Disclosure of Previous Convictions of Prosecution Witnesses

Is disclosure of previous convictions of prosecution witnesses automatic?

Not anymore. The prosecution used to be under a duty to automatically disclose previous convictions or cautions of all prosecution witnesses, but this is no longer appropriate.

What is the test for disclosure?

The test is under section 3(1) of the Criminal Procedure and Investigations Act 1996. The test should be applied in line with the Crown Court protocol “Disclosure: A Protocol for the Control and Management of Unused Material in the Crown Court” (‘the Disclosure Manual’).

The test is that disclosure is required when previous convictions or cautions of prosecution witnesses are reasonably capable of undermining the case for the prosecution against the accused or assisting the case for the accused.

Previous convictions or cautions would be considered capable of ‘undermining’ the case for the prosecution if they could have an adverse effect on the strength of the prosecution case.

As to previous convictions or cautions that would be considered capable of ‘assisting’ the case for the accused, these could support the accused person’s defence or the account or explanation put forward by them either when questioned during the police investigation or by way of their defence statement served during the course of the court proceedings.

Do the police have to tell the prosecution about previous convictions of prosecution witnesses?

Yes, as long as they are relevant. For example, convictions for certain minor road traffic offences would not be deemed as relevant. However, in practical terms, most previous convictions and cautions will be deemed as relevant and the police will have to inform the prosecution of these.

The police must send the form MG6C which is a schedule of unused material to the prosecutor with an indication that a particular witness has a previous conviction or caution. However, the police should not list the details of the convictions or cautions on this form. The police must, instead, send a separate copy of all previous convictions or cautions of prosecution witnesses to the prosecutor.

The prosecutor will then assess whether or not to disclose these to the accused.

What factors should Prosecutors consider?

Prosecutors have a duty to decide whether unused prosecution material including previous convictions or cautions of Prosecution witnesses satisfy the disclosure test. If they have any doubts, they should resolve these in favour of disclosure to the accused, subject to public interest immunity considerations.

Factors that prosecutors should consider when deciding whether previous convictions or cautions satisfy the test are found in the Attorney General’s Guidelines on Disclosure 2024.

These factors include that the previous convictions or cautions could:

1. Be used in cross-examination by the defence;
2. Be used in submissions by the defence to exclude prosecution evidence, to apply for a stay of the proceedings or to argue that a court or tribunal has acted incompatibly with the accused’s rights under the European Convention of Human Rights;
3. Suggest an explanation or partial explanation of the accused’s rights;
4. Undermine the reliability or credibility of a Prosecution witness;
5. Have a bearing on scientific or medical evidence in the case.

Are there any offences that usually satisfy the test for disclosure?

Yes. Convictions or cautions for certain offences are deemed to satisfy the test, regardless of whether they are historic or are spent. Such offences involve dishonesty, fraud/forgery, perjury, perverting the course of justice, wasting police time or similar offences and convictions that involved a disposal under the Mental Health Act 1983.

For example, if a prosecution witness has a conviction for perverting the course of justice for lying and concealing information during a police investigation in previous court proceedings, they would have their credibility questioned, which would undermine the prosecution’s case.

When does the prosecutor’s duty to consider disclosure end?

The prosecutor’s duty is to keep reviewing issues of disclosure during the entirety of the court proceedings including the trial. They sometimes need to refer to senior prosecutors or lawyers to confirm their decisions as to disclosure.

The prosecution’s trial advocate should be made aware of any undisclosed previous convictions or cautions of prosecution witnesses as issues could be raised during trial that render these disclosable. It may be appropriate for the prosecution’s trial advocate to confer with the reviewing lawyer before making disclosure, unless the delay caused by this would unduly disrupt the trial.

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