CONVICTIONS SHOULD BE CONSIDERED FOR TRIAL

CONVICTIONS SHOULD BE CONSIDERED FOR TRIAL

TOBIN CASE RAISES QUESTIONS FOR SCOTLAND

The use of previous convictions and criminal activity as evidence for the
prosecution in trials should be considered by the Crown Office and
Scottish Government.

SNP MSP Stewart Maxwell has written to the Lord Advocate and Justice
Secretary urging them to learn from the Peter Tobin trial in England,
where his previous convictions for murder were introduced as evidence
during the trial.

In the recent Tobin case, his conviction for the murder of Vicky Hamilton
was introduced as evidence, helping to explain the crime scene and
establishing a pattern of behaviour which led to Peter Tobin’s conviction
for the murder of Dinah McNicol. In Scotland a jury would not have known
that Mr Tobin had prior convictions for murder.

Writing to the Law Officers and Justice Secretary Mr Maxwell said the
issue was very complicated and any changes to the system must be strictly
monitored and sensitively done to protect the principle of innocent until
proven guilty but that changing the law for specific offences to allow
previous convictions to be used as evidence could have real value in
court.

Mr Maxwell said:

“The recent trial and conviction of Peter Tobin in England for the murder
of Dinah McNicol exposes the problems of the law in Scotland.

“In recent cases like Peter Tobin or Angus Sinclair, these killers have a
clear modus operandi that could be valuable to a jury. In Scotland Peter
Tobin’s previous convictions would not have been known to the jury –
despite them directly relating to the case.

“I believe it is time for Scotland to look closely at changing the law to
allow some convictions to be used in court and I hope the Lord Advocate
and the Justice Secretary will look carefully at this issue.

“For a limited number of serious offences like murder, attempted murder,
rape or serious assault there must be a case for allowing this kind of
evidence to be introduced.

“This is not the kind of evidence that can ever be used lightly and
safeguards such as a pre-trial hearing with a judge to determine if the
evidence is relevant are essential.

“In the recent Tobin case the evidence would have been difficult to
understand without knowing that he had killed and buried another victim in
that garden – yet in Scotland that evidence would have been impermissible.

“This is an issue that requires serious consideration by Scotland’s legal
system and I hope the Cabinet Secretary and Lord Advocate will respond
positively to this case.”


Using previous convictions as evidence in a criminal trial

The recent conviction in England of Peter Tobin for the murder of Dinah
McNicol was obtained partly through using Tobin’s previous convictions for
murder as evidence during the trial. If the trial had been in Scotland,
it is likely that his previous acts would not have been allowed to be used
as evidence, which in turn may have jeopardised the chances of a
conviction.

In the English legal system, a defendant’s previous convictions can be
used as evidence during a criminal trial. In Scotland, however, previous
convictions are only used during sentencing, not as evidence during the
trial itself.

England

The principal behind the English approach is that prior involvement with
the criminal justice system can provide valuable information to a jury
regarding the defendant’s character and disposition towards criminal
activity. The Criminal Justice Act 2003 allows the use of the following
information during a trial as evidence of a defendant’s ‘bad character’:

Ø Previous convictions
Ø Evidence on charges being tried concurrently
Ø Evidence relating to offences, for which a person has been
charged, where the charge is not prosecuted
Ø Evidence relating to offences for which the person was
subsequently acquitted

The right of the prosecutor to use the above as evidence during a trial is
not absolute, and there are certain criteria that must be met if previous
convictions are to be used as evidence. The most significant is that a
previous conviction must offer ‘important explanatory evidence’ for the
trial. Evidence is regarded as important explanatory evidence if;

(a) without it, the court or jury would find it impossible or
difficult to properly understand other evidence in the case; and

(b) its value for understanding the case as a whole is substantial

The ultimate decision on whether a previous conviction, or other
information mentioned above, is admissible as evidence in a trial is made
by the judge overseeing the case via a pre trial hearing.

Scotland

The principle behind the approach in Scotland is that using previous
convictions might prejudice the minds of a judge or jury against an
accused and lead to a decision based on past offences rather than on the
merits of the present charge. Prosecutors therefore rarely have the right
to use previous convictions as part of their case, even if the conviction
is for a crime similar to the one the defendant is being tried for.

There are rare exceptions to this rule. In general, however, these
exceptions only occur when the defence team chooses to use previous
convictions as part of their own case, in which circumstances the same
conviction can be used as evidence by the prosecution.

Conclusion

The Scottish legal principle that individual cases must be decided on
their own individual merits is, in general, a sound one. However, the
Tobin case suggests that there may be exceptional cases whereby previous
convictions are so relevant to a case that this principle actually
inhibits the pursuit of justice.

It is time to consider changes to the Scottish legal system to allow
previous convictions to be used by prosecutors as evidence in trials. To
ensure that this right is not abused, it should only be available in
exceptional circumstances and must be subject to the following strict
criteria:

Ø Previous convictions can only be used as evidence in trials for
the most serious of crimes, such as murder, rape and other sexual
offences.

Ø Unlike in England, only charges that have gone to trial and
resulted in a conviction can be used as evidence. Charges that the
defendant was acquitted of should not be used as evidence.

Ø The Judge or Sheriff must have the final say on what can and
cannot be used as evidence in a trial. This decision should be taken
during a pre-trial hearing.