Spent convictions in Mauritius: Analysing the Police and Criminal Evidence Bill, 2013

• Jurisdiction: South Africa
• Published date: 24 May 2019
• Author: Jamil Ddamulira Mujuzi
• Date: 24 May 2019
• Citation: (2015) 28 SACJ 284
• Pages: 284-302

Spent convictions in Mauritius:

Analysing the Police and Criminal

Evidence Bill, 2013

JAMIL DDAMULIRA MUJUZI*

ABSTRACT

For many years courts in Mau ritius have considered a conviction th at was

at least 10 years old to be spent for the purpos e of sentencing. However, in

2002 the Mauriti an Supreme Court held that ther e was no concept of spent

convictions in Mauriti an law and that disregard ing convictions of 10 years

or over old was a mere practice. The Supreme Cour t has not developed clear

guidelines for consideri ng or disregarding such convict ions for the purpose

of sentencing. In 2013 a Bill was gazet ted, inter alia, to introduce the concept

of spent convictions in Maur itius. This ar ticle highlights the M auritian case

law on spent convictions and the relevant clause of t he Bill. The author

relies on legislation from, inter alia, Sout h Africa, Austr alia, Seychelles and

Jamaica to suggest how the Maurit ian law on spent convictions could be

improved .

1 Introduction

In many countries a person with a cr iminal record faces various

challenges, such as, the difcult y of nding employment.1 This could

be so because the prospective employer does not employ people with

criminal record s, either as a matter of policy or because the law does

not allow him to employ them. The issue of whether or not a person

has a previous conviction is one of the factors that courts i n many

African countr ies consider in determini ng an appropriate sentence.

Having a previous conviction will normal ly be emphasised by the

prosecutor as an aggravating factor when asking the cour t to impose

a heavy sentence on the offender. The situation is no different in

*LLB (Hons) (Makerere), LLM (UP), LLM (UFS), LLD (U WC), Associate Professor of

Law, Faculty of Law, University of Western Cape.

1 See, for example, DA Mukamal a nd PN Samuels ‘Statutor y limitat ions on civil

rights of people with c riminal r ecords’ (2003) 30 Fordham Urban LJ 15 01-1518 (f or

the situation in t he United States of Am erica); EL Pijoan ‘Legal pr otection again st

crimina l background checks i n Europe’ (2014) 16 Punish & Soci’y 50-73 (for some

examples of European cou ntries); H Lam and M Harcou rt ‘The use of c riminal

record in employment decisio ns: The rights of ex-of fenders, employers and the

public’ (2003) 47 J Bus Ethics 237-252 (for countries such as Aust ralia and Canad a)

and T Thomas ‘Employment s creening and the C riminal Re cords Bureau’ (2002) 31

I LJ 55-70 (for the situation in the Unite d Kingdom).

284

(2015) 28 SACJ 284

© Juta and Company (Pty) Ltd

Mauritius. In Mauritius, it is di fcult for people with crimina l records

to nd employment.2 Thi s explains why in 2012 the Certicate of

Character Act3 was passed to provide, inter alia, for the circumst ances

in which a person’s criminal record as a resu lt of a minor offence

shall be disregarded and he be considered as one who has never been

convicted of the offence.4 A previous conviction is one of the factors

that courts in Maur itius take into consideration in determi ning the

appropriate sentence to be imposed on the offender. This has been

the case for many decades.5 Recently the Supreme Court of Mauritius

held that ‘[t]he previous conviction of an accused is only one of the

circumstances to be ta ken into account and may justify a higher

sentence in certain cases.’6 The court al so held in another case that

‘to impose a heavier or lighter sentence should not depend principally

on whether the convicted person has a bad or clean record but on the

merits of the case.’7 Section 85 of the Mauritian Cr iminal Procedur e

Act (cap 169 of 1853) provides:

‘(1) A previous conviction or attainder for the same offence in law and in

fact with that charged in an information or for an offence involving the same

offence in law and in fact with the one charged in the information, may be

pleaded in bar of such information. (2) The rules relating to the pleading

of a former acquittal shall, so far as they are applicable, be applied to the

pleading of a former conviction or attainder.’

2 Mauritius Fif th National Asse mbly. Parliamentary D ebates (Hansard). Second

Session. Debate 14 of 2012, 17 July 2012, 130.

3 The Certi cate of Character Ac t 18 of 2012.

4 Section 5 of the Cer ticate of Character Act provides: ‘(1) (a) The Director of Public

Prosecutions or t he delegated person, where he is no t the Commissione r of Police,

shall refer every applic ation to the Commi ssioner of Police for enquir y and report.

(b) Where the delegated pers on is the Commi ssioner of Police, he shall cause a n

enquiry to be conduc ted into every applicat ion. (2) Where the applicant has i n

Mauritius — (a) never been convicted of any c rime or misdeme anour; (b) following

a conviction for a crime or m isdemeanour, other t han an offence speci ed in the

Second Schedule, been g iven only — (i) an absolute discharge; o r (ii) a conditional

discharge, and ha s complied with the ter ms and conditions of t he discharge; or

(c) more than 5 years before making t he application, been convict ed of a crime or

misdemeanour, other t han an offence speci ed in the Second Sc hedule, and been

— (i) given only a ne of up to 5,000 r upees; or (ii) made the subject of a probation

order only, and has complied with t he terms and conditions of the orde r; or (d) been

granted a free par don in respect of a cr ime or misdemea nour pursuant to sec tion

75 of the Constitution , the Director of Public Prosecut ions shall issue a certicate i n

the form set out in Par t A or B of the Third Schedule, specif ying that the person in

whose name the application h as been made has never been convicted of a cri me or

misdemeanour i n Mauritius.’

5 See, for example, Carrim v T he Queen 1952 MR 39; S C Veeren v The Qu een 1987 MR

195, 1987 SCJ 400.

6 Maulaboksh M S v The S tate 2014 SCJ 386 at 6.

7 Marjolin C S v The State 2 014 SCJ 192 at 3.

Spent convictions in Mauritius: Analysing the

Police and Criminal Evidence Bill, 2013 285

© Juta and Company (Pty) Ltd