Law Commission calls for Scots trials to hear of prior convictions

Coat of arms England and Wales already have rules which allow previous convictions to be used as evidence

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Prosecutors should be able to use previous convictions as evidence in Scottish trials, according to the Scottish Law Commission.

In a report, the commission concluded that Scots law should be changed as evidence of this kind can be highly relevant to guilt or innocence.

England and Wales already have rules in place which allow previous convictions to be taken into account.

The commission said that the current Scots law lacked "logic and coherence".

As the law stands, the prosecution in a criminal case cannot rely on previous convictions to help prove their case against an accused person.

The thinking is that they are presumed innocent until proven guilty - and that might be undermined if past crimes were presented as evidence.

Scottish juries are only told of past crimes after a guilty plea or conviction.

Start Quote

This report, if implemented, will ensure the jury can consider all relevant information”

End Quote Patrick Layden QC Scottish Law Commission

However, the Scottish Law Commission said that was illogical.

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."

The commission also noted that until the late 19th century previous convictions were routinely admitted as evidence.

Its report included a draft Bill which, if implemented, would replace the present law with a new statutory framework for the admission of all relevant evidence in criminal proceedings.

But one of Scotland's leading lawyers warned that changing the law could lead to people being convicted for what they have done in the past rather than what they are charged with at present.

Derek Ogg QC told BBC Radio's Good Morning Scotland programme: "People aren't charged with their previous behaviour, they are charged with the specific facts of a specific crime.

"Everyone goes into court with the presumption of innocence, everyone goes in with a clean sheet."

Mr Ogg said there were already some circumstances in which an accused person's previous convictions could be put before a jury, including in cases of sexual offences where the character of the victim was attacked.

'Less protection'

He said the Scottish Law Commission was "made up of people with great minds and great academics, but people who do not conduct trials in the High Court on a daily basis".

He said that in examining the issue they had "come up with an academic response which really does not meet reality".

Mr Ogg said: "You can not say to a jury 'ladies and gentlemen I'd like to introduce you to a skunk, now please ignore the smell'."

He added: "I've spent the best part of the last five years prosecuting sexual offences, prosecuting people charged with rape.

"I've never had a single case where I've felt the need to go to previous convictions in order to get a conviction in a case where there is sufficient evidence.

"Really all we want in Scotland are fair trials, and a fair trial means you have to have a presumption of innocence."

The report is the third of three projects commissioned by the Scottish government in November 2007.

It will be up to ministers to decide whether to go ahead with the change, but the recommendations of the first two projects - on Crown appeals and double jeopardy - have already been passed into law.

SNP MSP Stewart Maxwell, who highlighted the issue of previous convictions following the trial of serial killer Peter Tobin in England in 2010, said: "I am very pleased at the outcome of this inquiry and hope that the government will be able to change the law as soon as possible.

"Victims in Scotland must not be getting less protection than they do in England.

"It makes no sense not to have all the relevant evidence available in the prosecution of serious crimes."

Scottish Labour's justice spokesman Lewis Macdonald welcomed the report's recommendations, adding: "To ignore the criminal history of a serial rapist or violent offender goes against what most people would call justice.

"We simply can't afford for victims of crime in Scotland to be left behind those elsewhere in the United Kingdom."

Liberal Democrat justice spokewoman Alison McInnes urged caution over a blanket change in the law.

"Stating prior convictions or referring to bad character may mar the fair and proper legal process we have in Scotland", she said.

"These proposals, taken together with Lord Carloway's recommendations on ending the need for corroboration, could really call into question the impartiality of our justice system."


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  • rate this

    Comment number 12.

    People should be judged on what the present facts are. What if person no 1 had a record for robbery. Person no 2 has a grudge against no 1 and knows of his history. Person no 2 points the finger at person no 1 for a new offence he had nothing to do with, but happened to be in the wrong place at the wrong time. Any jury will look at his PCs and judge on that rather than the actual proven facts.

  • rate this

    Comment number 11.

    I'm happy to see crooks rot in prison for ever, but I think it is going too far to say previous convictions should be used as evidence. Simply saying he's done it before so he must have done it this time, is just not right. I'd be happy for sentencing to take previous convictions into account. A person who has burgled 10 times should get a much longer sentence than a first time offender.

  • rate this

    Comment number 10.

    The penal system is suposed to rehabiliate offenders and get them back into society. It is an admission of failure if we automatically assume offenders will re-offend and previous convictions are relevant. Once someone is convicted you might as well lock them up and through away the keys. This will condemn youngsters who make a mistake to a lifetime inside the system.

  • rate this

    Comment number 9.

    Innocent until proven guilty means not basing a decision on factors outside of the case being heard.

    Are jurys not normally replaced if they have for some reason (reading media coverage for example) picked up a preconception?

    Now how about letting us post our opinions on Taylors' blog?

  • rate this

    Comment number 8.

    Great. comment is free again.
    Why am I allowed to read Mr Taylors' blog every week but am not afforded an opportunity to make any comment to him regarding HIS comments?
    With regard to the question at hand. My reaction would be NO the case must be decided on the facts of the case at hand.

  • rate this

    Comment number 7.

    BBC Scotland Political Comments,why are they not permitted in response to BBC News/political journalist' comments?Open now please,and keep them open.BBC must not act as if a law unto itself.Regarding admissable evidence,-we must be very careful innocent until proven guilty.Previous convictions could so easily sway a jury.Rather one guilty person walks free than one innocent person goes to jail.

  • rate this

    Comment number 6.

    I was on a jury at the trial of someone who tried to rob a shop, jumped into a river and was saved by the police that were chasing him. Nearly half the jury believed that he was not the robber and that the police had arrested him by mistake. It turned out that he had 10 previous convictions for robbery....

  • rate this

    Comment number 5.

    It would be beneficial in some cases to allow previous convictions being highlighted and with this they should appropriately sentence offenders using this information.

    Oh and whats this with the beeb giving us a say on something Scottish again? are they feeling OK

  • rate this

    Comment number 4.

    Previous convictions should be admissible but only where it shows a disposition to commit the crime charged with. It should be up to the judge however to rule on limitations to its presentation as evidence on a case by case basis. Helps the state get plea bargains and save taxpayers money as it would stop more guilty parties from exploiting the states inability to introduce prior convictions.

  • rate this

    Comment number 3.

    Another article open for comment!. Is BBC Scotland trying to pretend that it is giving us a say?
    Open the political and business blogs as they are in England, Ireland and Wales.

    I think the BBC has shot it's bolt as far as Scotland is concerned, the game hasn't even really started yet either...

    The BBC stole the goalposts before things even got going

  • rate this

    Comment number 2.

    Previous behavior can indicate the probably guilt or otherwise of a person who has been charged with a criminal offense.
    Another article open for comment!. Is bbc Scotland trying to pretend that it is giving us a say?
    Open the political and business blogs as they are in England, Ireland and Wales. Until then it is simply censorship. The bbc bias is so obvious now.

  • rate this

    Comment number 1.

    Really? Someone's past action prove a present crime? Come on, this would only be used if a suspect could to be shown to have committed a crime and the prosecution then relies on a person's past record. That's not justice its laziness. Just prove the person was there and did the crime and nothing more is needed,


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