Dismissed case still showing up on my records

Margarette MACAULAY

Monday, August 12, 2019

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Dear Mrs Macaulay,

I was arrested about four years ago for the crime of uttering forged documents. The case was dismissed (or so I thought) but I am seeing it appear on background check receipts from employers (call centres). This is grounds for immediate termination. Apparently my arrest records are seen as a conviction and employers have told me that regardless of the status, it would need to be cleared completely.

I was arrested in June 2015 and released on bail the following month and then had the case dismissed. Since then I have been trying to find gainful employment according to my strengths so that I can be a productive member of society, but now I'm hitting roadblocks at every turn.

Is there a way to clear my arrest record without having to go through the tedious efforts of expungement? Or considering that there wasn't a conviction, is there a faster way? And is there some form of paperwork that I could use in the meantime that would allow me to work until the clearing of my record is completed? Also, is uttering forged documents a felony or misdemeanor? And is it expungeable?

I was charged initially with attempting to obtain money by false pretence, but the results of the background check came back stating 'uttering forged documents'. Which of the two is the bigger charge? The offence took place in St Thomas and I now live in Montego Bay.

Finally, I have a family member who is a member of the constabulary, and she says that she is unable to see a record for me. Why is that?

The contents of your letter relate an unfortunate situation which happens quite often. It seems that at the time of the dismissal of the charge against you no application was made to the judge for your fingerprints to be destroyed. You have not stated whether you were being represented, which generally ensures that such an application is made. People who are charged and appear in person, that is to say for themselves, too often take chances with their futures. It is always better to be represented or at least obtain legal advice on the charge and also ask questions of the court. For instance, if you had asked what the dismissal of your charge meant and whether there was anything you should do to clear your name, this may and should have reminded the judge and the clerk, if your fingerprints had been taken, that they should be destroyed.

After you found out that the record of your charge was appearing on background checks done by employers, did you go to the Police Records Office to have them check your records? It seems not, and this you must do as this is where you will obtain a conclusive result if in fact your fingerprints were taken and preserved. This is the only thing that would make any sense. The fact of a charge having been proffered against you would not result in any record of it unless your fingerprints were taken and preserved, even after the charge was dismissed by a judge.

Your employers would be wrong to conclude that a charge amounts to a conviction. Such a conclusion would mean that they are ignoring the right and principle of “innocent until legally found guilty”. As you were never convicted, you are an innocent person. You must remember, however, that you have no proof that the charge was in fact dismissed by a judge in court. You never applied for an certified copy of the order made by the judge. All you have is your word saying so, but this is not legal or acceptable proof.

You ask if there is a way to clear your arrest record. The process of expungement does not and cannot arise because you were never convicted of any offence and that offence which took you to the court was dismissed. This should have put you back in the position of a person who had never been charged. But the fact of the charge is still over your head.

So how can you clear this up? Well, you have to first check your record at the Records Office and get the results in writing, if they find you on the criminal records. Then you must go to the court where the charge was dealt with and explain you situation and say that you want to make an application to the court to re-list your case and also to apply to the court to make a declaration that the charge was dismissed on the date that it was, and (if your fingerprints are indeed in the system), that they be destroyed and your record thereby made clean as it ought to have been from the date of the dismissal of your charge.

The reason why you have to go the court's office and explain all this to them is that it will help you greatly for your file to be found and for you to obtain a copy of the backing sheet which ought to show the dismissal of your charge. You will need the copy of your record from the Records Office and also of the court backing sheet to exhibit in your affidavit, which you must file in support of your application. This will take a little time, but not too long, for the matter to be fixed for hearing. I would suggest that you ask for assistance from the clerks at the court's office, or better yet, that you obtain the services of an attorney-at-law to prepare the application for you and assist you with the hearing. This will be in your best interests, even though it may cost you some money; after all it is for your record to be cleared so you will not be hampered with finding employment or remaining in any employment you receive.

You ask if 'uttering forged documents' is a felony or misdemeanor and if it is expungeable. The answer is that under section 35 (1) of the Larceny Act, it is a misdemeanor, and if there was a conviction, yes it could be expunged at the end of the statutory rehabilitation period pursuant to the Act — the Criminal Records (Rehabilitation of Offenders)Act. But expungement is not relevant for you because you were not convicted. For this to apply you must have been convicted and sentenced and have served or paid your sentence and the rehabilitation period must have passed.

Generally, an attempt to commit an offence is a less serious change than the actual commission of the offence. That of uttering forged documents to obtain some benefit could fall under section 35 (2) of the Act and this also would be a misdemeanor. But I cannot really answer your last question definitively because I do not know what the particulars of these offences were, which you refer to. You see, it is the particulars which would inform about the details of the statement of the offence charged and from which one can determine the seriousness of the charge. I do not have these and do not wish to mislead you and the public.

The only way that you can clear your name legally is to do as I have outlined. The checks which I suggest you do, you MUST do at the Records Office and the court's office and stop being lazy and relying on what 'people' tell you. This advice I have given you is the legal tried and true way to make assurance about proving the dismissal of the charge which you were facing and to make sure that the purported record or assertion of one doesn't follow you and destroy your chances of succeeding in being securely employed.

So it is up to you to act in your own best interests and use the legal procedure to restore your good name.

Good luck.

Margarette May Macaulay is an attorney-at-law, Supreme Court mediator, notary public, and women's and children's rights advocate. Send questions via e-mail to allwoman@jamaicaobserver.com; or write to All Woman, 40-42 1/2 Beechwood Avenue, Kingston 5. All responses are published. Mrs Macaulay cannot provide personal responses.

DISCLAIMER:

The contents of this article are for informational purposes only, and must not be relied upon as an alternative to legal advice from your own attorney.


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