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The onslaught continues

The British government is preparing to launch a further assault on the English Common Law by eroding the presumption of innocence in jury trials involving certain categories of offence. In short, the government wants it to be possible for a defendant’s previous convictions to be made known to a jury unless there are compelling reasons in the eyes of a judge against it.

It does not take a lot of imagination to see why prosecutors and even the odd well meaning but deluded politician think this is a grand idea. It must be disheartening for a prosecutor to see a serial rapist, mugger or thief get off on a technicality and for the defendant’s nefarious past to be undisclosed to a jury. But – and it is a very big but – keeping previous convictions a secret except in certain conditions is designed to ensure that juries examine a criminal case on the facts as they are presented, and not by trying to guess the motives of the accused or rushing to a conclusion on the basis of a hunch.

Also, by withholding information about previous convictions, police and others are forced to present their evidence as strongly and as competently as possible. The Law of Unintended Consequences applies here. My fear is that prosecutors and others could become lazier and more slapdash in how they present evidence if they think that they can always shove X’s seedy past in front of a jury as part of the case.

I must say it is hard to summon up feelings of surprise or even anger any more at what our political classes are doing to the traditional checks and balances of our criminal code. To be fair, much of this process began long before Tony Blair, although this most authortarian of governments has set about destroying our liberties with a zeal not seen in decades. I hold little hope that the Conservative Party or the Liberal Democrats will offer much resistance, given their terror at being thought to be ‘soft on crime’.

And so we go on, changing processes of law in ways which will undoubtedly lead to more unsafe convictions. The present government, like all too many before it, is extraordinarily hostile to process and the understanding of the long-run bad consequences of interfering with constraints of law and custom.

The likelihood, of course, that all this messing around with the Common Law will reduce crime significantly is, I confidently predict, zero.

29 comments to The onslaught continues

  • Johnathan,

    I see your point, but I really can’t agree. Making previous convictions known to the jury will prejudice it against the defendant indeed, but that is in my opinion just as it should be; a serial offfnder is much more likely to be guilty than a person who is accused for the first time, independently of the facts of the concrete case. The case you are making basically amounts to a complaint that the people in the jury are liable to hold previously commited murders against the defendant.
    I don’t see how this makes the trial any less fair.

    Furthermore, the purpose of a trial isn’t just fair treatment of the defendant, but also punishment of the guilty and protection of the public from criminals by locking them up. And there is one fact about serial offenders that really needs to be taken into consideration here: They commit the overwhelming majority of violent offenses. There is no giant army of violent criminals, it is the same offenders commiting crimes over and over again. By skewing the odds against this group you can have the greatest impact on crime. LOcking one of them up saves dozens of potential victims from being killed or hurt.

    If things were done the way you think they should, it also wouldn’t help the accused serial offenders much. Police officers have been known to “massage” the evidence a bit to make the case against offenders more compelling, the easiest way to “present their evidence as strongly and as competently as possible”. It shouldn’t be like that, but if police officers have watched offenders they know to be guilty walk free for a couple of times it is pretty hard to resist the temptation.

  • Walter Wallis

    O.J. screamed “I killed the bitch” to Rosie Greer, but Judge Ito would not let the jury hear this because Rosie was a spiritual advisor, and a “Confession” must be secret even if shouted to the public.
    Jurors must know everything, because judges often play a little “Simon Sez” game with the law.

  • Pete_London


    If a man has convictions for nine burglaries and stands accused of a tenth does the existence of the nine make him guilty of the tenth? Only if the evidence for the tenth says so. I do sympathise with your argument. I bow down to no-one in hangin’em and floggin’em. However, the evidence supporting a conviction must apply only to the alleged crime.

    Such a scenario should not exist, of course. Without meaning to lead the discussion astray, someone with nine convictions for burglary should not be at liberty to commit a tenth. This proposal is a plaster for a criminal justice system which requires surgery, starting with stiffer, more civilised sentecing. Oh dear, we had this discussion previously.

    Put it all together: disposing of trial by jury for many alleged crimes, disposing of double jeopardy, disclosing previous convictions … Johnathan is absolutely right, govenments are often ignorant of the long-term consequences of their actions in changing (wise) due process.

  • Rob Read

    “If a man has convictions for nine burglaries and stands accused of a tenth does the existence of the nine make him guilty of the tenth”

    If a man has matching DNA from a rape victim and it’s one in a billion chance of a false match, then should this evidence be ignored until the police find the other 5 matching people?

  • Richard Garner

    I agree with Pete. It cannot be proved that a defendent is guilty of burglary simply on the basis that he has done it before. I want to live in a society where people are judged for the crimes they are accused of, not the crimes they have committed in the past.

    In addition, what is the point in letting people out of prison if we are to judge them in cases depending on previous convictions. The idea that a person has “paid his debt to society” is completely thrown out by a law that allows jurors to punish him over and over again for the some offense he committed in the past.

  • zmollusc

    Scumbag commits crime – this costs society £many.
    Scumbag goes through courts – this costs society £many.
    Scumbag goes to priz for a few months – this costs society £many.

