Disclosure of previous convictions in court proceedings

General

The law of disclosure in criminal proceedings applies to all prosecutions, including private prosecutions.

Under the Criminal Procedure and Investigations Act 1996, previous convictions of prosecution witnesses must be disclosed to the defence if they satisfy the test of being reasonably capable of undermining the case for the prosecution against the accused, or assisting the case for the accused.

CPS guidance on private prosecutions makes it clear that the Crown Court may grant a private prosecutor a witness summons to obtain material from the police to enable the prosecutor to comply with the disclosure obligation to the defence. Detailed guidance on this is linked to below.

Crown Prosecution Service Guidance (2007) – Disclosure of previous convictions of prosecution witnesses

Crown Prosecution Service Guidance (2009) – Private prosecutions

As a defendant

During the trial of a criminal charge, reference to previous convictions (and therefore to spent convictions) can arise in a number of ways. The most common is when a bad character application is made under the Criminal Justice Act 2003.  Much of this depends on whether you make a point as part of your case about your character – i.e. if you state you are of good character, the other side would be entitled to adduce evidence of your bad character in the form of your previous convictions.  When considering bad character applications under the 2003 Act, regard should always be had to the general principles of the Rehabilitation of Offenders Act 1974.

The court must be provided with a statement of the defendant’s record for the purposes of sentence. The record supplied should contain all previous convictions, but those which are spent should, so far as practicable, be marked as such. No one should refer in open court to a spent conviction without the authority of the judge, which authority should not be given unless the interests of justice so require. When passing sentence the judge should make no reference to a spent conviction unless it is necessary to do so for the purpose of explaining the sentence to be passed

If you are due to appear in court as a defendant in a trial, you should speak to your solicitor about whether they think that the proceedings will bring up your previous convictions. They are in the best position to advise in relation to your specific case.

However, it is worth bearing in mind that court proceedings are exempt from the Rehabilitation of Offenders, and can therefore disclose spent convictions (subject to above).

As a witness

If a case goes to court some witnesses face an even greater challenge of being cross examined by the defence about their past behaviour which is totally separate from the case being heard.

This “bad character” evidence usually covers earlier criminal convictions, but it is widely defined and can even extend to a poor disciplinary record at work or at school. It is used to show that a witness is not credible and that something in their past suggests that they should not be believed. This could include where they have made false allegations similar to the allegations they are making in the trial.

Before the 2003 Criminal Justice Act there were too many witnesses who were having their character assassinated and their past dragged up with minimal relevance to the case. The Act improved the way bad character evidence is admitted in court ushering in a completely new statutory scheme designed to toughen the previous rules.

Despite this tightening up, witnesses still aren’t always being told that they might be quizzed about their past. Some people are taking the stand without the prosecution telling them that they will be forced to admit episodes from their past before a public audience. Not only can this be extremely traumatic with no prior warning, but it may even mean family members, neighbours or employers hearing about witnesses’ past mistakes without them having the chance to explain first.

If you are due to appear in court as a witness, you should speak to the legal team you are acting as a witness for. We would suggest that you be honest and open about your criminal record, including disclosing any spent convictions that you have. This will help them to advise whether this might come up as part of the process, and what the next steps would be.

For further information on this, see:

Crown Prosecution Service Guidance (2007) – Disclosure of previous convictions of prosecution witnesses