Committee
Justice Committee 05 January 2016
05 Jan 2016 · S4 · Justice Committee
Item of business
Abusive Behaviour and Sexual Harm (Scotland) Bill: Stage 1
Expert evidence will be taken on issues in many cases. If such evidence is taken, the judge will consider giving some direction to the jury. However, there may not always be expert evidence, and it is important that we ensure that, in cases where a specific type of evidence is led and issues are raised, provisions are in place to ensure that the judge gives direction to the jury. It may be that some judges already give direction to juries on some aspects, although other judges may choose not to do so. My view is that we should put the matter on a statutory footing so that we are clear about when direction should be provided, while giving judges the flexibility to put that to the jury in the way that they consider to be most appropriate.
In the same item of business
The Deputy Convener
Lab
Item 5 is the final evidence session on the Abusive Behaviour and Sexual Harm (Scotland) Bill, for which the cabinet secretary is staying with us. I welcome ...
Margaret Mitchell
Con
As the convener has indicated, witnesses have expressed concern about the introduction of statutory jury directions in sexual offence cases, particularly wit...
Michael Matheson
SNP
No, I do not, although I understand the comments and the evidence that the committee has received on those matters. I believe that the provisions in the bill...
Margaret Mitchell
Con
You mention expert evidence being led. That seems to be a perfect way round the issue, as someone would explain certain points. It is not always the case tha...
Michael Matheson
SNP
Expert evidence will be taken on issues in many cases. If such evidence is taken, the judge will consider giving some direction to the jury. However, there m...
Margaret Mitchell
Con
We have had a clear steer from the Crown Office and Procurator Fiscal Service and from Lord Carloway that the cost of providing expert evidence would be proh...
Michael Matheson
SNP
The bill would not do anything that would affect the ability to take expert evidence in a case. If the Crown chose to introduce expert evidence on a particul...
Margaret Mitchell
Con
You have no concerns that cost would come into it.
Michael Matheson
SNP
In what way?
Margaret Mitchell
Con
I am talking about the cost of providing an expert witness. Expert evidence seems to be a way of getting around this. Although there has been a delay in repo...
Michael Matheson
SNP
The bill does not change anything around the decision to bring in an expert witness on a particular issue in a case. If it is being suggested that we are int...
Margaret Mitchell
Con
You are confident that, if the provision is introduced, there will not be calls for similar provisions to address other perceived misconceptions.
Michael Matheson
SNP
In the past, the Parliament has taken a view on areas of the law in which specific measures require to be taken. Trials for sexual offences—particularly rape...
Margaret Mitchell
Con
Lord Carloway covered that point. Although he acknowledged that jury directions exist in other jurisdictions, he said that they are far from ideal. Perhaps y...
Michael Matheson
SNP
I will look at all the evidence and consider all the views that have been given on the issue. However, we have made our position clear on jury direction. I h...
John Finnie
Ind
If the issues of delay in telling people and the absence of signs of physical resistance are widely acknowledged, as they seem to be, why do the Faculty of A...
Michael Matheson
SNP
It is not for me to answer on behalf of the Faculty of Advocates or—
John Finnie
Ind
Would you like to speculate?
Michael Matheson
SNP
It would not be fair for me to speculate on what their views are or why that is. It would be better for the Faculty of Advocates and the Law Society to expla...
John Finnie
Ind
If you have seen Lord Carloway’s evidence, you will know that he was very open with me and my colleague Alison McInnes about a particular case that we both h...
Michael Matheson
SNP
The issue is one for Parliament to consider. If we as a Parliament consider that there is merit in and justification for putting jury directions on a statuto...
John Finnie
Ind
My colleague Margaret Mitchell talked about the position of the Crown leading an expert witness. Is that not more inherently fair to the accused, because it ...
Michael Matheson
SNP
As I said, the bill has no provision that would prevent the leading of expert evidence as well. The bill does not alter the position on that. It might be tha...
John Finnie
Ind
The Law Society talks about unfairness if the provision relates exclusively to sexual offence cases. I will not linger on the point, but the Law Society give...
Michael Matheson
SNP
That is why we have tried to give a balance to the provision in limiting the circumstances in which it would apply. As you will be aware, the bill sets out w...
John Finnie
Ind
Finally, has any assessment been made of whether there will be an increase in the number of appeals against conviction as a result of the introduction of the...
Michael Matheson
SNP
It is very difficult to assess how many appeals there might be as a result of legislative change, because appeals can occur for a variety of reasons. We cann...
John Finnie
Ind
But it is not unrealistic to say that that is a factor that you could anticipate. Jury direction is an additional factor that could be the subject of an appeal.
Michael Matheson
SNP
Of course. The defence might seek to appeal as a result of the judge’s direction. However, it is very difficult to quantify how many such appeals might be made.
John Finnie
Ind
Okay. Thank you.