The Relevance of Regional Rehabilitation Legislation
Rehabilitation of offenders’ legislation exists in The Bahamas,[379] Barbados,[380] the Cayman Islands[381] and Guyana.[382] Generally treated and regarded as simply being reflective of criminal law reform, the relationship between rehabilitation of offenders’ legislation and insurance, at best, can be described as an uneasy one.
The relevance of this reform measure to insurance was recently reinforced by the decision of Somat Ali.[383] Justice Kissoon in the Court of Appeal, briefly and albeit obiter, in commenting on the objective of the legislation as expressed in subsections 7(1) and 7(2)(b) of the Guyana Act,[384] noted that disclosures by a proper person or any other person on his behalf �cannot be used as a moral hazard by the insurers to increase his premium or if the spent conviction is not disclosed, that the insurers cannot avoid a policy for non-disclosure.’ This reference, en passant, by Justice Kissoon was no doubt triggered by the discussion in the High Court.[385] But unfortunately, although the rationale of the legislation was highlighted, the decision does not resolve the question of the application of the legislation to what might be inelegantly described as non/quasi- criminal offences or to offences under securities law for example. Turning to rules of statutory interpretation for guidance, if the ordinary natural rule of construction is applied, surely the legislation is predicated on there being a �conviction.’ In accordance with the Oxford dictionary, the term conviction is �the act or process of proving or finding guilty.’ Logically, therefore, the expression �conviction’ narrows the reach of the legislation.
In addition to the restrictive ambit and reach of the legislation, even with respect to offences which fall squarely within the Act, a further limitation exists due to the residual discretion that is provided for in the legislation.
In essence, a dichotomy exists in that, while on the one hand, it is clear that legislators regard rehabilitation with a certain degree of seriousness[386] (for instance under section 24 of the Barbados Act, the consequences for breach of which are severe — ranging from a fine of $10,000 to imprisonment for a term of 2 years), the legislation simultaneously bestows a residual discretion upon the court to permit evidence of a spent conviction. This discretion can be seen in section 7(3) of the Barbados Act which provides:Nothing in section 6 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 thereto.
The section then goes on to identify circumstances where disclosure can take place. Subsections (3)(a)-(c) do not appear to pertain to insurance, relating as they do to criminal or disciplinary proceedings and proceedings relating to guardianship, marriage, or custody. Section 7(3) (d), however, seemingly does. It states:
(3) Nothing in section 6 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 thereto(d) in any proceedings in which he is a party or witness, if, on the occasion when the issue or the admission or requirement of the evidence falls to be determined, he consents to the determination of the issue or, as the case may be, the admission or requirement of the evidence notwithstanding the provisions of section 6.
The thrust of the section is the purpose for which the disclosure is made, to wit, �the determination of any issue....' While in that regard, the language of this section is deliberately vague and imprecise, it is predicated on the consent, in this case, the insured's consent. However, when the section is read in light of section 7(1)(d), the scope of the Act is restricted even further.
Section 7(1), according to the short title, operates as a �limitation on rehabilitation under this Act.' Section 7(1)(d) excludes from rehabilitation �any civil or criminal proceedings where justice cannot be done without admitting or requiring evidence relating to a person's spent convictions.'[387] The presence of the rubric �where justice cannot be done,' imports notions of equity,[388] broadening the ambit of courts' discretion to permit evidence in the �interests of justice.'
Unfortunately, while this discretion imports flexibility, the nature and import of the judicial discretion remain a mystery. One thing is certain, that as far as the utility of the legislation is concerned, the discretion operates as a caveat on the extent to which a conviction can be considered as having been extinguished; a fact that inures for the benefit of the insurer. For the insured, the utility of the legislation given the inordinate burden placed on the insured to disclose matters pertaining to the moral hazard must be appreciated.[389] But the restrictive nature of the statute, in light of the residual discretion, means that there is doubt as to whether prior convictions will truly be considered to have been �spent.’ With respect to the common law, prior to the Somat Ali decision, reliance had to be placed on Reynolds v Phoenix Assurance Co Ltd,[390] an English decision of only marginal assistance since Justice Forbes in considering the UK equivalent,[391] confined his judgment to the narrow point that since the legislation did not exist when the offence was committed in 1961, the Act did not apply.
In sum, rehabilitation legislation is indeed relevant to insurance law and accordingly cannot be viewed as simply an ad hoc ancillary reform measure. To the insured policyholder, the legislation mitigates in some way the burdensome duty to disclose prior convictions once those convictions are marginal and not of a heinous character. But there is uncertainty as to when and in precisely what manner the legislation operates which weakens the level of protection afforded the insured policyholder.
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