Disclosure of Previous Convictions of Prosecution Witnesses
- Introduction
- Undermining or Assisting Material
- Previous convictions or cautions of witnesses
- Revelation to the CPS
- Applying the test
Introduction
This guidance sets out current CPS policy in relation to the disclosure of previous convictions and cautions of prosecution witnesses.
The previous CPS policy that automatic disclosure of previous convictions or cautions (other than convictions for certain road traffic offences) of all prosecution witnesses as part of the duty under section 3(1) of the Criminal Procedure and Investigations Act 1996 is no longer appropriate following the issuing of the Crown Court protocol, Disclosure: A Protocol for the Control and Management of Unused Material in the Crown Court.
The CPS and ACPO have agreed that the policy relating to the disclosure of previous convictions of witnesses should be consistent with a strict application of the CPIA.
The current policy requires prosecutors to disclose previous convictions or cautions of prosecution witnesses where such convictions or cautions satisfy the test for disclosure under the CPIA, by being reasonably capable of undermining the case for the prosecution against the accused, or assisting the case for the accused.
Undermining or Assisting Material
The prosecution is under a duty to disclose to the accused prosecution material which is reasonably capable of undermining the prosecution case against the accused or assisting the case for the accused.
Material which is capable of being "undermining" would have the potential to weaken the prosecution case, or be inconsistent with it, irrespective of the particular defence being advanced by the accused, or indeed whether a defence is being advanced at all.
Material has such potential if it could have an adverse effect on the strength of the prosecution case. The guidance given in chapter 12 of the Disclosure Manual should be considered. The material might include, for example, material which could properly found an application to exclude evidence advanced as part of the prosecution's case (for instance, under section 76 or 78 of the Police and Criminal Evidence Act 1984), or which could support an application to stay proceedings as an abuse of process.
Material which is capable of "assisting" the case for the accused has a closer relationship to the defence, or the account of relevant matters, put forward by the accused, either when questioned by officers during the course of the instant investigation, or otherwise advanced in the body of a defence statement served in the course of the proceedings. "Assisting" material might be capable of supporting that defence, or supporting the account or explanation put forward by the accused.
Further guidance on the nature of "undermining" or "assisting" material may be found in the Attorney General's Guidance on Disclosure 2022.
It is not appropriate for prosecutors to make disclosure on an entirely speculative basis. If material is not reasonably capable of "undermining" the prosecution case, in the sense outlined above, then the question of whether it is reasonably capable of "assisting" the case for the accused will turn on the nature of the case actually put forward by the accused (whether in interview.
Previous convictions or cautions of witnesses
The Attorney General's Guidelines on Disclosure 2022 include previous convictions of a witness as an example of material that is likely to include information which meets the test for disclosure under the rebuttable presumption:
'86. g) any material casting doubt on the reliability of a witness e.g. relevant previous convictions and relevant cautions of any prosecution witnesses and any co-accused.'
The guidelines provide factors to consider when deciding whether material satisfies the disclosure test:
'84. In deciding whether material satisfies the disclosure test, consideration should include:
- The use that might be made of it in cross-examination;
- Its capacity to support submissions that could lead to:
- The exclusion of evidence;
- A stay of proceedings, where the material is required to allow a proper application to be made;
- A court or tribunal finding that any public authority had acted incompatibly with the accused’s rights under the European Convention of Human Rights;
- Its capacity to suggest an explanation or partial explanation of the accused’s actions;
- Its capacity to undermine the reliability or credibility of a prosecution witness;
- The capacity of the material to have a bearing on scientific or medical evidence in the case'
Previous convictions of prosecution witnesses may fall within a number of the above categories. It is possible, for instance, that a conviction or convictions might be of such a nature as to support a contention, by the accused, that the offence being tried was committed by someone else, possibly even by the witness. This is the sort of situation which arose in the case of R v Vasilou [2000] Crim. L.R. 845, where it subsequently came to light that one of the witnesses who gave disputed evidence of recovering the proceeds of the alleged robbery from the defendant, close to the scene of the offence, had undisclosed previous convictions for offences of robbery (and other offences of dishonesty).
Some convictions might, in themselves, go to the credibility of the witness, but not all convictions would do so, and the question of whether they could do so will turn, in part, on the nature of the convictions themselves and the particular matters at issue in the proceedings (including the specific evidence given by the witness) see R v Underwood [2003] EWCA 1500.
