Rehabilitation of
Offenders (Jersey) Law 2001
A LAW to provide for the rehabilitation of certain offenders who have not
been reconvicted, within a certain period of time, for a serious offence, to
penalize the unauthorized disclosure of spent convictions, to amend the law of
defamation and for connected purposes
Commencement
[see endnotes]
1 Interpretation
(1) In
this Law, unless the context otherwise requires –
“1935 Loi” means
the Loi appliquant à cette Ile certaines des
dispositions de l’Acte de Parlement
intitulé Children and Young Persons
Act 1933 confirmed by Order of His Majesty
in Council of the 21st day of February 1935;
“1969 Law” means the Children (Jersey) Law 1969;[1]
“1994 Law” means the Criminal Justice (Young Offenders) (Jersey)
Law 1994[2];
“2014 Law” means the Criminal
Justice (Young Offenders) (Jersey) Law 2014[3];
“Air Force Act” means the Air Force Act 1955 of the United Kingdom
as it has effect in Jersey by virtue of any Order in Council;
“Army Act” means the Army Act 1955 of the United Kingdom
as it has effect in Jersey by virtue of any Order in Council;
“attendance centre order” means an order
under Article 23 of the 1969 Law[4] or Article 8 of the 1994 Law;
“binding over order” means an order for the
provisional release of an offender under Article 2 of the Loi (1937) sur l’atténuation
des peines et sur la mise en liberté surveillée;[5]
“corresponding
court-martial punishment” means a
punishment awarded under section 71A(3) or (4) of the Army Act, section 71A(3)
or (4) of the Air Force Act or section 43A(3) or (4) of the Naval Discipline
Act;
“enactment” includes an enactment of the
United Kingdom which has effect in Jersey, whether by Order in Council or
otherwise;
“lesser sentence” means any sentence other
than a sentence excluded from rehabilitation;
“Naval Discipline Act” means the Naval Discipline Act 1957 of the
United Kingdom as it has effect in Jersey by virtue of any Order in Council;
“official record” means a
record –
(a) kept, for the purposes of its functions, by
any court or public authority in Jersey or by the States of Jersey Police Force
or the Honorary Police or kept, in Jersey or elsewhere, for the purposes of any
of Her Majesty’s forces; and
(b) containing information about persons
convicted of offences;
“probation order” means
an order under the Loi (1937) sur
l’atténuation des peines et sur la mise en liberté
surveillée made on the condition described
in Article 3 thereof;
“proceedings before a judicial authority”
means –
(a) proceedings before any court of law; or
(b) proceedings before any tribunal, body or
person having power –
(i) by virtue of any
enactment or rule of customary law or practice,
(ii) under
the rules governing any association, institution, profession, occupation or
employment, or
(iii) under
any provision of an agreement providing for arbitration with respect to any
questions arising under the agreement,
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;
“rehabilitation” means rehabilitation in
accordance with and for the purposes of this Law;
“sentence” includes any order made by a
court in respect of the conviction of a person of any offence or offences,
other than –
(a) an order for committal; or
(b) any other order made –
(i) in default of
payment of any fine or other sum adjudged to be paid by or imposed on a
conviction, or
(ii) for
want of sufficient distress to satisfy any such fine or other sum;
“sentence excluded from rehabilitation”
means –
(a) a sentence of imprisonment for life;
(b) a sentence of custody for life;
(c) a sentence of preventive detention;
(d) a sentence of imprisonment, detention in a
young offender institution, youth custody or corrective training for a term
exceeding 30 months;
(e) a sentence of detention during Her
Majesty’s pleasure or a sentence of detention for a term exceeding
30 months passed under Article 4 of the 1935 Loi,
Article 13 of the 1969 Law, Article 5(4) of the 1994 Law or
Article 5(3) of the 2014 Law or a corresponding court-martial
punishment;
“service disciplinary proceedings” means any
of the following –
(a) any proceedings under the Army Act, the Air
Force Act or the Naval Discipline Act (whether before a court-martial or before
any other court or person authorized thereunder to award a punishment in
respect of any offence);
(b) any proceedings under any Act previously
having effect in Jersey corresponding to any of the Acts mentioned in sub-paragraph (a);
“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.[6]
(2) In
this Law, a reference to a sentence of detention for any term without more
means a sentence passed under Article 4 of the 1935 Loi, Article 13 of the 1969 Law[7], Article 5(4) of the 1994 Law, or Article 5(3) of
the 2014 Law.[8]
(3) For
the purposes of this Law, any finding that a person is guilty of an offence in
respect of any act or omission which was the subject of service disciplinary
proceedings shall be treated as a conviction and any punishment awarded or
order made by virtue of Schedule 5A to the Army Act or the Air Force Act or by
virtue of Schedule 4A to the Naval Discipline Act in respect of any such
finding shall be treated as a sentence.
