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Justice Committee 13 April 2010

13 Apr 2010 · S3 · Justice Committee

Item of business

Criminal Justice and Licensing (Scotland) Bill: Stage 2

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The series of amendments that Rhoda Grant, the Government and Robert Brown have lodged seeks to build on the protection that is given—largely to women—under the 1995 act. The case for all the amendments is arguable and they have merit.As members know, my preference for all law is simplicity. To my mind, the catch-all offence of breach of the peace covers such offences. However, like other members, I have been persuaded by the evidence that we have heard that a change in the law is needed.If we work from the premise that we should do something, it is clear that we must consider what is the best approach. First, we have amendments from Rhoda Grant on non-harassment orders, which would strengthen section 234A of the 1995 act. Amendments 400, 401 and 399 have considerable merit, but I am not persuaded that they are needed, given what the cabinet secretary said. In many cases, it will be entirely appropriate to apply for and make a non-harassment order, but I see dangers in having a blanket requirement to do so.I turn to the offence of stalking. Having agreed that we should do something, we need to examine Rhoda Grant’s amendment as opposed to the Government’s amendment, although I acknowledge that the amendments are not mutually exclusive. I revert again to my wish for simplicity. There are dangers, so we should keep matters as simple as possible—I have a track record on that.Amendment 378, which the Government lodged, presents possible dangers about which I have serious concerns and on which I will require reassurance at some stage. Subsection (1) of the new section defines the crime by how a reasonable person would interpret the behaviour that is complained of. I have no difficulty with that concept, which is much used in Scottish civil and criminal law. However, subsection (2) is a little less firm than I would prefer. It should require the conditions in both paragraphs (a) and (b), as opposed to either the condition in paragraph (a) or the one in paragraph (b), to be met. That would be a reasonable requirement.My principal concerns are with subsection (3), which renders an accused person guilty of an offence when no alarm is caused and when nobody is even aware of the accused person’s conduct. I appreciate the difficulties that the present law causes, but what is proposed is not the way forward. I have not been persuaded that the wording in subsection (3) is apposite. I have every confidence in our police and prosecutors, but to legislate in respect of acts in private that do not cause fear, alarm or distress is a little idiosyncratic. I know that amendment 378 is well intended, but I am a little concerned that its terms could cause difficulty.It is ironic that Rhoda Grant’s amendment 402 falls into the trap of seeking to define the conduct. In normal circumstances, that is a little bit dangerous. By their nature, such definitions cannot be exhaustive and we could leave ourselves open to challenge. I would be particularly grateful if, in summing up, Rhoda Grant gave the source of that wording. I am minded to support the amendment, but I seek that reassurance.Robert Brown’s amendment 402A is well thought out and was extremely well argued. A thin balance is involved and he has properly identified potential dangers. However, on balance, I am not persuaded, although I recognise the validity of the argument.The matter is complex and important and the debate has been good.10:45

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Justice Committee 13 April 2010

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