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"Am I going to have a criminal record if I plead guilty?"

This is a question we get asked a lot. Quite often people who find themselves in trouble with the law are reluctant to plead guilty to something (even when the evidence against them is very strong) for fear that they will have a criminal record that will impede their ability to travel or get a job.

So, is this always inevitable?

We usually expect that when someone pleads guilty, the court will convict that person of the offence and move to sentence. Indeed, that is what section 67 of the Criminal Procedure Code says should happen:

We usually expect that when someone pleads guilty, the court will convict that person of the offence and move to sentence. Indeed, that is what section 67 of the Criminal Procedure Code says should happen:

However it then continues,

"…unless, after hearing anything which may be said by or on behalf of the accused, whether in mitigation or otherwise, there shall appear to the court to be sufficient cause to the contrary."

Enter: section 41 of the Penal Code. This section is called ‘Discharge of offence without punishment’ and it gives the court an alternative way to deal with a case without recording a conviction against the accused, should it see fit. It says that when an offence has been proved (e.g. when a plea of guilty is entered) but the court feels it would be inexpedient to inflict any punishment, it may, without proceeding to conviction:

  • Discharge the accused, either absolutely; or
  • if the court thinks fit, discharge the accused subject to the condition that he commits no offence for a period of up to 3 years.

Who may benefit from such a result?

Section 41(1) actually sets out what a court may consider when deciding whether or not it would be ‘inexpedient’ to inflict punishment, that is, to record a conviction. These are:

  • The character of the accused;
  • The antecedents of the accused;
  • His/her age;
  • His/her health or mental condition;
  • The trivial nature of the offence, or;
  • The extenuating circumstances in which the offence was committed.

Usually, of most weight are factors i and ii, that is, the character and existing criminal record of the accused. Essentially - has this person been in trouble before? It is very rare to see no conviction recorded if the answer to this question is yes.

If the answer to this question is no, we then turn our mind to v and vi, that is, the nature of the offence and the circumstances in which it was committed. Put simply, the seriousness of the offence. If the test were in plain rather than legal English, it might read, “Is this behaviour out of character and is it relatively minor?”

'Extenuating circumstances' can also include the fact that the person did not know they were breaking the law, as is often the case in ‘bullet in the bag’ tourist cases, either through ignorance or simple mistake, and so this can sometimes be a factor (of course, ignorance of the law is no defence).

What is the benefit to a client if we can convince a Court not to record a conviction?

The simple answer is the avoidance of a criminal record. The court usually reserves such results for people with blemish free histories who may have made a foolish mistake and who, in some cases, are able to establish that they will not make that mistake again (for example by providing a series of negative urine tests for a first-time ganja use case). A record for such a person (or indeed anyone) means they may encounter difficulties securing certain jobs or travelling to certain countries.

The law recognises that the Court must have certain flexibilities built into its approach to avoid it being overly rigid. You may think that it is right that a Judge or Magistrate should have a degree of discretion in minor cases, often committed whilst young and immature and where no great harm has been caused, so that bright futures are not spoiled by silly mistakes.

If no conviction is recorded, is the accused getting away 'scot-free'?

No. Subsection 41(3) allows the court to order that the discharged person pay the costs of the prosecution, to reflect the fact that wrongdoing did take place and it has cost the authorities time and resources to bring the matter before the court. Section 35(1)(b) of the Alternative Sentencing Law also permits a Magistrate to impose a Probation Order without recording a conviction, so that the defendant’s behaviour is monitored for a time.

What if I already have a criminal record?

Criminal records can hold persons back from trying to build a better future for themselves and their families, however the law recognises that this should not last forever. If you are interested in discovering whether your criminal record is eligible to be expunged, contact us today at 949-0123 or jhughes@samsonlaw.ky