CHAPTER
100
REHABILITATION OF OFFENDERS |
ARRANGEMENT OF
SECTIONS |
SECTION |
|
|
Rehabilitated persons and spent convictions. |
The rehabilitation period applicable to a
conviction. |
Effect of rehabilitation. |
Limitations on rehabilitation under this Act. |
|
Unauthorised disclosure of spent convictions. |
Amendment of First and Third Schedules. |
FIRST SCHEDULE - Excepted Offences. |
SECOND SCHEDULE - Excepted Proceedings. |
THIRD SCHEDULE. |
CHAPTER 100 |
REHABILITATION OF
OFFENDERS |
An Act to
rehabilitate offenders who have not been reconvicted of any serious offence for
periods of years, to penalise the unauthorised disclosure of their previous convictions
and to amend the law of defamation. | 11 of 1991 |
[Assent 26th
September, 1991]
[Commencement 1st October, 1991] |
1. This Act may be cited as the Rehabilitation of
Offenders Act, 1991. | Short title. |
2. (1) In this Act- | Interpretation. |
"Minister"
means the Minister responsible for Rehabilitation; |
"rehabilitation
period applicable" means the rehabilitation period applicable by virtue of
section 4 to a conviction for an offence; |
"sentence"
includes any order made by a court in dealing with a person in respect of his
conviction for any offence, other than an order for committal or any 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 sum. |
(2) In this Act,
references to a conviction, however expressed, are references to a conviction
by or before a court in The Bahamas. |
(3) For the
purposes of this Act, any of the following are circumstances ancillary to a
conviction, that is to say- |
(a) the offence
which was the subject of that conviction; |
(b) the conduct
constituting that offence; |
(c) any process
or proceedings preliminary to that conviction, any sentence imposed in respect
of that conviction, any proceedings (whether by way of appeal or otherwise) for
reviewing that conviction or any such sentence, and anything done in pursuance
of or undergone in compliance with any such sentence. |
(4) For the
purposes of this Act, "proceedings before a judicial authority"
includes, in addition to proceedings before any court, proceedings before any
tribunal, body or person having power- |
(a) by virtue
of any 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 thereunder, |
to determine
any question affecting the rights, privileges, obligations or liabilities of
any person, or to receive evidence affecting the determination of any such
question. |
3. (1) Subject to subsections (2) and (3), where an
individual has been convicted, whether before or after the commencement of this
Act, of any offence and the following conditions are satisfied, that is to say- | Rehabilitated persons and spent convictions. |
(a) the offence
is not excluded from rehabilitation under this Act; and |
(b) the
individual has not been convicted, during the rehabilitation period applicable
to the first mentioned conviction, of an offence which is exclude from
rehabilitation under this Act, |
then, after
the end of the rehabilitation period so applicable (including, where
appropriate, any extension under subsection (3) of section 4 of the period
originally applicable to the first mentioned conviction) or, where that
rehabilitation period ended before the commencement of this Act, immediately
after the commencement of this Act, that individual shall for the purposes of
this Act be treated as a rehabilitated person in respect of the first-mentioned
conviction and that conviction shall for those purposes be treated as spent. |
(2)
Notwithstanding anything to the contrary in any other provision of this Act,
where an individual- |
(a) has been
convicted, whether before or after the commencement of this Act, of an offence
which is not excluded from rehabilitation under this Act and which was
committed when that individual was under the age of sixteen years; and |
(b) has not
been convicted, during the rehabilitation period applicable to the
first-mentioned conviction, of an offence, |
that
individual shall for the purposes of this Act be treated as a rehabilitated
person in respect of the first-mentioned conviction and that conviction shall
for those purposes be treated as spent. |
(3) A person shall
not become a rehabilitated person for the purposes of this Act in respect of a
conviction unless he has served or otherwise undergone or complied with any
sentence imposed on him in respect of that conviction but- |
(a) failure to
pay a fine or other sum adjudged to be paid by or imposed on a conviction; or |
(b) breach of a
condition of a recognisance or of a bond to keep the peace or be of good
behaviour, |
shall not
prevent a person from becoming a rehabilitated person for those purposes. |
(4) An individual
convicted of an offence may appeal to the Minister against the refusal of a
public officer to treat that individual as a rehabilitated person in respect of
a conviction, or to treat that conviction as spent, as required by the
provisions of this Act. |
4. (1) The offences excluded from rehabilitation under
