Hansard

The Abusive Behaviour and Sexual Harm (Scotland) Bill is an important piece of proposed legislation, which seeks to address hugely vexing, emotive and, in some cases, complex issues.

I am grateful for the constructive views and evidence on the bill’s key provisions from the many witnesses who appeared before the committee during the stage 1 scrutiny process. I also thank the committee’s clerks for compiling such a comprehensive stage 1 report.

The bill covers six distinct provisions, namely: a domestic abuse aggravator; the non-consensual sharing of images; jury directions in relation to sexual offences; non-harassment orders; sexual acts elsewhere in the UK; and sexual harm prevention orders.

The committee agreed the bill’s general principles, and there was general consensus on the findings on the provisions, with the exception of those on jury directions in relation to sexual offences, which was the most contentious provision. Here, the convener and I both considered that, at the very least, more research must be carried out before such a dramatic provision is enforced. I consider that it could set a dangerous and unwelcome precedent by eroding the judiciary’s discretion and the separation of powers.

The raison d’être for the provision was to address potential and recognised misconceptions among juries in sexual offence cases about the absence of physical resistance or a time delay in reporting by victims. However, those are both issues that can be dealt with adequately through the use of expert witnesses. The only barrier to that is the cost implications, which have been acknowledged by both Catherine Dyer, chief executive of the Crown Office and Procurator Fiscal Service, and Lord Carloway, the then Lord Justice Clerk. However, cost should not be an issue here.

It is worth stressing that if the aim of the provision is to address issues that are known to make a successful conviction more difficult in sexual offence cases, there is an opportunity at stage 2 to look again at the provision of legal aid to oppose the inappropriate requisitioning of medical records, which are frequently used to discredit complainers. Whereas the complainer or third party has a locus to object to the release of their medical records at the hearing to determine an application for their recovery, in most cases they cannot afford legal representation to object, as currently they are not granted legal aid. That situation could easily be rectified; all that is required is the political will.

I turn now to the domestic abuse aggravator provision, which would result in tougher sentences for perpetrators of domestic abuse committed against a partner or ex-partner. That would now also be extended to a third party such as a child or close friend. The cabinet secretary has confirmed that the measure will apply to a first offence. In such circumstances, the aggravation clearly needs to be applied proportionately and with common sense. Sheriff Derek Pyle has urged caution on that point. He commented that the judiciary has to

“identify the cases where there is concerted and serious abuse as opposed to those which are little more than domestic arguments to be expected of any couple”,

as he terms it.

Meanwhile, the Law Society has expressed concern that the inclusion of third parties would make the aggravation “difficult to prove”, due to the requirement to establish intention or recklessness.

The introduction of the new statutory non-consensual sharing of intimate images provision was widely supported. It aims to create greater clarity in relation to what is a distressing and humiliating practice for victims, who are often vulnerable adolescents or young adults. However, there were differing views among witnesses on whether that had been achieved, and there was also concern about the practical implications of the consent defence.

The provisions to allow the Scottish courts to cover sexual offences against children within the UK were intended to be practical provisions but, again, they have raised concerns about jurisdiction implications and the definition of Scottish residency.

Although the committee was sympathetic to the intent behind the introduction of non-harassment orders, it questioned the practical implications.

Similarly, although the provisions on reforms to the system of civil orders are well intentioned, they were introduced without full consultation, and serious issues and concerns that have been raised in evidence will have to be addressed. I welcome the Government’s commitment to do that at stage 2.

Although the Scottish Conservatives support the general principles of the bill, there is clearly a lot of work to be done at stage 2 to ensure that it is fit for purpose.