Hansard

I am pleased to speak on behalf of the Justice Committee, which has scrutinised the Abusive Behaviour and Sexual Harm (Scotland) Bill. I thank our witnesses and those who replied to our call for evidence. In all, the committee received submissions from 34 bodies or individuals, discussed the bill at four meetings and heard from 16 witnesses from the legal and law enforcement professions, academia, groups that work with the victims of crime, the Children and Young People’s Commissioner Scotland and the Scottish Human Rights Commission. While I am at it, I want to thank the very hard-working Justice Committee.

We also heard from representatives of the judiciary and, in passing, I would like to congratulate Lord Carloway on his recent appointment as Lord President and Lord Justice General, which was announced shortly after he gave evidence to the committee. I do not think that we sabotaged his appointment, but I do not think that we had anything to do with his elevation either.

The bill is in three parts and part 2 has six chapters, so we cannot really talk about it in the round. I will try to deal with the some of the elements separately. I do not have a lot of time, so I will miss out quite a few of them, but I hope that committee members will pick those up.

As the minister said, there are two main elements. The first is the new offence of the non-consensual sharing of intimate images. The media sometimes calls that “revenge porn”, but the committee is aware that not everyone believes that we should use that terminology.

With advances in technology and increasing use of social media, it has become all too easy to use the internet to humiliate other people. When that involves sharing intimate photographs or videos of another person that were never meant to be shared with a wider audience and are perhaps sent out on the internet following an acrimonious break-up, it can be particularly poisonous and harmful. In our report, we support a new offence in the area, and that received some coverage in the media. The press reporting was along the lines that the committee had given the “green light” to making “revenge porn” an offence.

On the same day, the Scottish media carried the story of a young man from Paisley who had been convicted of putting intimate photographs of his ex-partner online. Under common law, he was sentenced to six months in what the press called a “revenge porn” conviction. However, evidence made it clear that it is not always easy to apply the current criminal law in this area. There are grey areas that may allow truly hurtful behaviour to escape criminal censure and, even when a conviction is successful, the courts may lack the sentencing options that the crime merits. Under the bill, the maximum sentence is five years.

The drafting of a new law provides an opportunity to make it clear that sharing intimate images of another person without their consent and with intention or recklessness as to whether it causes hurt or humiliation is a crime. The committee believes that the bill is on the right track, but we have made some observations on the drafting of the offence and we would like the Scottish Government to reflect on them. I suspect that other committee members will pick up on the issues, but an example is the definition of a public place. That is always difficult to define.

In changing the law, there is also an opportunity to make it clear that such behaviour is socially unacceptable. We can have preventive legislation. Most people will know that, but there are some—particularly the young, perhaps—who may lack the insight or maturity to realise just how much harm it can cause.

The committee heard concerns that the bill might lead to the criminalisation of behaviour that some young people might—rightly or wrongly—consider to be okay, normal or everyday, but the majority of the evidence, including the evidence from the Children and Young People’s Commissioner Scotland, was that that is not a good reason to exclude young people from the ambit of the offence, not least because the victims of such behaviour are usually young people and they, too, deserve the protection of the law. Images on the internet can live for ever. The committee agrees with that, although we do so in the expectation that the vast majority of cases involving children and young people will not go before the courts or even the children’s panel and that there will be some discretion as to what happens with young people.

The second main element of the bill is jury directions relating to sexual offences. The bill proposes that, for the first time, we set out in statute what directions judges must give to juries in certain cases. To put the matter broadly, if evidence is led about an apparent delay in reporting or telling anyone about an alleged sexual assault, the judge must direct the jury that there may be good reasons for the delay. In addition, if evidence is led about an apparent absence of physical resistance to an alleged sexual assault, the judge must direct the jury that there may be good reasons why a person may not have physically resisted such an assault.

The Government’s view, as we have heard, is that it is necessary to make that intervention because misconceptions about how people respond to sexual trauma may lurk in the minds of some jurors. There was some agreement in evidence that the Scottish Government was probably right. Juries are, after all, composed of ordinary people, some of whom may well bring their misconceptions into the jury room.

Beyond that point of general agreement, the provision very much split our witnesses; it also split the committee. There was evidence from the Law Society of Scotland, the Faculty of Advocates, legal academics and the judiciary to the effect that the proposals would at best achieve little and at worst risk doing harm. Those witnesses said that the provision would in effect force judges to give guidance about apparent matters of fact that, in the view of the judge, were not relevant to the trial that the jury had just sat through.

Evidence from victims groups, the police, the Crown Office and some other legal academics was equally strong in support of the proposals. The directions were seen as uncontroversial statements of fact that could only be of assistance to a jury in coming to a more informed view. That view prevailed in the Justice Committee’s report, with what the report described as “a clear majority” agreeing that the directions may, in relevant cases, help to ensure that justice is done. The majority also took the view that setting out the requirement to give the directions in statute will ensure a more consistent approach in courts. Those of us in the minority would have preferred to wait at least for the conclusion of a forthcoming Scottish Government-sponsored piece of research on decision making by juries before taking any decision in this area.

I knew that I would not have time to address non-harassment orders, the domestic abuse aggravator, new civil orders and sexual acts elsewhere in the UK, which are all important and serious parts of the bill. Because I have not been able to cover all those areas, I hope that other members will take the opportunity to develop those points.

The committee supports the bill’s general principles, subject to our recommendations, some of which I know the cabinet secretary is chewing over, if that is not too colloquial a phrase.