Wiping the Slate Clean: Reforming Scots Law's Approach to Evidence of the Accused's Bad Character
| DOI | http://doi.org/10.1111/1468-2230.12015 |
| Published date | 01 March 2013 |
| Date | 01 March 2013 |
Wiping the Slate Clean: Reforming Scots Law’s Approach
to Evidence of the Accused’s Bad Character
Findlay Stark*
This paper discusses the Scottish Law Commission (SLC)’s Report on Similar Fact Evidence and the
Moorov Doctrine, which proposes revolutionary changes to the way in which Scots law deals with
evidence of the accused’s bad character, including his previous convictions. The article sets these
proposals in context by explaining the existing Scots law, and comparing it to the English
provisions on bad character evidence contained in the Criminal Justice Act 2003. This compari-
son reveals similarities between the responses of the two jurisdictions. It is remarkable that the
SLC did not consider English law to be a viable model for reform, choosing instead to propose
legislation which would simply deem certain pieces of bad character evidence relevant in criminal
trials. The second part of the paper explains why these proposals should not be implemented.
INTRODUCTION
A vexed issue in the law of criminal evidence is the extent to which evidence of
the accused’s1previous misconduct and character can be used to support the
Crown’s case that he committed the offence charged.2In 2009, the Scottish
Ministers asked the Scottish Law Commission (SLC) to examine the various
rules governing this matter in Scotland.3The reforms proposed in the resulting
report on Similar Fact Evidence and the Moorov Doctrine (the Report)4are revolu-
tionary. If the SLC’s draft Criminal Evidence (Scotland) Bill (the Draft Bill) is
enacted,5centuries of statutory and common law rules would be replaced largely
*Yates Glazebrook Fellow in Law, Jesus College, University of Cambridge. I am grateful to James
Chalmers, John Spencer, Shona Wilson and an anonymous reviewer for their comments on earlier
drafts. I am responsible for any errors or omissions.
1 The term ‘accused’, found in both Scots and English law, will be used in this article. This
discussion is not concerned with evidence of the previous misconduct of other witnesses, which
was not part of the Government’s reference. See, however, F. Raitt, Evidence: Principles, Policy and
Practice (Edinburgh: Thomson/W. Green, 2008) 236–249. cf Criminal Justice Act 2003 (2003
Act), s 100; J. R. Spencer, Evidence of Bad Character (Oxford: Hart, 2nd ed, 2009) ch 3.
2 The misconduct will necessarily have occurred before the trial, but need not have occurred before
the conduct that forms the basis of the allegations against the accused. See Draft Criminal Evidence
(Scotland) Bill, s 5(1)(d).
3 For the reference’s terms, see Similar Fact Evidence and the Moorov Doctrine (Sc Law Com No 229,
2012) para 1.1. The Government’s reference was prompted by the collapse, in 2009, of the trial
of Angus Sinclair for the ‘World’s End’ murders. See BBC News, ‘Inquiry Call After Trial
Collapse’ at http://news.bbc.co.uk/1/hi/scotland/edinburgh_and_east/6989120.stm (last visited
4 December 2012).
4ibid.
5 Other than a press release indicating that the Justice Secretary will ‘consider the recommendations
carefully’, there has as yet been no indication of whether the Scottish Government will enact
legislation on the basis of the Report: see Scottish Government, ‘Previous Convictions in Court’
at http://www.scotland.gov.uk/News/Releases/2012/05/previousconvictions23052012 (last
visited 4 December 2012). As will become clear, the SLC’s recommendations are revolutionary.
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© 2013 The Author. The Modern Law Review © 2013 The Modern Law Review Limited. (2013) 76(2) MLR 346–369
Published by Blackwell Publishing, 9600 Garsington Road, Oxford OX4 2DQ, UK and 350 Main Street, Malden, MA 02148, USA
by considerations of relevance. If evidence of the accused’s prior misconduct,
including any previous convictions, were deemed relevant to a fact in issue, then
the finder of fact would hear about it and – in jury trials – receive direction on
how to ascribe to it the appropriate weight.
This article argues that the SLC’s proposals should not be implemented in
their present form. It begins by setting out the present Scots rules on evidence of
the accused’s previous misconduct, comparing them to the English approach to
‘bad character’ evidence under the Criminal Justice Act 2003 (the 2003 Act).
This will provide English readers with a background to the SLC’s proposals
and demonstrate that there are similarities between current Scots and English
approaches to this issue. The article then explores the SLC’s Draft Bill, arguing
that the proposals within it place too much responsibility upon, in more serious
cases, juries.6It will also be noted that the SLC’s Report would, if passed,
legislate what is, and is not, relevant evidence in cases involving prior misconduct.
This would be an astonishing development, and ought to be resisted. The 2003
Act offers a better model for reform, despite its imperfections.
SCOTS AND ENGLISH LAW COMPARED
This section demonstrates that Scots law presently allows evidence of the
accused’s previous misconduct, which is not the subject of the present proceed-
ings, to be admitted in relatively few instances. This impacts on the effective
prosecution of crime, and supports the SLC’s view that reform is necessary.
In Scotland, there is a blanket ban on the prosecution (or a co-accused)7
leading evidence which implies even the possibility of the accused’s having
previous convictions before the finder of fact has returned a verdict on ‘live’
charges.8The caveat is that previous convictions can be admitted where they are
competent in support of a substantive charge,9for instance where the charge is
driving whilst disqualified. The fact of disqualification must be proved, and the
prosecution is allowed to do so even if this reveals that the accused has a previous
conviction for a driving offence.10
Even if any final legislation differs materially from the Draft Bill, the Report’s proposals are worth
considering in detail.
6 In Scotland, low-level crime is dealt with by lay judges, advised by a legally trained clerk, in the
Justice of the Peace Courts. A legally trained judge, sitting alone or with a lay jury of fifteen in the
Sheriff Court, tries mid-level offences. The most serious crimes are tried before a legally trained
judge and a lay jury of fifteen in the High Court of Justiciary. In Scotland, the prosecutor has the
choice of forum.
7Slane vHM Advocate 1984 JC 60, 61–62 per the Lord Justice-General (Emslie).
8 Criminal Procedure (Scotland) Act 1995, ss 101 (solemn proceedings), s 166(3) (summary
proceedings). Other sections of the 1995 Act also prohibit disclosure of the accused’s convictions
in certain circumstances (eg s 69(1)). It is possible to avoid breaching these rules where the
accused’s previous convictions are revealed accidentally by a witness and the prosecution took
9 1995 Act, ss 101(2), 166B.
10 Mitchell vDean 1979 JC 62. See, further, Report, para 7.11. Previous convictions necessary to prove
a substantive charge are not evidence of bad character in English law because they have ‘to do with
Findlay Stark
© 2013 The Author. The Modern Law Review © 2013 The Modern Law Review Limited. 347
(2013) 76(2) MLR 346–369
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