Committee
Justice 2 Committee, 05 Sep 2001
05 Sep 2001 · S1 · Justice 2 Committee
Item of business
Sexual Offences (Procedure and Evidence) (Scotland) Bill: Stage 1
Peter Beaton:
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At this stage, convener, we are founding on two propositions. The first is the proposition in the bill, which is that a solicitor must represent the interests of the accused and the second is the professional duty of a lawyer to act at all times in the interests of the client. I understand that the Law Society of Scotland feels that those two propositions are inadequate to safeguard the interests of the lawyer. We do not agree. We feel that, in all circumstances, a lawyer founding on the duty to represent the interests of the client can do so—even if the client behaves wholly unreasonably.As Barbara Brown has said, at the moment we are planning an informal approach. Given that there are relatively few cases to go by and we do not know what the experience in the south has been, we have nothing specific to found on. We can only found on the propositions in the bill and in the law.We understand the Law Society's position but ministers have taken a clear decision as to the way in which they want the proposition to be worded in the bill. The committee and the Parliament will have plenty of information to enable them to decide whether the Executive's position is correct.
In the same item of business
The Convener:
Lab
Item 5 is our first formal evidence-taking session on the Sexual Offences (Procedure and Evidence) (Scotland) Bill. I invite Barbara Brown, Louise Miller and...
Peter Beaton (Scottish Executive Justice Department):
Thank you, convener. We are pleased to be at the committee's first meeting on the bill, to which the Executive attaches a great deal of importance. Members h...
Barbara Brown (Scottish Executive Justice Department):
As Peter Beaton said, members already have the policy memorandum and the explanatory notes. I will not repeat what they say in detail; instead, I will give a...
The Convener:
Lab
Thank you for that helpful introduction. For the record, I should note that the Parliamentary Bureau has not yet agreed that the bill should come to the Just...
Ms Margo MacDonald (Lothians) (SNP):
SNP
I apologise for being late. I was not certain whether I should be present at the meeting, because I have been yanked off the committee. I greatly regret that...
The Convener:
Lab
Thank you, Margo. I wish you well as the new convener of the Subordinate Legislation Committee.
Ms MacDonald:
SNP
I wish the committee well.
The Convener:
Lab
We will miss you. However, as you are still a member today, you are perfectly entitled to ask questions.I call Scott Barrie to open the questioning.
Scott Barrie (Dunfermline West) (Lab):
Lab
Before I get on to the bill itself, it might make more sense to ask a few more general questions. In your statement, you said that there were very few cases ...
Barbara Brown:
No statistics have been collected on that issue. We know only of cases that have reached the public press.
Scott Barrie:
Lab
Without making any statements off the top of your head, do you think that it would be one or two, a handful, 10 or 12, or more?
Barbara Brown:
It is almost impossible to guess accurately, but we think that, for serious sexual offence cases, the number would be a single figure.
Bill Aitken:
Con
My information is that there have been only two such cases in the past 15 years, both of which have involved the same accused person.
Barbara Brown:
I know the cases that you are referring to; there was another one, a summary case, that got into the public prints.
Bill Aitken:
Con
You spoke about the evocative English case from 1996. From your experience, do you think that what happened there could have happened in Scotland? It seemed ...
Barbara Brown:
I do not think that it is fair to make such comparisons. Judges here have the power to intervene, as they do in England. We do not think that what happened i...
The Convener:
Lab
I would like to deal with option 3 in the Executive's consultation paper "Redressing the Balance", which is the option that it has chosen. It is to do with p...
Scott Barrie:
Lab
From what I have read, it seems that the Executive has chosen option 3 because of the difficulties connected with the other three options in the paper. Would...
Barbara Brown:
We think that option 3 fits the Scottish system best. It may be useful if I give some background information. In England, the system of pre-trial disclosure ...
Mrs Mulligan:
Lab
How will the solicitors who will represent the accused be chosen? Given the circumstances in which they would come to a case, what additional help could be m...
Barbara Brown:
We hope that such situations will not happen very often and that the courts—by identifying someone who is available, willing and able to take on the case—wil...
The Convener:
Lab
The Law Society of Scotland is quite concerned about the relationship between the client and the solicitor when the client does not co-operate. It is concern...
Barbara Brown:
We understand that such situations would not be comfortable for a solicitor. However, his job is to represent the interests of the accused and to present the...
Peter Beaton:
At this stage, convener, we are founding on two propositions. The first is the proposition in the bill, which is that a solicitor must represent the interest...
Ms MacDonald:
SNP
Would it be unreasonable behaviour for an accused person to say that they do not want a particular solicitor and to give their reasons for not wanting that s...
Barbara Brown:
If the accused could come to court and give good reasons for not wanting a particular person to represent them, the court would listen to those reasons. If t...
Ms MacDonald:
SNP
Does that then lay the ground for a possible challenge under the ECHR?
Stuart Foubister (Office of the Solicitor to the Scottish Executive):
I do not think so. At the outset, the accused has the same free choice as anyone else has to obtain a lawyer. There is plenty of case law under the ECHR that...
Ms MacDonald:
SNP
They have to take what they get.
Stuart Foubister:
They have a free choice. Putting themselves in the position of having the court appoint a lawyer is the result of a choice not to appoint their own lawyer. A...