(4) In
this Law, any reference to a conviction, however expressed, includes a
reference –
(a) to a conviction by or before a court outside
Jersey; and
(b) to any finding, other than a finding linked
with a finding of incapacity under Part 8 of the Mental Health (Jersey)
Law 2016[9], in any criminal proceedings that a person has committed an offence
or done the act or made the omission charged.[10]
(5) In
this Law, any reference to circumstances ancillary to a conviction shall be
construed as a reference to any of the following –
(a) the offence or offences which were the
subject of that conviction;
(b) the conduct constituting that offence or
those offences; and
(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 pursuant to, or undergone in
compliance with, any such sentence.
(6) In
this Law, a reference to an enactment, is a reference to that enactment as
amended from time to time and includes a reference to that enactment as
extended or applied under another enactment, including another provision of
this Law.
2 General rule for
rehabilitation
(1) Rehabilitation
shall only apply to a conviction, whether before or after this Law comes into
force, for an offence for which a lesser sentence is imposed.
(2) An
individual shall be rehabilitated in respect of such a conviction
if –
(a) during the rehabilitation period applicable
to the conviction, there is not imposed on the individual, for a subsequent
conviction, a sentence excluded from rehabilitation; and
(b) the individual has served or otherwise
undergone or complied with any sentence imposed on the individual in respect of
such conviction.
(3) Where
the conditions in paragraph (2) are satisfied, the individual shall be
rehabilitated in respect of the conviction and the conviction treated as
spent –
(a) after the end of the rehabilitation period
applicable to the conviction; or
(b) where that period ended before this Law
comes into force, after this Law comes into force.
(4) An
individual shall not be treated as having failed to satisfy the condition in
paragraph (2)(b) by reason only of –
(a) the failure to pay a fine or other sum
adjudged to be paid by or imposed on a conviction, or breach of a condition of
a binding over order;
(b) the breach of any condition or requirement
applicable in relation to a sentence which renders the person to whom it
applies liable to be dealt with for the offence for which the sentence was
imposed, or, where the sentence was a suspended sentence of imprisonment,
liable to be dealt with in respect of that sentence (whether or not, in any
case, he or she is in fact so dealt with); or
(c) a failure to comply with any requirement of
a suspended sentence supervision order.[11]
3 Rehabilitation periods for
particular sentences
(1) The
rehabilitation period applicable to a sentence specified in the first column of
the table below is the period specified in the second column of that table in
relation to that sentence in the case of any person or any particular
description of person.
|
Sentence
|
Rehabilitation period
|
|
1 An
absolute discharge.
|
6
months from the conviction date.
|
|
2 A
binding over order.
|
Whichever
is the longer of one year from the conviction date or the period beginning
with that date and ending when the binding over order ceases or ceased to have
effect.
|
|
3 An
attendance centre order.
|
The
period beginning with the conviction date and ending one year after the date
on which the attendance centre order ceases or ceased to have effect.
|
|
4 A
sentence, for a term not exceeding 6 months, of detention.
|
3
years from the conviction date.
|
|
5 A
custodial order, where the maximum period of detention specified in the order
is 6 months or less, under Schedule 5A to the Army Act or the Air Force Act or
under Schedule 4A to the Naval Discipline Act.
|
3
years from the conviction date.
|
|
6 Any
sentence of detention in respect of a conviction in service disciplinary
proceedings.
|
Person
aged 18 or more: 5 years from the conviction date.