    Scumbag released from priz ‘having paid his debt to society’. Really? Where? How?

  • ahem

    You may be fighting a losing battle on this one: DNA evidence is going to have a profound long-term affect on the trial system. Once the possibility of innocence is eliminated, the temptation to sentence a criminal without the needless expense of a trial will prove too powerful.

  • Verity

    I rarely disagree with Pete, but I think Richard Garner has spiked his argument by agreeing with him.

    No one is going to be judged, viz Richard, “simply on the basis that he has done it before.”. That he has done it nine times before is one more piece in the jigsaw of evidence the police are producing in order to secure a conviction. There will be many other pieces that fit together. No one is going to be judged solely because he’s done it before. But that it is part of his pattern of behaviour is a very important, perhaps critical, part of the body of evidence against him.

  • Each case should be judged on its merit alone. No knowledge of previous acts should be known. This way they will not be pushed by the knowledge to find guilt where there is none.
    But in the penalty phase I see no problem with it. This would show if he has respect for society or is totally without any values. Punishment is where the previous acts should come in.

  • Chuck Pelto

    TO: Jonathan Pearce

    I’m no Glenn Reynolds, but over on our side of the big pond, a past conviction in a court of law can be relevant and admissible evidence. After all, it’s on the public record, isn’t it?

    Now, past charges that one was never convicted of is another matter altogether.



  • Wild Pegasus

    No one is going to be judged, viz Richard, “simply on the basis that he has done it before.”.

    You’re joking if you think juries aren’t going to look at someone brought before the bar with a prior record and not convict him on the basis of being a bad person.

    That he has done it nine times before is one more piece in the jigsaw of evidence

    Absolutely wrong. That he has done it nine times before is not one shred of proof that he has done it this time. In the common law legal system, we convict people for what they do, not who they are.

    But that it is part of his pattern of behaviour is a very important, perhaps critical, part of the body of evidence against him.

    Oh yes, the critical evidence is that the accused is a bad person. Please.

    – Josh

  • ThePresentOccupier

    Whilst the mangling of the law has the weight of imbecilic do-gooders behind it, too many people seem to believe that the courts “more or less” get it right, and that the police would not make an arrest without good reason. This is erroneous.

    The magistrates system seems to be composed primarily of power-crazed imbeciles who will convict because government policy, the CPS & the police tell them to (which is part of the reason they are so despised by so many legal professionals). No evidence neccessary, no defense admissable. The majority of their convictions are subsequently overturned as unsafe by judges with some actual legal training, some of whom still hold true to the belief of innocent until proven guilty.

    So… Scenario: individual is convicted by magistrate due to a particularly bad bout of dyspepsia. Individual is then permanently labelled a criminal; consequently any subsequent appearances regarding similar offences are predjudiced. At the moment, it will only apply to burglary and child abuse (as no “right thinking” person could *possibly* disagree); I believe that it will soon be applied to any & every other offence.

    The legal system in this country is in complete disarray, as well as being a disgrace.

  • ThePresentOccupier

    Spellcheck *then* post.
    Spellcheck *then* post.
    Need more coffee….

  • CS

    Meanwhile, in an effort to appear something other than the elitist ruling class they are, MPs take this action:
    http://uk.news.yahoo.com/041026/325/f5cks.html .
    Utterly futile, and quite unfortunate to see a perfectly good custom thrown out by NuLabour’s ‘modernising’ zeal.

  • Julian Morrison

    Eh, I’m not so fond of that particular “civil right”. I think courts (government run or as I’d prefer, anarchic) ought to be in the business of determining The Facts, and ought to take a basically scientific approach where any relevant information is always admissible. So far as I’m concerned the two most utterly important features of a court are (1) let the jury know the whole truth (2) let the jury rule as they please. A blindfolded jury = a random and probably unjust result. Rather than hiding information, it would be better to ask the jury to consider that the defendant might have been reformed, might have been picked up as a “usual suspect” because of police laziness. Then let thm draw their own conclusions.

    The jury system is built upon an assumption that ordinary people can be trusted. So trust them to analyse the relevance of prior convictions.

  • craggy_steve

    I’m with Jonathan on this, he’s bang on right. Anything which predjudices the objective, factual assessment of the case in question is absolutely wrong, and an assault against freedom and justice.

    Previous convictions / charges should not be revealed or discussed until the defendant is found guilty, at which point they should provide context for the judge to help him frame the sentence.

  • Johnathan

    Ralf, in your comment right at the top of the thread, you say that previous convictions will prejudice a jury and “this is as it should be”. Oh dear. Forget about the trial being about the facts of the case, then.

    My fear is that admitting such detail is bound to make juries far less careful about the facts that are presented. The temptation for any detective trying to boost his or her conviction figures and get promotion will be to round up the “usual suspects”.

    The checks and balances of our legal codes, which have been built up over the centuries, exist for a reason. That reason is justice, and the need to encourage the wide belief in the essential fairness and equity of the law. I find it chilling how ignorant our political classes are on these matters, or how little they care for them.

