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A BILL
ENTITLED
AN ACT to Amend the Criminal Records (Rehabilitation of Offenders) Act.
[ ]
BE IT ENACTED by The Queen's Most Excellent Majesty, by and with the advice and consent of the Senate and House of Representatives of Jamaica, and by the authority of the same, as follows:
1. This Act may be cited as the Criminal Records (Rehabilitation Shorttit1e and
of Offenders) (Amendment) Act, 2014, and shall be read and construettou.
construed as one with the Criminal Records (Rehabilitation of Offenders) Act (hereinafter referred to as the "principal Act") and all amendments thereto.
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Amendment of 2. Section 2 of the principal Act is amended bysection 2 of principal Act. (a) deleting the definition of "specified offence" and sub
stituting therefor the following
"specified offence" means-
(a) any offence specified in the Third . Third Schedule; and Schedule.
(b) any offence to which, having regard to the sentence imposed, section 3 does not apply;";
(b) deleting the full stop appearing at the end ofthe definition of "spent conviction" and substituting therefor a semicolon; and
(c) inserting next after the definition of "spent conviction" the following definition
" "suspended sentence" has the meaning assigned to it in section 2 of the Criminal Justice (Reform) Act. ...
Amendment of 3. Section 3 ofthe principal Act is amended-section 3 of principalAct. (a) by deleting subsection (3) and substituting therefor, the
following
" (3) Subject to sections 6 and 9, this section
(a) shall apply in relation to any offence for which a person is convicted where the sentence imposed by the court
(i) does not include a term of imprisonment; or
(ii) if it includes a term of imprisonment, that tenn does not exceed five years; and
(b) shall not apply to any offence specified in Third the Third Schedule."; and Schedule.
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(b) in subsection (8), by deleting from paragraph (a) the
words "three years" and substituting therefor the words
"five years",
4. Section 5 of the principal Act is repealed and the following Repeal and ' ed th c. replacement of
SUbstItut erelOI'- section S of principal Act
"Rehabilitation 5. Where a person is convicted of an offence to periods for h' h' I' d h persons of W IC sectIon 3 app les an t e person was eighteen or 'h f th· tha hmore years of elg teen or more years 0 age at e tIme t t e age. offence was committed, the applicable
rehabilitation period with respect to that conviction
shall be determined as follows
(a) where the sentence imposed is a sentence
described in section 3(3)(a)(i), the
rehabilitation period shall be three years;
(b) where the sentence imposed is a sentence
described in section 3(3)(a)(ii), the
rehabilitation period shall be
(i) five years, if the term of
imprisonment is for a period
not exceeding six months;
(ii) seven years, if the term of
imprisonment is for a period
exceeding six months but not
exceeding thirty-six months;
and
(iii) ten years, if the term of
imprisonment is for a period
exceeding thirty-six months but
not exceeding five years.".
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Inscnion of afte . new soetion . 5. The principal Act is amended by inserting next r section SA into 5, the following-principalAct.
"RchabilitatioD SA. Where a person is convicted ofan offence to periods for which section 3 applies, and the person was under persons under the age eighteen years ofage at the time that the offence ofeiPtcen years. was committed, the applicable rehabilitation period
with respect to that conviction shall be detennined as follows
(a) where the sentence imposed is a sentence described in section 3(3)(a)(i), the rehabilitation period shall be eighteen months;
(b) where the sentence imposed is a sentence described in section 3(3)(a)(ii), the rehabilitation period shall be
(i) thirty months, if the term of imprisonment is for a period not exceeding six months;
(ii) forty-two months, ifthe term of imprisonment is for a period exceeding six months but not exceeding thirty-six months; and
(iii) five years, if the term of imprisonment is for a period exceeding thirty-six months but not exceeding five years.".
Amendmentof 6. Section 7 ofthe principal Act is amended by inserting next section 7 of after subsection (2), the following-principal Act.
