Meeting of the Parliament 28 January 2016
I, too, thank the witnesses for their thought-provoking written and oral evidence. I hope that they are reassured by the stage 1 report that their comments were taken on board. I also thank the officials for their compilation of the report and the Scottish Government for its response.
Like others, I want to talk about jury directions. I have changed my mind on the issue. Initially, I was persuaded that the availability of expert evidence that could be put forward by the prosecution or the defence was an even-handed way of addressing the issues of delay in reporting and resistance, but I have changed my position and will explain why.
The committee has agreed that the proposed statutory directions would provide relevant factual information for juries—I do not think that that is in dispute—and would lead to directions being delivered more consistently than is currently the case.
Partly, I have been persuaded to change my position by headlines such as “Campaigners’ fury as appeal judges clear bottom groper of sex attack in nightclub”. That story involves a gentleman who was initially found guilty of sexual assault and placed on the sex offenders register—properly, in my opinion—and who appealed the sentence. In his judgment, the judge who heard the appeal said that it seemed that the sheriff who passed the original sentence
“has not given sufficient attention to the fact that the appellant had consumed a considerable amount of drink beforehand, with the result that the assault can be regarded as drink-fuelled rather than overtly sexual.”
That is deeply damaging to a lot of work that has gone on.
Alison McInnes referred to another case, which is one that prompted me to lodge a parliamentary motion. It involved repeated rapes of an adult and the sexual abuse of children. The trial judge referred to the matter as minor, criticised the adult victim for a delay in reporting the assaults, claimed that the victim was “condoning” or “acquiescing” in being raped, pointed out that the person continued to live with the accused and talked about the parties’ “benefit-grubbing existence”.
My motion welcomed
“both the Appeal Court’s comments that the trial judge ‘had no basis for his theories’ and the increased sentence that it handed down”.
However, my motion talked about the damage that the case has done to
“the good and difficult work carried out by the police, prosecuting authorities, statutory and third-sector organisations to build victims’ confidence in coming forward to report sexual crime”
and called on
“the judicial authorities to examine selection procedures and training, including offering remedial training if required”—
a need that I felt that case graphically illustrated.
Lord Carloway addressed the matter head on when he attended the committee. He said:
“It is important that a judge should feel free to state exactly why he has selected a particular sentence and be given free rein to explain his reasoning. If in the course of that reasoning he says something that the appeal court determines is wrong, we will say that, as we did in that particular case, and we will expect the judge to take into account the appeal court’s view and to act accordingly.”—[Official Report, Justice Committee, 8 December 2015; c 44.]
That is one reason for the bill. Christian Allard also touched on the compelling evidence that we have received from the Scottish Human Rights Commission. It is about striking a balance between rights and, in terms of jury directions, I believe that we have got the balance right.
Beyond that, there are other issues that we need to deal with, such as judicial training. The cabinet secretary talked about unenlightened views, and it is apparent that they exist not just among the public. If, as someone whose views I admire says, the judiciary have had their chance and it is time to legislate, and if this is appropriate and balanced legislation, the Green/Independent group will support it.
16:41