Chamber
Plenary, 21 Nov 2001
21 Nov 2001 · S1 · Plenary
Item of business
Sexual Offences (Procedure and Evidence) (Scotland) Bill: Stage 1
—so all my faults are Pauline McNeill's as well.
I want to talk about the climate of fear among potential complainers—those who have been victims of rape. Bill Aitken gently suggested that the perception in society is not really part of the problem that should be solved by legislation. However, he later acknowledged that there is a perception that the legal system lets down complainers. That point is entirely valid.
We heard in evidence that there appeared to be ambiguities about whether judges or prosecutors should protect the way in which vulnerable witnesses are dealt with. Those ambiguities remain unresolved, but they give adequate justification for changing not only the law but the implementation of the law.
We heard evidence of improper cross-examination. In one example, a forensic witness was asked to hold up the garment that the complainer had been wearing so that forensic evidence could be seen in the court. The nature of the garment was thus shown to the jury and the cross-examiner sought to imply that the wearer was not a reliable witness.
Roseanna Cunningham laid out some of the difficulties for the legal profession of court-appointed solicitors. No injustice is inflicted on an accused who is denied the right to represent himself. Bill Aitken put it aptly: an accused who is his own solicitor has a fool for a solicitor. Familiarity with court procedure and language means that a professional can represent the accused better than anyone else can. The fact that John Anderson had success in court in representing himself does not exclude the fact that he may well have been better off with a professional solicitor.
Much has been made of the situation in which an accused refuses to co-operate with a solicitor. However, we should acknowledge that a failure of that kind is the accused's choice. If he is disadvantaged, it is because he has chosen to be disadvantaged. If he is disadvantaged by being incompatible with the solicitor who has been allocated to his case, again, that is his choice—he has chosen not to select a solicitor with whom he would be compatible. We are not removing the right of the accused to be defended; we are allowing him to make choices about his defence. One of those choices is that he can allow the court to appoint his solicitor.
Would an amicus curiae be an alternative, as George Lyon thinks? If that person is simply present to intervene when a complainer is examined in court, will that not change the way in which juries view the evidence of that complainer? Will it not give credence to the idea that the complainer has a justified complaint?
I want to talk about the climate of fear among potential complainers—those who have been victims of rape. Bill Aitken gently suggested that the perception in society is not really part of the problem that should be solved by legislation. However, he later acknowledged that there is a perception that the legal system lets down complainers. That point is entirely valid.
We heard in evidence that there appeared to be ambiguities about whether judges or prosecutors should protect the way in which vulnerable witnesses are dealt with. Those ambiguities remain unresolved, but they give adequate justification for changing not only the law but the implementation of the law.
We heard evidence of improper cross-examination. In one example, a forensic witness was asked to hold up the garment that the complainer had been wearing so that forensic evidence could be seen in the court. The nature of the garment was thus shown to the jury and the cross-examiner sought to imply that the wearer was not a reliable witness.
Roseanna Cunningham laid out some of the difficulties for the legal profession of court-appointed solicitors. No injustice is inflicted on an accused who is denied the right to represent himself. Bill Aitken put it aptly: an accused who is his own solicitor has a fool for a solicitor. Familiarity with court procedure and language means that a professional can represent the accused better than anyone else can. The fact that John Anderson had success in court in representing himself does not exclude the fact that he may well have been better off with a professional solicitor.
Much has been made of the situation in which an accused refuses to co-operate with a solicitor. However, we should acknowledge that a failure of that kind is the accused's choice. If he is disadvantaged, it is because he has chosen to be disadvantaged. If he is disadvantaged by being incompatible with the solicitor who has been allocated to his case, again, that is his choice—he has chosen not to select a solicitor with whom he would be compatible. We are not removing the right of the accused to be defended; we are allowing him to make choices about his defence. One of those choices is that he can allow the court to appoint his solicitor.
Would an amicus curiae be an alternative, as George Lyon thinks? If that person is simply present to intervene when a complainer is examined in court, will that not change the way in which juries view the evidence of that complainer? Will it not give credence to the idea that the complainer has a justified complaint?
In the same item of business
The Presiding Officer (Sir David Steel):
NPA
The main business today is a stage 1 debate on motion S1M-2459, in the name of Jim Wallace, on the general principles of the Sexual Offences (Procedure and E...