In R v Weir and Others [2005] EWCA Crim 2866, the Court of Appeal considered a situation where a defence witness had been cross-examined in relation to a caution administered to her for an offence of possessing a controlled drug, subsequent to the incident of alleged assault being tried. They held that the trial judge was wrong in concluding that the caution had substantial probative value (section 100 of the Criminal Justice Act 2003) in relation to the witness's credibility.
Hence, the mere fact of a conviction or caution may not be capable of going to the accuracy, reliability or credibility of the witness's evidence. However, convictions for offences involving dishonesty, or fraud/forgery are arguably more likely to do so on a more general basis, as would a conviction for doing an act or series of acts with a tendency to pervert the course of public justice, or like offence (e.g. wasting police time, interfering with or intimidating a prosecution witness, obstructing a constable in the execution of his duty, or similar matters). Another sort of conviction which would be likely to do so would be a finding which resulted in a disposal under the Mental Health Act 1983.
Therefore, where a witness has a conviction for one of the offences (or similar type offences) as mentioned, it should normally be disclosed (satisfying the disclosure test) because it may affect the accuracy, reliability or credibility of the witness.
An example of a situation in which previous convictions might be capable of affecting the court's assessment of the credibility of a witness's evidence, or the accuracy of that evidence, might be where the witness provides evidence involving visual identification of the accused, where the identification is disputed and the circumstances in which the initial observation occurred are bound to come under scrutiny. The witness has a number of previous convictions for possession of controlled drugs, and this might found legitimate examination of the witness as to whether regular use of such drugs has affected the witness's memory, ability to concentrate, etc. See further below regarding the applicability of section 100 of the Criminal Justice Act 2003.
Revelation to the CPS
It has been agreed by the police that they will continue to reveal to the prosecutor all previous convictions and cautions of witnesses (other than convictions for certain minor road traffic offences).
The Disclosure Manual defines the test of relevance under the CPIA and provides that all items of material, which may be relevant to the investigation, must be described on either the MG6C or MG6D.
Although it is possible that in a few cases, previous convictions and cautions of witnesses (other than convictions for certain minor road traffic offences) might not be relevant, it is very likely that in the vast majority of cases the previous convictions and cautions will meet the relevance test under the CPIA.
Therefore, to ensure consistency and to avoid any mistakes in the process of revealing previous convictions and cautions, the disclosure officer must indicate the fact of the previous conviction(s) or caution(s) on the MG6C. For example; Item 5 - Previous conviction(s) of A. N. Other.
The disclosure officer should not list the details of the convictions or cautions on the MG6C.
The disclosure officer must send a copy of all previous convictions or cautions of witnesses to the prosecutor in order for the prosecutor to assess whether or not to disclose the previous convictions or cautions to the accused. This should be done at the time the MG6C schedule is sent to the prosecutor unless they have already been revealed to the prosecutor and disclosed to the defence e.g. bail applications see R v DPP ex parte Lee [1999] 2 All ER 737.
In line with Chapter 10 of the Disclosure Manual, the disclosure officer should use the MG6E to bring to the prosecutor's attention whether the previous convictions and cautions of a witness could reasonably be considered capable of undermining the prosecution case against the accused or of assisting the case for the accused.
The Disclosure Officer should provide details, if possible, of the previous convictions/cautions listed on the MG6E so that the prosecutor can assess whether they meet the disclosure test.
Applying the test
Prosecutors (see chapter 12 of the Disclosure Manual) have a duty to decide whether unused prosecution material satisfies the disclosure test, but must always resolve any doubts they have in favour of disclosure to the accused, subject to public interest immunity considerations.
This general principle, in particular, the need to always to err on the side of caution in cases of genuine doubt, will apply to disclosure of previous convictions and cautions of prosecution witnesses.
The following staged approach should be applied to the decision-making process.
Stage 1
At the stage of initial disclosure, consider firstly whether the actual conviction(s) or caution(s) would be reasonably capable, alone or taken together, of undermining the prosecution case or assisting the case for the accused.
As a general rule, convictions or cautions for offences involving dishonesty, fraud/forgery, perjury, perverting the course of justice, or a like offence (e.g. wasting police time, interfering with or intimidating a prosecution witness, or similar matters), or a conviction resulted in a disposal under the Mental Health Act 1983 should be deemed to satisfy that test, regardless of their age, or whether they are spent.