Person
aged less than 18: 2½ years from the conviction date.
|
|
7 A
fine, or any other sentence subject to rehabilitation under this Law, not
being a sentence within any other item in this column of this table.
|
Person
aged 18 or more: 5 years from the conviction date.
Person
aged less than 18: 2½ years from the conviction date.
|
|
8 A
sentence, for a term exceeding 6 months but not exceeding 30 months, of
detention.
|
5
years from the conviction date.
|
|
9 A
probation order.
|
Person
aged 18 or more: 5 years from the conviction date.
Person
aged less than 18: whichever is the longer of 2½ years from the
conviction date or a period beginning with that date and ending when the
probation order ceases or ceased to have effect.
|
|
10 A
sentence, for a term not exceeding 6 months, of imprisonment, detention in a
young offender institution or youth custody.
|
Person
aged 18 or more: 7 years from the conviction date.
Person
aged less than 18: 3½ years from the conviction date.
|
|
11 A
custodial order, where the maximum period of detention specified in the order
is more than 6 months, under section 71AA of or Schedule 5A to the Army Act
or the Air Force Act or under section 43AA of or Schedule 4A to the Naval
Discipline Act.
|
7
years from the conviction date.
|
|
12 A
sentence of dismissal from Her Majesty’s service.
|
Person
aged 18 or more: 7 years from the conviction date.
Person
aged less than 18: 3½ years from the conviction date.
|
|
13 A
sentence of cashiering, discharge with ignominy or dismissal with disgrace
from Her Majesty’s Service.
|
Person
aged 18 or more: 10 years from the conviction date.
Person
aged less than 18: 5 years from the conviction date.
|
|
14 A
sentence, for a term exceeding 6 months but not exceeding 30 months, of
imprisonment, detention in a young offender institution, youth custody or
corrective training.
|
Person
aged 18 or more: 10 years from the conviction date.
Person
aged less than 18: 5 years from the conviction date.
|
|
Sentence which may no longer be passed
|
Rehabilitation period
|
|
15 Birching.
|
One
year from the conviction date.
|
|
16 A
fit person order under Article 24 of the 1969 Law.
|
Whichever
is the longer of one year from the conviction date or the period beginning
with that date and ending when the order ceases or ceased to have effect.
|
|
17 An
approved school order under Article 7 of the 1935 Loi or under Article 24 of the 1969 Law[12].
An
order under Article 13 of the 1935 Loi.
|
The
period beginning with the conviction date and ending one year after the date
on which the order ceases or ceased to have effect.
|
|
18 An
order for detention in or committal to a detention centre or a young
offenders’ centre under Article 19 or 20 of the 1969
Law.
|
3
years from the conviction date.
|
|
19 A
sentence of Borstal training.
|
7
years from the conviction date.
|
(2) For
the purpose of determining the rehabilitation period applicable to a person by
virtue of the table above, the person’s age shall be taken at the
conviction date.
(3) Where,
in respect of a conviction, an order was made imposing on the person convicted
any disqualification, disability, prohibition or other penalty, the
rehabilitation period applicable to the sentence shall be a period beginning
with the conviction date and ending on the date on which the disqualification,
disability, prohibition or penalty, as the case may be, ceases or ceased to
have effect.
(4) The
States may by Regulations substitute or amend the table in paragraph (1)
for the purpose of re-arranging the table or of adding a description of
sentence and specifying the rehabilitation period applicable to that sentence,
and may specify different rehabilitation periods in the cases of persons of
different ages.
(5) For
the purposes of this Article –
(a) “sentence of imprisonment”
includes a sentence of penal servitude or hard labour, and “term of
imprisonment” shall be construed accordingly;
(b) consecutive terms of imprisonment or of
detention and terms that are wholly or partly concurrent, being terms of
imprisonment or detention imposed in respect of offences of which a person was
convicted in the same proceedings, shall be treated as a single term;
(c) no account shall be taken of any subsequent
variation, made by a court in dealing with a person in respect of a suspended
sentence of imprisonment, of the term originally imposed; and
(d) a sentence imposed by a court outside Jersey
shall be treated as a sentence of that one of the descriptions in this Article
which most nearly corresponds to the sentence imposed.[13]
4 Rehabilitation period
applicable to a conviction
(1) Subject
to Articles 5 and 6, where only one lesser sentence is imposed for a
conviction, the rehabilitation period applicable to the conviction is that
which is applicable to that sentence in accordance with Article 3.