" (3) Where the sentence imposed on any person for an offence that is not a specified offence is a suspended
s
sentence, the rehabilitation period shall commence on the earlier of the following dates, that is to say
(a) the date on which the sentence of imprisonment would have terminated had the court not granted a suspended sentence; or
(b) the date oftermination ofthe operational period (as defined ~ section 6 ofthe Criminal Justice (Reform) Act) ofthe suspended sentence, unless the person is convicted ofanother offence during the operational period ofthe suspended sentence, in which case the provisions of section 9 (l) shall apply.".
7. Section 16 ofthe principal Act is repealed and the following Repeal and
substituted therefor- rcpl~tofsection 16 of
" Inter 16. In this Part, "records" means the records principalAct
pretation. kept and maintained in the Criminal Records Office in relation to the conviction of any person for a criminal offence or such other records as may be prescribed." .
8. Section 17 of the principal Act is repealed. Repeal of section 17 of principal Act.
9. Section 20 ofthe principal Act is repealed and the following Repealand
substitute9 therefor- rcpl~entofsection 20 of
.. Eligibility 20. Subject to section 20A, a rehabilitated principal Act. ofrebabili person may, upon the expiration ofthe rehabilitation tated person to apply to period, make an application to the Board for the the Board expungement from the records of a spentfor expunge-
conviction." . ment,
10. The principal Act is amended by inserting next after section Insertion of
20 the following- new ~ection , 20Amto
.. Restrictions 20A.--{1) Where a person has been convicted principal Act.
on eligibility. of three or more
(a) indictable offences arising out ofmore than one incident; or
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(b) summary offences, all of which involved an offence under the Dangerous Drugs Act (other than an offence under section 7C (possession .of ganja) where the sentence imposed on convictionofthe offence was a fine not exceeding one thousand dollars or such other amount as the Minister may by order prescribe, or an offence under section 7D( c) (possession of pipes or other utensils) or 7D(d) (smoking or other use ofganja)),
the person shall as of the third such conviction, notwithstanding that the applicable rehabilitation period may have elapsed in relation to any ofthose convictions, be dealt with in accordance with subsection (2).
(2) A person described in subsection (l) shall not be eligible
(a) to be treated as a rehabilitated person in respect of any of the convictions referred to in subsection (1), neither shall any of those convictions be capable ofbeing treated as spent;
(b) to apply forthe expungement from the records of any other conviction that has already become spent; or
(c) to be treated as a rehabilitated person in relation to any subsequent conviction, neither shall any subsequent conviction be capable of being treated as spent.
(3) Notwithstanding the provisions of the Third Schedule, where a person has been convicted under section 10 ofthe Sexual Offences Act (sexual
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intercourse with person under sixteen years ofage) and that conviction is one to which section 3 of this Act applies
(a) the person shall after the applicable rehabilitation period, be eligible to apply to the Boardfor the expungement from the records of that conviction; and
(b) pursuant to section 23, the person shall, in the course ofthe application, be required to tender to the Board such evidence as the Board may require so as to satisfY itself, with regard to the offence, that the person
(i) was not in a position of trust or authority towards the other party, and the other party was not in a relationship of dependency with the applicant;
(ii) did not use, threaten to use or attempt to use violence, intimidation or coercion in relation to the other party; and
(iii) was less than four years older than the other party,
and the Board shall not approve the application for expungement unless it is satisfied that the requirements of sub-paragraphs (i) to (iii) have been met.
(4) Where the conviction of a person is expunged consequent upon the Board being satisfied in the manner specified in subsection (3), then with effect from the date of the Board's
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direction for expungement, the person's registration, reporting, notification or other obligations arising in relation to that conviction under Part vn ofthe Sexual Offences Act and any regulations made thereunder shall cease, and the Board shall, in writing, notify the Registrar ofthe Sex Offender Registry accordingly.
(5) In this section, "other party" means the person with whom the convicted person engaged or attempted to engage in sexual intercourse.".
