2. Admissibility of Previous Convictions Checklist PDF

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Admissibility of Previous Convictions Checklist Gateway (d) 1. Are the convictions “relevant to an important matter in issue between the defendant and the prosecution”? (s101(1)(d)). Do they show: a. A propensity to commit offences of the kind which the defendant is charged? b. A propensity for the defendant to be untruthful? 2. An offence will show a propensity to commit offences of the kind which the defendant is charged IF: a. The offence is of the same description – i.e. it was an identical previous offence. b. The offence is of the same category – relevant only if the defendant is charged with a sexual offence or a theft offence. c. The offences are factually similar – i.e. were there similar factual circumstances between a previous offence and the current offence. 3. An offence will show a propensity to be untruthful IF: a. The defendant pleaded not-guilty to the offence and was found guilty. b. The defendant was found guilty of an offence involving the telling of lies e.g. fraud, perjury etc. (R v Hanson, Gilmore & Pickstone [2005] Crim LR 787). 4. Is the relevant propensity made out? Consider grounds on which the defendant solicitor could oppose the admission of the previous convictions: a. Are there are significant differences between the facts of the previous offences and the current offence? b. Would it be unjust to rely on the convictions given the time which has elapsed since they occurred? (s103(3)).  Are the convictions “spent” under the Rehabilitation Act 1974? Note only guidelines the court may take into account, not determinative: Spent Convictions under the Rehabilitation Act 1974 Absolute Discharge 0 years Conditional Discharge 0 years Fine 1 year from date of conviction Community Order 1 year Custodial Sentence up to 6 2 years Months Custodial Sentence Between 6 4 years Months and 30 Months Custodial Sentence Between 30 7 years Months and 4 Years Custodial Sentence Over 4 Years Never spent. c. Does the propensity make it no more likely that the defendant is guilty of the offence? (s103(1) (a)).

5. If yes: will the court exclude the previous convictions under s101(3)? a. Are the convictions more prejudicial than probative?  I.e. would they have a disproportionate impact in that there is a danger that the jury might convict on the basis of the previous convictions alone due to either the extent or nature of these? b. Are the convictions being used to support a prosecution case which is otherwise weak? c. Are the previous convictions spent (see above)? 6. If the answers to questions 1 – 4 is YES and 5 is NO, then the previous convictions will be admissible. Gateway (g) 1. Has the defendant made an attack on another person’s character?  During his interview?  In his statement?  When he is cross-examining?  If he has adduced evidence of a witness’s previous convictions? 2. If yes: a defendant solicitor could argue that the evidence should not be admitted because:  That attack merely amounted to an accusation of a witness fabricating their story- this is unlikely to satisfy gateway (g) - R v Ball [2005] EWCA Crim 2826.  If the attack was made during an interview, that the attack was only made because of breaches of PACE or Code C. 3. Will the court exclude the previous convictions under s101(3)?  Are the convictions more prejudicial than probative? i. I.e. would they have a disproportionate impact in that there is a danger that the jury might convict on the basis of the previous convictions alone due to either the extent or nature of these?  Are the convictions being used to support a prosecution case which is otherwise weak?  Are the previous convictions spent (see above)?  If the attack was made during an interview – did the defendant only make the attack due to questioning techniques adopted by the police? I.e. was he goaded?...