Bermuda’s Attorney General, Kathy Lynn Simmons informed MPs of new regulations to clear criminal convictions for possession of small amounts of cannabis, where the amounts were not recorded by police.
Speaking in the Lower House on Friday, Ms Simmons disclosed that nearly 80 percent of all applications made to have the records wiped clean, were yet to be processed, after legislation was first introduced in 2021.
The cause for the delay, she said, was because the quantity of cannabis was not stated explicitly on the applicants’ Bermuda Police Service criminal records.
Ms Simmons, who is also the Minister of Legal Affairs and Constitutional Reform, said the Expungement of Convictions (Criminal Records) Regulations 2023 have been drafted and approved by Cabinet.
“They will come into effect further to negative resolution procedure authorized by section 10 of the Expungement of Convictions Act 2020 (the Expungement Act), as soon as the Government’s digital publication system is restored.“
The Expungement of Convictions Act 2020 became operative in March 2021, which allowed someone with a prior conviction for the offence to apply for an Expungement Order.
This after 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.
Although some applicants were successful and expungement orders were made, she said an obstacle was encountered with others.
“Since March of 2021 when the Expungement Act became operational, unfortunately since then an obstacle arose,“ she said.
“As it stands, to date, approximately forty (40) of the fifty one (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 ‘7 grams or less amount criteria’ for making an Expungement Order.
“Making this determination is of course necessary for such orders to be made.“
She noted that “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“.
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.”
The processing of outstanding expungement applications was “now aggressively under way“, and will be completed when the regulations take effect.
“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.”
She also described the implementation of the Expungement of Convictions Act 2020 as “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”.
“The setbacks to date did not diminish those efforts nor derail determination to see this through to the end,“ she added.
“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.”
The new Regulations provide that for expungement applications, the amount of cannabis for possession convictions when not stated on the record, shall be taken to be less than or equal to 7 grams for purposes of making Expungement Orders under the Act, if:
- the cannabis possession conviction was prior to December 20, 2017
- the Expungement Applicant’s Bermuda Police Service criminal record does not specify the amount of cannabis for which the applicant was convicted; and
- the penalty upon conviction did not exceed one thousand dollars ($1,000.00) or 12 months conditional discharge
“These Regulations therefore made necessary provision for the avoidance of doubt,“ said Ms Simmons.
“They clarify that any additional element fines per the sentence of possession of less than 7 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.“
Moving forward, she said: “The opportunity is now afforded to process the outstanding Expungement Act applications.
“That process is now aggressively underway and will be completed when the Regulations are published and come into effect. 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.“
In closing, the Minister said: “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.
“My sincere appreciation for the patience of those applicants who have not yet received a final outcome due to the obstacles outlined. I look forward to your patience being rewarded in the near future.“
The Minister also thanked “the Bermuda Police Service Commissioner and his staff for their assistance as well as the tireless efforts of our Permanent Secretary, the Policy Analyst as project manager, and other Ministry staff whose persistence has made the intended benefits to the public of these measures, possible“.