Insertion of 11. The principal Act is amended by inserting next after section new section 28 the following28Ainto principal Act. .. Automatic 28A.--{I) Subsection (2) applies to a person
::"WIJC- (in this section referred to as a "specified person") convicted of an offence under a prescribed enactment or prescribed provision ofan enactment, any ofthe following provisions of the Dangerous Drugs Act (whether the conviction was before or after the coming into operation of the Criminal Records (Rehabilitation of Offenders) (Amendment) Act, 2014
(a) an offence under section 7C (possession of ganja), where the sentence imposed on conviction ofthe offence is a fine not exceeding one thousand dollars or such other amount as the Minister may by order prescribe; or
(b) an offence under section 7D(c) (possession of pipes or other utensils) or 7D(d) (smoking or other use of ganja).
(2) Subject to subsection (3), a specified person shall be entitled to the expungement from the records of any conviction referred to in
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subsection (1) whether or not the rehabilitation period with respect to the conviction bas expired.
(3) On receiving an application for expungem~t of any conviction referred to in subsection (1), the Board sball, unless it is satisfied that the conviction was not for an offence falling within subsection (1), issue a direction that the conviction be expunged from the records which direction shall be treated as one made in accordance with section 23.
(4) The Minister may prescribe the procedure and any other details necessary for automatic expungement under this section.
(5) For the purposes of subsection (1) "prescribed" means prescribed by the Minister, by order subject to affirmative resolution.".
12. Section 30 ofthe principal Act is amended
(a) by inserting, next after subsection (1), the following-
AlIICIIIIImeDtof scdion30of principIIAd.
" (IA) A credit bureau within the meaning of section 2 ofthe Credit Reporting Act commits an offence if it knowingly discloses any specified information in any credit report or credit infonnation it provides under thatAct.";
(b) in subsections (2) and (3), by inserting, immediatelyafter the words "subsection (I)" wherever they appear, the words. "or (1A)" in each case. '
13. Section 32 ofthe principal Act is amended- Amcadmcntof secd00320f
(a) in subsection (1), by deleting the words "ten thousand" principalAd.
and substituting therefor the words "one million";
(b) in subsection (2), by deleting the words "one thousand" and substituting therefor the words "one hundred thousand".
10
Insenion of 14. The principal Act is amended by inserting next after section newsection35 34 the following as section 35into principal Act.
.. Power of 35. The Minister may, by order subject to Minister to affirmative resolution, amend-amend Third Schedule and (a) the Third Schedule; or monetary penalties. (b) any monetary penalty imposed by this
Act.",
Insenion of 15. The principal Act is amended by inserting next after the new Third Schedule into Second Schedule the following-principalAct. .. THIRD SCHEDULE (Section 3)
Offencesfor which Convictions may not be Expunged
1. Murder.
2. AnyoffencelU1dersection2,3 or40fthe Treason Felony Act.
3. Any offence under section 3 or 10 of the Malicious Injuries to Property Act.
4. Any offence under section 37, 39, 40, or 42A of the Larceny Act.
5. Any offence under the Firearms Act, other than an offence under section 11, 12 or 14.
6. AnyoffenceundersectionS, 13, 14, 15, 16,17,20,33, 69 or 70 of the Offences Against the Person Act.
7. Any offence under section 3, 5, 6, 7, 7A, S, SA, 9, 11, or 21Aofthe Dangerous Drugs Act.
S. Any offence lU1der section 4 ofthe TrqfJicking in Persons (Prevention, Suppression and Punishment) Act.
9. Any offence under section 10 of the Child Care and Protection Act.
-----
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10. Any offence under section 3. 4. 5. 7, 9. 10 (subject to section 20AofthisAct), 11. 13, IS, 16, 17. 18, 19,20 and 21 ofthe Sexual Offences Act.
11. Treason.
12. Any offence under section 3. 4, 5. 6, 7, 8, 9, 10, 11 or 12 of the Law Reform (Fraudulent Transactions) (Special Provisions) Act.
