Rehabilitation of offenders bill

Attorney General’s Chambers

17th March, 2014

TURKS AND CAICOS ISLANDS REHABILITATION OF OFFENDERS BILL 2014 ARRANGEMENT OF CLAUSES CLAUSE

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Short title and commencement Interpretation Entitlement to rehabilitation Exclusion to rehabilitation Rehabilitation period Effect of rehabilitation Limitation on rehabilitation Exceptions to rehabilitation Defamation acts Unauthorised disclosure of spent conviction Regulations Amendment of schedules Consequential amendment

SCHEDULE 1: Rehabilitation period SCHEDULE 2: Excepted proceedings SCHEDULE 3: Miscellaneous exceptions SCHEDULE 4: Excepted licences and permits

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TURKS AND CAICOS ISLANDS A PROPOSAL FOR A

BILL FOR AN ORDINANCE TO PROVIDE FOR THE REHABILITATION OF OFFENDERS WHO HAVE NOT BEEN RECONVICTED OF ANY OFFENCE FOR PERIODS OF YEARS; AND FOR MATTERS CONNECTED WITH THE AFORESAID MATTERS.

ENACTED by the Legislature of the Turks and Caicos Islands.

Short title and commencement 1. This Ordinance may be cited as the Rehabilitation of Offenders Ordinance 2014 and shall come into operation on such day as the Governor may appoint by Notice published in the Gazette.

Interpretation 2. In this Ordinance— “circumstances ancillary to a conviction” in relation to a spent conviction includes— (a) an offence which was subject to that conviction; (b) conduct constituting that offence; (c) any process or proceedings preliminary to that conviction; (d) any sentence imposed in respect of that conviction; (e) any proceedings (whether by way of appeal or otherwise) for reviewing that conviction or any such sentence; or

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(f) anything done in pursuance of or undergone in compliance with any such sentence; “conviction” however expressed, includes— (a) convictions by or before a court in and outside the Islands; and (b) references to a finding by a court (other than one linked to insanity) that a person has committed an offence or done an act or made the omission charged; “proceedings before a judicial authority” means proceedings before any court, and includes proceedings before any tribunal, body or person having power to determine any question affecting the rights, privileges, obligations or liabilities of any person, or to receive evidence affecting the determination of any question, which power the tribunal, body or person has— (a) by virtue of any provision of law, custom or practice; (b) under the rules governing any association, institution, profession, occupation or employment; or (c) under any provision of an agreement providing for arbitration with respect to questions arising under that agreement; “rehabilitated person” means a person who has become a rehabilitated person for purposes of this Ordinance in respect of a conviction or sentence to an offence which the person has been convicted of, or sentenced to; “rehabilitation period” means the rehabilitation period applicable to a sentence in terms of section 5; and “sentence” however expressed, includes an order made by a court in dealing with a person in respect of his conviction of any offence, other than— (a) an order for committal or any other order made in default of payment of any fine or other sum adjudged to be paid by or imposed on a conviction, or for want of sufficient distress to satisfy any such fine or other sums; or (b) an order dealing with a person in respect of a suspended sentence of imprisonment.

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Entitlement to rehabilitation 3. Subject to section 4, a person shall be entitled to rehabilitation if the person has been convicted in or outside the Islands before or after the commencement of this Ordinance of any offence, and the following conditions are satisfied— (a) the person has served or otherwise undergone or complied with the sentence imposed on him in respect of the offence and the rehabilitation period applicable to the sentence has expired; (b) a sentence has not been imposed on the person in respect to that conviction to a sentence excluded under this Ordinance; and (c) the person has not had imposed on him a sentence in respect of a subsequent conviction during the rehabilitation period applicable to the first conviction.

Exclusion to rehabilitation 4. (1) A person sentenced to the following shall be excluded from rehabilitation under this Ordinance— (a) a sentence to imprisonment for life; (b) a sentence to a term of imprisonment exceeding three years; (c) a sentence or order of detention during Her Majesty’s pleasure; and (d) any other sentence excluded by the Governor by order published in the Gazette.

(2) A sentence not excluded under subsection (1) shall be subject to a rehabilitation period under section 5.

Rehabilitation period 5. (1) Subject to subsection (2), the rehabilitation period applicable to a sentence specified in column (1) of Schedule 1 shall be the period specified in column (2) of that Schedule.

