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Don't blacklist murder from expungement

Published:Sunday | August 31, 2014 | 8:00 AM
Eavean Hylton, GUEST COLUMNIST
Relatives of inmates gather outside the Tower Street Adult Correctional Centre in Kingston with food, clothing and toiletries. Eavean Hylton says even murder should stand up to scrutiny for possible expungement from criminal records.-Norman Grindley/Chief Photographer
Senator Marlene Malahoo Forte has been criticised for advocating that murder should have the potential of being expunged from criminal records. -CONTRIBUTED
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Criminal Records bill: one more step

The Ministry of Justice has rightfully placed before Parliament a bill titled the Criminal Records (Rehabilitation of Offenders) Act 2014 with the objective being, among other things, automatic expungement and the introduction of rehabilitation periods for young offenders.

The bill has received a measure of attention on account of the proposals that it makes in respect of expungement for persons caught with small quantities of marijuana. However, listening to the limited discussions on the bill, you could be excused for thinking that the bill only deals with that aspect of reform, which is not the case.

The Office of the Public Defender (OPD) does welcome the necessary reform as several provisions have outlived their usefulness. The issue is one of general public importance, as we must recall that the criminal record of a person is part of that person's private life as outlined under the Jamaica Constitution. The State has a legitimate interest (protection of the public) in ensuring that it has a good database showing those who have been convicted of offences, but the aim must be achieved by the enactment of a bill that is proportionate.

Mindful of the objectives of the bill, as expressed by the minister of justice, and knowing that we have a statutory obligation to help in the protection of human rights, the OPD, having looked at the issues, has published its position in a paper titled Rehabilitation of Offender: A Fairer and More Open Process, which we have shared with some members of the legislature and it is available on our website.

Admittedly, some of the ideas that we have advanced might seem radical and some might interpret them as being soft on ex-offenders, which they are not.

REFORMS

One of the key reforms that we have advanced in our position paper is that the bill should contain a provision that repeals the current appeal to the minister from the Criminal Records (Rehabilitation of Offenders) Board, and be replaced by a statutory right of appeal to the Supreme Court of Judicature. This right of appeal will be on a point of law, and must be made by the applicant within 30 days of the board's decision being communicated to him or her.

The board is mandated under the act to consider applications from persons who take the view that having served what is known as the rehabilitation period, their criminal past should be removed from their police record (expunged). If the board rejects the application made to it, the disappointed person can reapply within 24 months, but should the board reject the application the second time, the citizen does have a right to appeal to the minister.

The minister, who hears appeals from its decisions, selects the members of the board. This should sit uncomfortably with those who believe in the concept of fairness, especially when it is noted that what the minister is looking at when considering an appeal, as set out by the statute, is whether the board had failed to consider relevant factors. The process creates, in the mind of the objective observer, the appearance of bias, in an application that can determine whether or not a person enjoys his private life. A statutory right of appeal is a far more Charter of Rights-compliant procedure, as it serves to create a system that is independent of the minister.

review period

Second, the OPD submits that the legislature give serious consideration to the creation of a review period (for example, 15 years or a variety depending on the offence) for those offences for which it is said, at Schedule Three of the Bill, that expungement may never be granted. In practical terms, by this legislative requirement, the citizen will have a right (upon application) to have his criminal record reviewed with the hope that the record will be expunged.

It is correct that in some Commonwealth jurisdictions, the fact that you were convicted of certain specified offences (murder) means that it will always be on your criminal record. However, the OPD is recommending that we implement a different approach, one that gives persons the privilege to know that there is a possibility of them being able to make representations to the board. We believe that having a blanket preclusion of certain offences is unfair and in time can be found to be non-compliant with the Charter of Rights.

There is also the urgent need to give serious consideration to the provision of specific factors that will guide the Criminal Records (Rehabilitation of Offenders) Board in its assessment as to whether an applicant should be granted an expungement. The current statutory guidance offers a very general diet, which, we say, is inadequate for modern decision making. Without the presence of predetermined factors, the likelihood of bias or the perception of bias increases when we have decisions that are not guided by specific factors. It is our opinion that outlining the factors to be considered will lead to transparency, objectivity and consistency in the board's decision-making process which, ultimately, redounds to the benefit of the integrity of the decision-making process. The process will be enhanced and an adverse decision will be less susceptible to appeal.

The legislature has done well thus far with this bill, but we at the Office of the Public Defender are encouraging an even more seismic shift. The bill can go much further without compromising the legitimate aim of public protection, and right-thinking Jamaicans would support such an outcome.

Eavean Hylton is an investigator at the Office of the Public Defender. Email feedback to columns@gleanerjm.com.