If they do not fall within the above paragraph, then the prosecutor should consider whether, in the light of the particular matters at issue in the proceedings, including the nature of the witnesss own evidence (and its relationship to other evidence), the conviction(s) would be reasonably capable of undermining the prosecution case.
Example:
A simple example would be where the convictions themselves cast doubt on particular assertions made by the witness: the witness who says "I cannot drive a car", who has previous convictions relating to use of motor vehicles, or the person who says, "I do not take drugs", who has previous convictions for drug-related offences. Similarly, a witness who says, "I have never been in trouble with the police before", yet has a criminal record.
Example:
Another example might be cases where the antecedences of the witness could suggest some direct involvement in the offence, or alternatively a degree of involvement inconsistent with the evidence they have given, such as a witness who claims to have been innocently present at the scene of a drugs transaction, but has convictions for drugs offences.
The prosecutor, at the end of this stage, may have decided in favour of disclosure or, alternatively, having applied this test, may conclude, even erring on the side of caution, that the particular conviction(s) or caution(s) would not be reasonably capable of undermining the prosecution case.
Stage 2
The next step is to consider whether the material in question would be reasonably capable of assisting the case for the accused, as put forward by the accused (1) at the time of arrest (2) when interviewed while in custody at the police station and/or (3) at the time of being charged.
Where the accused has not commented at any of these stages, it is inappropriate to speculate about potential defences, with a view to making disclosure on a purely speculative basis. The appropriate step would be to await service of a defence statement by the accused, and to consider any matters or issues raised within it (see Stage 3).
An important, although not in itself conclusive, factor in this exercise will be the extent to which the witness's evidence is challenged by the accused. The fact that the witness's evidence is challenged may put the witness's credibility more squarely at issue, and careful consideration should be given to whether the conviction(s) or caution(s) would assist the accused to better challenge the evidence of the witness.
Example:
For example, a witness to an armed robbery has a conviction 10 years previously for indecent exposure. The defence case is that his evidence is not only crucial but that the witness is untruthful and has an ulterior motive for giving evidence against the accused. In these circumstances, the prosecutor may wish to find out more about the conviction, such as whether the witness pleaded guilty or was found guilty and disbelieved in court, before deciding whether disclosure is appropriate.
There may be situations where the evidence of a witness is not in dispute, and where the previous conviction or caution would not take the matter any further.
Example:
A simple example might be of a civilian witness who provides a statement in section 9 form to produce an important exhibit, namely a CCTV video recording of certain events which are not in dispute. The actual matters at issue turn on interpretation of the events. The witness has a previous conviction fifteen years before for indecent exposure, when he pleaded guilty and was fined.
The effect of section 100 of the Criminal Justice Act 2003
In the course of considering this sort of issue, to what extent is it appropriate to consider whether the conviction could arguably be admissible in evidence under section 100 of the Criminal Justice Act 2003, the provision relating to bad character of a non-defendant?
For a detailed explanation of a non-defendants bad character, prosecutors should refer to the Legal Guidance chapter on bad character.
The effect of section 100 is that bad character evidence relating to non-defendants will be admissible in fewer cases than would previously have been the position. The narrow scope of admissibility of previous convictions of non-defendants supports the argument that where witnesses' convictions are clearly irrelevant they need not be disclosed.
If the evidence of the witness is challenged, then there is a presumption in favour of disclosure, although one needs to consider whether the nature of the conviction(s)/caution(s) (and other bad character) is such that it would be reasonably capable of assisting the defence to effectively challenge the evidence of the witness.
This is demonstrated by the decision of the Administrative Court in S v DPP [2006] EWHC 1207 (Admin), where the DPP conceded that information relating to pending proceedings for affray against the complainant (who had no previous convictions) in an assault case (where the appellant was raising self defence) should have been disclosed. Material relating to the affray proceedings may also arguably have had a bearing on the complainant's propensity for violence or general credibility as a witness.
Therefore, whenever the bad character in question would provide the defence with at the very least an arguable application for leave to give evidence of the bad character of the witness under section 100, the bad character should be disclosed.
