Hansard

Before I begin, I welcome Baroness Michie of Gallanach to the VIP gallery. [Applause.]

The Justice 2 Committee report states:

"It is a general principle in Scots law that an accused person may defend themselves rather than appoint a solicitor, and may introduce any relevant evidence in their defence. Witnesses are protected by the duty on the courts to intervene when questioning is designed to elicit inadmissible evidence or is abusive."

The main provisions of the Sexual Offences (Procedure and Evidence) (Scotland) Bill will ensure that victims cannot be cross-examined by defendants in sexual offence cases and that, as a general rule, the court will not allow questioning on the victim's sexual history. In his evidence to the committee, the minister made it clear that the bill's overall aim is to

"remove fear on the part of complainers and increase their confidence that they will be treated fairly and with dignity"—[Official Report, Justice 2 Committee, 24 October 2001;
c 532.]

in such cases. That statement is important, as it underlines that the whole thrust of the bill is to protect complainers in sexual offence cases from the fear of interrogation by the accused and from the fear that their sexual history will be paraded during a public trial when it has no relevance to the case.

The bill is designed to give confidence to women and to encourage them to come forward and make a complaint. Most of us would agree that the latest figures on rape convictions in Scotland give cause for concern; indeed, Roseanna Cunningham has already described them as a disgrace. Last year, of 591 reported cases, only 27 resulted in convictions. Is it any wonder either that women do not pursue their initial complaint or that, if they decide to go through the ordeal of giving evidence in a public court, the prosecution often fails to secure a conviction? It is clear that more must be done to improve the situation.

As Bill Aitken pointed out, in the consultation on the bill's general principles a significant number of consultees either did not support the Executive's general policy or felt that there was no need at all for change. Indeed, the opinion of judges and the legal profession in general seemed to be that better training in how to use the current law would be the right way of proceeding. However, women's groups and victims argued that the law had to be strengthened and they supported the principles that the Executive has set out in the bill.

Although the committee was concerned about those differences of opinion, it concluded that there was no fundamental disagreement over the legitimacy of protecting complainers in sexual offence trials. The committee supported the view expressed by victims and women's groups that the bill's wider aim is to change the social climate within which sexual offence trials take place by removing the threat of cross-examination by the accused and the possibility of broadcasting the witnesses' sexual history to the world. The committee accepted the Executive's justification of those broad aims and supported the bill's general principles.

I will deal with two main areas that previous speakers have mentioned: first, the prohibition of personal conduct of defence by alleged sex offenders; and, secondly, the restriction on evidence of sexual history or character. Evidence that was submitted to the committee raised a number of concerns about the prevention of cross-examination by the accused. The committee had to consider why special protection was justified for complainers in sexual offence trials. We accepted the views of the Scottish Human Rights Centre that, as the issues discussed in rape cases are of a very intimate nature, better protection of complainers is needed in such cases than in other criminal cases. We took the generally accepted view that many sexual assaults are not reported and that the measures would encourage complainers to come forward. It is important to emphasise that point, as it is one of the bill's wider aims.

The committee also considered whether the proposal was proportionate, as there appeared to be few known cases in Scotland of the accused conducting their own trial. Indeed, Bill Aitken mentioned that there have been only two. However, we again accepted the Executive's argument that this was a matter of principle and that the threat should be removed from potential complainers.

A number of alternative solutions have been suggested. The Law Society of Scotland—I think that Roseanna Cunningham mentioned this—suggested the appointment of an amicus curiae to act on behalf of the complainer in challenging the admissibility or relevance of lines of questioning. The Executive rejected that notion on the ground that it would not affect the issue of whether the complainer should be cross-examined by the accused at all. We accepted the Executive's position on that. However, the minister noted that the idea might have more merit generally when further legislation in this area is framed. I ask the Executive to examine at a later stage how effective the procedure has been in Ireland. I realise that the role of the amicus curiae is only just being introduced and that it will be some time before the effectiveness of that system can be evaluated, but the idea should be looked at before further measures are considered.

Concerns were expressed in relation to the ECHR, but the committee was reasonably satisfied on that subject. Nevertheless, a number of issues were raised. The committee found that the procedures in the bill, as drafted, for the appointment of solicitors for the defendant are wholly unworkable. I ask the minister to lodge amendments at stage 2 to deal with the issues that were raised in the committee's findings. The committee concluded that the ban on personal cross-examination is justified to protect complainers, that it is compatible with the right of the accused to a fair trial and that the arrangement can be made to work in practice, although the detail of the procedures for appointing a solicitor require further consideration at stage 2.

The other main measure in the bill is the restriction on evidence on the sexual history of victims. Under the new provisions, the circumstances in which evidence may be admitted are specified much more precisely than in current legislation. The committee had to consider several important questions. Could the law be made to work better without further legislation? If not, do the new provisions go far enough or do they go too far in protecting the rights of the complainer at the expense of those of the accused? Will the proposals work in practice? If the current law has not worked as expected, is there any reason to think that further legislation will work any better?

The committee accepted the Executive's argument that the current law is sufficiently elastic not to discourage strongly the use of sexual history and bad character in sexual offence cases and that there must be clearer guidelines for judges on such matters. The committee accepted the need for further legislation, on the basis of research that was carried out in 1992 by Dr Brown, Dr Burman and Dr Jamieson. That research showed that sexual history evidence was introduced in about 50 per cent of cases overall and in 15 per cent of cases under the current rules. In other words, in 15 per cent of cases, sexual history and character evidence was introduced by the back door, against the current rules. The committee accepted that the legislation needs to be strengthened.

Many witnesses welcomed the proposal for written applications to introduce character or sexual history evidence, which would mean that such evidence would be considered in a thorough, detailed and structured way that would appropriately balance the rights of the accused with those of the complainer. The committee accepted that the bill strikes the right balance between the rights of the accused and those of the complainer, but we ask the Executive to monitor how many appeals there are by the defence and how many succeed in the first two years after the bill has been implemented.

Other committee members will deal with any points that I have missed. The Scottish Liberal Democrats believe that the proposals will deliver the Executive's main aim, which is to remove fear on the part of complainers and to increase their confidence that they will be treated fairly and with dignity in sexual offence cases. The bill must encourage more women to come forward and make complaints without the fear of interrogation by the accused hanging over them and without the fear of their sexual history being paraded in court. We support the motion.