Committee
Justice Committee 01 March 2016
01 Mar 2016 · S4 · Justice Committee
Item of business
Abusive Behaviour and Sexual Harm (Scotland) Bill: Stage 2
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, which are supported by Scottish Women’s Aid, seek to broaden that to include a photograph or film of an intimate situation, sound recordings containing intimate content or an intimate written communication, which is the purpose of amendment 73. If we cover disclosure only of photograph or film, there will be a loophole in the bill. When it comes to sharing, for example, screenshots of intimate text-based conversations or the sharing of intimate content in the form of texts or sound on the internet or social media, as Scottish Women’s Aid stated, by specifying photographs and films the bill excludes the sharing of private and intimate written and audio communications. The exposure of the threat of sharing those has the same outcome—it is designed to humiliate and control the victim. Sometimes, text and images are sent at the same time. Will we criminalise the image but not the abusive and threatening text? For example, the sharing of an intimate image on Facebook without consent would be a prosecutable offence under the bill. However, if someone were to share an intimate conversation or a screenshot of an intimate conversation, that would not be covered. I would argue that the sharing of that type of content could have the same effect as sharing intimate images without consent; it could cause just as much fear, alarm or distress to the victim and arguably would be designed to do so. Amendment 70 is a technical amendment that updates the bill to reflect the expansion of the definition. In effect, amendment 70 removes the text “A discloses or threatens to disclose, a photograph or film which shows, or appears to show, another person (‘B’) in an intimate situation” and replaces it with a reference to “an item”, which is defined in the subsection that amendment 73 introduces, “that involves another person ... in a way mentioned in that subsection”. Amendment 72 and amendments 74 to 79 are all technical amendments that replace references to “photograph or film” throughout the bill to “item”. What we mean by “item” is defined in amendment 73. Amendment 80 is a further technical amendment that adds a reference to the new section 2(1A)(a) that was created by amendment 73. Amendment 81 is again a technical amendment adding further reference to the new subsection that is created by amendment 73. Finally, amendment 82 clarifies what we mean by “intimate” conversations, messages or communications. They need to include references to an act that is considered sexual or content that, taken as a whole, is considered to be of a sexual nature. Further to that, the content must not have been expected to be distributed or there was an understanding that it would be kept private. These amendments are supported by Scottish Women’s Aid and Victim Support Scotland. Police Scotland also gave evidence to the committee in support of including written and audio communication of this type in the bill. It said that the offence should take “cognisance of all forms of communication and distribution.” Although I understand that the sending of abusive messages is a criminal offence, the same does not always apply to the sharing of intimate material. These amendments ensure that the sharing of any intimate material without permission is covered under one bill. That cuts down on repetition and leads to a more streamlined and easier system. It also means that all offences are dealt with in the same manner. The current offence under section 127 of the Communications Act 2003 is not an appropriate offence for dealing with this behaviour as, first, it sets a very high threshold of the content of the message or other matter being “grossly offensive or of an indecent, obscene or menacing character”. Unlike the proposed offence in the Abusive Behaviour and Sexual Harm (Scotland) Bill, the offence under section 127 of the 2003 act can be tried only under summary procedure, not solemn procedure. That limits the overall custodial and financial penalties. The proposals allow for offences under this section to be tried under either summary or solemn procedure. Further, the maximum term of imprisonment under the summary procedure in section 127 is limited to six months, as opposed to the 12 months in the bill, meaning that women or men who are abused by having private written and audio communications shared without their consent would have a lesser protection, and perpetrators may well tailor their behaviour to accommodate that gap in the law. With advances in technology making it easier to distribute information with or without consent, it is vital that the law keeps up to ensure that those who wish to cause harm are dealt with appropriately and consistently by the justice system. I ask the committee and the cabinet secretary to support my amendments. I move amendment 70.
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...