Hansard

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.