IF you’ve ever applied for a visitor’s visa, you’ve been asked this question. If you work in a regulated industry, like financial services or insurance, you’ve had to answer this question. If you’ve even registered with an online dating website (I’ve been told) you’ve probably been asked — “Have you ever been convicted of a criminal offence?” You’d think that this is a straightforward yes or no matter, but it’s actually more complex than that. If you’ve ever been convicted of an offence, including minor traffic offences, or if you’ve ever put that question to a potential employee, this article is for you.
Too often, especially in a relatively small society like Jamaica, a criminal record is akin to a life sentence. Even after you’ve paid the fine or served the time, the record is stuck on you like a lewd Vybz Kartel tune. That’s why we have the Criminal Records (Rehabilitation of Offenders) Act, the purpose of which is to specify a period after which the convicted person is treated as having been rehabilitated and the conviction is treated as spent. Under the Act, a conviction is spent:*after three years, where the conviction does not include imprisonment;*after five years, where the conviction includes imprisonment for less than six months;*after eight years, where the conviction includes imprisonment for between six and 18 months;*after 10 years, where the conviction includes imprisonment for more than 18 months but less than three years.In each case, time begins to run from the end of the prison term, the payment of the fine, or compliance with any other condition, for example, community service. Under the Act, a person whose conviction is spent is required to disclose the details of that conviction, if asked, when seeking to become a member of certain professions, including lawyers, doctors, accountants, nurses and teachers. Similarly, disclosure is also required if applying for certain types of employment, including a judge, police officer, private security guard, soldier, banker, insurance agent and stockbroker. Noticeably absent from the list of professions requiring disclosure are politicians (presumably the political party will deal with them) and Ministers of Religion (presumably God will deal with them).One may apply to have a spent conviction expunged after a further period of rehabilitation ranging from three to 10 years depending on the sentence. That application is heard by the Criminal Records Board. At that point, it’s almost as if the conviction never happened at all. Almost.In this, the Information Age, a person’s record isn’t stored only in a Government office. It’s taking up cyberspace. It’s residing on the servers of the media houses that reported on the case. It’s tagging you on Facebook and hash-tagging you on Twitter. It may not matter, therefore, that it’s an offence under the Act for someone to maliciously disclose the fact that a person was convicted of an offence after that conviction is spent or expunged. You can’t sue the Internet. The fact is, now more than ever, employers are performing background checks on Google before checking with the Criminal Records Office.Employers ought to be aware that, by law, it’s an offence to refuse to hire, or to dismiss someone, because of a spent or expunged conviction if the employer has reasonable cause to suspect that the conviction is spent or has been expunged and the convicted person was not obliged to disclose the conviction. This raises a number of important questions, including: If my business doesn’t fall into the category of professions that would require the applicant to disclose the conviction, may I still ask the question on the application form? If the applicant dishonestly and without legal justification answers that he hasn’t been convicted and I later discover the dishonesty but only after the conviction is spent, can I dismiss the employee then, and if so for what? Am I required by law to destroy an application form after a certain period of time if the form asks whether the person has been convicted? What if I only ask if the person has been charged with an offence and not whether he’s also been convicted? These are all serious and complex issues, the answers to which often depend on the particular circumstances of the case, the nature of the business and the nature of the offence.Finally, it’s important to note that convictions involving sentences for longer than three years cannot be expunged. This is good news for all the soon-to-be criminals formerly known as ‘smokers’ as they will still have the chance to maintain a healthy record, if not lungs.
Gavin Goffe is a Partner at Myers, Fletcher & Gordon and a member of the Firm’s Litigation Department and Labour Law Practice Group. Gavin may be contacted at gavin.goffe@mfg.com.jm or through www.myersfletcher.com. This article is for general information purposes only and does not constitute legal advice.HOUSE RULES
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Have you ever been convicted of a criminal offence?
