Bermuda’s Rehabilitation of Offenders Act 1977 provides a legal entitlement to ‘rehabilitation’ of offenders, whereby, in certain circumstances and subject to certain conditions, criminal convictions are treated as ‘spent’ after 7 years after last conviction or release from prison (whichever is later), and therefore deemed not to have occurred.
The Act was loosely modelled on the UK’s Rehabilitation of Offenders Act 1974, and its main purpose is that people should not have a lifelong blot on their records, because of a relatively minor offence in their distant past.
The Act does not apply to criminal offences whose sentences include death (no longer applicable in Bermuda), life imprisonment, imprisonment for a term exceeding 3 years, or indefinite detention at ‘Her Majesty’s Pleasure’.
Once a conviction is treated as ‘spent’, then the offender is treated for all Bermudian legal purposes as a person who has not committed such an offence, with the consequence that evidence of, or questions about, such conviction become inadmissible in certain Court proceedings (excluding criminal proceedings in Bermuda, civil proceedings for libel or slander, and Children’s Act proceedings), and ‘spent’ convictions are not required to be disclosed to third parties (such as employers or insurers).
Under section 4(4) of the Act, a conviction which has become ‘spent’, or any failure to disclose a ‘spent’ conviction shall not be a ground for dismissing or excluding a person from any office, profession, occupation or employment or from prejudicing him in any way in any occupation or employment.
The Act was given some consideration by the Supreme Court of Bermuda in a characteristically Bermudian Court case, which was decided by Chief Justice Kawaley exactly 1 year ago on 17 August 2015, Bulford & Jefferis v The Commissioner of Police  SC (Bda) 58 Civ.
The Court’s decision is also culturally and legally significant for a number of reasons (over and above its consideration of the Rehabilitation of Offenders Act 1977). For example, it provides a fascinating insight into the Cup Match holiday tradition in Bermuda. It also provides an insight into some of the challenges faced by Bermuda’s Police Force when investigating and prosecuting drug-related offences, including money laundering and the recovery of proceeds of crime. And it also contains significant legal reasoning and citation of authorities as to the Bermuda Court’s power to judicially review Governmental decisions and actions, on the application of an interested party.
Mr Bulford and Mr Jefferis had applied for licences to operate Crown and Anchor gambling tables at the 2015 annual Cup Match festivities. Chief Justice Kawaley described the context and background to the case as follows:
“The centrepiece of the annual ‘Cup Match’ holiday in Bermuda is an annual cricket match inaugurated in 1902 as part of Bermudian descendants of slaves’ celebration of Emancipation on August 1, 1834. In an unusually philosophical radio commercial for a local supermarket chain (‘Lindos’) which ran over this year’s holiday period, the spirit of Cup Match was defined as “a spirit of restorative justice for all those in our community who have been marginalised.”
Cup Match takes place on the grounds of one or other of two traditionally Black working men’s clubs. It is a festive occasion now attended by thousands of locals and visitors with diverse backgrounds. It is also an occasion where various vendors, typically small-scale entrepreneurs, are able to enjoy a prominence and access income-generating opportunities that may be shut off to them for most of the rest of the year. A major attraction away from the cricket field at Cup Match is popular dice-based game of chance known as ‘Crown & Anchor’. The game is played at multiple tables under a large tent and is colloquially referred to as the ‘Stock Market’.
Against this background, the Applicants, each of whom it must be noted was earlier this year acquitted in separate high profile criminal trials, applied on July 28, 2015 for leave to seek judicial review of the Respondent’s decision on July 24, 2015 (“the Decision”) to refuse them permission to operate Crown & Anchor tables under a concession operated by Fun Tyme Entertainment Limited“.
The Commissioner of Police had refused Mr Bulford’s and Mr Jefferis’ applications, on the grounds that they were perceived to be “persons of bad character”, in large part by reference to convictions which had become ‘spent’ under the provisions of the Rehabilitation of Offenders Act 1977.
The Court held, however, that the Commissioner of Police was precluded from taking into account ‘spent’ convictions for the purpose of the licence application, or from drawing any adverse inferences as to the Applicants’ fitness, or suitability, for operating a Crown and Anchor gambling table, as a result of their ‘spent’ convictions.
Bermuda’s Rehabilitation of Offenders Act 1977 is probably due for some updating, since it was last amended in 2001 (15 years ago), whereas the equivalent UK legislation was substantially updated between 2012 and 2014 as a result of the provisions of the UK’s Legal Aid, Sentencing, and Punishment of Offenders Act 2012, which led, in turn, to renewed Guidance Notes being issued by the UK’s Ministry of Justice in March 2014. https://www.gov.uk/government/publications/new-guidance-on-the-rehabilitation-of-offenders-act-1974
It is also worth noting that there is no direct Bermudian equivalent of the UK’s Rehabilitation of Offenders Act 1974 (Exceptions) Order 1975, which excepts a number of jobs and professions from the UK legislation, including jobs involving professional positions of trust, such as lawyers, police, and prison officers etc.
In contrast to the restrictive approach more usually taken by the English Bar Standards Board and other regulatory bodies in the UK, the Supreme Court of Bermuda and the Bermuda Bar Council have historically demonstrated a generous, and rehabilitative, approach to the admission, and regulatory treatment, of Barristers and Attorneys with criminal records (whether ‘spent’ or otherwise), as demonstrated by the high-profile examples of Shawn Crockwell and Charles Richardson, whose stories have been much reported, as illustrated by the following links.
Given increasing levels of crime and punishment in Bermuda (as with other parts of the world), the rehabilitation of offenders is surely a topic that warrants ongoing attention and debate.
As a footnote, I have also just remembered the unusual case of Robert Martyn, who was convicted by a jury in the Supreme Court of Bermuda of fraudulently trying to obtain Bermuda status. He was subsequently disbarred by the Law Society of Upper Canada, who do not appear to have approached the issue of rehabilitation in a generous spirit in his particular case: http://www.canadianlawyermag.com/legalfeeds/720/lsuc-disbars-canadian-convicted-in-bermuda.html