Revealing past convictions may bring justice for some victims of crime, but how many innocent people will it condemn?

RETIRED Chief Inspector Les Gray still recalls the frustration of seeing “career” criminals being presented as lily-white by defence lawyers who are all too aware of their client’s past history.

Under existing Scots Law, in all but exceptional cases, the jury is barred from hearing about the accused’s previous convictions, even if they were for an almost identical crime committed in almost identical circumstances.

“I have seen countless people with sheets and sheets of previous convictions coming into court in shiny suits, looking like little boys lost, and being described as pillars of the community – and juries often fall for that,” says Gray, the former chairman of the Scottish Police Federation. “The current law is a disgrace.”

The rules on previous convictions, perceived by many to weight the justice system in favour of the accused, has long been a bone of contention among police officers and politicians alike, particularly since a change in the rules in England means juries south of the Border may be told of the accused’s criminal record.

But a series of high-profile cases – including the trials of Peter Tobin for the murders of two girls found buried in his garden (the jury in the Dinah McNicol case, which was heard in England was told of Tobin’s previous convictions, while the jury in the Vicky Hamilton case, which was heard in Scotland, was not) ramped up pressure for a review.

Last week, the Scottish Law Commission produced a report so radical it shocked even those who had been pushing for change. It suggested not that previous convictions for similar offences could, in certain, closely scrutinised circumstances be revealed to juries (as is the case in England), but that disclosure should happen as a matter of course. Furthermore, it said, this presumption in favour of disclosure, should apply not only to rape and murder cases, but to less serious cases such as dishonesty.

Under the Commission’s proposed Bill, then, not only would a jury hearing a rape case be told of the defendant’s recent convictions for sexual offences, but a jury hearing the case of a man or woman accused of stealing money from their employer would be told of a conviction for stealing a bag of sweets even if it happened 20 years ago.

For Gray, the change would mean a prosecutor who knew the defendant had committed almost exactly the same crime several times before, would be able to give the jury the final piece of the jigsaw. “The case wouldn’t hinge on previous convictions, but it might bolster it,” he says.

The Commission’s recommendations, however, have caused outrage among some lawyers who see them as the latest in a long line of attacks on the Scottish justice system – from the scrapping of the law on double jeopardy (which prevented anyone being tried twice for the same crime) to the Carloway report which recommended doing away with the requirement for corroboration.

“This is just a charter for convictions,” says leading criminal lawyer Gerry Brown. “There’s an old saying – ‘You can’t bring a skunk into a court and then ask the jury to ignore the smell.’ If you are a juror in the High Court listening when a girl says she’s been raped by a man – and then it’s revealed that seven years ago he was convicted of raping another girl, what is the chance of you acquitting?”

The proposals – under which it would be up to the defence to challenge any revelation they felt was irrelevant or unduly prejudicial – have unnerved even SNP MSP Stewart Maxwell, one of the prime movers in securing the review.

“I am keen for change, but only with very tight safeguards in place,” he says. “My original thinking was that the new rules would be restricted to the most serious cases – it wouldn’t be a carte blanche which could be used in pick-pocketing cases and the like. There would be pre-trial hearings to establish whether or not the evidence was relevant and admissible.

“I also have concerns about bringing cases from a long time ago – some people will make a terrible mistake when they are young but for that to be dragged up 30 years later isn’t something I would be particularly comfortable with.”

Despite this, SNP Justice Secretary Kenny MacAskill has given a warm welcome to the commission’s report, saying it “makes a strong case”. MacAskill is expected to ensure it becomes law.

Few doubt the Commission’s proposals would lead to more rape cases, which are often dropped for lack of corroborating evidence, finding their way into a courtroom. Or that public opinion is likely to be behind any change in the law which makes it more difficult for offenders to get of scot-free.

But do concerns around cases involving Tobin and World’s End murder accused Angus Sinclair – whose previous convictions were, from a layman’s perspective, of the utmost relevance to their later trials – justify tinkering with one of the most important tenets of our justice system? Or – without any apparent safeguards – would the Commission’s proposals effectively do away with the presumption of innocence and lead to another spate of shameful miscarriages of justice?

