Admission of guilt – Permanent criminal record or not?

Admission of guilt – Permanent criminal record or not?
17 Dec 2018

Years after a roadside instant grass seller paid a R500 admission of guilt fine, he was refused a police clearance certificate because of his continuing criminal record. This lost Lloyd Madhinha his chance to become an Uber driver but he then took action, asking the court to set aside his earlier ‘conviction and sentence’. As Carmel Rickard writes in her A Matter of Justice column on the Legalbrief site, this gave a full Bench of the High Court the chance to examine the status of admission of guilt payments under section 57 the Criminal Procedure Act. The court concluded that the records of such ‘convictions’ were not permanent, and that the police were misusing the system by putting pressure on an accused to admit guilt and pay the stipulated fines. The judgment also urged that the National Commissioner of Police to become involved in curbing this practice.

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A roadside tiff between rival hawkers of instant grass nearly a decade ago has led to a far-reaching Full-Bench decision on admission of guilt payments and whether they should result in a police record.

At the centre of the story is a tiff between Lloyd Madhinha and another grass seller over ‘rights’ to a particular hawking site. His rival later told the police that he had slapped her twice and pushed her. He was arrested a week later, his fingerprints taken and a docket opened. He was even detained, but the police then gave him a written J534 notice that included a note saying that he could admit guilt and pay a R500 fine without having to go to court. Madhinha duly paid the fine, and was released.

His paperwork was entered in the criminal record book kept for admissions of guilt. A few days later, on 23 November 2010, a magistrate ‘examined’ the documents and, having done so, set aside neither the conviction nor the sentence. This cleared the way for the police to enter his name in their criminal record system, along with other details such as that his sentence was ‘AOG R500’.

Meanwhile, the grass business declined. Madhinha applied to join Uber as a driver, but first he needed a police clearance certificate. When he applied for the certificate the police told him his 2010 admission of guilt was ‘by law a conviction and sentence’. No clearance certificate. No Uber job.

Madhinha then took the matter to court, raising the question that has long troubled many people: when someone pays an admission of guilt fine what is the precise status of that transaction? Two judges of the Western Cape High Court have now dealt with Madhinha’s matter and the result will interest everyone who has ever paid such a fine or thought they might have to.

Madhinha said the conviction and sentence resulting from paying the fine should be set aside as ‘not in accordance with justice’. He had not been informed of his rights and held in prison, he reasonably believed paying the fine was the only way to be released from custody. He said he accepted that if the conviction and sentence were set aside, he might still be prosecuted in relation to the original matter.

The judges examined in minute detail how the system of written notice followed by payment of an admission of guilt fine actually works. Generally, the system is contemplated only for ‘trivial offences’, they noted, adding that a conviction and sentence under section 57 (6) as in this case was ‘not a verdict. It is not even a pronouncement by the clerk of the court. It is an automatic consequence of an administrative act performed by … the court’s support services’.

In such a case, no-one considered the facts or any denial or admission. It was a mechanism to settle trivial disputes between the state and an accused person ‘where neither party wishes to go through a long trial procedure and both are willing to bring their dispute to a quick end’. The strength of the case was ‘never tested’. Nor did a magistrate find Madhinha guilty, or sentence him. Even the admission of guilt register of such cases is destroyed after a year, unlike the proper criminal record book which is never destroyed.

What about other judgments on the issue? In two cases from 2013, where the accused had also said they did not know that payment of a fine would lead to a criminal record, judges of the High Court had, according to the Full Bench in Madhinha’s case, appeared to ‘accept, without deciding’ that a section 57 (6) conviction had the required status to result in a permanent record: the narrow issue raised by Madhinha.

In Madhinha’s case, he denied having assaulted the woman selling grass, and the appropriate way to deal with his application was to set the proceedings aside and let the state prosecute if it wished to prove his guilt, said the court.

Then the judges commented on the role of the police in Madhinha’s matter: they had asked him to go with them to the police station but instead of simply issuing a written notice and allowing for payment of a fine, the police opened a docket and detained Madhinha. ‘The inescapable impression is that the detention of the accused and the threat of continued custody’ while the police officer knew he should not arrest the accused, was intended to put pressure on Madhinha to admit guilt and pay the fine.

Then comes the court’s crucial recommendation to prevent such cases in the future: “In my view, the time has arrived for the National Commissioner of Police … to require a member of the SAPS who detains an accused’ in a case where an admission of guilt fine would be appropriate, and is in fact used after an initial detention, to submit a monthly written record of such detentions and the reasons for them to the commissioner. The record should show why it was necessary to arrest someone before giving them notice of the option of an admission of guilt fine. The commissioner could then advise the Minister of Police how to draft policy that would address the criticism ‘that the SAPS use arrest and detention to force vulnerable members of society who fear being locked up, to admit guilt on petty crimes using arrest and the threat of continued detention.’

Summarising its findings in relation to Madhinha, the court said a conviction and sentence following an entry into the admission of guilt record book by the clerk of the criminal court in the Magistrate’s Court ‘is not a conviction whose record is permanent’ and that the conviction and sentence of Madhinha under section 57 (6) was set aside, with a copy of the order to be served on the Minister of Police.

(This article is provided for informational purposes only and not for the purpose of providing legal advice. For more information on the topic, please contact the author/s or the relevant provider.)
Carmel Rickard
Carmel Rickard

Carmel Rickard is a journalist and specialises in writing about the intersection of law and politics.

Send a legal query to Carmel Rickard
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