13. Any offence under section 3, 4, 5,6, 7, 8,9. 10, 11 or 12 ofthe Terrorism Prevention Act.
14. Any offence under section 3, 4. 5 or 7 of the Child Pornography (Prevention) Act.
15. Any offence under the Criminal Justice (Suppression ofCriminal Organizations) Act.".
16. The Dangerous Drugs Act is amended
(a) in section 7C, by
(i) renumbering the existing provision as subsection (1) ofsection 7C; and
(ii) inserting immediately after subsection (1) as renumbered, the following
" (2) Notwithstanding subsection (1). no conviction for the offence ofpossession of two ounces (0.057kg) or less of ganja, or such other amount as the Minister may by order prescribe, shall be recorded on the criminal record ofthe offender.";
(b) in section 7D, by
(i) renumbering the existing provision as subsection (1) ofsection 7D; and
-----~-~-----------~
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(ii) inserting immediately thereafter the following as subsection (2}
" (2) Notwithstanding SQbsectioD: (1), no conviction for an offence under subsection (l)(c) or (d) shall be recorded on the criminal record ofthe offender."',
Transitional. 17. The provisions ofthe principal Act as amended by this Act shall apply in respect ofany conviction to which section 3 of the principal Act applies notwithstanding that the conviction may have occurred before the date ofcommencementofthis Act.
Passed in the Honourable Senate this 4th day 'of July 2014 with nine (9) qmendments.
A. BROWN-BURKE Deputy President.
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MEMORANDUM OF OBJECTS AND REASONS
The Criminal Records (Rehabilitation of Offenders) Act provides that qualified offenders who complete their sentences and thereafter do not reoffend for a specified period are to be regarded as 'rehabilitated' at the end of that period (the "rehabilitation period") and their convictions considered to be 'spent'. Where a conviction is spent, the offender cannot for most purposes be required to disclose the spent conviction and cannot be prejudiced by it.
The applicable rehabilitation periods vary, depending on the length of the sentence imposed. However, the Act also provides for an additional rehabilitation period, which is equivalent to the rehabilitation period. It is only at the end ofthis additional rehabilitation period that the offender is eligible to apply for his or her spent conviction to be expunged from the records.
This situation is considered unduly onerous, as the possession ofa criminal record significantly impedes the offenders' ability to secure employment, and hinders both travel abroad and access to educational opportunities. Further, some convictions that presently cannot, based on the offences to which they relate, quality to become spent are now considered suitable for being made amenable to possible expungement.
The Bill seeks to abolish the additional rehabilitation period, thereby enabling offenders to apply sooner for expungement of spent convictions from the records. The Bill further seeks to fix the rehabilitation periods for persons under the age of eighteen years at half of the rehabilitation period applicable to persons who are eighteen years of age or older. It also seeks to increase, from three years to five years, the term of imprisonment which a sentence imposed by a court must not exceed in order for the conviction to which the sentence relates to be within the scope of the Act.
The Bill also makes provision
(a) for automatic expungement of convictions for certain minor ganja related offences; and
(b) that a conviction for a minor offence ofpossession of ganja, where the fine imposed is one thousand dollars (or such other amount as may be prescribed), or for smoking ganja, shall not be entered on the criminal record of the offender.
MARK J. GOLDING
Minister of Justice
ABILL
ENTITLED
AN ACT to Amend the Criminal Records (Rehabilitation of Offenders) Act.
As passed in the Honourable Senate.
PRINTED BY JAMAICA PRINTING SERVICF.'1 (992) LTD"
(GOVERNMENT PRINTERS~ DUKE STREET, KINCiSTDN. JAMAICA.