Far from being centuries-old, the Scottish law on previous convictions is relatively modern; up until 1887, juries were entitled to know about earlier crimes the accused had committed and, lawyers claim, plenty of innocent men and women were jailed as a result.

Since the introduction of the Criminal Procedure Act, however, defendants have come before juries as unknown quantities. Under the Moorov doctrine, similar misdemeanours or patterns of behaviour which have never come to court may be used in evidence. But previous convictions can only be disclosed if the defendant attacks the character of the prosecutor or the prosecution witnesses or, in sexual offence cases, only if the defence wishes to rake through the alleged victim’s sexual history (known as the “tit-for-tat” rule).

When the law changed in England, previous convictions could only be revealed if the prosecution made a successful application at a pre-trial hearing. But the Commission’s recommendations, if accepted, will make the disclosure of previous convictions the norm, with the onus on the defence to challenge if it believes the disclosure is irrelevant or prejudicial.

“If you have a system where you have to decide what’s relevant in every case, the courts will naturally get into long technical arguments and it will take them some time to work out what the rules are,” explains Patrick Layden, lead commissioner on the report. “What we’ve recommended instead is that if someone has previous convictions for a similar sort of crime as he is now charged with, those convictions should be put before a jury automatically.

“A jury can decide whether a theft conviction dating back 20 years ago has much bearing on a charge of theft today – that’s what they are there for, to exercise common sense, and if they don’t think that past conviction tells them anything about what the accused has done in the last month or so, then that’s fine. If on the other hand the accused has a conviction for a theft six months ago, they might think that’s very relevant. It’s for them to decide.”

Layden believes the change in the law would also tackle the anomaly surrounding the “tit-for-tat” rule. “If the complainer’s sexual history is relevant then juries should hear about it – the defence shouldn’t be put off raising it because they know the accused’s previous convictions will come out,” he says. “But equally, if an accused person’s previous convictions are relevant they should be before the jury, and he shouldn’t be able to conceal them by not leading evidence about the complainer.”

Perhaps the principal beneficiaries of a change in the law would be rape victims. “Juries are reluctant to convict in rape cases because they have a preconceived idea of what rapists will look like,” says Sandy Brindley, national coordinator for Rape Crisis Scotland. “They think of them as the stereotypical ‘sex beasts’ they read about in tabloid newspapers and when they see them there in the dock, looking like their fathers or their brothers, they find it difficult to believe they could be capable of such an act.

“That’s where this change in the law could help – although a verdict should always be reached on the facts of the case, knowing about a defendant’s previous convictions might help cut across that sense that ‘he couldn’t possibly be a sex offender’ because of the way he’s presenting himself.”

Gray believes the change in the rules could also help defendants who have no criminal record. “Their defence lawyers will be able to stand up and tell the jury their clients have no previous convictions,” he says.

But not everyone believes a change in the law will make the system fairer. Critics point out that of the cases used to lobby for change, Tobin was convicted twice (of the murders of Angelika Kluk and Vicky Hamilton) without his criminal convictions being revealed, while the World End murder trial collapsed on the direction of a judge because the Crown Office failed to lead all the evidence, not because Sinclair’s previous convictions were kept under wraps.

According to Brown, not only could the change in the law prejudice juries, but it might impact negatively on witnesses as defendants engage in their own mud-slinging. “If I’m dealing with a case of shoplifting and the prosecution wants to bring up a conviction for a crime of dishonesty, I am going to want to know the history of everyone else involved in the case,” he says. “If my client is going to have the fact he stole a bag of sweets 10 years ago after being out for a couple of glasses of wine, I will want to know if the woman in the shop [who reported him] has been disciplined before, has she ever been dismissed from her job? But if everyone’s prior history is going to come out that’s hardly going to encourage witnesses to come forward.”

But his greatest concern is that – in an attempt to increase our conviction rate – we might introduce a law that does away with the presumption of innocence and means those of us who make mistakes can never escape our pasts. “We have to ask ourselves what we want?” he says. “Do we really want a society where we give someone a bad name and that black mark stays with them for the rest of their life?” «