New Regulations On Expunging Criminal Records
New regulations have been drafted and approved by Cabinet which aim to rectify an issue where cannabis possession amounts were not explicitly stated on applicants’ criminal records thereby hindering the expungement process, Attorney-General Kathy Lynn Simmons said.
Speaking in the House of Assembly the Attorney-General said, ”I rise today pleased to inform this Honourable House that the Expungement of Convictions [Criminal Records] Regulations 2023 [the Regulations] have been drafted and approved by Cabinet.
“Members may recall that prior to its passage, in December 2017 the Misuse of Drugs [Decriminalization of Cannabis] Amendment Act 2017, removed criminal sanctions in relation to the possession of cannabis where the amount is less than or equal to a statutory threshold of 7 grams. Simply put, that enactment provided that it was no longer a criminal offence for persons to be in possession of up to 7 grams of cannabis for personal use.
“It may be further recalled that section 8 of the Expungement Act provides that once an expungement order is obtained, the convicted person will be treated as if they never committed the expunged offence.
“Although persons seeking expungement have been able to do so in person or online since March of 2021 when the Expungement Act became operational, unfortunately since then an obstacle arose.
“This was due to the amount of cannabis for which applicants were convicted, not being explicitly stated on their BPS criminal records. Therefore, on the face of those records it cannot be discerned definitively that applicants meet the ‘7 grams or less amount criteria’ for making an Expungement Order. Making this determination is of course necessary for such orders to be made.
“As a result, this information in turn allowed for a ‘deeming provision’ to be devised where the amount of cannabis is not stated on applicants’ criminal records. These Regulations therefore provide that for expungement applications, the amount of cannabis for possession convictions when not stated on the record, shall be taken to be less than or equal to 7 grams for purposes of making Expungement Orders under the Act, if:
- [a] the cannabis possession conviction was prior to December 20, 2017;
- [b] the Expungement Applicant’s Bermuda Police Service criminal record does not specify the amount of cannabis for which the applicant was convicted; and
- [c] the penalty upon conviction did not exceed one thousand dollars [$1,000.00] or 12 months conditional discharge.
“In the course of addressing this issue, another important corresponding issue arose. As the law stood it was subject to interpretation as to whether increased penalty zone [i.e. ‘additional element’] fines related to the expunged possession convictions were also expunged. It stands to reason that they would be, as otherwise the fine would stand alone on the record in the absence of the conviction that it resulted from. This would in turn leave evidence of the conviction on the record, contrary to the spirit of the expungement policy.
“These Regulations therefore made necessary provision for the avoidance of doubt. They clarify that any additional element fines per the sentence of possession of less than 7 grams of cannabis, will be expunged along with the expunged possession conviction. This achieves the overall objective of the Expungement Act in the first instance, to wipe the record clean as to the targeted conviction.
“This marks the culmination of hard work on the part of Ministry staff and crucial assistance from the Bermuda Police Service, to craft the blanket policy to make the ‘7 gram or less’ presumption where necessary, as captured by these Regulations. The opportunity is now afforded to process the outstanding Expungement Act applications. That process is now aggressively underway and will be completed when the Regulations are published and come into effect. It is therefore anticipated that if applicants have not received a decision already, they will receive it soon.
The Minister’s full statement follows below:
Mr. Speaker, Honourable Members, I rise today pleased to inform this Honourable House that the Expungement of Convictions [Criminal Records] Regulations 2023 [the Regulations] have been drafted and approved by Cabinet. They will come into effect further to negative resolution procedure authorized by section 10 of the Expungement of Convictions Act 2020 [the Expungement Act], as soon as the Government’s digital publication system is restored.
Members may recall that prior to its passage, in December 2017 the Misuse of Drugs [Decriminalization of Cannabis] Amendment Act 2017, removed criminal sanctions in relation to the possession of cannabis where the amount is less than or equal to a statutory threshold of 7 grams. Simply put, that enactment provided that it was no longer a criminal offence for persons to be in possession of up to 7 grams of cannabis for personal use. By so doing, this Government turned the page on almost half a century of criminal prosecution for possession of this amount of cannabis.
Mr. Speaker, It may also be recalled that subsequent passage of the Expungement Act in March 2021 made provision for removing the identical cannabis possession conviction from the criminal records of those convicted for possession of up to 7 grams before decriminalization took effect. These new provisions per the Expungement Act allowed a person with conviction for a “relevant offence”, being possession of 7 grams of cannabis or less as provided in the Schedule, to apply to the Minister of Legal Affairs and Constitutional Reform for an Expungement Order in accordance with criteria outlined in the Act.
Mr. Speaker, It may be further recalled that section 8 of the Expungement Act provides that once an expungement order is obtained, the convicted person will be treated as if they never committed the expunged offence. This includes the record reflecting that they have never been charged, prosecuted, convicted, nor sentenced for that offence. It is worth emphasizing Mr. Speaker, that Bermuda has never enacted such decriminalization measures before. They represent unprecedented steps in keeping with this Government’s commitment to pursuing the policy of social justice.
