JAMAICANS who have had criminal convictions expunged overseas should not assume their records will be automatically cleared at home, Government Senator Dr Dana Morris Dixon cautioned on Friday.

The warning was issued as the Senate debated and approved the Criminal Records (Rehabilitation of Offenders) Act that had already cleared the House of Representatives last December.

“Let me just note that there are many jurisdictions that do report to Jamaica and share information on convictions. The reality is that, from a policy standpoint, we had noted that there are many Jamaicans who are returning home, who are coming from jurisdictions where we really can’t really speak to their criminal justice system,” Morris Dixon said.

“And so the intent behind it is that we have these individuals returning to Jamaica with convictions; we don’t know what would have happened, the circumstances around it, but it does not give them an automatic expungement,” Morris Dixon explained.

“What the Bill says is that they may be considered,” she remarked while responding to concerns raised by Opposition senators Cleveland Tomlinson and Professor Floyd Morris.

Both senators had pointed to the possible unfairness of a person committing a crime overseas, having his/her record wiped clean in Jamaica, but the person committing the same crime in Jamaica not being able to benefit by way of expungement.

“It’s a case-by-case basis,” Morris Dixon explained. “It’s not that there is any wholesale attempt to say that if you committed a crime overseas and it’s expunged or not that you’ll automatically get it expunged [in Jamaica]. It is on a case by case — that’s been our basis for that and that’s been our policy intent.”

The Bill outlines the two-stage statutory regime for the expungement of criminal records. The first stage allows for a person who was convicted of an offence to be treated as rehabilitated, subsequent to the passing of the prescribed rehabilitation period, and for the conviction to be automatically treated as “spent”.

The second stage permits the rehabilitated person to apply to the Criminal Records (Rehabilitation of Offenders) Board to have the spent conviction expunged from his or her criminal record. However, for the board to grant the expungement it must be satisfied that the applicant has been, in fact, rehabilitated, and that there will be no prejudice to the interests of justice or national security by granting the expungement.

Morris Dixon, who acted as Leader of Government Business in the Senate on Friday, stated that, “The expungement of one’s criminal record affords the rehabilitated person who has paid their debt to society a second chance to pursue certain opportunities such as employment and residing overseas.”

She told the Upper House that while the second chance concept is, in theory, the main objective of the legislation, it has not been fully operationalised.

“Many applicants who have indeed paid their debt to society; who have benefited from reform, rehabilitation and training, have still been denied the expungement of their criminal records,” she pointed out.

“These unsuccessful applicants have indicated that, as a result, their standard of living has been negatively affected, which is an emotional and financial impediment,” Morris Dixon said.

Currently, the board cannot consider applications if the sentence imposed is for a term of imprisonment that exceeds five years. Morris Dixon said there have been instances in which people have been convicted of offences which are not particularly egregious but which still carry sentences that exceed five years. These include motor vehicle manslaughter, offences under the Malicious Injuries to Property Act, and offences under the Larceny Act.

“This limitation on the board’s discretion is believed to have partially resulted in an exponential increase in the number of refused applications,” she said, while noting that the proposed expansion of the board’s discretion to consider offences that carry sentences which exceed five years but are no more than 10 years, ought to result in an increase in the corresponding rehabilitation period.

As such, the rehabilitation period ought to increase from 10 to 12 years for people above the age of 18 years. Likewise, for people who are below the age of 18 years, the rehabilitation period ought to increase from five to eight years.

Another shortcoming that the amendments seek to address is the fact that the board is currently not guided by a list of factors to consider in its assessment of applications for expungement. The proposed list speaks to issues such as: the nature and gravity of the offence; the findings of a social enquiry report; a psychological evaluation of the offender; whether the offender has successfully completed a rehabilitation/resocialisation programme; whether the offender has accepted responsibility or demonstrated remorse for his/her crime; whether the offender has participated in restorative justice sessions; whether the offender has offered and/or paid restitution to the victim (where relevant); the age of offender at the time he/she committed the crime for which he/she was convicted; and whether the offence is one for which there are international obligations that limit or bar its expungement, among others.

With the anticipation that the proposed increase in the remit of the board will result in an increase in the number of applications it receives, membership of the board will increase from the current five to a minimum of seven, and a maximum of nine.

Meanwhile, the question of whether a public education campaign will be launched to sensitise Jamaicans about the provisions of the Bill, once the law is gazetted, was raised by Government Senator Rose Marie Bennett-Cooper.

Morris Dixon said such an exercise will be undertaken. “And it is going to be important, because I know a lot of people are going to be excited about this amendment but don’t realise it may not be relevant in their case. So we will have to ensure that we speak to Jamaicans about it, and sensitise them, and let them know what is to come, what’s the process, what has actually changed,” the minister said.