Committee
Justice Committee 01 March 2016
01 Mar 2016 · S4 · Justice Committee
Item of business
Abusive Behaviour and Sexual Harm (Scotland) Bill: Stage 2
Amendment 69 relates to the domestic abuse aggravator in section 1. The bill provides that, where an offence is committed against an offender’s partner or ex-partner, it is sufficient to prove that the accused was reckless about whether, in committing the offence, they would cause their partner or ex-partner physical or psychological harm in order for the aggravator to operate. Amendment 69 would restrict the circumstances in which the aggravator would operate so that it would be only offences that involved abuse of a person’s partner or ex-partner where it was proven that the accused intended, in committing the offence, to cause their partner or ex-partner to suffer physical or psychological harm. We have taken the approach in the bill because we consider that where, for example, a person commits a sexual offence against their partner or ex-partner, or assaults them, it should not be open to them to argue that the aggravation should not apply because it was not their intent to cause their partner physical or psychological harm. We consider it appropriate that in circumstances where it is a foreseeable consequence of someone’s actions that their partner or ex-partner was going to suffer physical or psychological harm, the aggravation should operate. That means that recklessness should be included. We do not consider that it should be open to offenders to argue that the aggravation does not apply because, though they were reckless about whether, in committing an offence against their partner, they might cause them physical or psychological harm, it cannot be proven that that was their intention in committing the offence. Therefore, we would invite members to oppose amendment 69.
In the same item of business
The Convener
SNP
Item 2 is the Abusive Behaviour and Sexual Harm (Scotland) Bill. I will try to ensure that we get through all the amendments today, so speeches should be sho...
The Convener
SNP
Amendment 69, in the name of Margaret Mitchell, is in a group on its own.
Margaret Mitchell
Con
Amendment 69, which was lodged on behalf of the Law Society of Scotland, would restrict the test for the domestic abuse aggravation to intent rather than int...
Elaine Murray
Lab
I oppose amendment 69. I think that it would provide abusers with a defence that they did not mean to do what they did. I listened to what the Law Society ha...
Roderick Campbell
SNP
I concur with Elaine Murray’s views about the wideness of the provision. From looking back at its evidence, I think that the Law Society seemed to be instinc...
The Convener
SNP
And, on cue, cabinet secretary.
The Cabinet Secretary for Justice (Michael Matheson)
SNP
Amendment 69 relates to the domestic abuse aggravator in section 1. The bill provides that, where an offence is committed against an offender’s partner or ...
Margaret Mitchell
Con
It is clear that amendment 69 is a probing amendment. What the cabinet secretary has not addressed in his comments is the issue of recklessness when it is a ...
The Convener
SNP
Amendment 70, in the name of Margaret McDougall, is grouped with amendments 72 to 82.
Margaret McDougall
Lab
The aim of these amendments is to expand the disclosure section in the bill. The bill only covers the disclosure of photographs and film. The amendments, whi...
John Finnie
Ind
I have to say that I have changed my position on this matter. The intention of this section of the bill is very clear. Margaret McDougall talked about those ...
Roderick Campbell
SNP
I recognise that there are different opinions from various groups about whether the section should be extended. I take on board the point that Margaret McDou...
Alison McInnes (North East Scotland) (LD)
LD
I will not say very much, because I do not have much of a voice. I suggest that we proceed cautiously. I agree with what Roddy Campbell said, and I do not su...
The Convener
SNP
Some people will wish that I would get that affliction occasionally. Laughter. The cabinet secretary is smiling in agreement at that comment, which is not a ...
Michael Matheson
SNP
Amendments 70 and 72 to 82 would expand the scope of the intimate images offence at section 2 to cover intimate sound recordings and written communications. ...
Margaret McDougall
Lab
I understand that amendment 70 might introduce unintended consequences, but you have to show criminal intent to break the law and be charged with a crime. As...
The Convener
SNP
You have already moved it and, because you have asked the cabinet secretary to respond, I will allow him to do so.
Michael Matheson
SNP
The first thing that I should say is that recklessness is not the same as intent, and the test is less onerous in those cases. I am always willing to have d...
The Convener
SNP
It is decision time, Margaret.
Margaret McDougall
Lab
I note what the cabinet secretary says, but I will press amendment 70.
The Convener
SNP
The question is, that amendment 70 be agreed to. Are we agreed? Members: No.
The Convener
SNP
There will be a division. For Finnie, John (Highlands and Islands) (Ind) McDougall, Margaret (Central Scotland) (Lab) Murray, Elaine (Dumfriesshire) (Lab...
The Convener
SNP
The result of the division is: For 3, Against 6, Abstentions 0. Amendment 70 disagreed to.
The Convener
SNP
Amendment 71, in the name of Margaret Mitchell, is in a group on its own.
Margaret Mitchell
Con
Section 2 will create a new offence of disclosing, or threatening to disclose, an intimate photograph or film. Under section 2(1), an offence will be committ...
Elaine Murray
Lab
I oppose amendment 71, for many of the reasons why I opposed amendment 69. As I said during the stage 1 debate, I have no sympathy for the flatmate who takes...
The Convener
SNP
Boxer shorts are featuring highly in today’s conversation. I know we are going to have more of this.
Roderick Campbell
SNP
Perhaps I should refer to my interest—
The Convener
SNP
I thought that you were going to refer to your boxer shorts for a moment. I beg your pardon—that was very silly of me.
Roderick Campbell
SNP
That would be too much information, convener. I was referring to my entry in the register of members’ interests and my membership of the Faculty of Advocates...