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Covid criminal convictions create ‘two Bermudas’ - OBA

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Scott Pearman, the Shadow Minister of Legal Affairs (File photograph)
Senior Magistrate Juan Wolffe (File photograph)

The creation of laws that made criminals of those breaching certain Covid-19 regulations “undermines our legal system”, the shadow minister for legal affairs has said.

Scott Pearman was speaking in light of legislation that was recently passed enabling safety regulation breaches to be dealt with using fixed-penalty tickets instead of criminal convictions.

However, this was only put in place after some had been handed criminal convictions for breaches including breaking curfew.

Mr Pearman said this had created “two Bermudas” and raised questions over whether such convictions should be expunged.

He said: “When the Progressive Labour Party introduced the Covid regulations last year, One Bermuda Alliance shadow minister Ben Smith pointed out that a ‘ticketed’ approach, with civil penalties being like traffic tickets, was the much more sensible approach to controlling a health pandemic.

“Although breaches of the regulations cannot be ignored, and must be met with appropriate punishment, MP Smith highlighted that we must be careful not to tarnish otherwise law-abiding citizens with permanent criminal records, which can have detrimental future impact.

“Some 12 months later, the PLP has finally revised the fixed penalty regime, so that a criminal conviction will no longer apply when the penalty is paid. This correction comes very late in the day. It also does not deal with people who were previously punished for breaches.

“The PLP has, in effect, created a two Bermudas approach to Covid breaches - some criminalised, some not.

“The Government should now address whether or not it plans to expunge the criminal records of those convicted prior to the recent change in the law.“

Unanswered questions put to Government last Friday

Given that new legislation has been passed meaning that safety breaches can now be dealt with by a fixed penalty notice rather than a criminal conviction, is any consideration being given to allow convictions handed down prior to the law change to be expunged?

If so, how could such action be taken – would a new law need to be written for example – similar to that of the Expungement of Convictions Act 2020? Or could an amendment be written into that one?

What other way could expungements be achieved?

Under any considerations that might be underway, would expungements need to be applied for?

Under any considerations, would there be breaches of Covid-19 regulation breaches that would remain as criminal offences? If so please specify.

Senior magistrate Juan Wolffe told Magistrates’ Court on June 23 that many breaches of the Public Health Regulations created criminal records for people who otherwise did not engage in criminal behaviour.

He said: “I think they’re criminalising people who are otherwise not criminals.”

Mr Wolffe since told The Royal Gazette: “My comment that the Covid-19 Regulations may be criminalising individuals who otherwise are not criminals was derived from the circumstances upon which many individuals found themselves before the Magistrates’ Court for breaches.

“The majority of the cases have involved circumstances whereby the individual had never before appeared in court for any criminal offences and were otherwise law-abiding citizens, on average were out only 30 minutes past curfew, or they did not breach curfew because they were out partying (in many cases the individual was out assisting others in some way).

“It was my view that imposing a ‘criminal’ conviction on individuals who fall within these categories of cases may be disproportionate to the offence in consideration of the fact that a criminal conviction may have a deleterious impact on an individual’s current or future employment, overseas educational pursuits, or travelling opportunities.

“This would be unfortunate since many of these individuals did not present with criminogenic issues and it is highly unlikely that they would commit any further criminal offences.”

Mr Pearman added: “The OBA believes it is the duty of Parliament to make sensible laws, which must then be properly enforced. If the people don’t support our laws, then our laws will be seen as unfair and will not be followed.

“As the senior magistrate observed last week, having a criminal regime for Covid breaches makes otherwise law-abiding citizens into criminals. This undermines our legal system.”

Tickets under the new legislation will be used to penalise less serious breaches, including breaking any future curfews, and would include fines that would not result a criminal conviction if paid within 28 days.

More serious breaches, such as knowingly spreading Covid-19, would be treated as a criminal offence.

Legislation to expunge convictions for possession of small amounts cannabis was enacted in March.

Under the Expungement of Convictions Act, an expungement order would erase criminal conviction records for the offence of simple possession of cannabis of seven grams or less, for offences committed before December 20, 2017.

Government did not respond to questions about whether it was considering expunging any criminal convictions handed down prior to the change in legislation.

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Published June 29, 2021 at 7:58 am (Updated June 29, 2021 at 9:04 am)

Covid criminal convictions create ‘two Bermudas’ - OBA

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