(2) The rehabilitation period applicable to a person aged sixteen years and under shall be half of the period specified in column (2) of Schedule 1, in respect of the sentence specified in column (1).

(3) The rehabilitation period is calculated from the date of conviction of the person.

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Effect of rehabilitation 6. (1) Subject to sections 7, 8 and 9 a person who has become a rehabilitated person shall be treated for all purposes of law as a person who has not committed or been charged with or prosecuted for or convicted of an offence or sentenced for any such offence, and that conviction shall for those purposes be treated as spent.

(2) Notwithstanding the provisions of any other enactment and subject to subsection (1)— (a) evidence shall not be admissible in any proceedings before any judicial authority in the Islands, which evidence is to prove that a rehabilitated person has committed or been charged with or prosecuted for or convicted of or sentenced for any offence which is the subject of a spent conviction; and (b) a rehabilitated person shall not in any proceedings, be asked, and if asked, shall not be required to answer any question relating to his past which cannot be answered without acknowledging or referring to a spent conviction or any circumstances connected to the spent conviction.

(3) Where a question seeking information with respect to a person’s previous conviction, offence, conduct or circumstances is put to that person or to any other person otherwise than in proceedings before a judicial authority— (a) the question shall be treated as not relating to a spent conviction or to any circumstances ancillary to a conviction, and the answer to that question shall be framed accordingly; and (b) the person questioned shall not be subjected to any liability or otherwise prejudiced in law by reason of any failure to acknowledge or disclose a spent conviction or any circumstances ancillary to a conviction in his answer to the question.

(4) An obligation imposed on any person by any rule of law or by provisions of any agreement or arrangement to disclose any matter to any person shall not extend to requiring that person to disclose a spent conviction or any circumstances ancillary to a conviction, whether the conviction is his own or of another person.

(5) A conviction which has become spent or any circumstances ancillary to a conviction or any failure to disclose a spent conviction or any such circumstances shall not be a

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ground for dismissing or excluding a person from any office, profession, occupation or employment or from prejudicing that person in any way in any occupation or employment.

Limitation on rehabilitation 7. (1) Nothing in section 6 shall affect— (a) the enforcement by any process or proceedings of any fine or other sum adjudged to be paid or imposed on a spent conviction; (b) the operation of any enactment by virtue of which, in consequence of any conviction, a person is subject, otherwise than by way of a sentence, to any disqualification, disability, prohibition or other penalty which extends to the conviction for a period beyond the rehabilitation period; or (c) the determination of any issue, or prevent the admission or requirement of any evidence, relating to a person’s previous conviction or to circumstances ancillary to that conviction— (i) in any criminal proceedings before a court in the Islands, including any appeal or reference in a criminal matter; (ii) in any proceedings for libel or slander before such a court; (iii) in any proceedings relating to the adoption, marriage of a minor, the exercise of inherent jurisdiction of the Supreme Court with respect to a minor or the provision by any person of accommodation, care or schooling of a minor; (iv) in any proceedings brought under any legislation dealing with children, or in any way connected with children; or (v) in any proceedings in which the person is a party or a witness, provided that, on the occasion when the issue or the admission or requirement of the evidence falls to be determined, the person consents to the determination of the issue or, as the case may be, the admission or requirement of the evidence notwithstanding section 6 (2).

Ord. 31 of 2012

(2) The limitation to rehabilitation in subsection (1)(b) does not apply to section 37 (5) of the Public Service Ordinance.

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Exceptions to rehabilitation 8. (1) Section 6 (2) shall not apply in relation to any proceedings specified in Schedule 2.

(2) Section 6 (3) shall not apply in relation to— (a) any question asked by or on behalf of any person, in the course of the person’s duty of office or employment, in order to assess suitability— (i) of the person to whom the question relates for admission to any of the professions specified in Part 1 of Schedule 3; (ii) of the person to whom the question relates for any office or employment specified in Part 2 of Schedule 3; (iii) of the person to whom the question relates or of any other person to pursue any occupation specified in Part 3 of Schedule 3; or (iv) of the person to whom the question relates or of any other person to hold a licence or permit of a kind specified in Schedule 4, and where the person questioned is informed at the time the question is asked that, by virtue of this Ordinance, spent convictions are to be disclosed; (b) any question asked by or on behalf of any person, in the course of the duties of his work, in order to assess the suitability of a person to work with children, where— (i) the question relates to the person whose suitability is being assessed; (ii) the person whose suitability is being assessed lives on the premises where his work with children would normally take place and the question relates to a person living in the same household as him; (iii) the person whose suitability is being assessed lives on the premises where his work with children would normally take place and the question relates to a person who regularly works on those premises at a time when the work with children usually takes place; or (iv) the work for which the person's suitability is being assessed is child minding which would normally take place on premises other than

