I want to clear MY NAME

Dear Mrs Macaulay,

I would like to know how to get my name cleared, because I have to get a criminal record for a job. I was involved in an altercation with a woman. No physical harm was done, only a pane of glass was broken. I was, however, charged with two offences: wounding and destruction of property. I pleaded not guilty, but could not afford a lawyer. I never went to jail, nor was I fingerprinted, but was fined a large sum of money or prison time. I paid the money and was told that I would not be able to do anything until six months to a year. This happened at the Christiana courthouse in Manchester. Now I am seeking employment and I am afraid that this will hinder my chances. What can I do?

The problem which you wish to solve is covered by the Criminal Records (Rehabilitation) Act 1988 and the 2014 amendment of the same Act. It is by this Act that you can apply to have your conviction for what is described as ‘spent convictions’ cleared from your police record.

From what you state in your letter with regard to the two offences for which you were charged, it seems that they were misdemeanors and not felonies. You also stated that you were fined a large sum of money (I do not quite know what you mean by this as it would be a relative judgement) or as you put it, prison time. Again, you didn’t say for how long. I trust that the prison term was not longer than five years and would be very shocked if it was, for the offences that you stated.

As your prison sentence was an alternative to the fine imposed upon you, and assuming that it was for a period less than six months, then you would fall under the amended Act and be permitted to apply for your record to be expunged after your rehabilitation period required under the Act. This is after 30 months have expired from the date of the commencement of the sentence, which in your case would be the date it was imposed.

So after you have calculated 30 months, you can apply to the Criminal Records (Rehabilitation of Offenders) Board in writing for them to expunge your criminal record. In your application you must state your full name and age; the offence for which you were convicted; the correct and exact sentence imposed by the court; the date and place of your conviction; the court before which you were convicted; and the date on which you completed your sentence — this would be the date you paid your fine.

You would add 30 months from that date for the date your conviction became a spent one and you must add this final date and say that this was when it became a spent conviction. You may also add some other written representation or references from other persons to support the fact of your rehabilitation in order to strengthen your application.

After the board receives your application, it will direct that the proper investigation be made to check the facts you have stated in your application, and, if necessary in their view, they will investigate your behaviour from the date of your conviction.

The personnel in the office of the board will check your application on its delivery and assist you with any other document which you ought to have included. You will be informed of the result of the board’s consideration of your application whether in the affirmative or in the negative. If it is in the negative, then you can re-apply for them to consider expunging your conviction again after a two-year period, or within a shorter period as the board may direct in their notice of rejection. If their finding is in the affirmative, then they will direct the officer who has custody to expunge the spent conviction from the records.

Finally, let me make this clear for you, as you are worried because you are seeking employment and you are afraid your conviction might hinder your chances of being employed. Under the law, there are only certain professions, offices of employment and nature of businesses which would enable the ’employers’ to require you to disclose particulars of your spent conviction(s). These are just for professionals like lawyers, accountants, dentists, doctors, teachers, state registered nurses, and a few others. Other offices of employment really relate largely to Government departments and agencies, financial and health institutions, security service organisations, and children’s places of safety and correctional centres.

Also covered is if the nature of your business covers investments, stocks and shares, and firearms dealerships.

If the job you are applying for does not fall under the categories stated in the Act, then you cannot be forced to disclose. Apart from those positions and jobs above stated, once your spent conviction has been expunged, it is that you are deemed to be a person who has never been charged with, prosecuted for, convicted of, or sentenced for the offence for which you had been convicted and have been rehabilitated.

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.

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.