The decision by the Supreme Court of Victoria last Friday to slap The Age with a $75,000 fine for contempt for publishing the prior convictions of a person due to stand trial represents a contemptuous disregard for the need to validate legal principles empirically.
Most people assume that if juries know that an accused has prior convictions that this will increase the chance of being convicted of the offence charged, thereby impairing the accused person’s chance of a fair trial.
However, there is often a big gulf between commonsense assumptions and reality. That’s why governments and companies around the world spend billions of dollars annually on an activity called research.
If legislatures cared to bone up on the research that has occurred dealing with the behaviour of jurors, we might finally get a bit of genuine openness and transparency into our legal system.
There is no truth in the claim that if prior convictions are more widely available that criminals won’t be able to get a fair trial. Research with real and mock jurors shows that knowledge that an accused has a criminal past does not increase the chance of a conviction. In fact the opposite, the risk of conviction is in most cases slightly reduced.
Jurors aren’t dopes. They are aware that simply because a person has transgressed previously does not mean that they have necessarily reoffended on the occasion in question. They examine each case on its facts – lawyers and politicians don’t have a monopoly on common sense.
It is time to open the “prior convictions” floodgates and publish all sentencing outcomes on the internet. This would finally enable courts to live up to the mantra that they are open and public institutions.
Public access to prior convictions would also abolish the randomness which currently exists regarding disclosure of criminality. At any time we are free to lob into any courtroom in the country and find out about the misdeeds of those charged with criminal offences. In nearly all cases, there is no limit to the acquisition and indeed promulgation of this information.
Journalists do an excellent job at telling us about the more sensational and extreme crimes that are litigated in court. Despite the public nature of court proceedings, the courts and police go into lockdown mode if you ask for a record of what happened in court.
This makes knowledge of the criminality a matter of pot luck. This needs to change. We should be able to access freely the prior convictions of others.
Before civil libertarians start jumping and down declaring that this proposal will lead to vigilante attacks against criminals, go and do some research. This nearly never happens. The circumstances when it does are so rare that they do not outweigh the benefits of a transparent criminal justice system.
Professor Mirko Bagaric is the author of numerous books, including The Rules of Evidence.