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premises where that person lives and the question relates to a person who lives on those other premises or to a person who regularly works on them at a time when the child minding takes place, and where the person to whom the question relates is informed at the time the question is asked that, by virtue of this Ordinance, spent convictions are to be disclosed; (c) any question asked by or on behalf of any person in the course of his duties as a person employed by the department or body responsible for adoption, for the purpose of assessing the suitability of any person to adopt children in general or a child in particular where— (i) the question relates to the person whose suitability is being assessed; or (ii) the question relates to a person over the age of eighteen years living in the same household as the person whose suitability is being assessed, and where the person to whom the question relates is informed at the time the question is asked that, by virtue of this Ordinance, spent convictions are to be disclosed; (d) any question asked by or on behalf of the body responsible for regulating financial services business for the purpose of determining whether to grant or revoke a licence where the question relates to an individual— (i) who manages the business or any part of the business carried on under the licence (or who is likely to do so if the licence is granted); or (ii) for whose benefit that business is carried on (or is likely to be carried on if the licence is granted), and where the person to whom the question relates is informed at the time that the question is asked that, by virtue of this Ordinance, spent convictions are to be disclosed. (f) any question asked by or on behalf of the body responsible for regulating gambling for the purpose of determining whether to grant or

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revoke a licence where the question relates to an individual— (i) who manages the business or any part of the business carried on under the licence (or who is likely to do so if the licence is granted); or (ii) for whose benefit that business is carried on (or is likely to be carried on if the licence is granted), and where the person to whom the question relates is informed at the time that the question is asked that, by virtue of this Ordinance, spent convictions are to be disclosed.

(3) Subsections (1) and (2) do not apply in respect of a protected caution or protected conviction.

(4) For the purposes of this section— (a) a caution is a “protected caution” if it was given to a person for an offence other than a listed offence as specified in Schedule 5— (i) where the person was under sixteen years at the time the caution was given, two years or more have passed since the date on which the caution was given; or (ii) where the person was sixteen years or over at the time the caution was given, six years or more have passed since the date on which the caution was given; (a) a person's conviction is a “protected conviction”— (i) where the person was under sixteen years at the time of the conviction, three years or more have passed since the date of the conviction; or (ii) where the person was sixteen years or over at the time of the conviction, six years or more have passed since the date of the conviction, and the following conditions are satisfied— (aa)

the offence of which the person was convicted is not a listed offence;

(bb)

a custodial sentence was not imposed in respect of the conviction; and

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(cc)

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the person has not been convicted of any other offence at any time.

Defamation acts 9. (1) This section applies to any action for libel or slander begun after the commencement of this Ordinance by a rehabilitated person and founded upon the publication of any matter imputing that the rehabilitated person has committed or been charged with, or prosecuted for or convicted of, or sentenced for an offence which was the subject of a spent conviction.

(2) Nothing in section 6 (1) shall affect an action to which this section applies where the publication complained of took place before the conviction in question became spent, and this section shall no apply in any such case.

(3) Subject to subsections (4), (5) and (6), nothing in section 6 (1) and (2) shall prevent the defendant in an action to which this section applies from relying on any defence of justification or fair comment or of absolute or qualified privilege which is available to him, or restrict the matters he may establish in support of any such defence.

(4) Where in any action to which this section applies malice is alleged against a defendant who is relying on a defence of qualified privilege, nothing in section 6 (1) and (2) shall be deemed to restrict the matters the defendant may establish in rebuttal of the allegation.

(5) If a publication is proved to have been made by the defendant with malice, the defendant shall not be entitled to rely on the defence of justification.

