Law Report: Spent convictions admissible in evidence

LAW REPORT: 19 December 1996

Thomas v Commissioner of Police of the Metropolis; Court of Appeal (Sir Richard Scott, Vice-Chancellor, Lord Justice Evans, Lord Justice Saville) 28 November 1996

It was a matter for the discretion of the trial judge whether a plaintiff's spent convictions should be admitted in evidence under section 7(3) of the Rehabilitation of Offenders Act 1974.

The Court of Appeal dismissed an appeal by the plaintiff, Gabriel Thomas, against the decision of Sir Michael Davies, sitting as a High Court judge on 8 March 1995.

The plaintiff, a limbo dancer of considerable reputation, was arrested at 2 am on the morning of 28 May 1990, as he left the stage door after giving a charity performance at the London Arena in Docklands, and was charged with threatening behaviour. He claimed he was subjected to abusive and racist remarks, brutally manhandled and arrested without lawful cause. The arresting officers denied this and denied they had used excessive force.

The plaintiff was tried for the offence of threatening behaviour and was acquitted. He then sued the police claiming damages for assault, damage to property, false imprisonment and malicious prosecution.

At the trial of his action before the judge and a jury, the question was raised, in the jury's absence, whether two previous convictions of the plaintiff could be put to him in cross-examination. One, from 1980, was for unlawful wounding; the other, from 1983, for criminal damage. Both convictions were spent for the purposes of the Rehabilitation of Offenders Act 1974 so that, by virtue of section 4 of that Act, they could not be admitted unless they fell within the exceptions provided for by sections 7 and 8. Section 7 provided:

(3) If at any stage in any proceedings before a judicial authority in Great Britain . . . the authority is satisfied, in the light of any considerations which appear to it to be relevant . . . that justice cannot be done in the case except by admitting or requiring evidence relating to a person's spent convictions . . . that authority may admit . . . the evidence . . .

The judge allowed the evidence to be admitted on the ground that the plaintiff gave the impression of being well spoken and respectable and in view of his convictions that might leave the jury with a false impression of his reliability and credibility.

Lord Gifford QC and Paul Kishore (Harris & Co, Southwark) for the plaintiff; Jonathan Loades (Metropolitan Police Solicitor) for the commissioner.

Lord Justice Evans said that section 7(3) was expressed as a qualification to the general rule of exclusion in section 4(1) and there was a strong presumption against permitting cross-examination or admitting the evidence, but the section also emphasised that the discretion was a broad one.

The judge might take into account "any considerations which appear . . . to be relevant", and the overriding requirement was that "justice shall be done".

The question raised by section 7(3) had to be answered by the judge although it was not a matter of law, nor could it be answered by logic or by any process of reasoning alone. A negative answer would be required where the previous conviction was so obviously irrelevant both to the issues in the case and to the moral standing of the witness that a reasonable jury could not properly take it into account when deciding whether to believe him or not.

But the interests of justice were synonymous with a search for the truth, and the judge had to recognise that a reasonable jury might take a wide range of factors into account when deciding which witnesses to believe and therefore where the truth lay. It was also his responsibility to consider whether the likely significance of the fact of a previous conviction in the jury's eyes was such that they might be unfairly prejudiced against the witness in question.

If the evidence had any relevance, it had some potential for prejudice. The degree of relevance could be weighed against the amount of prejudice and other factors could be taken into account.

In the present case, the judge decided the jury should have a full picture of the plaintiff and his history, not limited by his deemed good character under section 4 of the act. His decision was a valid exercise of his discretion under section 7(3).

Paul Magrath, Barrister