Duty to disclose previous convictions

Duty to disclose previous convictions (Word file)

Counsel has an overriding duty to the Court to ensure in the public interest that the proper and efficient administration of justice is achieved; he must assist the Court in the administration of justice and must not deceive or knowingly or recklessly mislead the Court. For example, where the Court and prosecution are misled as to the existence of previous convictions as a result of the conduct of the defendant, in providing false information as to his identity, Counsel would be associating himself with the deception if he continued to act in the knowledge of that fact and the client declined to indicate his true identity to the Court.

The Professional Standards Committee has been asked for further guidance about counsel's professional duty to reveal the existence of convictions of which the Court and prosecution are unaware in circumstances other than those described above. The Professional Standards Committee gives the following guidance:

The Professional Standards Committee has concluded that counsel is not under a duty to reveal previous convictions to the prosecution or the court, but nor should counsel withdraw if his client refuses to reveal the convictions. In circumstances where counsel is aware of previous convictions, regardless of the nature of the case or potential sentence, counsel should give the defendant clear advice as to all the options. He should:

Inform the defendant that the information as to the previous conviction will remain confidential unless the client specifically waives privilege;
Inform the defendant that whilst the information remains confidential, he will be restricted in what he can say in mitigation;

Advise the defendant that nothing can be said as to the defendant's record which expressly or impliedly adopts the position as outlined by the prosecution and in particular, that nothing can be said as to

(a) the absence of convictions of the type or gravity of the undisclosed conviction;
(b) a period of time as being free from convictions if the undisclosed conviction occurred during that period;
(c) the absence of a particular sentence or disposal in the defendant's antecedents if such sentence or disposal was in fact imposed in respect of the undisclosed conviction; or
(d) an apparently good character of the defendant.

Specifically advise the defendant as to the nature of the sentencing exercise if the court became aware of the undisclosed conviction, whether by virtue of the defendant's voluntary disclosure or by some other means.
Specifically advise the defendant as to the consequences of a mandatory life sentence under section 2 of the 1997 Act, and the process of fixing a specified period under section 28 of that Act;
Further advise him as to the release provisions and the licence provisions;
Specifically consider and advise the defendant in relation to the issue of "exceptional circumstances";
Advise the defendant as to the possibility of the prosecution subsequently discovering the undisclosed conviction;
Advise of the real possibility that failure of counsel to refer to the defendant's antecedents would not go unnoticed by experienced prosecution counsel or judge. This could lead to an adjournment, to the matter being relisted for alteration of the sentence, or to a reference by the Attorney General under section 36 of the Criminal Justice Act 1998.
Advise that so long as the conviction remains undiscovered, the mandatory sentencing provisions will not operate, but that if any of the above events occur, sentencing will take place in accordance with those revisions.

The defendant should be told that the choice as to what course to adopt is his, but that if he decides to reveal the qualifying conviction, he would be entitled to expect significant credit from the court in fixing the specified period.
If counsel is in any doubt as to the action he needs to take, he should contact the Professional Conduct and Complaints Committee for advice.

August 2001