Does he have a criminal record?

All Woman

Dear Mrs Macaulay,

In February 2020 a dear friend of mine was arrested and charged for illegal possession of an offensive weapon, resisting arrest, disorderly conduct and assault occasioning bodily harm. In the following month he made his first appearance in court in which the complainant didn't show. My friend pleaded guilty for the first and second charges and not guilty for the third and fourth charges, so he was issued a date to reappear in court in May 2020. At his appearance in May, the complainant told the court that he wasn't pursuing the matter any further. My friend paid a fine of $5,000 in total for the first and second charges, and the third and fourth were dismissed. He wasn't fingerprinted, so I'm wondering if he now has a criminal record. He is interested in travelling, but it's stressing him out not being sure if he has a record or not, and if this will affect his being eligible for a visa.

Your enquiry for your dear friend is very interesting and I am happy to respond to it.

The first day of appearance is generally when an order is made for the accused's fingerprints to be taken. You state that his fingerprints were never ordered to be taken. This clearly slipped the attention of the judge and the clerk in the court on both the first and second appearances.

Anyway, on the second appearance, sentences were imposed for two offences which amounted to a total of $5,000. From the pronouncement by the judge that he pleaded guilty, to the offence of having been in illegal possession of an offensive weapon, he became convicted of this offence and the fine was his sentence. The same applies to the second offence of resisting arrest. Then the judge accepted the position of the complainant and dismissed the last two offences.

From these decisions, your dear friend acquired two convictions and a sentence. His fingerprint not having been taken only relates to that added certainty for the purposes of identification — it does not mean that he does not have a criminal record. He pleaded guilty to the first two offences and the pleas were accepted by the judge, which means that he was convicted of those offences. In the Criminal Records (Rehabilitation of Offenders) Act, which was amended in 2014, “sentence” is defined as including any order, but not one dismissing the case, made by a court relating to a conviction which directs for something to be done or not to be done. The thing he was directed to do was to pay the total fine ordered for the offences he was convicted of based on his guilty pleas. He obtained his criminal record then.

The Act also defines “the records” as meaning “the records kept and maintained by the Criminals Records Office in relation to the conviction of any person for a criminal offence or such other records as may be prescribed”. You see, that is what is recorded — the conviction at the court for the offence, and what date, and what sentence was imposed, and on what date this commenced. In the case of a fine, what date it was paid must also be entered, because this is the date the rehabilitation period starts to run. It is the details relating to the conviction which need to be recorded, and the absence of his fingerprints does not mean that his convictions are not in the records.

So I am sorry to say that your friend must therefore wait until his rehabilitation period expiries before he can apply under the Act for his record to be expunged from the records to enable him to go through the process of applying for the necessary visas to enable him to travel abroad. In his case, pursuant to the Criminal Records (Rehabilitation of Offenders (Amendment) Act 2014, his rehabilitation period, since his sentence did not include a term of imprisonment, is three years. The Criminal Records Office, pursuant to the Act, must keep a separate record of all spent convictions and must ensure that there is a clear indication on the criminal record of any person that the conviction has become spent for the purposes of the Act.

I hope I have made the situation clear for your dear friend. These types of consequences can be avoided if people will just stop to think before physically attacking others, or using an implement or weapon (except in defence of themselves or their loved ones or employees) against others, and thereby assaulting and/or causing them bodily (actual or grievous) harm, and finding themselves in court and with a conviction. There are always other ways to settle a dispute — violent attacks do not have to be used at all.

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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