Cleaning up your record

Expungement is essentially having a conviction removed from one's criminal record after the requisite rehabilitation period has passed and after certain requirements have been met. The Criminal Records (Rehabilitation of Offenders) Act, 1988, authorizes the expungement of certain offences as not all offences can be expunged.

The intention of the statute is to allow convicted persons who never served a custodial sentence of more than five years the ability to have a clean record, provided that they have satisfied the rehabilitation period and have made good of themselves between the date of conviction and the end of the rehabilitation period.

The rehabilitation period is the length of time within which a convicted person has to wait before they can make an application for expungement. The rehabilitation period varies according to the sentence, and can range from a minimum of three years for non-custodial sentences to a maximum of 10 years for custodial sentences.

Where the applicant did, in fact, serve a custodial sentence, the rehabilitation period is then calculated from the last day in prison. In the event that there was a non-custodial sentence, then the rehabilitation period starts from the date that the sentence was imposed by the court.

It should be noted that the rehabilitation period varies based on the age of the offender and the type of sentence that the court imposed. Where the sentence imposed does not include imprisonment, and the accused is above the age of 18 years, the rehabilitation period is three years.

Where the offender did not serve more than six months' imprisonment, then the period is five years. Where the offender serves more than six months but spends less than three years, then the offender has to wait for a period of seven years.

Where the offender serves more than three years but no more than five years, then the offender has to wait for a period of 10 years.

For minors, however, the rehabilitation periods are much shorter. For instance, where the minor's sentence was a non-custodial one, then in eight months that minor can apply for an expungement.

While it is advisable to retain the services of an attorney to assist with the process, any convicted person can make the application on their own behalf.

After the application along with the supporting documents are filed with the Ministry of Justice, the ministry will request a police report on behalf of the applicant to determine whether or not that individual was charged and/or convicted for an offence within the rehabilitation period.

Upon receipt of the police report, a review of the application will be done by the Criminal Records (Rehabilitation of Offenders) Board and a decision will be made. The applicant will then be advised of the decision in writing.

It is difficult to put a duration on the processing of the application, as several factors can cause delay and each application is determined on a case-by-case basis. The Ministry of Justice, however, has indicated through its publication that an application for expungement may take up to a year.

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Odane Marston is an attorney-at-law who specialises in conveyancing, administration, probate, recovery of possession, criminal litigation and divorce. He may be contacted via email Odanemarston@gmail.com or star@gleanerjm.com

This article is for general information purposes only and does not constitute legal advice