Page last updated at 12:19 GMT, Sunday, 3 January 2010

Juries could hear evidence of previous convictions

Peter Tobin, 2007
Peter Tobin has been convicted of three murders

Juries in Scotland could be told of a defendant's previous convictions and criminal activity in new trials, under plans being considered.

The Scottish government has asked the Scottish Law Commission to look at the issue following the trial of serial killer Peter Tobin in England.

Tobin was last month convicted of the murder of Dinah McNicol, from Essex.

During the trial his previous conviction for the murder of Vicky Hamilton was introduced as evidence.

The murder of the Falkirk teenager was used to explain the crime scene and to establish his behaviour patterns.

The 63-year-old was also convicted of the murder of Polish student Angelika Kluk in Glasgow.

The move to use previous convictions as evidence in Scottish trials has been put forward by SNP MSP Stewart Maxwell.

The evidence would have been difficult to understand without knowing that he had killed and buried another victim in that garden
Stewart Maxwell
MSP

Juries are not usually told of previous convictions as it is feared they could jeopardise a fair trial and prejudice the jury against the defendant.

In Scotland previous convictions can only be mentioned during sentencing - meaning a jury in Scotland would not have known that Mr Tobin had prior convictions for murder.

But under English law, prosecutors are allowed to tell juries of previous convictions during a trial as evidence of a defendant's "bad character" and if it offers "important explanatory evidence" for the trial.

Mr Maxwell wrote to the Lord Advocate and Justice Secretary Kenny MacAskill urging them to learn from the Peter Tobin trial.

He said the use of previous convictions as evidence in new trials would be limited to serious offences such as murder, attempted murder, rape or serious assault.

Mr Maxwell said the issue was very complicated and any changes to the system must be "strictly monitored and sensitively done".

'Real value'

He added that changing the law for specific offences to allow previous convictions to be used as evidence could have "real value" in court.

"The recent trial and conviction of Peter Tobin in England for the murder of Dinah McNicol exposes the problems of the law in Scotland," he said.

"The evidence would have been difficult to understand without knowing that he had killed and buried another victim in that garden - yet in Scotland that evidence would have been impermissible.

"This is not the kind of evidence that can ever be used lightly and safeguards such as a pre-trial hearing with a judge to determine if the evidence is relevant are essential."

He added: "I believe it is time for Scotland to look closely at changing the law to allow some convictions to be used in court and I hope the Lord Advocate and the justice secretary will look carefully at this issue."

Mr MacAskill said he has asked the Scottish Law Commission to look at the issue of whether previous convictions or evidence of bad character should be admissible in court.

"We are awaiting that report, and will consider any detailed advice carefully before coming to a decision on whether a change to the current legislation should be considered," he said.



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