this Act are specified in the First Schedule and any other offence is
an offence subject to rehabilitation under this Act. | The rehabilitation period applicable to a conviction. |
(2) For the
purposes of this Act, the rehabilitation period applicable- |
(a) to a
conviction for an indictable offence, shall be a period of fourteen years; and |
(b) to a
conviction for a summary offence or an indictable offence dealt with summarily,
shall be a period of seven years, |
reckoned in
either case from the date of the conviction, or of the expiration of any period
of custodial sentence (other than for the non-payment of a fine or other sum)
imposed on that conviction, whichever is the later: |
Provided that in
the case of an individual who, at the date of his conviction, was under the age
of eighteen years, the rehabilitation period applicable shall be half of the
respective periods mentioned in paragraph (a), or (b), as the case may be. |
(3) Where during
the rehabilitation period applicable to a conviction- |
(a) the person
convicted is convicted of a further offence; and |
(b) such
further offence is not an offence excluded from rehabilitation under this Act, |
then, if the
rehabilitation period applicable in accordance with this section to either of
the convictions would end earlier than the period so applicable in relation to
the other, the rehabilitation period which would (apart from this subsection)
end the earlier shall be extended so as to end at the same time as the other
rehabilitation period. |
5. (1) Subject to sections 6 and 7, a person who has
become a rehabilitated person for the purposes of this Act in respect of a
conviction shall be treated for all purposes in law as a person who has not
committed or been charged with or prosecuted for or convicted of or sentenced
for the offence which was the subject of that conviction; and, notwithstanding
the provisions of any other written law or rule of law to the contrary, but
subject as aforesaid- | Effect of rehabilitation. |
(a) no evidence
shall be admissible in any proceedings before a judicial authority to prove
that any such person has committed or been charged with or prosecuted for or
convicted of or sentenced for any offence which was the subject of a spent
conviction; and |
(b) a person
shall not, in any such 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
ancillary thereto. |
(2) Subject to
subsections (3) to (5) of section 6 and to the provisions of any order made
under subsection (4), where a question seeking information with respect to a
person's previous convictions, conduct or circumstances is put to him or to any
other person otherwise than in proceedings before a judicial authority- |
(a) the
question shall be treated as not relating to spent convictions or to any
circumstances ancillary to spent convictions and the answer thereto may 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 spent conviction in his answer to the question. |
(3) Subject to
subsections (3) to (5) of section 6 and to the provisions of any order made
under subsection (4)- |
(a) any
obligation imposed on any person by any rule of law or by the provisions of any
agreement or arrangement to disclose any matters to any other person shall not
extend to requiring him to disclose a spent conviction or any circumstances
ancillary to a spent conviction (whether the conviction is his or another's);
and |
(b) a
conviction which has become spent or any circumstances ancillary thereto, or
any failure to disclose a spent conviction or any such circumstances, shall not
be a proper ground for dismissing or excluding a person from any office,
profession, occupation or employment, or for prejudicing him in any way in any
occupation or employment. |
(4) The Minister
may by order- |
(a) make such
provision as seems to him appropriate for excluding or modifying the
application of either or both of paragraphs (a) and (b) of subsection (2) in
relation to questions put in such circumstances as may be specified in the
order; and |
(b) provide for
such exceptions from the provisions of subsection (3) as seem to him
appropriate, in such cases or classes of case, and in relation to convictions
of such a description, as may be specified in the order. |
6. (1) Nothing in subsection (1) of section 5 shall
affect- | Limitations on rehabilitation under this Act. |
(a) any power
of the Governor-General exercisable in Her Majesty's name and on Her Majesty's
behalf under Article 90 of the Constitution; |
(b) the
enforcement by any process or proceedings of any fine or other sum adjudged to
be paid by or imposed on a spent conviction; |
(c) the issue
of any process for the purpose of proceedings in respect of any breach of a
condition or requirement applicable to a sentence imposed in respect of a spent
conviction; or; |
(d) the
operation of any written law by virtue of which, in consequence of any
conviction, a person is subject, otherwise than by way of sentence, to any
disqualification, disability, prohibition or other penalty the period of which
