AG: Criminal record ‘error’ from 31 years ago needs to be pinpointed to be fixed
Pinpointing an evidential trail on an erroneous criminal conviction would be the only way to get a drug conviction corrected.
This from Attorney General Mark Pettingill on the case of Mark Druell Hall who admitted possessing nine grams of cannabis in 1982, but his record says he was found guilty of possession with intent to supply.
He complained that when travels through the US he is detained and treated as if he was a drug smuggler. And he appealed to the powers that be to correct his criminal record.
But Mr Pettingill said it’s not as simple as that even if it was a clerical error.
“The short answer is it is certainly something that we would want to look at but the only way would be to get a hold of this type of evidence.”
He suggested Mr Hall retain a lawyer to “look at who the magistrate was at the time and who the prosecutors were. “If his record says intent to supply, and that’s the clerical error, that’s the record of the courts. I appreciate that he’s saying that was in error but the official record says otherwise.
“To fix that you would have to go evidentially and look at that and you’d have to have people who are able to say on evidence that didn’t happen like that.
“The Supreme Court has said this many times, with all respect to the newspaper, it is not a record of a court proceeding. It’s not like the House of Assembly where you have the Hansard, or the court reporting system, or the judge’s notes; that’s the official record.
“If there has been a clerical error then he has to go about trying to gather the evidence to establish that. Those things very rarely can happen although I’ve seen it happen before, this is not the first case where this has happened.”
Asked if Mr Hall just has to live it, he said: “I won’t say he’s got to live with it, I’m saying he should do everything that he can to try and sort it out. It can’t just be that it was in the newspaper 30 years ago, newspapers make mistakes too,” said Mr Pettingill.
But lawyer Kamal Worrell after reading the story said he couldn’t help but feel for Mr Hall and his case points up broader issues about “the outlawed cannabis plant”.
“Surely he has been aggrieved, and if that has been caused by the fault of the courts he should be able, through the appropriate channels, to have his record amended.
“While Mr Hall shows admirable acceptance of his just desserts, many people in this Island and around the world think that being labelled a criminal or ex-convict, merely because of them having had possession of this vegetable matter, is just too harsh when compared to any harm done by the fact. Not to mention, as demonstrated by Mr Hall’s case, that it may creep up and cause problems much later on in life.”
Unfortunately he said there are plenty of people in a similar situation. “Many of them were caught with the herbaceous material when they were youngsters.
“We all know that this has serious consequences for travel to the US and other places and can, therefore, severely limit education opportunities. Besides that, there are a host of other knock-on effects and economic implications that come into play.”
Assisted by the advancement of science he said it is increasingly the case that “the harm which was once widely associated with cannabis use is being proved to have been either grossly unfounded or exaggerated”. And he pointed to the many examples where the decriminalisation of marijuana has already been implemented in the US, UK and Europe.
Bermuda is no exception in his view and he recalled Operation Cleansweep “when scores of people were rounded up, many of them, for minute quantities of cannabis and thrown into jail”.
Today, he said, many receive a caution from police for the same offence and inside a courtroom. “Then, if you factor in the recent commentary by the current Attorney General, it appears to gives a clear indication that the winds are shifting,” he added.
But possession of “minute amounts of cannabis is still enough to deprive a person of their liberties, brandish them a criminal, and to cause inconvenience to them for the rest of their natural life on earth”.
And at the end of the day he said: “We simply have to ask if this makes any sense. If we think it makes sense, then there is no problem. But if not, then the next question is — What are we going to do?”