Meeting of the Parliament 28 January 2016
I welcome today’s stage 1 debate on the Abusive Behaviour and Sexual Harm (Scotland) Bill and echo the thanks that have already been expressed to the Justice Committee, for a substantial and thorough report, and to the witnesses and stakeholders who assiduously helped to inform its findings.
From the tenor of the speeches in the debate, it seems that there is a consensus that the bill will have a positive impact, not least because it adjusts the criminal justice system to the challenges that have been created by modern communications technology. During the debate, there has also emerged recognition of the need for some reflection on and refinement of the bill at stage 2.
Members have already covered many areas of the bill but, in the time that is available, I will focus my remarks on the new statutory aggravator and the controversial introduction of jury directions in sexual offence cases, which I know has exercised the judiciary and legal practitioners alike.
The new domestic abuse aggravator is a welcome acknowledgement that the justice system should treat cases of partner abuse with the seriousness that they demand. I have little doubt that the Crown Office and Procurator Fiscal Service and the courts are already robust in their handling of such cases and that special measures are in place to prosecute them expeditiously and with sensitivity. Nevertheless, the tougher sentencing that is intended to result from the aggravation will provide reassurance to victims that the disposal fully reflects the reality of repeated psychological and physical abuse perpetrated by someone in a position of trust.
However, I note the concern that the flexibility for the aggravation to be used in relation to first-time offences may have unintended consequences, including the possibility that it will be applied in isolated domestic dispute cases. I therefore urge the Scottish Government to look again at that aspect at stage 2 to ensure that the provision does not inadvertently dilute the seriousness of sustained partner abuse and that it is applied proportionately.
Section 6 introduces two jury directions in sexual offence cases in the context of, first, a delay in the complainer telling someone about the offence or reporting the offence to an investigating agency and, secondly, evidence being given to suggest that sexual activity took place without physical resistance by the complainer. I am sympathetic to the intention behind section 6, which seeks to dispel the public’s preconceptions surrounding some key aspects of sexual violence. However, I strongly believe that statutory jury directions are not the way to achieve that desired outcome, and I urge caution. Stakeholders were clear that such measures would erode the judiciary’s discretion and that there is no empirical evidence that the jury directions are required. Worse than that, such directions could have the unintended consequence of the defence leading expert evidence that it might not otherwise have proposed simply to mitigate a possible anticipated forensic disadvantage.
Lord Carloway, for example, suggested that a better way to do it would be to declare that the measures are within judicial knowledge—I am slightly paraphrasing him. Sheriff Liddle argued that
“the place for such suggestions would be the jury manual”.—[Official Report, Justice Committee, 8 December 2015; c 37.]
Those are authoritative views and, to me, they are persuasive. As Christina McKelvie observed, the last thing that we want to do is to make conviction more difficult simply because there might be confusion in the judge’s charge to the jury.
That said, and subject to those comments, the bill is a welcome and positive piece of proposed legislation. I look forward to the Government’s response at stage 2, but my party will support the bill at decision time.
16:45