The Deputy Minister for Justice (Iain Gray):
Lab
This is a short but important bill, whereby the Executive fulfils a commitment to improve significantly the way victims of sexual crimes are treated in our c...
Phil Gallie (South of Scotland) (Con):
Con
Under bail law, someone who has been charged with rape and who decides to conduct their own defence would have limited access to the complainer. Would that c...
Iain Gray:
Lab
Mr Gallie raises an interesting question, but it is perhaps not for this debate, because the bill would set such a situation right by changing the legislativ...
The Presiding Officer:
NPA
Before I call the next speaker, I see at least five members in the chamber who have indicated that they would like to speak, but who have not pressed their r...
Roseanna Cunningham (Perth) (SNP):
SNP
The Scottish National Party supports and welcomes the general intent of the bill, which is—of course—aimed at protecting the complainer and other witnesses f...
Lord James Douglas-Hamilton (Lothians) (Con):
Con
Does Roseanna Cunningham accept that it is extremely unlikely that a Scottish judge would ever have allowed such an outrage to occur?
Roseanna Cunningham:
SNP
It is difficult for me to answer that question. I understand what Lord James Douglas-Hamilton is trying to say, but such cross-examination does occur in Scot...
Scott Barrie (Dunfermline West) (Lab):
Lab
Will the member give way?
Roseanna Cunningham:
SNP
I am sorry, but I am in the final minute of my speech.The proposed changes will affect not just rape cases; they will cover a wide variety of offences, which...
Bill Aitken (Glasgow) (Con):
Con
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 ...
Iain Gray:
Lab
Mr Aitken makes a fair point about the research being difficult. Will he accept that one construction of what he has related is that when we ask complainers ...
Bill Aitken:
Con
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 diff...
George Lyon (Argyll and Bute) (LD):
LD
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...
The Deputy Presiding Officer (Patricia Ferguson):
Lab
We now move to open debate. Several members want to speak, so I ask those who do to keep their contributions to four minutes.
Pauline McNeill (Glasgow Kelvin) (Lab):
Lab
I thank committee members and the committee clerks who worked hard on the report. I also thank the Parliamentary Bureau, which allowed extra time for the com...
Mrs Margaret Ewing (Moray) (SNP):
SNP
I join George Lyon in welcoming Baroness Michie of Gallanach to the VIP gallery. Although Ray Michie and I have been in different political parties all our l...
Mrs Mary Mulligan (Linlithgow) (Lab):
Lab
The bill appears to have two aims. The direct aim is to change the way in which the legal system works in relation to sexual offences. The indirect aim is to...
Stewart Stevenson (Banff and Buchan) (SNP):
SNP
I start by thanking the convener of the Justice 2 Committee for her welcome when I joined the committee. I was not just joining her committee; I was joining ...
Members:
Sook.
Christine Grahame (South of Scotland) (SNP):
SNP
Sit down now.
Stewart Stevenson:
SNP
—so all my faults are Pauline McNeill's as well.I want to talk about the climate of fear among potential complainers—those who have been victims of rape. Bil...
George Lyon:
LD
May I clarify what I said? I did not state that an amicus curiae was an alternative. I suggested that, before introducing any more measures, the minister mig...
Stewart Stevenson:
SNP
I thank George Lyon for that clarification, which I am prepared to accept. I was merely making the point that he would leave the option open, whereas I would...
Mrs Lyndsay McIntosh (Central Scotland) (Con):
Con
Members from across the political divide will recollect my contributions on matters of domestic abuse and abuse of women in general—in particular, rape or cl...
Johann Lamont (Glasgow Pollok) (Lab):
Lab
Will the member give way?
Mrs McIntosh:
Con
I have only a couple of minutes left and I am sure that Johann Lamont will make a speech of her own.The cynics among us may say that we need to have more fai...
Maureen Macmillan (Highlands and Islands) (Lab):
Lab
I welcome the bill and I commend the Justice 2 Committee for its report. The bill marks real progress in reforming the impact of the legal process on victims...
Mr Gil Paterson (Central Scotland) (SNP):
SNP
I have just returned from a seminar on counting the cost of violence against women, which had delegates from all over the world, so I especially welcome this...
Johann Lamont (Glasgow Pollok) (Lab):
Lab
I welcome the opportunity to speak on the stage 1 report on the Sexual Offences (Procedure and Evidence) (Scotland) Bill. It is a matter of personal satisfac...