Expunging a criminal record for ganja

Dear Mrs Macaulay,

I am a Jamaican who is currently living in Trinidad. In 2013 I was convicted of a marijuana charge in Jamaica. I am now married to a Trinidad national and wish to apply for residency in this country in order to continue our life together as a family.

I believe there is a law where after five years of a conviction, one should be able to acquire a clean record. I would like to know if you can assist me in confirming this, and also the procedures for getting this done.

Any information you can give would be greatly appreciated.

Yes, there is such a law — it is the Criminal Records (Rehabilitation of Offenders) Act of 1988. It was amended by the Criminal Records(Rehabilitation of Offenders) (Amendment) Act, 2014. The amending Act states that it must be read with the 1988 Act, referred to as the principal Act. It amends several sections of the principal Act.

Suffice it to say, that it extended the period after the conviction when the person can apply for his or her record to be cleared on the basis that they fall within the category of persons who can, as the Act provides, be treated as rehabilitated persons, and that the conviction should be treated as a spent conviction.

The amending Act regarding the sections which I believe might relate to your circumstance deals with a conviction for which the sentence imposed did not include a term of imprisonment, or, if it did, the imprisonment imposed did not exceed five years. If the conviction was for an offence specified in the Third Schedule to the amending Act, this would not apply.

The Third Schedule added by the amending Act lists the offences in specific sections in specific Acts. These are very serious offences and the list starts with murder and includes sections of the Dangerous Drugs Act. The amending Act also amends the Dangerous Drugs Act by providing additions to sections 7C and 7D of that Act by inserting two subsections. That added to 7C provides that a conviction for the offence of possession of two ounces (0.057kg) or less of ganja, or any other amount as the minister may by order prescribe, shall not be recorded in the criminal record of the offender. So if you fall within the category of persons convicted for possession of two ounces or less, your conviction would not have been recorded under the amending Act.

The amending Act provides that it applies to convictions to which Section 3 of the principal Act applies which also occurred before the amended Act came into effect. In other words, it made it retroactive, and so would apply to your conviction which I deduce occurred before 2013, as you were convicted then.

Since you did not state exactly under which section of the Dangerous Drugs Act you were charged and convicted, I cannot specifically tailor my answer to your exact circumstance. You would need to know exactly what you were charged with and convicted for and your exact sentence which was imposed. If your sentence was only a fine, then your rehabilitation period would be three years. If it was for a term of imprisonment of six months or less, then it would be five years. If it was over six months but not over 36 months, then the period would be seven years, and if it was over 36 months but did not exceed five years, then the rehabilitation period would be 10 years..

You must, if you believe that your rehabilitation period has expired, make your application to the Criminal Records (Rehabilitation of Offenders) Board. Your application must be made in writing and must state your full name and age. It must also state the exact offence for which you were convicted and the exact penalty which was imposed by the court; the date, place and actual court before which you were convicted and sentenced. You must also include the date on which you completed serving your sentence (if it was a fine, the date you paid it), and if you had a probation period added to your sentence, the date this ended. Finally, you must also include the date when your rehabilitation period ended. Then you should state that you have not had any convictions or proceedings after your conviction and anything else that you feel would assist with a positive view being taken of your application.

You should obtain an official record of your conviction and attach this to your application (keep a copy of both, of course, for your own records).

You should also apply to the Police Records office for a police record before submitting your application. This may show that your conviction was not recorded because it was a non-recordable one, which I have referred to above regarding sections 7C and 7D of the Dangerous Drugs Act.

Anyway, as you can see, the expungement of a criminal record pursuant to the Act is a bit technical. I would therefore advise you, especially as you reside in Trinidad and so cannot run around to the respective court and Police Records offices and that of the Board from there, to obtain the services of a lawyer in Jamaica to act for you and assist you to obtain the expungement of your criminal record, if any indeed exists.

I wish you all the best and trust that you can and will get legal representation to assist you with your application, if this is necessary. I also wish you a happy, settled life with your spouse in Trinidad.

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.