Committee
Justice 2 Committee, 18 Dec 2001
18 Dec 2001 · S1 · Justice 2 Committee
Item of business
Sexual Offences (Procedure and Evidence) (Scotland) Bill: Stage 2
Dr Simpson:
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The reason that section 275A is very complex is to achieve a balance whereby the accused's rights are not infringed. Subsection (4)(b) allows the judge to give clear consideration to whether it would be "contrary to the interests of justice"to introduce the previous conviction and the extract that relates to the sexual content of an offence not listed in the bill. That additional element is important in protecting the accused.
In the same item of business
The Convener:
Lab
Agenda item 3 is the Sexual Offences (Procedure and Evidence) (Scotland) Bill. I welcome the Deputy Minister for Justice, Richard Simpson, and his legal team...
The Deputy Minister for Justice (Dr Richard Simpson):
Lab
Previous convictions have always been capable of being admitted to the court. There has been a process for that, as I will explain when we debate the amendme...
Stewart Stevenson:
SNP
I welcome the indication from the minister that a period for consultation on the subject might be available to us.With the convener's indulgence, I would lik...
The Convener:
Lab
It is significant that we are discussing the Sexual Offences (Procedure and Evidence) (Scotland) Bill on the same day that seven judges in the High Court wil...
Bill Aitken (Glasgow) (Con):
Con
The minister has been conciliatory in his approach. He recognises that the matter has not been handled terribly happily. I do not propose to labour the point...
The Convener:
Lab
Does the minister accept that, whatever the result of the division today, the committee reserves the right to discuss how it wishes to deal with the matter a...
Dr Simpson:
I am not clear whether the Parliament's procedures would allow the committee to do that, but I have no problem with the committee consulting before individua...
The Convener:
Lab
To my knowledge, there is no procedural difficulty. We would get ourselves into difficulty if we were to support the amendment without saying anything to the...
Dr Simpson:
The wish of all of us is that the legislation should be robust. If the committee feels that that is an appropriate way to proceed, I have no objections.
Stewart Stevenson:
SNP
I want to return to my point about Lord Abernethy, without pushing it too hard. Proposed section 288C(2) lists rape as one of the offences, at paragraph (a)....
Dr Simpson:
Our view is that the matter is outwith the scope of the bill. The Parliament has made its view clear that it might wish to return to the issue in a future de...
The Convener:
Lab
With that understanding, we can move on. I will give the committee an opportunity after today to decide how it wishes to proceed.
Section 8—Exception to restrictions under section 274 of 1995 Act
The Convener:
Lab
We move to the second marshalled list of amendments at stage 2. Amendment 13, in the name of the minister, is grouped with amendments 16 and 17.
Dr Simpson:
Amendment 13 is a drafting amendment. The words that are being removed concern the deadline for lodging an application to introduce evidence about the compla...
The Convener:
Lab
Thank you for your comprehensive and helpful statement, minister.
Stewart Stevenson:
SNP
I suspect that my points, which seek clarification, are relatively simple. First, when speaking about section 275A(10) in amendment 16, the minister used the...
Dr Simpson:
On indictment, the charge will list the convictions, so that answers your first point about the word "charge". The extract will add to the name of the offenc...
Stewart Stevenson:
SNP
I want to clarify that the word "charge" refers to the current case and the word "conviction" refers to previous cases.
Dr Simpson:
That is correct.The answer to your second point is that it is up to the court to decide whether the sexual element is substantial. We did not want to limit t...
Stewart Stevenson:
SNP
For my benefit and, I suspect, for the benefit of my colleagues, I ask the minister to point to the part of amendment 16 that introduces the requirement for ...
Dr Simpson:
I think that the relevant paragraph is section 275A(4)(b), which refers to whether the disclosure would be "contrary to the interests of justice".That is an ...
Stewart Stevenson:
SNP
It is important that we pin the matter down. Is it an existing provision in Scots law that that would imply the application of a similarity test, as you led ...
Dr Simpson:
I gather that, in the form in which it is written in amendment 16, the provision is new. On the other hand, there is an implication that that is the way in w...
Stewart Stevenson:
SNP
I suggest that the minister and his team should give some further consideration to that. I entirely support what you are trying to achieve, but I am concerne...
Dr Simpson:
The reason that section 275A is very complex is to achieve a balance whereby the accused's rights are not infringed. Subsection (4)(b) allows the judge to gi...
The Convener:
Lab
Following from that, you spoke earlier of a weighing exercise. That is relevant to the present point. You are asking the judges to apply a weighing principle...
Dr Simpson:
Absolutely. I referred to whether the admission of a sexual element in a previous offence would be disproportionate. If it was disproportionate to the materi...
The Convener:
Lab
Now that we have debated the issue at stage 2, Pepper v Hart would come into play. In other words, if the court was confused about what the Parliament meant ...
Dr Simpson:
The court will be able to have regard to the stage 2 proceedings.