Sun | Apr 22, 2018

Expungement of criminal records - What's all the fuss about?

Published:Sunday | October 5, 2014 | 12:00 AM

Shena Stubbs-Gibson, Contributor

We have heard much talk in recent times about the Criminal Records (Rehabilitation of Offenders) Act being amended, but what does it all mean for Jamaicans with criminal records?

Most readers are already aware that certain criminal records can be expunged; however, few are clear on what the recent changes will signal for the future. In this week's column, we will look briefly at the changes heralded by the approval of the amendments to the Criminal Records (Rehabilitation of Offenders) Act (the amended act, hereafter referred to as 'the act').

Background

Before the changes recently approved in parliament, persons convicted of certain criminal offences could make an application to the Ministry of Justice for the expungement of their criminal records. A criminal record can be a hindrance to obtaining a job, locally or overseas, getting a visa, etc, and as such, many persons are glad to take advantage of the opportunity to have their criminal convictions expunged from the record books for all times.

In making the application to the ministry, the applicant would be asked to provide certain information, such as the date of his/her conviction and the offence convicted for. Additionally, the applicant would have to submit his/her fingerprints with the required, completed application form, and pay a modest fee.

To qualify for expungement, however, the offence for which the applicant was convicted had to have fallen into one of the categories listed under the 1988 Criminal Records (Rehabilitation of Offenders) Act (hereafter referred to as the 1988 act) and the conviction must have been "spent".

A "spent conviction" in this context meant that a "rehabilitation period" had to expire before the record of the conviction could be capable of being expunged. A "rehabilitation period" should not be confused with an "imprisonment period", as the rehabilitation period is in addition to any prison term served and is applicable even where the sentence did not include a prison term. The rehabilitation periods under the 1988 act ranged from three to 10 years on sentences ranging from fine with no prison term, to a prison term of up to three years.

New Amendments

With the passage of the act, the application process should largely remain the same; however, the category of eligible offences has been redefined, as have the relevant "rehabilitation periods". Under the act, the applicable "rehabilitation periods" for persons over 18 years of age is the same as under the 1988 act save as follows:

❐ On sentences of six to 18 months: seven years (as compared to eight years under the 1988 act)

❐ On sentences of 19 to 36 months: seven years (as compared to 10 years under the 1988 act)

❐ On sentences in excess of 36 months to five years: 10 years (this category was not eligible for expungement under the 1988 act).

An interesting addition to the act is that where a person has been convicted of an offence to which the act applies, but that person was under 18 years of age at the time that the offence was committed, the applicable "rehabilitation periods" shall be:

❐ Where the sentence did not include a prison term: 18 months

❐ On sentences for less than six months: 30 months

❐ On sentences for more than six months but not exceeding 36 months: 42 months

❐ On sentences exceeding 36 months but not exceeding five years: five years.

Because the applicable sentencing period under the act has been increased from three to five years, without more, this would have opened the door for several serious offences to now become capable of being expunged. This outcome, however, has been thwarted by introducing a 'Third Schedule' in the act, which contains a comprehensive list of offences for which expungement will not be possible. As National Security Minister Peter Bunting has said, the majority of persons who will benefit from the amendments to the act will be those who are/were convicted for ganja-related offences.

Nevertheless, the act also goes on to provide that persons who have been convicted on three or more times of certain types of offences (including certain offences under the Dangerous Drugs Act) shall not be entitled to be treated as a "rehabilitated person" as of the third conviction.

It should be noted that possession of ganja under Section 7C of the Dangerous Drugs Act is not included in this restriction, and as such, it should stand to reason that a third or fourth conviction for possession of ganja should not, in and of itself, prevent an applicant from being deemed "rehabilitated".

Finally, we welcome the caveat to the provision that offences under Section 10 of Sexual Offences Act will not be eligible for expungement. The caveat makes it possible for a person who was convicted for having sex with a person under 16 years to apply for expungement of the record if able to satisfy the reviewing board, among other considerations, that the sexual act was "consensual" (in the sense of not obtained by force or duress) and that the applicant was, at the time of the act, less than four years older than the victim.

We welcome the caveat because it is bad enough that young men (for the most part, it's males who are convicted) are liable to be convicted for having sexual intercourse with equally young girls, but at least those young men now will not have to be subjected to living their adult lives with the label of "sex offenders" hanging over their heads.

Shena Stubbs-Gibson is an attorney-at-law and legal commentator. Send feedback to: Email: shena.stubbs@gleanerjm.com and follow on Twitter: @shenapat.