Hansard

In due course, the Conservatives might take issue with certain aspects of the bill, but we would be the first to concede that there are real difficulties in striking the appropriate balance between protecting the complainer and likely victim of crime on the one hand, and the rights of the accused on the other.

The Executive has felt the need to legislate for several reasons. There is the natural revulsion that we all share toward crimes of the type in question. There must also be concern about the high acquittal rate in rape trials. Against that background, the Executive was on balance correct to consider legislation. However, the issue is not in any respect clear cut and a number of aspects of the bill require further consideration. We might seek at the appropriate stage to amend the bill accordingly.

In some respects, the proposed legislation is different from previous bills that have been considered by Parliament. The most striking difference is the fact that, by the Executive's own admission, a significant number of those who were consulted either disagreed with the Executive's general policy or thought that there was no problem with the existing laws. There was a real polarisation of views among those who were consulted and among those from whom evidence was taken. One of the difficulties with any consultation process is that only those who have strong views one way or the other will normally seek to make their views known.

We do not know what the vast majority of people think. Women's support groups tend to support the proposed legislation—that is not a criticism of such groups. Those who have experience of the working of the law tend to take the view that the existing system strikes the correct balance. I do not think that they speak from complacency or conservatism. Accordingly, it has been difficult to establish a proper approach to the proposed legislation—others share that view, too. It is not a case of the Executive behaving irresponsibly or insensitively; I do not doubt its good intentions. However, there is a danger that one or two aspects of the bill will impinge on natural justice.

The minister said that the bill can be dealt with under four separate headings. The first heading relates to the proposed prohibition of accused persons from conducting their own defence. It is a well-established legal and practical principle that any accused person who insists on acting as his or her own lawyer has a fool for a client. It is difficult to envisage why anyone—especially someone who has been charged with a serious crime of the type in question—should seek to defend themselves. Under that heading, as under any heading, we must ask whether there is a problem, and whether legislating will resolve that problem.

On the basis of only two indictable cases in the past 20 years, it cannot be said that there is a widespread difficulty if only numbers are considered. It is significant that in the two cases to which Roseanna Cunningham referred—which, coincidentally, involved the same accused and the same judge—the judge, Lord Bonomy, who is a robust upholder of the rights of victims, stated that the complainers could have expected a more rigorous cross-examination had counsel been involved and that neither complainer had been distressed.

On the other side of the coin is the English rape case that was referred to, in which the victim was subjected to a brutal and intrusive cross-examination that lasted several days. I find it astounding that that was tolerated by the trial judge and I am confident that a Scottish judge would not have tolerated it.

The only evidence in favour of the prohibition, which has also been mentioned in the debate, is the suggestion that the possibility of being confronted in the witness box by the accused would deter women in particular from reporting sexual offences. Although the evidence for that claim is not thorough, the argument is fairly compelling. There is a gut reaction against the prospect of a victim being confronted in court by the person who is guilty of the assault. That would be traumatic for any victim, but I accept fully that cases of the type we are considering are different because they often involve intimate circumstances. Bearing in mind that such a prohibition would in no way inhibit a proper defence, we feel that, on balance, the interests of the victim must come first. We will therefore support the Executive.

A corollary of the prohibition is the requirement on the court to appoint a solicitor when the accused fails to do so. Neither I nor my colleagues in the Justice 2 Committee are convinced that that requirement is likely to be problem free. For example, what will happen when a solicitor is unable to obtain coherent or reasonable instructions from an accused person and seeks leave of the court to withdraw? In many such cases, we are not dealing with rational and normal individuals—that must be taken into consideration. It is clear however, that it is—if we accept the section on prohibition—an essential power, and we will go along with it. However, some work on that will be required by the minister during stage 2.

I turn to notice of the defence of consent. Again, I question whether there is a particular problem for the defence or the Crown. Nowadays, the defence of consent is used in the vast majority of rape cases. Interesting evidence was introduced by the Faculty of Advocates, which explained why—from its perspective—there are now so many acquittals in such cases. That is a matter that the Justice 2 Committee or another body should examine further. However, for our purposes today it is important simply to recognise that most accused persons claim that the sexual intercourse that is the subject of the complaint was consensual.

It seems to be academic whether or not the provision on the defence of consent is included in the bill. The Crown would not want to find itself being wrong-footed by the defence of consent being introduced in court on the day of a trial. However, one would think that, on the basis of witness statements, a reasonably intelligent anticipation of what the accused might say could be arrived at. The minister stated previously that he considered notification of the defence of consent to be good practice, and that there was no problem about legislating for it. Why, therefore, do we have to legislate for it?

I must also say that I found some of the arguments from the legal profession witnesses rather difficult to follow. The law requires, in unrelated matters, that prior notice be made of special defences of incrimination, alibi and so on. That requirement has worked perfectly satisfactorily. I found part of the evidence from the Law Society of Scotland especially indicative of what happens when a lawyer defends someone who he knows is guilty. There must always be a question of identification. The suggestion that the notification provision would in some respects dilute the Crown's requirement to satisfy the court as to consent was—I thought—verging on the opportunistic. Lawyers might find that provision to be an additional bureaucratic burden, but I do not see that it will pose a particular problem. Again, the provision does not impinge on natural justice. Accordingly, we can accept the provision in the bill.

Our main concern surrounds the proposed restrictions on evidence. Evidence of problems in that area is—to be frank—thin. The Justice 2 Committee was confronted by a considerable lack of evidence to back up the suggestion that complainers are subject to improper cross-examination. The academic research is based entirely on anecdotal evidence that was taken from complainers. The public are rightly excluded from attending rape trials while alleged victims are giving evidence. Therefore, there is a shortage of individuals who can give detached testimony about what happens.

The Crown Office and the Faculty of Advocates gave clear evidence to the effect that the problem is not a major concern. The evidence from the Crown Office was especially interesting. One former advocate depute stated that irrelevant, aggressive and intrusive cross-examination was a problem, but that he would not overemphasise that problem. The Faculty of Advocates stated that no such problem exists and that judges will intervene firmly when advocates embark on fishing expeditions.