British Virgin Islands

Friday, Jan 22, 2021

Only fair! Gov't introduces legislation to expunge criminal records of past cannabis users

Only fair! Gov't introduces legislation to expunge criminal records of past cannabis users

Now that medical marijuana legislation has successfully passed through the House of Assembly, government is moving forward with its Drug Prevention & Misuse (Amendment) Act that, among other things, offers previously-convicted cannabis users an opportunity to have their criminal records expunged.

The amendment provides for the insertion of a new section — Sections 28(a) through to 28(e) — to the principal legislation; thereby allowing petitioners to apply for their convictions to be rescinded.

Part ‘A’ of Section 28 notes that the criminal record may not be expunged if the cannabis for which a person was charged or convicted is more than the amount defined in the legislation. That amount has not yet been specified.

Factors to be considered when deciding whether to expunge

According to Health Minister Carvin Malone, who gave a brief introduction to the amendment Tuesday night, Part ‘B’ speaks to the eligibility of expungement while 28(c) would provide the factors to be considered by local courts such as the petitioner’s age, their age at the time of the offence, the time that elapsed since the conviction, and the adverse consequences they would suffer if their application was denied.

He said Clause 28(d) would provide for expungement of a criminal record as well as all official records of arrest, pleas, trial conviction, and supervision of expungement. The final part to the amendment, 28(e), stipulates that no liability or legal action shall lie against the government by offenders who’ve had their records expunged.

Only fair to offer expungement

Malone said the purpose of the amendment is to bring fairness and balance between those who were penalised in the past for using cannabis for medical reasons and those future users who are now free to consume medical marijuana under the Cannabis Licensing Act that passed in the House late Tuesday night, June 30.

“It is not uncommon to find that persons who were held by the police with small quantities of cannabis plead that they may have acquired the cannabis for medical relief. They may have had glaucoma, migraines, or they may be a cancer patient who is dealing with pain from chemotherapy. These quantities and these reasons are in line with the very same conditions and situations that we are now seeking to decriminalize today,” Malone reasoned.

Disparity, criminal stain, and trouble getting a job

“You can also see a disparity created where, similarly, a person who has such as conviction on their record is walking around with a stain on their name. They cannot get a police certificate, [and] they are debarred from accessing certain opportunities such as a mere job. But someone else who commits the same act after the decriminalization takes effect does not face the same obstacles,” the minister further explained.

He continued: “This is why the fair thing to do is to level the playing field and to implement a mechanism that would remove that blemish and to remove any enormities whereby prosecutions may be taking place in the court for actions committed prior to the decriminalization, while no such actions would apply for the same activities after the law is passed. That, in simple terms, is the philosophy behind what we are trying to achieve.”

Importantly, the proposed amendment does not apply in circumstances in which the Director of Public Prosecutions determines that a person had intentions to supply cannabis to others.


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