SECTIONS 2 AND 3 OF THE CRIMINAL RECORDS (REHABILITATION OF OFFENDERS) ACT WHICH IT
IS PROPOSED TO AMEND
I. In this Act
" the Board" means the Criminal Records (Rehabilitation ofOffenders) Board established in accordance with section 18;
"specified offence" means-
(a) say offence specified in the Schedule to the Finger Prints Act; and
(b) any offence to which, having regard to the sentence
imposed, section 3 does not apply;
"spent conviction" means any conviction treated as a spent conviction
under section 3.
3.-(1) Subject to the provisions of this Act, a person who (whether. before
or after the 30th day of September, 1988) has been convicted ofan offence to which this section applies shall, at the expiration of the appropriate
rehabilitation period, be treated as a rehabilitated person in respect of the conviction for that offence and, for the purposes of this Act, the conviction
shall be treated as a spent conviction.
(3) This section shall apply. subject to sections 6 and 9 in relation to any offence for which a person is convicted where the sentence imposed by the court
(a) does not include a teno of imprisonment; or
(b) if it includes a tenn of imprisonment, that teno does not exceed
three years.
(8) Subsection (6) shall apply to the following punishments-
(a> a tenn of imprisonment for a period not exc.eeding three years;
ii
SECTION S OF THE CRIMINAL RECORDS (REHABR.ITATION OF OFFENDERS) ACT WHICH IT
IS PROPOSED TO REPEALAND REPLACE
S. Where the sentence imposed for an offence to which section 3 applies is
(a) a sentence prescribed in subsection (3) (a) of that section. the rehabilitation period shall be three years;
(b) a sentence prescribed in subsection (3) (b) of that section. the rehabilitation period shall be
(I) ,five years, if the term of imprisonment is for a period not exceeding six months;
(Ii) eight years, if the term of imprisonment is for a period exceeding six months but not exceeding eighteen months, and
(iii) ten years, if the term of imprisonment is for a period exceeding eighteen months but not exceeding three years.
SECTION 7 OF THE CRIMINAL RECORDS (REHABR.ITATION OF OFFENDERS) ACT WHICH IT IS PROPOSED TO AMEND
7.-{1) Subject to subsection (2), the rehabiliation period applicable to an offence shall commence from the date of the termination. of the sentence of imprisonment. or the payment of fine, or the compliance with any condition of sentence imposed in respect of that offence, as the case may be.
(2) Where in respect of a conviction for an offence an order is made imposing on the person convicted more than one penalty for that offence, the rehabilitation period shall commence on the date on which all the penalties are satisfied; and for the purposes ofthis subsection ifany such penalty includes disqualification. disability or prohibition. that aspect of the penalty shall be deemed not to be satisfied until the disqualification. disability or prohibition (as the case nay be) ceases.
SECTION 16 OF THE CRIMINAL RECORDS (REHABR.ITATION OF OFFENDERS) ACT WHICH IT IS PROPOSED TO REPEAL AND
REPLACE
16. In this Part
", the records" means the records kept and maintained by the Criminal Records Office in relation to the conviction of any person for a criminal offence or such other records as may be prescribed;
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" additional rehabilitation period" means a period of
(a) three years beginning on the date oftermination of the rehabilitation period where the relevant rehabilitation period is specified under section 5 (a);
(b) five years beginning on the date of termination of the rehabilitation period where the relevant rehabilitation period is specified under section 5 (b) (i);
(c) eight years beginning on the date of termination of the rehabilitation period where the relevant rehabilitation period is specified under section 5 (b) (ii);
(d) len years beginning on the date of termination of the rehabilitation period where the relevant rehabilitation period is specified under section 5 (b) (iii).
SECTION 17 OF THE CRIMINAL RECORDS (REHABILITATION OF OFFENDERS) ACT WHICH IT IS PROPOSED TO REPEAL
17.-{1) Where, during the additional rehabilitation period applicable to a spent conviction, a person is convicted ofa further offence then the additional rehabilitation period shall cease to have relevance under this Act and the spent conviction shall become incapable of being expunged from the records.
