Meeting of the Parliament 28 January 2016
I refer members to my entry in the register of interests, which says that I am a member of the Faculty of Advocates.
The bill contains six distinct elements. On revenge porn, it is worth stressing that, as members have mentioned, it is currently possible to bring criminal proceedings for offences broadly of that nature, as recent newspaper reports have indicated. I share the Government’s view, however, that for the purposes of clarity and to discourage the offence generally, the creation of a new offence has clear merit.
I was interested in the legal debate on the nature of the offence in section 2(1)(b), in particular. Although I think that the concerns of Mr Meehan of the Faculty of Advocates about what might be described as the flatmate-in-boxer-shorts situation are overstated, I am sympathetic to the view of Catherine Dyer, from the Crown Office, who said that the focus of the offence should be on the impact on the victim, and I am heartened by Professor Chalmers’s comment that the offence goes somewhat further than the equivalent offence in England and Wales, by incorporating a situation in which
“A is reckless as to whether B will be caused fear, alarm or distress”.
Professor Chalmers thinks that the Government’s extension is a reasonable one, and he has changed his opinion on that.
However, I agree with people who have concerns about any extension beyond photographs to include texts, for example. That would open up the matter too far, and the approach would be particularly difficult for children and young people to understand and accept. If we are to have the education campaign that the committee recommended and which is referred to briefly in the Government’s response to the committee’s report, the campaign must have clear and simple messages. I cannot but think that a reference to text messages would make that more problematic.
On the public place defence, I share the caution of the Scottish Human Rights Commission that what is determinative is not the place where the photograph is taken but whether the photograph infringes a person’s private sphere.
On incorporating the definition of “consent” in the Sexual Offences (Scotland) Act 2009, to which some submissions referred, I note the Government’s comments, but we need to be as clear as we can be about what constitutes consent.
There is clearly a divergence of opinion on jury direction. I recognise that the bill breaks new ground in that regard and that the proposal does not have the whole-hearted support of the legal establishment, but I take comfort from Lord Carloway’s comment that such directions have been introduced in other Commonwealth jurisdictions and could be introduced here—although to be fair to Lord Carloway I should say that his view is that such an approach is not the best one.
Let us remember that such directions have been discussed for some while. They were in the Scottish National Party manifesto for the 2011 election and were subject to consultation in the Government’s “Equally Safe” consultation. I agree that they set a precedent, but that is in the context of widespread agreement that many juries have preconceptions about what a delay in reporting an offence of rape and sexual assault means and about what the absence of physical resistance implies.
It is true that to date there has been no jury research in Scotland, but that is for the obvious reason that such research would require amendment to the Contempt of Court Act 1981. We are entitled to draw comfort from the research of professors Ellison and Munro. Let us remember what Catherine Dyer, from the Crown Office, said in evidence:
“directions would be given only if questioning from the Crown or the defence elicited information that there had been a delay.”—[Official Report, Justice Committee, 17 November 2015; c 22.]
Only if such matters—another example would be an issue about the absence of physical resistance—are an issue in a particular case will directions need to be given.
On sexual acts elsewhere in the United Kingdom, I think that some of Professor Chalmers’s comments might be described as academic, but I am glad that the Government has noted them.
On the statutory aggravation, there was consensus, with the notable exception of the Law Society, that it is a good idea. The Law Society evidence seemed to highlight the acknowledged prominence that courts give to domestic abuse and suggested that the aggravation is not necessary. I agree with the society about the current position in the courts, but I am not persuaded that that somehow means that a statutory aggravation is not necessary. As a society we are becoming well used to the concept and I have no doubt that it will be used effectively.
I am glad that the Government will seek to put beyond doubt the question of oral representation in relation to sexual harm prevention orders and sexual risk orders.
I commend the bill.
16:33