Tobin's Law

I once saw a presentation by a cognitive psychologist, interested in jury reasoning and evidence analysis. Studies of juror behaviour and processing of information in the UK are very scarce, scholars being scared off by the provisions of the Contempt of Court Act 1981. Instead, researchers compose their own panels of ordinary and irregular members of the public, run them through a dramatised trial, or alternatively pose questions about particular pieces of evidence in the abstract. The psychologist I encountered had conducted a pilot study attempting to determine how people reason about a prior conviction for a similar act. The fact-pattern described a crime of violence. The researcher invited the people being questioned to vote ‘guilty/not guilty’, based on the evidence provided. The fact-pattern was then embroidered with extra detail, and the same question about conviction or acquittal posed. The goal to discern, more or less probabilistically, how particular pieces of information might affect jurors in the real world.

In one version, the traumas which marked the victim’s body indicated that the attacker may have been right-handed. In an alternative version, the damage suggested a left-handed attacker. If the accused person is left-handed, this pushed up the number of jurors who thought he was more probably guilty and so on. The final section of her study, the psychologist added another detail – that the accused person had been convicted of an analogous crime previously. Guilty, not guilty? Although I cannot recall off the top of my head the exact percentage leap – the jurors veered radically and illogically towards voting ‘guilty’. All of this, simply on the evidence that the attacker was left-handed and the man in the imaginary dock had been convicted of something similar before. The study was small, the numbers not terribly statistically significant, nevertheless it suggests that the old legal saw is probably empirically verifiable – the prejudicial influence of adducing evidence of prior convictions outweighs its probative value. All the more interesting, because the view does not emanate from some crusty, claret-soaked QC – but from science-totting psychologist.

At present, this rule is enshrined in the Criminal Procedure (Scotland) Act 1995, s101. Sections 266 and 270 make exceptions, however, when “evidence is led by the defence, or the defence asks questions of a witness for the prosecution, with a view to establishing the accused’s good character or impugning the character of the prosecutor, of any witness for the prosecution or of the complainer or the nature or conduct of the defence is such as to tend to establish the accused’s good character or to involve imputations on the character of the prosecutor, of any witness for the prosecution or of the complainer.” In these circumstances, the could “may” permit the prosecutor to “lead evidence that the accused has committed, or has been convicted of, or has been charged with, offences other than that for which he is being tried, or is of bad character”. One caution. It is important not to get too caught in the structure of “ordinary rule and exception”. There is, as far as I’m aware, no data available clearly demonstrating how ordinary the ordinary rule is. Or to put it another way, how exceptional the exception is. My hunch is that the accused’s prior convictions being entered in evidence to rebut his or her imputations of good character happens far more regularly than the bare text of the Act seems to admit.

All of this is relevant because Kenny MacAskill has asked the Scottish Law Commission to examine the admissibility of prior convictions. The ever-helpful Criminal Justice Scotland collates the press-cuttings. It is claimed that the impetus for this move is Peter Tobin’s gradual accumulation of life sentences for killings across Britain. In his most recent trial, in Chelmsford, it is my understanding that prosecutors were able to present the jury with Tobin’s past bad acts, under England’s different legal provisions. The nationalist MSP, Stewart Maxwell, time weighing heavily on his hands since he was booted out of ministerial office, seems to be agitating for something similar in Scotland. The usual caveats are made – only serious offences, only affecting a small handful of cases, these cases described as ‘special’. The brutal fact is, laws don’t work like that. The exception may become the rule, depending on how legal actors behave. Other provisions may lapse into comparative desuetude, despite the powers they seem to provide. We simply can’t be confident about the number of cases affected. Moreover, if the change is justified by a desire not to exclude 'relevant' information, why only extend it to 'serious' cases, here presumably defined as cases tried by jury? What is the justification for excluding 'relevant' information in more piddly criminal fare? To put the other point of view, is it not terrible naive to imagine that the jurors were empanelled in subsequent cases against Peter Tobin, totally ignorant of his crimes? Given this, is it not preferable that we are honest about the difficulties presented by the Google age and let the jury have access to detailed information, rather than the digested version, available in the popular press? The response to this doubting little thought is pretty obvious - Tobin's case is exceptional, a poor justification for a reform which might empower prosecutors far beyond a serial-killer fact-pattern, however monstrous and regular its operation.

While the Herald and Scotsman host rather bland responses, the Times is joyously, rip-roaringly hostile. In general, I sympathise far more strongly with the critics here than with the proponents of change. Given MacAskill's reference to the Law Commission, this issue will be floating about for a while, with discussion documents, consultations and the like to follow. Consider this one, pre-emptive, negative response.