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Plenary, 21 Nov 2001

21 Nov 2001 · S1 · Plenary

Item of business

Sexual Offences (Procedure and Evidence) (Scotland) Bill: Stage 1

Aitken, Bill Con Glasgow Watch on SPTV

I am happy to concede that there is a difficulty, which is the polarisation to which I referred earlier in my speech. Everybody is working with the same difficulty. The only consistent evidence on that that the committee heard was about the difficulty of subtly destructive evidence being introduced, for example, about the clothing of a victim. The view of those who are most qualified to judge—those whose day-to-day activities in the courts allow them to see trials of this type in operation—appears to be that there is not a significant difficulty overall.

I urge caution regarding evidence on witnesses' character that may be introduced. It is sometimes necessary and proper for the defence to attack the character of a witness. In cases of this type, apart from the occasional bizarre circumstance, there are seldom eye-witnesses. The court is confronted with an issue of credibility. Bearing in mind the fact that an accused person in a Scottish criminal court is not required to prove anything, the issue is whether the court believes the complainer. It might be perfectly proper to attack the character of the complainer in order to demonstrate a lack of credibility in the Crown evidence. It would be proper to do so in other trials. Although the judge and the prosecutor must be proactive in preventing the introduction of red herrings, the right to attack the character of a witness should be maintained. I argue that that is a dangerous line of defence because the Crown could seek to attack the character of the accused. I acknowledge what the minister said about that earlier.

There is also a danger of the system becoming unnecessarily cumbersome. In court, things happen; evidence might come into play that was not previously thought likely. It is in everyone's best interests—especially those of the victim of a crime—that the court process be carried out expeditiously. If there are frequent adjournments to deal with applications to introduce evidence of a certain type, trials will last longer and will become even more fraught for witnesses.

The committee was in a position of some difficulty. The evidence was limited, but it was felt that there was a perception that cross-examinations could be intrusive and irrelevant. I question whether we should legislate on the basis of a perception. Should not we seek to inform the public more widely about the operation of our courts, rather than react in a potentially oppressive manner?

There is another important point of principle. Do we trust juries? We must consider that. We give them responsibility and we must rely on them.

The crime of rape excites very strong emotions in us all. It is a despicable offence, which in many cases has traumatic effects on the victim. However, I ask members to put themselves in the position of someone who is wrongly accused of rape. Should not they have an opportunity to present as full a defence as possible?

The Parliament should have no truck with legal dirty tricks, whereby defence counsels seek to influence juries by introducing irrelevant evidence. Judges are appointed to prevent them from doing so, but if we legislate to inhibit defence evidence beyond the fairly tight parameters that exist, we could impinge upon individuals' right to a fair trial. That aspect of the bill must be considered very closely.

Aside from our caveat on that aspect of the bill, we shall of course support the bill's onward progress today. However, at stage 2, we will seek to amend the sections that we consider are a threat and might prejudice fair trials.

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Plenary, 21 Nov 2001

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