(2) where proceedings against the convicted person in respect of another offence are incomplete at the time when the additional rehabilitation period applicable to the conviction would but for the provisions of this subsection have expired
(a) the additional rehabilitation period shall be incapable of expiry while such proceedings are incomplete unless the proceedings have been adjourned sine die and remain so adjourned for a period ofat least three years;
(b) the additional rehabilitation period shall be deemed to continue until the preceedings are completed or the period of three years referred to in paragraph (a) has elapsed, whereupon subsection (1) shall apply.
SECTION 20 OF THE CRIMINAL RECORDS (REHABILITATION OF OFFENDERS) ACT WHICH IT IS PROPOSED TO REPEAL AND
REPLACE
20. A rehabilitated person may, upon the expiration of the additional rehabilitation period, make application to the Board for the expungement from the records of a spent conviction.
iv
SECTION 30 OF THE CRIMINAL RECORDS (REHABILITATION OF OFFENDERS) ACT WHICH IT IS PROPOSED TO AMEND
30.-(1) Subject to the provisions ofthis Act, any person who, in the course ofhis duties, bas, or at any time bas bad custody o( or access to, any official record or the information contained therein, shall be guilty of an offence i( knowing or having reasonable cause to suspect that any information he bas obtained in the course of those duties is specified information, he discloses it. otherwise than in the course of those duties, to another person.
(2) In any proceedings for an offence under subsection (1), it shall be a defence for the defendant to show that the disclosure was made-
(a) 10 the rehabilitated person or to another person at the express request of the rehabilitated person;
(b) to a person whom he reasonably believed to be the rehabilitated person or to another person at the express request of a person whom he reasonably believed to be the rehabilitated person.
(3) No proceedings for an offence against subsection (1) shall be instituted except by or with the consent ofthe Director ofPublic Prosecutions.
SECTION 32 OF THE CRIMINAL RECORDS (REHABILITATION OF OFFENDERS) ACT WHICH IT IS PROPOSED TO AMEND
32-(1) A person who commits an offence under section 14 (5), 30 or 31 shall be liable on summary conviction before a Resident Magistrate to a fine not exceeding ten thousand dollars and iii default thereof to a term of imprisonment not exceeding two years.
(2) A person who commits an offence under section 15 shall be liable on summary conviction before a ~ident Magistrate to a fine not exceeding one thousand dollars and in default thereof to a term of imprisonment not exceeding one year.
SECTION 7C AND 7D OF THE DANGEROUS DRUGS ACT WHICH IT IS PROPOSED TO AMEND
7C. Every person who bas in his possession any ganja shall be guilty ofan offence and
(a) on conviction before a Circuit Court shall be sentenced to a fine or to imprisonment for a term not exceeding five years or to both such fine and imprisonment; or
(b) on suinmary conviction before a Resident Magistrate, shall be liable-- .
(i) to a fine not exceeding one hundred dollars for each ounce of ganja which the Resident Magistrate is
v
satisfied is the subject-matter of tbe offence, so, however, that any sucb fine shall not exceed fifteen thousand dollars; or
(ii) to imprisonment for a term not exceeding three years; or
(iii) to both sucb fine and imprisonment
7D. Bvery person who
(a) being the occupier of any premises knowingly permits those premises to be used for the smoking ofganja; or
(b) is concerned in the D18JI88eDlent of any premises whicb he knows is being used for sucb purpose as set out in paragrapb (a); or
(c) has in his possession any pipes or other utensils for use in connection with tho smoking of ganja; or
(d) smokes or otherwise uses ganja,
shall be guilty ofan offence and shall be liable on summary conviction before a Resident Magistrate. in the case of a first conviction for such offence, t() a fine not exceeding five thousand dollars or to imprisonment for a term not exceeding twelve months, or to both such fine and imprisonment, and in the case of a second or subsequent conviction for such offence, to a fine not exceeding ten thousand dollars or to imprisonment for a term not exceeding two years or to both such fine and imprisonment.
