A candidate in the May general election will find out on Tuesday whether a past criminal conviction will prevent him from running for office. The candidate, who cannot be named for legal reasons, faced a court hearing Thursday to determine whether he will be allowed to stand.
At issue is the question of whether a constitutional disqualification against anyone with a conviction for “dishonesty offences” can legally be applied to someone whose conviction was “spent” at the time the constitution came into force.
No details were given of the offenses, and Chief Justice Anthony Smellie ruled the candidate must be referred to in media reports as Candidate X.
Solicitor General Jacqueline Wilson, representing the Supervisor of Elections, said the candidate should be barred from standing in the election because of a provision of the 2009 Constitution that disqualifies anyone convicted in any country of an offense involving dishonesty.
She said the “criminality based disqualification provisions” in the Constitution had become increasingly strict over time and that the implementation of the 2009 Constitution Order removed time limits that had allowed people to stand for office after demonstrating good behavior for a number of years after their conviction. “The criminality based disqualification for elected membership must be read as applying to spent convictions,” she said.
Graham Hampson, for Candidate X, argued that the Rehabilitation of Offenders Act provided a pathway for anyone convicted of an offense to have that expunged from their record once a set number of years had passed.
He said his client had earned the right under that law to be treated as if he had no conviction at the time the Constitution came into force.
“He is entitled to be treated as a person who has never been convicted of an offense of dishonesty and would not fall within the exclusions,” he said.
He added that the Constitution was designed to protect people’s rights, not to remove them. “My submission is that if the Constitution intended to remove fundamental rights from rehabilitated persons, it should have spelt out absolutely clearly that it was going to take away those rights. It should have been crystal clear,” he said.
Both parties accept that the candidate’s convictions were legally spent, and that prior to the introduction of the Constitution Order he would have been eligible to run for office.
However, Ms. Wilson argued that the introduction of the Constitution effectively removed that right by introducing stricter barriers to candidacy. She said, “It cannot reasonably be asserted that a candidate who may have met the requirements for qualification at a given time cannot subsequently become disqualified for elected membership by virtue of the introduction of more stringent Constitutional requirements.”
She said rehabilitation under the Rehabilitation of Offenders Act was not absolute and was subject to disqualifications or prohibitions cited in other legislation, in this case, the Constitution. Mr. Hampson argued that his client had achieved the status of a rehabilitated person before the Constitution was in place and that the prohibition could not be retrospectively applied.
“The law operated not by simply removing some of the effects of a conviction, but by treating the rehabilitated individual for all lawful purposes as an innocent person. This was the proper reward for blameless behavior over a stipulated period of time.
“Such people had and still have a reasonable expectation that such statutes would not be taken away without good cause and without a clear statement to such effect.”
The new Spent Convictions Law, which came into force this year replacing the Rehabilitation of Offenders Act, explicitly indicates that anyone with spent convictions can still be barred from running for office by the Constitution. But the law is not relevant in this case because it also states that the rights or benefits of any person acquired under the previous law are not affected by the new legislation.
Justice Smellie indicated he would give his decision on the issue on Tuesday.