(6) Subject to subsection (7), if it is proven that a publication contained reference to evidence which was ruled to be inadmissible in the proceedings by virtue of section 6 (2), a defendant in an action shall not be entitled to rely on any matter or adduce or require any evidence for the purpose of establishing a defence that the matter published constituted a fair and accurate report of judicial proceedings.

(7) Subsection (3) shall apply without the qualifications imposed by subsection (6) in relation to— (a) any report of judicial proceedings contained in any bona fide series of law reports which does not form part of any other publication and consists solely of reports of proceedings in any court of law; and

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(b) any report or account of judicial proceedings published for bona fide educational, scientific or professional purposes, or given in the course of any lecture, class or discussion given or held for any of those purposes.

Unauthorised disclosure of spent conviction 10. (1) In this section— “official record” means a record kept for the purposes of its functions by the police force, any court, Government department or other public authority in the Islands, being a record containing information about persons convicted of offences; and “specified information” means information imputing that a named or otherwise identifiable rehabilitated living person has committed or been charged with or prosecuted for or convicted of or sentenced for any offence which is the subject of a spent conviction.

(2) Subject to the provisions of any order made under subsection (5), a person who, in the course of his official duties, has or at any time has had custody of or access to any official record or the information contained therein, commits an offence if, knowing or having reasonable cause to suspect that any specified information he has obtained in the course of those duties is specified information, he discloses it, otherwise than in the course of those duties to another person.

(3) In any proceedings for an offence under subsection (2), it shall be a defence for an accused person to show that the disclosure was made— (a) to the rehabilitated person or to another person at the express request of the rehabilitated person; or (b) to a person whom he reasonably believed to be the rehabilitated person or to another person at the express request of a person whom he reasonably believed to be the rehabilitated person.

(4) Any person who obtains any specified information from any official record by means of any fraud, dishonesty or bribe commits an offence.

(5) The Governor may by order published in the Gazette make such provision as appears to him to be appropriate for excepting the disclosure of specified information derived from an official record from the provisions of subsection (2) in such cases or classes of cases as may be specified in the order.

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(6) Any person who commits an offence— (a) under subsection (2) is liable on summary conviction to a fine not exceeding $10, 000; and (b) under subsection (4) is liable on summary conviction to a fine not exceeding $20, 000 or to imprisonment for a term not exceeding six months, or to both.

Regulations 11. The Governor may make regulations prescribing anything under this Ordinance which is to be prescribed or which is necessary or convenient to be prescribed for the better carrying out of the objects and purposes of this Ordinance, or to give force and effect to its provisions.

Amendment of schedules 12. The Governor may by order published in the Gazette amend the Schedules.

Consequential amendment 13. As a consequential amendment to this Ordinance, section 37 of the Public Service Ordinance is amended by inserting after subsection (5) the following subsection (6)— “(6) Notwithstanding subsection (5), a person who has been rehabilitated under the Rehabilitation of Offenders Ordinance shall be employed in the public service after the expiry of his rehabilitation period.

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SCHEDULE 1 (section 5 (1)) REHABILITATION PERIOD (1) (2) Sentence Rehabilitation period A non- custodial sentence Two years A sentence of imprisonment for Four years a term not exceeding one year A sentence of imprisonment for Eight years a term exceeding one year but not exceeding three years

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SCHEDULE 2 EXCEPTED PROCEEDINGS (section 8 (1))

Cap. 16:01

1. Proceedings in respect of a person's admission to, or disciplinary proceedings against a member of, any profession specified in Part 1 of Schedule 3.

2. Disciplinary proceedings against a police officer.

3. Proceedings by way of appeal against, or review of, any decision taken, by virtue of any of the provisions of this Ordinance, on consideration of a spent conviction.

4. Proceedings under the Proceeds of Crime Ordinance .

5. Proceedings brought under any Financial Services Ordinance as defined under the Financial Services Commission Ordinance.

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SCHEDULE 3 MISCELLANEOUS EXCEPTIONS

In this Schedule— “actuary” means a member of an international actuarial association; “certified accountant’ means a member of an association of certified chartered accountants; “chartered accountant” means a member of an association or institute of chartered accountants; and “judicial appointment” means an appointment to any office by virtue of which the holder has power (whether alone or with others) under any enactment or rule of law to determine any question affecting the rights, privileges, obligations or liabilities of any person.

PART 1 Professions (section 8 (2)(a)(i)) 1. A health practitioner to whom the Health Practitioners Ordinance applies.