extends beyond the rehabilitation period applicable in accordance with section
4 to the conviction. |
(2) Nothing in
subsection (1) of section 5 shall affect the determination of any issue, or
prevent the admission or requirement of any evidence, relating to a person's
previous convictions or to circumstances ancillary thereto- |
(a) in any
criminal proceedings before a court (including any appeal or reference in a
criminal matter); |
(b) in any
proceedings relating to adoption or to the guardianship, wardship, marriage;
custody, care or control of a child or young person; or |
(c) in any proceedings
in which he is a party or witness, provided that on the occasion when the issue
or the admission or requirement of the evidence falls to be determined, he
consents to the determination of the issue or, as the case may be, the
admission or requirement of the evidence notwithstanding the provisions of
subsection (1) of section 5. |
(3) Subsection (1)
of section 5 shall not apply in relation to any proceedings specified in the
Second Schedule. |
(4) Subsection (2)
of section 5 shall not apply in relation to- |
(a) any
question asked by or on behalf of any person, in the course of duties of his
office or employment, in order to assess the suitability- |
(i) of
the person to whom the question relates for admission to any of the professions
specified in Part I of the Third Schedule; |
(ii) of
the person to whom the question relates for any office or employment specified
in Part
II of the Third Schedule; |
(iii) of
the person to whom the question relates or of any other person to pursue any
occupation specified in Part III of the Third Schedule or to pursue it subject to a
particular condition or restriction; |
(iv) of
the person to whom the question relates or of any other person to hold a
licence, certificate or permit of a kind in Part IV of the Third Schedule, |
where the
person questioned is informed at the time the question is asked that, by virtue
of this paragraph, spent convictions are to be disclosed; |
(b) any
question asked by or on behalf of any person, in the course of his duties as a
person employed in the service of the Crown, in order to assess, for the
purpose of safeguarding national security, the suitability of the person to
whom the question relates or of any other person for any office or employment
where the person questioned is informed at the time the question is asked that,
by virtue of this paragraph, spent convictions are to be disclosed for the
purpose of safeguarding national security. |
(5) Paragraph (b)
of subsection (3) of section 5 shall not apply in relation to- |
(a) the
dismissal or exclusion of any person from any profession specified in Part I of the Third Schedule; |
(b) the dismissal
or exclusion of any air traffic controller, or any operator or any vehicle,
vessel or aircraft used for public transportation, on the ground of a
conviction of an offence an element of which is the use or possession of any
drugs or alcohol; |
(c) any office,
employment or occupation specified in Part II or Part III of that Schedule; or |
(d) any action
taken for the purpose of safeguarding national security. |
(6) Where, by
virtue of any of the provisions of subsections (3) to (5), the operation of any
of the provisions of this Act is excluded in relation to spent convictions, the
exclusion shall be taken to extend to spent convictions for offences of every
description. |
(7) If at any
stage in any proceedings before a judicial authority (not being proceedings to
which, by virtue of this Act, subsection (1) of section 5 has no application,
or proceedings to which section 7 applies), the authority is satisfied, in the
light of any considerations which appear to it to be relevant (including any
evidence which has been or may thereafter be put before it), that justice
cannot be done in the case except by admitting or requiring evidence relating
to a person's spent convictions or to circumstances ancillary thereto, that authority
may admit or, as the case may be, require the evidence in question
notwithstanding the provisions of subsection (1) of section 5, and may
determine any issue to which the evidence relates in disregard, so far as
necessary, of those provisions. |
(8) No order made
by a court with respect to any person otherwise than on a conviction shall be
included in any list or statement of that person's previous convictions given
or made to any court which is considering how to deal with him in respect of
any offence. |
(9) The Minister
may by order exclude the application of subsection (1) of section 5 in relation
to any proceedings specified in the order (other than proceedings to which
section 7 applies) to such extent and for such purposes as may be so specified. |
7. (1) This section applies to any action for libel or
slander begun after the commencement of this Act by a rehabilitated person and
founded upon the publication of any matter imputing that the plaintiff 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. | Defamation actions. |
