Committee
Justice 2 Committee, 12 Dec 2001
12 Dec 2001 · S1 · Justice 2 Committee
Item of business
Sexual Offences (Procedure and Evidence) (Scotland) Bill: Stage 2
Before I talk to the amendments, I thank you for your forbearance, convener, with regard to the letter that we wrote to you about holding back the amendments on the disclosure of previous convictions until next week. That will give people time to consider them.Amendment 1 is designed to plug a small gap that has been noticed in the list of offences that are covered by the bill. While assault with intent to rape is included in the list, abduction with intent to rape is not. That is anomalous. Both offences should attract the protection of the bill.Amendment 2 removes from the list of offences that are covered by the bill offences under section 13(5)(a) of the Criminal Law (Consolidation) (Scotland) Act 1995. Section 13(5) of that act deals with homosexual offences. Sections 13(5)(b) and 13(5)(c) cover sexual assaults and sexual activity with underage boys, but section 13(5)(a) is concerned with consensual homosexual activity between adults that does not take place in private. In such public decency cases, there will be no complainer to protect, so it is not necessary to include the offence in section 13(5)(a) on the list of offences that are covered by the Sexual Offences (Procedure and Evidence) (Scotland) Bill.Amendment 15 is a consequential amendment. Section 10 of the International Criminal Court (Scotland) Act 2001 amended section 274 of the Criminal Procedure (Scotland) Act 1995, which lists the offences to which the current restrictions on the use of sexual history evidence apply, by adding genocide, war crimes and crimes against humanity to the list in cases in which those crimes have a sexual content, such as mass rape. Because the bill replaces the present section 274 of the Criminal Procedure (Scotland) Act 1995 with a new version, section 10 of the International Criminal Court (Scotland) Act 2001 will automatically cease to have effect. Amendment 15 makes that plain by repealing section 10 of the International Criminal Court (Scotland) Act 2001.We could have carried over genocide, war crimes and crimes against humanity into the list of offences in the bill, but we have decided not to do so. The list contained in the bill is not a list of only the most serious offences; it includes a wide range of sexual offences, although all are likely to involve a distressing experience for the complainer. The listed offences have in common the fact that they are exclusively sexual offences; they cannot be anything else. That is important, because the police, courts and prosecution will all need to know from the outset whether the provisions of the bill apply. They will need to be able to get on with giving to the accused the notices and warnings that are specified in the schedule. If the list included a particular offence, but only when that offence had a substantial sexual element, too much uncertainty would be introduced into the process.When the offence is not on the list, but the case has a substantial sexual element, the bill provides a solution. The court will have the power to extend the bill's provisions to such a case at any stage of proceedings under the proposed section 288C(4). The bill's provisions will apply from that point on. The court will not have to wait for a prosecution application; it will be able to exercise its power of its own motion if it sees the need.Genocide, war crimes and crimes against humanity are truly appalling crimes. However, they would not always be sexual crimes, so they should not be included in a bill that deals only with sexual offences and not with wider vulnerable witness issues. Occasionally, those crimes may have a sexual content. If that were to be the situation in a case being tried here, the court's power to extend the bill's provisions would be there to protect any complainer. I move amendment 1.
In the same item of business
The Convener:
Lab
Item 3 is stage 2 of the Sexual Offences (Procedure and Evidence) (Scotland) Bill. I welcome Richard Simpson, the new Deputy Minister for Justice, to the com...
Section 1—Prohibition of personal conduct of defence in cases of certain sexual offences
The Convener:
Lab
I call amendment 1, which is grouped with amendments 18, 19, 2, 30 and 15.
The Deputy Minister for Justice (Dr Richard Simpson):
Lab
Before I talk to the amendments, I thank you for your forbearance, convener, with regard to the letter that we wrote to you about holding back the amendments...
Bill Aitken (Glasgow) (Con):
Con
The issues here are fairly straightforward. Having been convinced of the efficacy of section 1 of the proposed legislation, I am seeking to make it more effe...
Mrs Margaret Ewing (Moray) (SNP):
SNP
Amendment 30 has two parts. The first part is to stop the provisions that prevent the accused from representing himself from applying to summary cases. It se...
Scott Barrie (Dunfermline West) (Lab):
Lab
I would like the minister to clarify amendment 2, as I am not very au fait with the Criminal Law (Consolidation) (Scotland) Act 1995. Was the change to the d...
Dr Simpson:
Yes.
Scott Barrie:
Lab
That is all that I needed to know.
The Convener:
Lab
The committee may want to be assured that amendment 2 deals with the points that were made to us by the Equality Network, which claims that the bill as it st...
Dr Simpson:
I would be happy to.Amendment 18, in the name of Bill Aitken, seeks to add shameless indecency to the list of offences that are covered by the bill, so that ...
Amendment 1 agreed to.
The Convener:
Lab
Amendment 18 was debated with amendment 1. Does Bill Aitken wish to move the amendment?
Bill Aitken:
Con
Having heard the minister, I will not move amendment 18, but I reserve my position for stage 3 until I have checked the matter.
Amendment 18 not moved.
Amendment 19 moved—Bill Aitken—and agreed to.
Amendment 2 moved—Dr Richard Simpson—and agreed to.
The Convener:
Lab
Amendment 3 is grouped with amendments 20, 4, 26 and 27. If amendment 20 is agreed to, amendment 4 will be pre-empted.
Dr Simpson:
Amendments 3 and 4 are tidying amendments. Proposed section 288C(2) of the Criminal Procedure (Scotland) Act 1995, which section 1 of the bill will insert, c...
Bill Aitken:
Con
I disagree with the minister. Amendment 20 is well conceived and would provide a necessary part of the bill. To some extent, it seeks clarification of the te...
Stewart Stevenson (Banff and Buchan) (SNP):
SNP
In commenting on amendment 20, in the name of Bill Aitken, I shall focus particularly on proposed subsection (4A), paragraph (c), to which the minister refer...
Scott Barrie:
Lab
I concur with what Stewart Stevenson said. Amendment 20 strikes against what the bill intends to do. We should be wary of that. Anything that promotes the qu...
The Convener:
Lab
I want to make a few comments in opposition to amendment 20.The committee thought long and hard about the way in which complainers should be protected. We sp...
Dr Simpson:
In our view, the bill should cover all sexual offences. The only relevant question, therefore, is whether the offence is a sexual one. Amendment 20 would mea...
Amendment 3 agreed to.
Amendment 20 moved—Bill Aitken.
The Convener:
Lab
The question is, that amendment 20 be agreed to. Are we agreed?
Members:
No.
The Convener:
Lab
There will be a division.
ForAitken, Bill (Glasgow) (Con)AgainstBarrie, Scott (Dunfermline West) (Lab)Ewing, Mrs Margaret (Moray) (SNP)Lyon, George (Argyll and Bute) (LD)McNeill, Paul...