A PROPOSAL by the Scottish Law Commission to allow prosecutors to use previous convictions as evidence in criminal trials has been welcomed by the Scottish Government as part of an effort to ease the burden of proof on Scotland’s notoriously incompetent Crown Office & Procurator Fiscal Service (COPFS). The move comes after a series of high profile failures in prosecutions which in one well known case, that of the collapse of the World’s End murder trial, the QC acting for the Crown Office absconded from the court and was found ‘somewhere in England’.
The full report from the Scottish Law Commission on Similar Fact Evidence and the Moorov Doctrine
A report which recommends prosecutors should be able to use previous convictions as evidence in criminal trials will be considered by the Scottish Government.
As the law stands, the prosecution in Scotland cannot rely upon previous convictions to help prove their case against an accused person.
The report is the final in a series of studies commissioned Scottish Law Commission aimed at ensuring an appropriate balance between the rights of the accused and the ability of the Crown to prosecute in the public interest.
Justice Secretary Kenny MacAskill said: “I welcome this report from the Scottish Law Commission. In 2007, in order to strengthen public confidence in the justice system, I asked the Commission, with its track record of independent analysis and Scots Law reform, to look at specific issues relating to evidence and criminal procedure. This is the third and final report from the Commission in this area. Previous recommendations on Crown Appeals and Double Jeopardy have now been enacted in law and prosecutors are currently reviewing cases which can be prosecuted anew under the Double Jeopardy Act as a consequence. Taken together, this comprehensive programme of reform has taken significant steps towards improving the public’s confidence in the justice system and in ensuring that our criminal law is fit for the 21st century. Today’s report makes a strong case and I am grateful to the SLC for its thorough and authoritative work since 2007. I will consider the recommendations carefully.”
The first report, on Crown Appeals, was published in July 2008 and has been followed up by the enactment of sections 73-76 Criminal Justice and Licensing (Scotland) Act 2010. The second report, on Double Jeopardy, was published in December 2009 and has been followed up by the enactment of the Double Jeopardy (Scotland) Act 2011.
The proposal has provoked strong reaction in the media, covered by the Herald newspaper here :
Published on 23 May 2012
JUDGES and jurors in Scotland will be able to hear evidence of an accused's previous convictions and "bad character" under proposals by a panel that advises the Scottish Government on new legislation.
The move will mean that in the case of killers and rapists they would learn of similar previous convictions.
Leading QC Donald Findlay expressed "horror and disgust" at the proposals by the Scottish Law Commission, which are similar to those introduced in England and Wales in 2004. He said: "It is another fundamental strike at the very heart of what has been our distinctive legal system for hundreds of years that, except in very particular circumstances, we try people on the evidence, not on what they may or may not have done in the past. I can guarantee there will be horrific miscarriages of justice."
Niall McCluskey, an advocate and human rights expert, said: "This is not conducive to a fair trial. It is ironic that under an SNP Government our criminal justice system is becoming more and more like the English system."
Serial killer Peter Tobin's murder of Polish student Angelika Kluk could not be made public at his trial for the murder of Vicky Hamilton.
However, on December 16, 2009, a jury in England took 13 minutes to find Tobin guilty of the murder of schoolgirl Dinah McNicol. They were told of his previous offences at the start of the trial.
Ministers asked the Law Commission to reconsider the admission of previous convictions as one of three major questions following the collapse of the World's End trial in 2007. Angus Sinclair had been accused of the so-called "World's End murders" of Christine Eadie and Helen Scott in October 1977.
As the law stands, the prosecution in Scotland cannot rely upon previous convictions to help prove its case. This has been so since 1887. Prior to the 1880s previous convictions could be shared in Scottish courts.
In a new bill drafted by the commission, it concluded that the current rules for evidence are "illogical and arbitrary".
The admission of previous convictions would depend on their relevance to the case in question rather than the discretion of the judge, and would be challengeable by the defence.
At present, someone accused of theft with previous convictions for dishonesty would not have these convictions read to the jury. If an accused, charged with murder, has been convicted of a number of other murders, the jury will not know this when considering their verdict.
But Patrick Layden, QC, the lead commissioner on the project, said: "Evidence of how the accused has acted on another occasion is relevant to whether he has acted in a similar way in relation to the offence with which he is charged. It does not become irrelevant because he has been convicted on that other occasion. This report, if implemented, will ensure that the jury can consider all relevant information.
"We believe all the relevant evidence should be before the jury. The argument depends on where you would strike the balance between the interests of society and the interests of those charged with a crime. If someone with five convictions for rape was charged with rape then these convictions would go before the jury."
Justice Secretary Kenny MacAskill said: "In 2007, in order to strengthen public confidence in the justice system, I asked the commission, with its track record of independent analysis and Scots Law reform, to look at specific issues relating to evidence and criminal procedure. This is the third and final report from the commission in this area.
"Previous recommendations on Crown appeals and double jeopardy have now been enacted in law and prosecutors are currently reviewing cases which can be prosecuted anew under the Double Jeopardy Act.
"Taken together, this comprehensive programme of reform has taken significant steps towards improving the public's confidence in the justice system."