THE PRESS MONDAY, DECEMBER 23, 1985. Forgetting past crimes

Press, 23 December 1985, Page 20

THE PRESS MONDAY, DECEMBER 23, 1985. Forgetting past crimes

The Minister of Justice, Mr Palmer, has revived the proposition that it should be possible to expunge from public knowledge or comment a convicted criminal’s record of offending after an interval. He has also disclosed that the Government is considering making it unlawful to discriminate against people in a range of fields — including employment, housing, and the provision of goods and services — on the ground of previous criminal offending. To test the waters before enshrining these concepts in statute, the Government has released a discussion paper prepared by the Justice Department. The intention of clearing the names of those who have been convicted of crimes, but who have not reoffended — or, perhaps, have not been caught reoffending — for a certain period may seem humane enough. It is no great novelty and, only a couple of years ago, a member of the present Cabinet, Mr Prebble, when in Opposition, proposed a private member’s bill along similar lines. The principle is that people who have committed an offence, have been sentenced by the Court to punishment, and have paid the penalty, should not suffer from this criminal record for the rest of their lives. According to Mr Palmer, the problem of living down a criminal record is often a form of punishment that extends far beyond the original sentence.

Rehabilitation of first-time offenders is important on the ground of natural justice and makes good sense for the whole of society. Habitual offenders are a worrying social and economic problem for the law-abiding community. Habitual offenders presumably would seldom qualify for the consideration that Mr Palmer wishes to extend; but many known criminals seem to avoid brushes with the law for periods at least as long as the five years that has been mentioned, only to run up a string of new convictions at some later date. Nevertheless, if reference to minor crimes, long past, endlessly obstructs rehabilitation, no good is served. A young person, in particular, must hope that the slate can be wiped clean. To a degree, the law takes account of special circumstances already. The Children and Young Persons Act provides substantial protections for the youthful offender, the police may use their discretion on whether to prosecute in certain cases; and the courts have the power to find youngsters guilty of a crime, but to discharge offenders without conviction,' so sparing them from having a criminal record. In any event, no publication of the name of a young offender is permitted. Outside these special cases, it may be argued that the stigma of a criminal record is something that the offender should have considered before embarking on the crime; it is certainly standing matters on their head to so whitewash the criminals that it becomes a crime for decent people to speak of their misdeeds — and that is what the discussion paper suggests. Proposed changes canvassed by the paper are in two sections. One is that after an appropriate period — five or 10 yeans is the suggestion — it becomes a criminal offence to publish details of, or ask questions or require information about, a person’s criminal convictions. The second area of change proposed by the discussion paper is the intention to make unlawful any form of discrimination on the basis of a criminal record, unless there is some direct relationship. This saving would seem to preserve from prosecution a prospective employer reluctant to give a job to, say, an accountant who has a conviction for embezzlement; but it raises difficulties of its own.

What, for instance, constitutes a “direct relationship”? Perhaps it could be allowed that the victim of a crime should not have to employ or accommodate its perpetrator. Does a conviction for arson disqualify a person as a proper tenant? Would a record of false pretence convictions be sufficient reason to refuse credit? And how “directly related” to a job must dishonesty be before it gives an employer grounds to decline an application for employment that requires honesty? The woolliness of the proposal and the difficulties of its practical application make it an unsuitable subject on which to legislate for public attitudes. The plain fact is that a great many

people live down past misdemeanours and are given jobs, marry, and otherwise live full and useful lives in spite of the public awareness of a past offence. The Penal Policy Review Committee under the chairmanship of Mr Justice Casey, which reported in 1981, considered these matters and concluded that putting the general principles into practice is not easy. The committee adopted several definitions of ways of hiding a criminal record from public view. The committee did not favour “expungement,” which was taken to mean that the record of proceedings was erased and treated, in law, as if the proceedings had never existed. It came down, instead, in favour of “sealing,” which was taken to mean that the record of court proceedings was sealed from public view without destroying it. The discussion paper released by the Government proposes a combination of “expungement” and “sealing” according to the gravity of the crime.

The real trouble with this course of action is that, although a person may be legally entitled to say that he has not committed a crime, in fact this is untrue. A host of legal conventions may not conform to reality, but there appears to be something fundamentally at odds with the concept of justice under the law in saying that a criminal act did not occur when patently it did. It also means, of course, that a person before a court for the first time will not necessarily profit much by referring to a clean — genuinely unblemished — record. A “lifetime” of honest living will become a span of only five, 10, or as many years as Parliament decides.

Apart from the personal reform of the offender, and the benefits that may accrue to the community of having someone become a worth-while contributor to society, the proposals have profound implications for employers, businesses, some professional organisations, writers and publishers, and a host of other people. If a person’s criminal record is deemed, by whatever means, no longer to be in the public domain, not only will journalists have to. be acutely aware of the time since the offence was committed, but so will writers of biographies and historians. A book on, say, notable trials might legally be published one week, but land its author and publisher in court if published the next. What is the proposed law to make of informal records of criminal convictions that remain in the public domain? Must the book on notable trials be removed from the shelves after the passage of five, or 10, or however many years are finally settled? Of more application to the everyday are things such as newspaper files. These cannot be “sealed” or “expunged.” Or is it intended that they shall be? Such nonsenses are inevitable when it is proposed that the law should pretend an event never occurred. The quagmire of complications that such a change to the law would create must far outweigh any injustice felt by a handful of people. Formal records, rarely — if ever — seen, are not an essential part of community knowledge anyway. No amount of legislation will alter the attitudes, or the knowledge that is shared, and unevenly shared, within a small community such as New Zealand. Inaccurate recollections, and vague memories, may do more harm to a person’s reputation and prospects — whatever the sanctions against discrimination — than the simple facts plainly told. Yet the proposal is that the ordinary citizen may not speak freely about another’s past offences or supply accurate information, even in private. The possibility that law-makers can legislate thoughts out of people’s minds is, mercifully, remote; nevertheless the principle behind these proposals goes a long way towards attempting to do this. Any proposed law that would restrict a right to make private judgments, that would deny public knowledge, and that seeks to deny even the processes of law itself, requires thorough examination before it is accepted. So far, its proponents have failed to demonstrate there is a pressing need for the measure.- They have jangled a great many alarm bells, however, and it will require very persuasive arguments to muffle them.