(2) Subject
to Articles 5 and 6, where 2 or more lesser sentences are imposed for a
conviction (whether or not in the same proceedings), the rehabilitation period
applicable to the conviction is that which is applicable to each of those
sentences, if the same, or, if different, the longest of the rehabilitation
periods applicable to those sentences.
5 Effect of further conviction
within rehabilitation period
(1) This
Article applies where, during the rehabilitation period applicable to a
conviction (the “first conviction”) –
(a) the person is convicted of a further offence
(the “second conviction”) and the conviction is not –
(i) a conviction in
service disciplinary proceedings for an offence listed in the Schedule, or
(ii) a
conviction by or before a court outside Jersey of an offence in respect of
conduct which, if it had taken place in Jersey, would not have constituted an
offence under the laws of Jersey; and
(b) a sentence excluded from rehabilitation is
not imposed on the person in respect of the second conviction.
(2) Subject
to paragraph (3), if the rehabilitation periods applicable to the first
conviction and the second conviction would end on different dates, the period
which would end first shall be extended so as to end on the same date as the other
period.
(3) The
rehabilitation period applicable to a conviction shall not be extended
where –
(a) only one lesser sentence was imposed for the
other conviction; and
(b) the rehabilitation period applicable to that
sentence was determined in accordance with Article 3(3).
(4) For
the purposes of paragraph (2), in determining the rehabilitation period
applicable to a conviction for which 2 or more lesser sentences are imposed,
there shall be disregarded any rehabilitation period applicable to a sentence in
accordance with Article 3(3).
6 Effect of sentence for breach
of binding over or probation after end of rehabilitation period
(1) This
Article applies where a binding over order or probation order was imposed for a
conviction and, after the end of the rehabilitation period applicable to the
conviction in accordance with Article 4, the person is dealt with, in
consequence of a breach of the binding over order or probation order, for the
offence for which such order was imposed.
(2) Without
prejudice to Article 4(2), if the rehabilitation period applicable to the
conviction in accordance with that paragraph, taking into account any sentence
imposed when the person is dealt with for the breach, ends later than the
rehabilitation period previously applicable to the conviction, the person shall
be treated as not having become rehabilitated in respect of the conviction, and
the conviction shall be treated as not having become spent, before the end of
the new rehabilitation period.
7 Effect of rehabilitation: subsequent judicial proceedings
(1) Subject
to Articles 8 and 9, a person rehabilitated 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.
(2) Subject
to Articles 8 and 9, but notwithstanding any enactment or rule of
customary law to the contrary –
(a) no evidence shall be admissible in any
proceedings before a judicial authority to prove that a person who has become a
rehabilitated 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 or her past which cannot be answered without acknowledging or referring
to a spent conviction or spent convictions or any circumstances ancillary to
such convictions.
8 Limitations on rehabilitation: subsequent judicial proceedings
(1) Nothing
in Article 7 shall affect –
(a) any right of Her Majesty, by virtue of Her
Royal prerogative or otherwise, to grant a free pardon, to quash any conviction
or sentence, or to commute any sentence;
(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 enactment 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
to the conviction.
(2) Nothing
in Article 7 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 to them –
(a) in any criminal proceedings before a court
in Jersey, including any appeal or reference in a criminal matter;
(b) in any service disciplinary proceedings or
in any proceedings on appeal from any service disciplinary proceedings;
(c) in any proceedings relating to adoption, the
marriage of any minor or the formation of a civil partnership of any minor, the
exercise of the inherent jurisdiction of the Royal Court with respect to minors
or the provision by any person of accommodation, care or schooling for minors;
(d) in any proceedings brought under
the Children (Jersey) Law 2002[14] or the Day Care of Children (Jersey) Law 2002[15];
(e) in any proceedings in which the person is a
party or a witness, provided that, notwithstanding Article 7, 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.[16]
(3) Subject
to paragraph (4), if, at any stage in any proceedings before a judicial
authority in Jersey, 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 be thereafter 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 to such convictions, the
authority –
(a) notwithstanding Article 7, may admit
or, as the case may be, require the evidence in question; and
(b) may, in determining any issue to which the
evidence relates, disregard Article 7 so far as necessary.
