A Tale of the Past: Is it Permissible to Present Evidence of Previous Convictions before the Court?

Within every trial, there is a story. Obviously, the story that plays out before the judge 
(and jury, where relevant) is the one that society gives the most credence to – and rightfully so, its veracity has been picked apart, dissected, and tested by the people most qualified to do so. However, it is often forgotten that the story heard before the court has its creator. A creator, who for some reason or another, has found themselves required to tell the story, or perhaps more accurately, to tell their side of the story. In order to properly tell their side, the creator may introduce evidence before the court, but not just any kind of evidence. The court will not accept just anything, there must be good reason for its introduction, and there are stringent requirements that must be met, particularly in relation to the introduction of what is referred to as ‘character evidence’. 

For instance, let’s introduce Character A. Character A is on trial for breaking into Character B’s house, and stealing Character B’s watch. Unfortunately, Character A was convicted of theft 10 years earlier. At trial, Character B and their legal counsel wish to introduce evidence of Character A’s previous conviction in order to support their case. Would the court be prepared to allow Character B to introduce this evidence pertaining to the past of Character A? 

On the surface, the answer is maybe. Evidence of previous convictions might be permitted, provided that the evidence of the previous convictions has been properly introduced. Mr. Justice Kennedy in the case of R v Bond [reference 1] can be regarded as having established the underlying principle for allowing evidence of previous convictions. In his judgment, he determined that generally, any evidence provided to the court must be relevant to the particular charge, and not pertain to the past conduct of the accused. He did, however, acknowledge that there are certain exceptions to this rule – those exceptions being similar fact evidence and background evidence. 

This rule was restated in the case of People (DPP) v Murphy [reference 2]. In this case, the Special Criminal Court, in convicting the accused, had determined that statements made by the accused were “corroborative of a confession” and that given his background, he was likely to have been involved in the activities for which he was charged. The Court of Criminal Appeal denounced this determination, ruling that under no circumstances should previous convictions be taken into account in this manner. This was further affirmed in the later case of People (DPP) v Ferris [reference 3]. 

            In light of the aforementioned case law, we can understand that as a general rule, there is a prohibition on evidence of a person’s previous convictions being admitted before the court. Furthermore, the allowance of evidence of previous convictions can be problematic, given societal prejudice and jury susceptibility. It is assumed, and perhaps appropriately so, that the bringing to light of a person’s past criminal history would be prejudicial to say the least and would most likely influence an adjudicator. Studies have shown that juries can be swayed easily by the revelation of a criminal record, especially when that criminal record contains a previous conviction for a similar offence [reference 4]. 

On that basis, applying the general rule, Character B and their legal counsel would not be allowed to present evidence pertaining to any previous convictions held by Character A. However, as noted above, there are a number of exceptions to this rule. By virtue of s.1(f) of the Criminal Justice (Evidence) Act of 1924 [reference 5], in particular s.1(f)(iii), the accused is entirely responsible for the loss of the shield, and the consequence of doing so is risking questions pertaining to past convictions held by them. Character A is afforded the opportunity to testify in their own defence, they are granted the protection of the shield – that being, they cannot be asked, and if they are asked, are under no obligation to answer any questions purporting to show that they are of poor character, have committed or have been convicted of any offence other than the one they are currently being tried for. 

Suppose that Character A, having availed of this opportunity to testify, attempts to establish their own good character and does so by endeavouring to sully the reputation of Character B. Under s.1(f)(ii) of the Act [reference 6], the shield can be lost through actions such as this. However, it is not always a straightforward assessment, and there is little Irish authority on the matter. There is no clear line determining just what constitutes an imputation of character sufficient enough to rationalise the loss of the shield. There are two Irish cases one can refer to in the hopes of establishing some semblance of a bench-mark: firstly, Attorney General v Campbell [reference 7] and People (Attorney General) v Coleman [reference 8]. In the case of Campbell, the accused suggested whilst under cross-examination that there was a conspiracy against him on the part of the two prosecution witnesses. In Coleman, it was alleged by the accused that it was the prosecution witness who had carried out the crime with which he was charged, and that it was the plan of that witness and another party to frame the accused. In both cases, it was determined by the Court of Criminal Appeal that the statements amounted to an imputation of character sufficient to justify the loss of the shield.

It must be noted that what constitutes an imputation of character is often denoted by the societal era in which we live. It is a line everchanging, much like our own perceptions of what is moral and ethical and what is not. For instance, historically, an imputation that a person was a homosexual was regarded as an imputation of character sufficient enough to grant the loosing of the shield. In the modern 21st century, it is reasonable to assume that this would no longer be the case. 

The Criminal Procedure Act of 2010 has furthered modernised the concept of imputation of character, with a particular focus on imputations on the character of persons who are deceased, or unable to defend themselves from such imputations due to incapacitation. By virtue of the updated Act [reference 9], an accused who intends to introduce evidence attesting to their own good character, or which would be regarded as an imputation of the character of a prosecution witness may only do so once they have provided the prosecution with notice of their intent to do so at least 7 days in advance, or having obtained the permission of the court. 

Returning back to the case of Character A and Character B, it is clearer as to whether Character B’s legal counsel can introduce the evidence of Character A’s previous convictions. As previously noted, generally the courts are apprehensive of allowing any evidence pertaining to the past criminal history of an accused. But, in the instance that Character A wishes to testify in their defence, and does so through attempting to introduce evidence of their own good character or evidence casting assertions on the character of any prosecution witnesses, the courts may then deem it permissible to allow the legal counsel of Character B to introduce evidence of Character A’s previous convictions.  

Although there appears to be little case law on this area in Ireland, it is a widely recognised rule that evidence pertaining to only the case being dealt with at the time should be permitted by the court. However, as examined in this brief description of the law in this area, there are a number of exceptions to this principle. 

Obviously, whether or not evidence should be permitted in a trial is entirely a matter for the courts to determine. It must be noted however, that there is no perfect solution – if evidence of an accused’s previous convictions is admitted, it may unduly influence the decisions of a jury or adjudicator. In the same vein, if evidence of an accused’s previous convictions is not admitted, then the victim may feel robbed of justice. Ultimately though, the rules outlined above are in place for one key reason: that being, to achieve justice in the fairest manner possible.

References:

[1] [1906] 2 KB 389 at p 397-400. 

[2] [2005] IECCA 1; [2005] 2 IR 125. 

[3] [2008] 1 IR 1.  

[4] Lloyd-Bostock, “The Effects on Juries of Hearing about the Defendant’s Previous Criminal Record: A Simulation Study” [2000] Criminal Law Review, 734 – 755. 

[5] Criminal Justice (Evidence) Act 1924, s.1(f)(i), (ii), (iii). 

[6] ibid, s.1(f)(ii) – “…he has personally or by his advocate asked questions of the witnesses for the prosecution with a view to establish his own good character, or has given evidence of his good character, or the nature or conduct of the defence is such as to involve imputations on the character of the prosecutor or the witnesses for the prosecution…”.

[7] [1928] 62 ILTR 30 (Court of Criminal Appeal). 

[8] [1945] IR 237 (Court of Criminal Appeal). 

[9] Criminal Procedure Act 2010, s.339 (a) and (b).