Released: April 19, 2012 - Names are not gleaned from court reports in media
By Elizabeth Roberts and Jonathan Bell
A US diplomat refuted the suspicion of Bermuda's Senior Magistrate that people end up on the stop list because their cases are reported in the media.
Earlier this month, Archibald Warner suggested the press should not be allowed to print the names of defendants issued with conditional discharges in drug possession cases.
A conditional discharge means no criminal conviction is recorded against the person's name in Bermuda, as long as they stay out of trouble. However, the Magistrate said he believes the US authorities still put people on the stop list, barring them from entering the States, as a result of publicity over such cases.
He made the remarks during the case of a 19-year-old who was caught with 0.64 grams of cannabis when he was searched by police in central Hamilton last December. He had no previous convictions and, having heard he is studying at college in the US, Mr Warner meted out a six-month conditional discharge.
Defence lawyer Elizabeth Christopher — who was in court but not representing the teen — suggested the media should be banned from reporting the teenager's name.
In response, Mr Warner said conditional discharges were brought in to stop people getting criminal convictions and having to deal with the consequences. He noted that the case was being dealt with in a public court, open to the public, and there are no statutory restrictions on the press reporting such cases.
However, he signalled he disagrees with that since “I am sure US Immigration reads the newspaper”.
Mr Warner said part of the point of avoiding a formal criminal conviction is “that the defendant is not prejudiced unnecessarily. What I am saying is if his name is published in the newspaper, quite properly [reporting] that he got a conditional discharge, that in itself leads to prejudice because I believe the US authorities make no distinction and they don't have to, between a criminal conviction and a discharge.”
Asked about the issue this week, US Consul Adam Vogelzang that a person makes themselves ineligible to enter the United States when they are convicted of certain offences, such as for drugs or theft, or when they break US immigration laws.
Asked about Mr Warner's comments about the authorities placing those with conditional discharges on the so-called “stop list” because their names are published in the newspaper, Mr Vogelzang said: “No, that doesn't happen”.
Asked if newspaper stories have any bearing on the matter, he said: “We do not monitor what is reported in the media, but we do utilise publicly available information.”
He declined to specify where this information is gleaned from.
Mr Vogelzang also provided The Royal Gazette with a statement from the Consulate which said: “There has been a general misunderstanding about the effect of Bermuda's conditional discharge. Under US law, a conditional discharge does not eliminate the need for a waiver.
“A conviction is deemed to have occurred because the defendant pled guilty and/or admitted to the facts as part of the process and a penalty in the form of conditional discharge was subsequently imposed.
“Likewise, the US does not recognise rehabilitation, as rehabilitation does not change the fact that a conviction occurred.”