  • zmollusc

    If you, as a juror, knew that the person in the dock had served 2 months in jail for the 947 counts of burglary that he had admitted to at his last trial, wouldn’t you convict just to get him back inside and serve some more time? Is this more or less fair?

  • Guy Herbert

    Going back a bit: Ralf- “a serial offfnder is much more likely to be guilty than a person who is accused for the first time”

    People aren’t supposed to be convicted on likelihood. “Accused for the first time,” is the give-away. A number of people in this thread are suffering from prosecutor’s fallacy, the subtle and seductive feeling that accusation is evidence in itself.

    There is a selection bias built into the criminal justice system. Defendants are not chosen at random, but more likely to be accused if they have previous convictions, the evidence being equal. And the nature of criminal investigation (even in inquisitorial systems, followers of Sir Ludo Kennedy should note) is to seek to accumulate evidence against a suspect.

    This even goes for so called “scientific” evidence, which would be better called technical evidence. One big problem that the courts already had before the burden of proof is quietly eroded, was difficulty in extracting rational conclusions when faced with technical propositions and probabilistic assertions. Witness “Meadows’ Law”, which neatly shows up but how courts can’t handle probability and how non-independent events can be misleading.

    The point of a trial in our system is supposed to be to test that evidence independently of natural and unavoidable prosecutorial bias. Where previous conviction evidence is relevant, as Verity outlines, is where there are distinctive repeated features in the crime that have probative value. Such evidence is already permitted on a case-by-case basis.

  • Guy and others,

    I wasn’t suggesting that the accused should be convicted on the strength of perious convictions. I merely pointed out that there is no harm done by letting the jury know about previous convictions, and thereby creating a certain bias against the defendant.

  • Pete_London

    I merely pointed out that there is no harm done by letting the jury know about previous convictions, and thereby creating a certain bias against the defendant.

    That’s an incredible statement. You advocate by that a defendant should not be regarded as innocent until proven guilty. In fact it reads to me as if you require a defenant to prove their innocence in order to be found not guilty.

    Look, no-one’s perfect or entirely imune from coercion. I admit that I may well be swayed by a prosecutor letting it be known that the fella in the dock has previous. “So what if he didn’t commit this crime, let him suffer again for his past misdemenours” may well be the vedict of the jury.

  • Pete_London

    We could of course allow a prosecutor to present any evidence they like:

    M’Lord, the accused is known to be a frequenter of a certain website advancing the notion that tax is theft, the NHS should be disbanded and that individuals bear no responsibility for their fellow citizens. In short, just the type of person to commit a despicable crime.”


  • Johnathan

    “Bias against the defendant” says Ralf, approvingly.

    Don’t think Ralf really gets the point, does he? Perhaps he thinks trials are unnecessary since on the sort of logic presented, a man with previous form should be automatically headed for jail anyway.


  • Pete_London and Johnathan,

    sorry, that was poor wording on my part.

    It should have been

    “I merely pointed out that there is no harm done by letting the jury know about previous convictions. If this creates a certain bias against the defendant it is a reflection of the fact that offenders with previous convictions are more likely to be guilty than those with a blank slate.”

    At no point did I ever advocate to have someone hauled off to jail on the strength of prior convictions.

  • craggy_steve

    >> If this creates a certain bias against the defendant it is a reflection of the fact that offenders with previous convictions are more likely to be guilty than those with a blank slate.

    Perhaps those with a blank slate are merely cleverer offenders, and by having no previous history of convictions the jury will be more inclined to discharge them despite their guilt?

    It may be statistically true that many offenders are multiple offenders, but the objective of a trial is to test whether the accused commited the crime for which he is being tried, not to lock him up again for previous crimes for which he has already been punished.

  • David Mercer

    Wot, you still have TRIALS over in merry ole England?

    Here in the States we almost always settle criminal matters via plea bargain, only the most monied defendants being able to afford competant lawyers and bail money!

    That’s the vast overwhelming majority of criminal cases. The jury trial here is a dying thing; and lawyers being able to ask so many questions and challenge potential jurors just spins the few trials we have any more even farther from their original design.

  • Telemachus

    Keeping score here –

    Blunkett – does not seem to care about police apprehending robbers, but once apprehended, prefers to use draconian measures in their trial. One wonders whether this is a conscious tradeoff, or a political appeal to appear tougher on law and order. If the latter, he is sorely mistaken, as I wager that more individuals wish to live unmolested by criminals than desire to see criminals given extreme penalties. I agree with the ‘debt to society’ point made above. What’s the bloody point of bringing up past convictions with someone who has served their sentence?

  • If I may offer a compromise for consideration:

    1. Don’t bring up past convictions, lest they influence the jury.

    2. Institute instead a “3 strikes” law, so that no criminal bastard ever gets the chance to be convicted of nine prior offences.

    Oh, wait… I’m told that this is too Krool & Hartless.

  • Love Supreme

    OJ’s spiritual adviser was ROSEY Grier, not ‘Rosie’. He was a brutha, albeit a needlework expert as well as an NFL leading light and co-star of “The Thing with Two Heads”, possibly the worst movie ever to feature an Oscar winner.

    Only in America, chums.