Does she have a criminal record?

All Woman



Dear Mrs Macaulay,
I have a very good girlfriend who was charged with robbery with aggravation in 2011, but her case was dismissed on December 3, 2013. She and the complainant have always been friends. There was a misunderstanding between them which they put behind them very quickly, which led to the complainant pleading with the judge not to go any further with the case from very early. She was begging and pleading with the arresting officer not to proceed, and he was determined to acquiesce, but the magistrate wasn't having it at all. Every time the court date would come up the complainant and the accused would leave together in love and harmony.

The lawyer for the accused sent in an application for the case to be thrown out due to the long period of time it was taking, and because the case wasn't going anywhere, but things only changed on the first trial date when there was a different judge. The judge and the prosecutor agreed on that particular day not to proceed with the case, and it was dismissed immediately. My question is, does my friend still have a bad criminal record? She is a big business woman in Jamaica now, who is paying her taxes.

Please can you advise me what to do now because her son is overseas and is dying to start her filing petition, but this is stressing her out.

Your letter is rather convoluted with all the love and harmony between the complainant and your good girlfriend, their travelling to court together, the begging done to the arresting officer and to the judge, but you did not give relevant information about whether her fingerprints were ordered to be taken, about the actual number of appearances in court which she made in answer to the charges, how long ago this was, or the actual length of time this all took. However, you did state that on the first trial date the charges were dismissed by a different judge, with the agreement of the prosecutor.

Your friend would need to provide evidence that she has no criminal conviction for her son to use for the filing of the petition on her behalf. So what should she do? She should go to the court's office at the courthouse where she answered to the offence she was charged with and apply for a certified copy of the dismissal of the charge. It is always advisable for anyone, upon the dismissal of a charge, to ask then and there, in court, where and when can they obtain a certified copy of the order of the dismissal of the charge. Then they would have such a certified copy in hand for future use.

After getting the copy, your friend should then go to the Criminals Records Office and apply for her criminal record from the police. I should explain that since the offence for which she was charged was dismissed, she will have no criminal record which would have to be expunged. Indeed, if no order was made by the judge of the court when she first answered to the charge for her fingerprints to be taken, the Criminal Records Office will have no record of her.

If, however, her fingerprints were taken and when the charge was dismissed no order was made by the judge for them to be destroyed, then they would or may still be in the police records. She would be so informed at the Records Office, where she should inform them of the dismissal of her charge and produce her certified copy of this fact. This is why she needs to take the certified order of dismissal and hopefully the order for the prints to be destroyed with her. She may, however, in circumstances where they were not ordered to be destroyed, need to apply to the court for that order, on the grounds that the charge had been dismissed but inadvertently no order for their destruction was made at the time. This is not a difficult application to pursue, if the latter is the case. When she goes to the court's office she must ask for the clerk's assistance to get her fingerprint records destroyed due to the dismissal. The clerk would explain the full process to her and she must do what she is advised to do and move on from there.

The reality is that if you are correct that the charge she faced was dismissed, then she definitely has no criminal record in fact and in law. You only acquire a criminal record following a conviction in a court of law after a guilty plea which is accepted by the trial judge, or at the conclusion of a trial with a finding of guilt by the trial judge followed by the penalty phase. So, I repeat, if her charge was dismissed, she had no conviction and so no criminal record could have been entered in the Criminal Records Office.

What she has to do is to go the Criminal Records Office and apply for her record. When she does so she will know her actual status. I still advise that she goes to court and obtain a certified copy — in fact two of this — so she will always be able to prove by producing such an unquestionable copy that the charge was dismissed if anyone ever brings it up to use against her.

I hope I have clarified the position for you and your good friend and that she acts as quickly as possible so that she can stop worrying about her criminal record status.

Margarette May Macaulay is an attorney-at-law, Supreme Court mediator, notary public, and women's and children's rights advocate. Send questions via e-mail to allwoman@jamaicaobserver.com; or write to All Woman, 40-42 1/2 Beechwood Avenue, Kingston 5. All responses are published. Mrs Macaulay cannot provide personal responses.

DISCLAIMER:
The contents of this article are for informational purposes only, and must not be relied upon as an alternative to legal advice from your own attorney.

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