(4) Paragraph
(3) does not apply to proceedings –
(a) to which, by virtue of paragraph (2) or
any Regulations made under paragraph (5), Article 7 does not apply;
or
(b) to which Article 9 applies.
(5) The
States may by Regulations exclude the application of Article 7 in relation
to any proceedings specified in the Regulations, other than proceedings to
which Article 9 applies, to such extent and for such purposes as may be so
specified.
(6) 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 the
person in respect of any offence.
9 Defamation actions
(1) For
the purposes of this Article, “defamation action” means an action
for libel or slander begun after this Law comes into force 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.
(2) Nothing
in Article 7 shall affect a defamation action where the publication
complained of took place before the conviction in question became spent.
(3) Paragraphs
(4) to (8) apply to a defamation action where the publication complained of
took place after the conviction in question became spent.
(4) Subject
to paragraphs (6) and (7), nothing in Article 7 shall prevent the
defendant in a defamation action to which this paragraph applies from relying
on any defence of justification or fair comment or of absolute or qualified
privilege which is available to the defendant or restrict the matters he or she
may establish in support of any such defence.
(5) Without
prejudice to the generality of paragraph (4), where, in any such action,
malice is alleged against a defendant who is relying on a defence of qualified
privilege, nothing in Article 7 shall restrict the matters the defendant
may establish in rebuttal of the allegation.
(6) A
defendant in any such action shall not, by virtue of paragraph (4), be
entitled to rely upon the defence of justification if the publication is proved
to have been made with malice.
(7) Subject
to paragraph (8), a defendant in any such action shall not, by virtue of paragraph (4),
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 Article 7.
(8) Paragraph
(4) shall apply without the qualifications imposed by paragraph (7) 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.
10 Effect of rehabilitation: other circumstances
(1) Subject
to Regulations made under paragraph (3), where a question seeking
information with respect to a person’s previous convictions, offences,
conduct or circumstances is put to the person 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 such
convictions, and the answer to the question 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
such a conviction in the person’s answer to the question.
(2) Subject
to Regulations made under paragraph (3) –
(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 the person to
disclose a spent conviction or any circumstances ancillary to such a conviction
(whether the conviction is the person’s own or another’s); and
(b) a conviction which has become spent or any
circumstances ancillary to it, 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 the person in any way in any occupation or employment.
(3) The
States may by Regulations –
(a) make such provisions as seem to them
appropriate for excluding or modifying the application of either or both of paragraph (1)(a)
and (b) in relation to questions put in such circumstances as may be specified
in the Regulations; and
(b) provide for such exceptions from either or
both of the provisions of paragraph (2) as seem to them appropriate, in
such cases or classes of case, and in relation to convictions of such a
description, as may be specified in the Regulations.
11 Unauthorized disclosure of spent conviction
(1) Subject
to Regulations made under paragraph (4), any person who, in the course of
his or her official duties, has or at any time has had custody of or access to
any official record or the information contained in it shall be guilty of an
offence if, knowing or having reasonable cause to suspect that any specified information
the person has obtained in the course of those duties is specified information,
he or she discloses it to another person.
(2) In
any proceedings for an offence under paragraph (1), it shall be a defence
for the defendant 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 the defendant reasonably
believed to be the rehabilitated person or to another person at the express
request of a person whom the defendant 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 shall be guilty of an offence.
(4) The
States may by Regulations make such provision as appears to them to be
appropriate for excepting from paragraph (1) the disclosure of specified
information derived from an official record, in such cases or classes of case
as may be specified in the Regulations.
(5) A
person guilty of an offence under paragraph (1) shall be liable to a fine
not exceeding level 3 on the standard scale.
(6) A
person guilty of an offence under paragraph (3) shall be liable to
imprisonment for a term of 6 months and to a fine.[17]
12 Citation
This Law may be cited as the
Rehabilitation of Offenders (Jersey) Law 2001.