In the second of a two-part series, Julie Barratt explains how it's possible to let the court know about the history of a case without prejudicing the trial

Nothing knocks the edge off a successful prosecution as much as having to listen to the defendant's solicitor telling the court in mitigation that his client is as pure as the driven snow, and this regrettable incident is an aberration in an otherwise blameless career, when you have spent many hours trying to improve conditions in the defendant's premises, and know that the present prosecution has been brought as a last resort.

There is often the feeling that the sentence reflects the defence comments rather than the seriousness in public health terms of the offence. The view that the defendant "got away with it" remains long after the case ends. Surely it would be a more accurate reflection of the situation as it really is if you were allowed to tell the court all of the previous history of your dealings with the individual? The visits and revisits? The advice given and blithely ignored? The "attitude" problems?

The short answer is yes. It probably would better reflect the position if you could unload the whole of the previous history to the court, but the law does not allow this. The law will not allow any evidence to be given which is more prejudicial to the defendant than it is probative of the facts of the case before it. Clearly, if a jury is told that a defendant has in the past committed a number of assaults, it is more likely to take the view that he is guilty of the present assault charge than if it knows nothing of the previous matters and considers only the evidence in the instant case. Similarly, a court is more likely to convict an individual of food hygiene offences if it knows that he has been convicted of the same offences in the past. It is difficult to construct an argument for telling the court about previous convictions without trashing the whole basis of the adversarial system of law.

What then about previous history that did not form part of a previous conviction and is not strictly part of the instant case, but demonstrates why the case has been brought? Taking a simple example, a summons based on temperature control is date specific, and does not reflect the time and letters etc that may have gone before that date. Short of laying a separate summons for each date on which temperature control regulations were breached, how do you tell the court that this has been an ongoing problem over a period of time rather than, as the defence will claim, a one-off date specific incident?

You cannot, in a date-specific allegation, give evidence of other dates and times when temperature control was an issue, because they should form the basis of separate summonses if they constitute offences, and such evidence fails the prejudice v probity test. How then do you sneak the details into evidence?

One way is to use the nature of the premises as the reason for the visit that has caused the prosecution - opening a witness statement with a sentence such as "XYZ premises is rated as risk category 1 because of previous issues with... etc". Provided this is not too specific, it should not raise defence objections. The categorisation needs to be objective, to counter claims of subjective prejudice but, given that risk assessment-based inspection is standard practice, this should not be difficult to establish.

Another mechanism that should be considered is the attachment of a potted inspection history to the statement as an exhibit. Bland reference should be made to the exhibit in the witness statement with an introductory comment such as "this visit was the third within a period of x months. The inspection history of the premises is attached hereto as exhibit JB" but no further detailed comment on the inspection history should be made. Reading the witness statement and the attached exhibits tells the reader the complete history, but the introduction of the history is done in such a way as to make it noncontroversial.

In such cases, the skill is to get the relevant information into a witness statement without doing so obviously as to cause the court to apply the blue pencil test - ie to strike out the offending sentence/s. Once the information is submitted, and is not challenged, prosecuting counsel can speak to it, and bring the detail it contains to the attention of the court. Should defence counsel then seek to suggest that his client was previously squeaky clean, the assertion can be rebutted by the prosecution on the basis of the evidence before the court, and defence counsel cannot raise valid objection.

Julie Barratt is director of CIEH Wales