It is important to bear in mind that the admissibility of evidence is a matter which is to be determined either by the judge or by agreement between the parties. Moreover, prosecution material which might reasonably be considered capable of undermining the case for the prosecution against the accused or of assisting the case for the accused need not be evidence which is admissible at trial.
The case for the accused need not simply be the evidence which the accused will present at trial. Disclosure is also required to assist a defendant in a bail application, an application to stay proceedings as an abuse or to enable the defence to approach eye witnesses while their memories are fresh see R v DPP ex parte Lee (as referred to above).
It would therefore be wrong for prosecutors to assume that simply because a conviction would clearly not be admissible in evidence it need not be disclosed.
Stage 3
The prosecutor may have formed the provisional view, at the initial disclosure stage, that the previous conviction(s) or caution(s) relating to the witness is not disclosable, having regard to the guidance above. If this is the position, then the prosecutor should refer the matter to their Unit Head or a lawyer of Level D or above.
The Unit Head or lawyer of Level D or above should consider the application of the disclosure test, applying as always the principle that prosecutors should err on the side of caution where there is genuine uncertainty as to whether the material is disclosable or non-disclosable. The decision of the Unit Head or lawyer of Level D or above will either be to affirm the provisional view of the prosecutor or to overrule it.
If the decision is to disclose the previous conviction(s) or caution(s), the prosecutor should endorse the MG6C and disclose it in the normal way. In disclosing previous convictions to the defence, it is advised that the CRO number is removed. In addition, the details of previous convictions, if sent by post, should be addressed for the personal attention of a solicitor acting in the case and marked "In Confidence".
The defence should be reminded that the confidentiality of previous conviction(s) and caution(s) of witnesses disclosed under the CPIA is protected by sections 17 and 18 of that Act.
If the Unit Head or lawyer of Level D or above determines that the conviction(s) or caution(s) does not fall to be disclosed, then this decision should be endorsed by them on the Disclosure Record Sheet (DRS) attached to the file. Please note the guidance given in Chapter 11 of the Disclosure Manual regarding upkeep of DRSs.
Stage 4
The prosecutor will have a duty to keep the matter under continuing review, and must particularly review the position upon receipt of a defence statement served by or on behalf of the accused. The defence statement may clarify the extent to which the evidence of the witness is in dispute, and the basis upon which it is disputed.
The information therein may result in the prosecutor reconsidering the previous decision to withhold disclosure at the initial disclosure stage. If the prosecutor determines that the material, in the light of the matters raised in the defence statement, does fall to be disclosed, then disclosure should follow in the normal way. There is no need to refer to the Unit Head or lawyer of Level D or above to confirm that decision.
However, if the prosecutor takes the provisional view that, even in the light of the matters raised in the defence statement, the material does not fall to be disclosed, there should be a further consultation with the Unit Head or lawyer of Level D or above as set out in Stage 3, above.
The Unit Head or lawyer of Level D or above may, upon considering the matter, overrule the prosecutor, and determine that disclosure is now appropriate. Alternatively, the Unit Head or lawyer of Level D or above may affirm the prosecutor's provisional decision not to disclose. If the latter, the Unit Head should endorse the DRS to this effect.
Where the defence seeks specific disclosure of material relating to the previous conviction(s) or caution(s) of witnesses, it will be inappropriate to disclose simply in response to general 'fishing expeditions'.
If the defence wishes to seek specific disclosure, the appropriate route is via a section 8 application, in accordance with CrimPR Part 15, rule 15.5, which requires a written notice specifying the reason why material might be expected to assist the applicant's defence as disclosed by the defence statement given under section 5 or 6 of the 1996 Act.
The prosecutor should consider any section 8 application and decide whether or not, in the light of the application, the undisclosed material now falls to be disclosed. If so, then disclosure can be made without the need for the matter to proceed to a section 8 hearing. The Court must not require a prosecutor to disclose material unless the prosecutor is present at the hearing or has at had at least 10 business days in which to make representations, (CrimPR 15.5(5)).
The Trial
The review of disclosure should continue in light of issues raised during the trial, and for this reason the trial advocate should always be made aware of any undisclosed previous convictions, which should be set out in the brief to counsel. Should issues occur during the course of the trial that render them disclosable, it may be that it is appropriate for the trial advocate to confer with the reviewing lawyer before proceeding to make disclosure, unless the delay in seeking to confer would be such as to unduly disrupt the trial or otherwise be contrary to the interests of justice.