Duncan Hamilton: Hearing evidence of previous convictions is indefensible

I HAVE the deepest respect and affection for Stewart Maxwell MSP. For without his generous donation of a match ticket, I would have been unable to follow the mighty Glasgow Rangers to Manchester for my club's first European final since 1972.

Shame he couldn't sort the result but apparently match-fixing is not yet a devolved power.

I do, however, have grave reservations about his campaign to allow juries to hear evidence of a defendant's previous criminal convictions during a trial. This is no idle debate, for Justice Secretary Kenny MacAskill has already confirmed that the Scottish Law Commission will report to him in the coming months and advise on potential reform.

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To be fair, the proposal is not quite as stark as it first seems. For example, "safeguards" are proposed, such as the use of pre-trial hearings at which a judge would decide the application to reveal previous convictions. Moreover, convictions would be revealed in restricted cases where, as in England, doing so offers "important explanatory evidence".

Nevertheless, this proposal is flawed both in principle and in practice.

The prohibition on disclosing previous convictions relies on an obvious and just rationale; that the accused has a right to a presumption of innocence. Guilt in a criminal court is not an abstract concept, but rather it means guilt in relation to the specific charges alleged by the Crown. It is for the Crown to prove each of those alleged offences with reference to specific evidence. To allow the Crown simply to reveal previous convictions and so prejudice the proceedings against the accused would be to take a large stone and put it on one side of the scales of justice.

But, we are assured, this is not what is proposed. Rather we would be looking at adopting the English system, as set out in the Criminal Justice Act 2003. No harm there you might think, but I hope Stewart Maxwell has read that Act fully for it goes much further than he suggests.

The circumstances in which previous convictions can be revealed do, as Stewart Maxwell says, include where it is "important explanatory evidence". But they also cover a range of other scenarios including where "it is relevant to an important matter in issue between the defendant and the prosecution" or "it has substantial probative value in relation to an important matter in issue between the defendant and a co-defendant" or even if "it is evidence to correct a false impression given by the defendant". Now you don't have to have QC after your name to see how widely applicable, and prejudicial, that might be.

Some of those who do happen to have QC after their name are in no doubt. Donald Findlay QC, for example, describes the proposed change as "a devastating blow" and makes the point that "it would mean someone being tried for who they are presented as being, rather than simply on what the evidence against them is". Is that the justice system we want?

In court, some prejudicial aspects are unavoidable. For example, any witness struggling to identify the perpetrator will likely point to the accused sitting in the dock between two security guards. There is not a great deal else we can do about that, although you wonder sometimes why we don't just go the whole hog and hang a large flashing red arrow over the accused.

By contrast, the idea that a jury would be told about previous convictions, including acts of shocking depravity, and then be expected to approach the rest of the evidence in the case with an open mind is surely stretching credulity? Prior to changing the law in England, the results from pilot schemes with mock juries entirely supported the view that juries would be much more likely to return a guilty verdict when the previous convictions were disclosed. That, of course, is the whole point of the reform.

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But that surely risks confusing the securing of convictions with the administration of justice. The Lord Advocate and her deputes do not exist simply to secure convictions at all cost. The function of public prosecution is much wider than that, considering at all times what is in the public interest and the interests of justice. Scotland is a bigger country for having a robust and balanced justice system. Anything which so blatantly disturbs that balance should be treated with extreme caution for once lost, those basic rights and liberties are unlikely ever to be regained.

We all want the bad guys locked up. We all believe that criminals deserve to be punished. This is not about defending some of the most abominable people in society at the expense of victims and their families. Rather, it is about ensuring that we continue to have a legal system based on principle and equity. That must always be the most important and pre-eminent consideration. It is what makes us civilised.

The recent calls for reform stem from the murders committed by Peter Tobin. It is true that his conviction, in Scotland, for the murder of Vicky Hamilton was powerful and compelling evidence in securing a guilty verdict, in England, for the murder of Dinah McNicol. But before we rush to reform, let us also remember that the original conviction, by a Scottish jury, was achieved solely through the skilful presentation of evidence by the Crown and without a whisper of Tobin's previous conviction for the murder of Angelika Kluk. Justice was done. Do we therefore need to further erode the rights of the accused or the integrity of the court system? The jury, in this case, is out.