2. Attorney registered under the relevant enactment in or outside the Islands.

3. Chartered accountant, certified accountant.

4. Veterinary surgeon.

5. Teacher.

6. Actuary PART 2 Offices and employment (section 8 (2)(a)(ii)) 1. Judicial appointments.

2. The Attorney General and any employment in his office.

3. Designated officers for any courts in the Islands, justices of the peace, clerks and assistant clerks.

4. Persons employed by the Royal Turks and Caicos Islands Police Force as police officers of any rank; and persons employed to assist such police officers under any enactment.

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5. Persons holding office as, or as a member of any institution protecting good governance, which institution is provided in the Constitution.

6. Any employment which is concerned with the administration of, or is otherwise wholly or partly within the precincts of a prison, remand centre or detention centre.

7. Any work which is work in a school or further education institution where the normal duties of that work involve regular contact with persons under the age of eighteen years.

8. Any employment or other work which is concerned with the provision of health services and which is of such a kind as to enable the holder of that employment or the person engaged in that work to have access to persons in receipt of such services in the course of his normal duties.

9. Any office or employment in the public service.

10. Persons who in the course of their work have regular access to personal information relating to an identified or identifiable member of the judiciary.

11. The following persons— (a) Court officers who execute court warrants; (b) Court enforcement officers; (c) persons who execute writs of sequestration; 12. Persons working in any department in the ministry responsible for education and children’s services and skills, who have access to sensitive or personal information about children.

PART 3 Regulated Occupations (section 8(2)(a)(iii)) 1. Any occupation in respect of which an application for a licence, certificate or registration to the body responsible for regulating gambling, is required by or under any enactment.

2. Any occupation in respect of which the holder, as occupier of premises on which explosives are kept, is required to obtain permission certifying him to be a fit person to acquire and keep explosives.

3. Any occupation in respect of which a person is required to obtain permission to handle or deal with explosives.

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4. A gunsmith within the meaning of the Firearms Ordinance.

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SCHEDULE 4 EXCEPTED LICENCES AND PERMITS (section 8 (2)(a)(iv))

Cap. 18.08

1. A licence issued under the Firearms Ordinance.

2. Explosives permission granted by the Governor under the Explosives Ordinance 3. Taxi driver’s licence

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SCDEDULE 5 LISTED OFFENCE

(section 8 (4)) 1. An offence relating to the prescribing, directing or administering of a medicinal product in contravention of the laws or rules governing the prescription and administering of medicinal products by the relevant health professionals.

2. Offences relating to the ill-treatment and neglect of mental patients by persons appointed for their care or vested with the right to take care of their interests; 3. Offences relating to the assistance of mental patients to be absent without leave from the required facilities for purposes of treatment.

4. Offences relating to children – (a) child minding and care; (b) the abduction of children in care; and (c) fostering of children or adoption.

5. An offence of attempting or conspiring to commit any of the offences in paragraphs 1 to 4.

6. An office of inciting, aiding, abetting, counselling or procuring the commission of any of the offences in paragraphs 1 to 4.

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PASSED by the House of Assembly this

…………………………….

Tracey Parker Clerk to House of Assembly

day of

2014.

………………

Robert Hall Speaker

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EXPLANATORY MEMORANDUM The Rehabilitation of Offenders Bill seeks to provide for the rehabilitation of offenders who have not been reconvicted within the specified rehabilitation period.

The purpose of the Bill is to ensure that people do not have lifelong blots on their records because of relatively minor offences in their past, which may impact negatively in such persons acquiring employment or other services. The intention of the Bill is to exclude any prejudice which may occur because of disclosures of person’s relatively minor past convictions or offences.

The Bill seeks to aid the reintegration and resettlement of exoffenders into employment by not requiring them or any other person to disclose or answer questions regarding their spent convictions. The sentences to be rehabilitable are non-custodial sentences and custodial sentences which are up to three years THE BILL Clauses 1 and 2 makes provision for the Short title and commencement of the Bill, and the Interpretation.

Clause 3 provides for instances where a person can be rehabilitated and amongst others provides that a person can be rehabilitated if such person has served or otherwise undergone or complied with their sentence and the rehabilitation period for that sentence has expired. This will apply to convictions in and outside the Islands which were made before or after the commencement of the Ordinance.

