrined in the Consumer Protection Code, can be used as a guideline. Whether the disclosure is accidental or not, it is not in a customer’s interest to be denied cover or should pay a higher premium because they mentioned an offence they were not required to. It is incumbent on intermediaries not to pass on accidental disclosures, and insurers not to act on them.
What about non-disclosure of an offence that should have been disclosed prior to the Act being actioned, do you have to now disclose?
If at the time of its discovery the offence was spent, then it is spent. To withdraw cover would be imposing a liability on the policyholder that is now illegal.
Customers should at least be warned that certain offences do not need to be disclosed, intermediaries don’t have to disclose accidental disclosures and insurers need to review what they have done in the past.
All that aside, and to the original question, should the Media columnist’s providing advices to the masses now have to meet the same Minimum Competency Code like all the other professionals working in the industry?