Justice Secretary Kenny MacAskill MSP

Scottish Lawyers have reacted angrily to suggestions that the Justice Secretary may be about to allow evidence of previous convictions to be made known to juries in criminal trials.

In fact, as long ago as April 2009, the Scottish Law Commission had announced as part of its 8th programme of law reform (2010 to 2014) that it may be considering “evidential issues” – at the request of the Scottish Government.

The Commission’s website say that they plan to “consider the law relating to the admissibility of evidence of bad character or of previous convictions [and] the admissibility of similar fact evidence…”

Government sources have now made it known that that Mr. MacAskill is “attracted to” the ideas of allowing such evidence.  However, there is not widespread support for a change in legal circles.  One senior Scottish QC has reportedly questioned why the Government was “undermining one of the pillars of Scots law”.

Of course, English law already allows such evidence in some circumstances – but that doesn’t make it a good idea.  In my opinion, for what it’s worth, this is a very, very bad idea.  In allowing a jury to know that the accused has previously been convicted of a similar offence is to abandon any notion of a fair trial.

As the Lallands Peat Worrier blog points out: “the prejudicial influence of adducing evidence of prior convictions outweighs its probative value”.

Or, as The Times has it: “Our judicial system has always stood or fallen on the proposition that anyone accused of a crime is innocent until proven guilty, rather than the other way around. It is up to the prosecution to present convincing evidence rather than leaving it to rumour and innuendo.”

We can only hope that the Scottish Law Commission do the right thing and reject the introduction of these proposals.

Tags: courts, crime, solicitors