Clause 4 makes provision for instances where rehabilitation does not apply and excludes maximum sentences such as life imprisonment which is usually attached to convictions of serious offences. The restriction to the three year maximum rehabilitation period is also provided here.

Clause 5 provides for the rehabilitation period to be applicable to a sentence in order for one to become a rehabilitated person; and further provides that the rehabilitation of persons who are 16 years and under is half of the periods of persons over that age.

The rehabilitation period is calculated from the date of conviction of the person. These periods are set out in Schedule 1 to the Bill.

Clause 6 provides for the effect of rehabilitation and includes effects on proceedings undertaken on spent convictions. The effects of rehabilitation include amongst others, in subclause(1) specifies that a conviction of a rehabilitated person shall be

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considered spent. Subclause (2) provides that any evidence in any proceedings to prove that a person has been prosecuted or convicted or sentenced, which relates to a spent conviction shall not be admissible in court; nor shall a rehabilitated person in any proceedings be asked or required to answer a question in relation to a spent on convictions.

Subclause (3) provides that a question put to a person with a spent conviction, not in any proceedings before a judicial authority (court, tribunal, body or persons having power to determine questions relating to a person’s privileges, obligations or liabilities), (may be question put anywhere) this question or the answer to it will not considered to relate to a spent conviction, and the person questioned will not be liable or prejudiced in law for failure to acknowledge or disclose the spent conviction in his answer.

Subclause (5) provides that a spent conviction or any circumstances ancillary to it, or any failure to disclose such shall not be a ground for dismissing or excluding a person from any office, profession, occupation or employment.

Clause 7 makes provisions for the limitation on rehabilitation and acknowledges that there are certain fields or areas which though a person may be rehabilitated for purposes of this Bill, spent convictions will be required to be disclosed. Some of the areas of limitation relate to disclosures in certain circumstances including in proceedings relating to the adoption or marriage of a minor; criminal proceedings; proceedings for libel or slander; proceedings brought under any legislation dealing with children; and in the operation of any requirement under any enactment which may have provided certain actions to take place within a certain period. Note that an exception is made to the Public Service Ordinance where the limitation will not apply, and hence, where the ten years is requires to lapse after a conviction, this Bill allows that instead, the rehabilitation periods specified may be considered.

Clause 8 makes provisions for further exceptions to rehabilitation and lists circumstances where spent convictions are to be disclosed and may be taken into account when assessing a person’s suitability for certain positions. Though the intention of the Bill seeks to facilitate ex-offenders into employment and it is desirable to do so, the public must remain adequately protected.

Areas requiring disclosure of spent convictions are activities requiring a high degree of trust, often involving children or other vulnerable persons; and disclosure of past offences such as serious violent and sexual offences and other offences of specific relevance for posts concerned with safeguarding children and vulnerable persons.

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Subclauses 3 and (4) however provide exceptions to the exception, that is, that though there is a requirement to disclose under subclauses (1) and (2), there are still certain minor offences and convictions which need not be disclosed and should not be disclosed to assess one’s suitability to employment. This provision still excludes those areas still requiring protection of certain persons in the community and lists the offences which will still require the disclosure/ Clause 9 provides for an action for libel or slander to be brought by a rehabilitated person after the commencement of this act, complaining of a publication which is founded upon any matter imputing that the rehabilitated person has committed or been charged with, or prosecuted for or convicted of, or sentenced for an offence which was the subject of a spent conviction.

Subclause (2) provides that this clause will not apply to a publication which was made before the conviction was spent .

Subclause (3) provides that a defendant may raise as a defence that the publication made is true, fair and in the public interest, but it must be shown that the publication was made without malice, if it was, the defendant loses the right to that defence.

Clause 10 makes provision for the prohibition of disclosure of information relating to spent convictions and makes it an offence to make such disclosure, punishable by penalties Clause 11 makes provision for the making of regulations under the Ordinance.

Clause 12 makes provision for the Schedules to be amended by the Governor.

Clause 13 makes a consequential amendment to section 37 (5) of the Public Service Ordinance to enable persons rehabilitated under the Rehabilitation of Offenders Ordinance to be employed in the public service once their rehabilitation period has expired, notwithstanding the lapse of the ten years required under that section of the Public Service Ordinance.

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