(2) Nothing in
subsection (1) of section 5 shall affect an action to which this section
applies where the publication complained of took place before the conviction in
question became spent, and the following provisions of this section shall not
apply in any such case. |
(3) Subject to
subsection (5) and (6), nothing in subsection (1) of section 5 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) Without
prejudice to the generality of subsection (3), where in any such action malice
is alleged against a defendant who is relying on a defence of qualified
privilege, nothing in subsection (1) of section 5 shall restrict the matters he
may establish a rebuttal of the allegation. |
(5) A defendant in
any such action shall not by virtue of subsection (3) be entitled to rely upon
the defence of justification if the publication is proved to have been made
with malice. |
(6) Subject to
subsection (7) a defendant in any such action shall not, by virtue of
subsection (3), be entitled to rely on any matter or adduce or require any
evidence for the purpose of establishing the defence that the matter published
constituted a fair and accurate report of judicial proceedings if it is proved
that the publication contained a reference to evidence which was ruled to be
inadmissible in the proceedings by virtue of subsection (1) of section 5. |
(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 courts of law; and |
(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. |
8. (1) Subject to the provisions of any order made
under subsection (4), any 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, is guilty of an offence if, knowing or having reasonable
cause to suspect that any specified information which 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. | Unauthorised disclosure of spent convictions. |
(2) In any
proceedings for an offence under subsection (1), it shall be a defence 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. |
(3) Any person who
obtains any specified information from any official record by means of any
fraud, dishonesty or bribe is guilty of an offence. |
(4) The Minister
may by order 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 (1) in such cases or classes of case
as may be specified in the order. |
(5) Any person
guilty of an offence under subsection (1) or (3) is liable on summary
conviction to a fine of one thousand dollars. |
(6) In this
section- |
"official
record" means a record kept for the purposes of its functions by a court,
Government department or public body or by the Royal Bahamas Police Force,
being a record containing information about persons convicted of offences; |
"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. |
9. The Minister may be order amend the provisions of
the First or Third Schedule. | Amendment of First and Third Schedules. |
FIRST SCHEDULE (Section 4(1)) |
EXCEPTED OFFENCES |
Manslaughter in
respect of which a sentence of five years or more has been imposed on
conviction. |
Murder. |
Possession of
dangerous drugs with intent to supply. |
Treason. |
Armed robbery. |
Rape. |
Unlawful carnal
knowledge contrary to section 286 of the Penal Code. |
SECOND SCHEDULE (Section 6(3)) |
EXCEPTED
PROCEEDINGS |
1. Proceedings in
respect of a person's admission to, or disciplinary proceedings against a
member of, any profession specified in Part I of the Third Schedule. |
2. Disciplinary
proceedings against a member of the Public Service including proceedings under
the Police Act and the Defence Act. |
3. Proceedings by
way of appeal against, or review of, any decision taken by virtue of the
provisions of this Act, on consideration of a spent conviction. |
4. Proceedings
held for the receipt of evidence affecting the determination of any question
arising in any proceedings specified in this Schedule. |
THIRD SCHEDULE (Section 6(4) and (5)) |
PART I
EXCEPTED PROFESSIONS |
1. Counsel and
attorney. |
2. Medical
practitioner. |
3. Dentist, dental
nurse, dental hygienist, dental technician. |
4. Veterinary
surgeon. |
5. Nurse, midwife. |
6. Optician. |
7. Chemist,
pharmacist. |
PART II
EXCEPTED OFFICES AND EMPLOYMENTS |
1. Justice of
Appeal of the Court of Appeal and Justice of the Supreme Court. |
2. Member of the
Royal Bahamas Police Force, Police Volunteer Reservist and Supernumerary Police
Officer. |
3. The following
members of the Public Service- |
(a) persons
employed in any public office to which Article 117 of the Constitution applies; |
(b) members of
the Royal Bahamas Defence Force; and |
(c) members of
the Prison Service. |
4. Any person whose
duties include the keeping or maintenance of financial records, books or
accounts, or the auditing of any such records, books or accounts." |
PART III
REGULATED OCCUPATIONS |
1. Firearms dealer
within the meaning assigned to that expression by subsection (1) of section 2
of the Firearms Act. |
PART IV
EXCEPTED LICENCES, CERTIFICATES AND PERMITS |
1. A licence,
certificate or permit issued under the Firearms Act. |