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Government to fix glitch stopping cannabis convictions being wiped

Kathy Lynn Simmons, the Attorney-General and Minister of Legal Affairs and Constitutional Reform (File photograph by Akil Simmons)

Regulations will be introduced to resolve a glitch in the exercise of a law designed to clear criminal convictions for possession of small amounts of cannabis, MPs heard.

Figures revealed yesterday by Kathy Lynn Simmons, the Attorney-General, showed that almost 80 per cent of applications made to have the records wiped were yet to be processed, after legislation was introduced in 2021.

She said the delay was because the quantity of cannabis was not stated explicitly on the applicants’ Bermuda Police Service criminal records.

The Misuse of Drugs (Decriminalisation of Cannabis) Amendment Act 2017 provided that it was no longer a criminal offence for people to be in possession of up to seven grams of cannabis for personal use.

In March 2021, the Expungement of Convictions Act 2020 became operative, which allowed someone with a prior conviction for the offence to apply for an Expungement Order.

Ms Simmons, who is also the Minister of Legal Affairs and Constitutional Reform, reminded MPs that the legislation set out that once such an order was obtained, “the convicted person will be treated as if they never committed the expunged offence”.

She added: “This includes the record reflecting that they have never been charged, prosecuted, convicted nor sentenced for that offence.”

Ms Simmons said that although some applicants were successful and expungement orders were made, an obstacle was encountered in relation to others.

She explained: “As it stands, to date, approximately 40 of the 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 seven-grams-or-less-amount criteria for making an Expungement Order.

“Making this determination is, of course, necessary for such orders to be made.”

MPs heard that Expungement of Convictions (Criminal Records) Regulations 2023 were drafted and approved by the Cabinet.

Ms Simmons said these will come into effect when the Government’s digital publication system is restored.

She told the House: “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 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.”

The regulations will apply where the cannabis possession conviction was before December 20, 2017; the expungement applicant’s BPS criminal record does not specify the amount of cannabis for which the applicant was convicted; and the penalty upon conviction did not exceed $1,000 or 12 months conditional discharge.

Ms Simmons said the rules also addressed the issue of increased penalty zone — or additional element — fines related to expunged possession convictions.

She added: “They clarify that any additional element fines per the sentence of possession of less than seven 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.”

Ms Simmons said the processing of outstanding expungement applications was "now aggressively under way“ and will be completed when the regulations take effect.

She added: “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.”

Ms Simmons said that implementation of the Expungement of Convictions Act 2020 was “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”.

She added: “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.”

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Published September 30, 2023 at 7:27 am (Updated September 30, 2023 at 7:27 am)

Government to fix glitch stopping cannabis convictions being wiped

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