Mr. Speaker, Although persons seeking expungement have been able to do so in person or online since March of 2021 when the Expungement Act became operational, unfortunately since then an obstacle arose. Let me digress here to say that whereas some applicants have not been successful, indeed a number of Expungement Orders have already been made. As it stands, to date, approximately forty [40] of the fifty one [51] applications made under the Expungement Act had not been able to be processed. This was due to the amount of cannabis for which applicants were convicted, not being explicitly stated on their BPS criminal records. Therefore, on the face of those records it cannot be discerned definitively that applicants meet the ‘7 grams or less amount criteria’ for making an Expungement Order. Making this determination is of course necessary for such orders to be made.
Mr. Speaker, Prior to these Regulations, all options to overcome this impasse had been exhausted. It was only after extensive collaboration between Ministry technical staff and the Bermuda Police Service that the solution presented by these Regulations was devised. Combing through criminal records provided by the BPS further to expungement applications, as well as other criminal records provided for the purpose, allowed for a determination of the amount of cannabis to be made.
As a result, this information in turn allowed for a ‘deeming provision’ to be devised where the amount of cannabis is not stated on applicants’ criminal records. These Regulations therefore provide that for expungement applications, the amount of cannabis for possession convictions when not stated on the record, shall be taken to be less than or equal to 7 grams for purposes of making Expungement Orders under the Act, if:
- [a] the cannabis possession conviction was prior to December 20, 2017;
- [b] the Expungement Applicant’s Bermuda Police Service criminal record does not specify the amount of cannabis for which the applicant was convicted; and
- [c] the penalty upon conviction did not exceed one thousand dollars [$1,000.00] or 12 months conditional discharge.
Mr. Speaker, In the course of addressing this issue, another important corresponding issue arose. As the law stood it was subject to interpretation as to whether increased penalty zone [i.e. ‘additional element’] fines related to the expunged possession convictions were also expunged. It stands to reason that they would be, as otherwise the fine would stand alone on the record in the absence of the conviction that it resulted from. This would in turn leave evidence of the conviction on the record, contrary to the spirit of the expungement policy.
These Regulations therefore made necessary provision for the avoidance of doubt. They clarify that any additional element fines per the sentence of possession of less than 7 grams of cannabis, will be expunged along with the expunged possession conviction. This achieves the overall objective of the Expungement Act in the first instance, to wipe the record clean as to the targeted conviction.
Mr. Speaker, The opportunity was also seized to make provision to delete the word “simple” from the Schedule of the Expungement Act, to synchronize its language with that of the Misuse of Drugs Act 1972, to which it relates. Although the word ‘simple’ is often used to reference cannabis possession convictions for small amounts, the term did not exist in legislation prior.
Mr. Speaker, This marks the culmination of hard work on the part of Ministry staff and crucial assistance from the Bermuda Police Service, to craft the blanket policy to make the ‘7 gram or less’ presumption where necessary, as captured by these Regulations. The opportunity is now afforded to process the outstanding Expungement Act applications. That process is now aggressively underway and will be completed when the Regulations are published and come into effect. It is therefore anticipated that if applicants have not received a decision already, they will receive it soon. Applications continue to trickle in from time to time and it is further anticipated that a much shorter timeline will hold for any future applications.
Mr. Speaker, Contending with reversing punitive measures of the past to move forward in a more just way is never easy. It is always more feasible to strive to simply straighten up and fly right irrespective of damage inflicted in the past as was done by this Government’s 2017 decriminalization of possession of 7 grams of cannabis or less by amending the Misuse of Drugs Act 1972. However, the Expungement of Convictions Act 2020 is an unprecedented correctional step beyond that. Its implementation has also been a monumental task involving many stakeholders working in earnest to avail applicants of what to some will be a fresh start now permitted by law.
The setbacks to date did not diminish those efforts nor derail determination to see this through to the end. These Regulations are made with the assurance that what the law permits will continue to be made available to applicants to the extent feasible, sparing no efforts. I am pleased to have granted the Orders that have been made to date and look forward to any future applications. My sincere appreciation for the patience of those applicants who have not yet received a final outcome due to the obstacles outlined. I look forward to your patience being rewarded in the near future.
I also take this opportunity to thank the Bermuda Police Service Commissioner and his staff for their assistance as well as the tireless efforts of our Permanent Secretary, the Policy Analyst as project manager, and other Ministry staff whose persistence has made the intended benefits to the public of these measures, possible.
Thank you Mr. Speaker.
From the Minister’s explanation, an inordinate amount of work went into filling the gaps in records. Now 40 or so people who applied can get their records expunged. Surely there are more than that who would like to get their records expunged but maybe don’t trust the system to request it. Now Government has all the information why not save a lot of time, effort and cost just to expunge all such records, without the need to apply? That’s how Jamaica did it, why not Bermuda? Why have to apply and take up Government time and expense if it will be granted anyway? Make it simple.