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The Summary Justice Review Committee: REPORT TO MINISTERS
Chapter 17: DISCLOSURE OF PREVIOUS CONVICTIONS PRIOR TO CONVICTION
17.1 Section 101(3) of the 1995 Act provides that: "Previous convictions shall not ... be laid before the presiding judge until the prosecutor moves for sentence, and in that event the prosecutor shall lay before the judge a copy of the notice" of previous convictions. There is an accepted exception to that rule where proof of the conviction is essential to prove the substantial charge. Driving while disqualified is the most common example. In terms of section 58 of the Civic Government (Scotland) Act 1982 a person who has two or more convictions for theft, which are not spent convictions, is guilty of an offence if he or she has or has recently had in his or her possession any tool or other object from the possession of which it may reasonably be inferred that he or she intended to commit or has committed theft and is unable to demonstrate satisfactorily that his or her possession of the tool or other object was not for the purposes of committing theft. Contraventions of the Firearms Act 1968, section 21 and prison-breaking are other examples of circumstances in which it will be necessary to prove a conviction on an earlier occasion to establish the commission of the crime or offence concerned.
17.2 One of the consequences in practice of the way in which section 101(3) is drafted is that, where an offender is charged with driving while disqualified and other motoring offences arising out of the same incident, such as dangerous or careless driving or drunk driving, the court will fix two summary trials and two intermediate diets. One of these will be restricted to driving while disqualified and having no insurance, which is an inevitable consequence of driving while disqualified. The other will deal with the other motoring offences, whatever they may be.
17.3 We can see no good reason why it should continue to be necessary to have two prosecutions arising out of one incident or out of events which took place on the same occasion. The court will often be aware that there are two complaints against the accused arising out of the same incident. These two complaints will progress together until the time of the trial. If both cases go to trial they will normally be heard by separate judges. Judges should normally sentence any accused whose trial they have taken. In fact the accused should be sentenced for all the offences which arise out of the same incident by one court. There is authority to the effect that a judge, in considering the guilt of the accused in relation to a particular offence, should be able to put the existence of any previous conviction(s) out of his or her mind if it is appropriate to do so. 49 The present arrangements, requiring two trials instead of one are unsatisfactory and should be changed. We have considered whether we should go further and recommend that section 101(3) should not apply to previous convictions, proof of which is essential to the proof of any charge on any complaint. This is a matter which may merit further consideration, particularly if courts are given power to conjoin complaints for the purposes of trial. We have restricted our recommendation to charges arising out of the same incident or on the same occasion, which appears to us to preserve the spirit of section 101(3).
We recommend that section 101(3) of the 1995 Act should be amended in respect of summary cases to allow all charges arising out of the same incident or on the same occasion to be included on the same complaint and to go to trial at the same time, even though one or more of the charges discloses a previous conviction.
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