Foreign Convictions After Brexit: In or Out?

The following article, reviewed by Sofia Napolitano, explores whether previous convictions in EU Member States can still be treated as aggravating factors following Brexit.

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Introduction

Before the amendments introduced by the Criminal Justice (Amendment etc.) (EU Exit) Regulations 2019 came into force, previous convictions in EU Member States were statutory aggravating factors under section 65 of the Sentencing Act 2020. However, as of 31 December 2020, this is no longer the case. This article explores whether previous convictions in EU Member States can nevertheless be treated as aggravating factors and outlines the process to follow if they are disputed.

Legal Framework

Statutory Aggravating Factors

Under section 65 of the Sentencing Act 2020, the Court must treat as an aggravating factor each relevant previous conviction that it considers can reasonably be so treated. As of 31 December 2020, a “relevant previous conviction” means (i) a previous conviction by a Court in the United Kingdom, or (ii) a previous conviction of a service offence. However, prior to 31 December 2020, a “relevant previous conviction” also included (i) a previous conviction of a relevant offence under the law of a Member State by a Court of that State, and (ii) a finding of guilt in respect of a Member State service offence.

Non-Statutory Aggravating Factors

The Court can treat any factor as aggravating the seriousness of the offence. Under section 76 of the Sentencing Act 2020, the existence of statutory aggravating factors does not prevent this. Therefore, despite the fact that, as of 31 December 2020, foreign convictions are no longer statutory aggravating factors, the Court can still consider them to be relevant.

In support of this, in R v Amin [2011] EWCA Crim 1172, the Court of Appeal held that:

“The real question is whether or not the judge was entitled to treat the conviction in Germany as an aggravating feature, and to what extent that should increase the relevant sentence […] the judge was plainly entitled to treat the conviction in Germany as an aggravating feature. The starting point and sentencing range set out by the Sentencing Guidelines Council are for a first time offender. The guidelines expressly recognise that one of the additional aggravating features is “making repeated importations, particularly in the face of warnings from the authorities”. The offence which the judge took into account was not one within this jurisdiction. However, in determining the appropriate sentence we see no reason in principle why the sentencing judge should not take into account the conduct of the appellant…” [at (16)] (emphasis added).

Admissibility

In cases where foreign convictions are disputed, they should either be omitted, or proved by admissible evidence. In accordance with PD 5.3 of the Criminal Directions 2023, the Defence must inform the Prosecution of any issues with the foreign convictions immediately.

Foreign convictions are not covered by sections 73 and 74 of the Police and Criminal Evidence Act 1984. However, they are admissible under section 101 of the Criminal Justice Act 2003. If there is evidence that they were the result of a trial which failed to reach appropriate standards of fairness, it is open to the Court to exclude them, in the exercise of its discretion, either under section 78 of the Police and Criminal Evidence Act 1984 or, as appropriate, section 101(3) of the Criminal Justice Act 2003.

Further, section 103(7) of the Criminal Justice Act 2003 states that where an individual has been convicted of an offence under the law of any country outside England and Wales, and this previous offence would constitute an offence under the law of England and Wales at the time of the trial for the offence with which the individual is now charged, then it needs to be determined that the previous offence and the current offence are of the same description or category. Therefore, section 103 of the Criminal Justice Act 2003 clearly allows for the introduction of foreign convictions.

Provability

Foreign convictions are provable under section 7 of the Evidence Act 1851, which states that:

“All proclamations, treaties, and other acts of state of any foreign state or of any British colony, and all judgments, decrees, orders, and other judicial proceedings of any Court of justice in any foreign state or in any British colony, and all affidavits, pleadings, and other legal documents filed or deposited in any such Court, may be proved in any Court of justice, or before any person having by law or by consent of parties authority to hear, receive, and examine evidence, either by examined copies or by copies authenticated as herein-after mentioned […]” (emphasis added).

An “examined copy” is a copy sworn to be a true copy by a witness who has themself examined it line by line with the original. The original must be in characters and a language which the witness understands, and the copy must not contain abbreviations not appearing in the original.

Then, if the foreign convictions are disputed, for example on the basis that they do not relate to the relevant individual, it would be necessary to provide evidence to demonstrate that they do. In R v Mauricia [2002] EWCA Crim 676, the Court of Appeal held that:

“It is just a matter of proving that the person mentioned in the certificates and the defendant in court are one and the same person. Evidence of fingerprints is easily the most sensible way in which to proceed and there is nothing in the Evidence Act of 1851 or elsewhere to suggest that proceeding by way of fingerprint evidence is in any way inadmissible” (at [32]).

Recent Caselaw

The Court of Appeal recently considered this issue further in R v Goncalves [2025] EWCA Crim 1260. Maria Joao Goncalves (the “Appellant”) applied for leave to appeal against both conviction and sentence. For the purposes of this article, the focus will be on her appeal against sentence.

After trial, the Appellant was convicted of two offences of fraud and was sentenced to a total of three years’ imprisonment. She had no previous convictions in England and Wales, but she did have previous convictions in Portugal (including for an offence of deception).

The Appellant appealed against sentence on the basis that the Judge erred in refusing to treat her as a person of good character. At the sentence hearing, the Judge stated:

“You have previous convictions in your home country of Portugal. Four of them are for defamation, which I completely ignore, because they would not be an offence in this country. The other is for a deception offence committed in 2007. In my judgment, it is too old to be an aggravating feature, and I accept the submission that there is some mitigation in its age, and that you have not committed any offences since.”

The Court of Appeal refused the application for leave to appeal against sentence on the basis that the Judge “was not required to sentence on the basis that the Appellant had no previous convictions and was of good character” [at (57)]. The Court of Appeal considered the amendments introduced by the Criminal Justice (Amendment etc.) (EU Exit) Regulations 2019 but held that “given the amount of detail contained in the documents” there was no doubt that they related to the Appellant [at (53)]. The detail included a photograph of the Appellant, together with a record of what was in fact the Appellant’s address in England.

Conclusion

In conclusion, although the Criminal Justice (Amendment etc.) (EU Exit) Regulations 2019 amended section 65 of the Sentencing Act 2020 to exclude previous convictions in EU Member States, the reality is that they can still be treated as aggravating factors. This was confirmed by the Court of Appeal in R v Goncalves. However, if the previous convictions are disputed, they need to be deemed admissible, and then proven. In that sense, they are treated differently from previous convictions in England and Wales. The Defence should therefore be aware of the additional steps that the Prosecution must go through in order to rely on previous convictions in EU Member States as aggravating factors.