Committee
Justice Committee 01 March 2016
01 Mar 2016 · S4 · Justice Committee
Item of business
Abusive Behaviour and Sexual Harm (Scotland) Bill: Stage 2
Section 2 will create a new offence of disclosing, or threatening to disclose, an intimate photograph or film. Under section 2(1), an offence will be committed if, among other things, person A “intends to cause B fear, alarm or distress or A is reckless as to whether B will be caused fear, alarm or distress”. Amendment 71, which I have lodged on behalf of the Law Society of Scotland, is a probing amendment that seeks to limit the offence to being proved if person A had intended to cause fear, alarm or distress to person B, as opposed to having been reckless as to whether B would suffer fear, alarm or distress as a result of the disclosure of or threats to disclose an intimate photograph or film. During stage 1, the Faculty of Advocates and the Law Society expressed concern about the inclusion of recklessness within the mens rea of this offence. The faculty provided the example of a person who comes home to find his flatmate asleep on the sofa wearing only his boxer shorts and takes a picture of the flatmate, finding it amusing. He has no intent to cause fear, alarm or distress, but is reckless in that regard. The faculty pointed out that in such a scenario, if the person showed the picture to someone else, he would, under the bill, be guilty of an offence, and the bill would offer no defence. Similarly, the Law Society said: “There should be intention to cause harm or humiliation, rather than recklessness. The term ‘recklessness’ is too wide.”—Official Report, Justice Committee, 17 November 2015; c 39. I would therefore welcome the cabinet secretary’s comments, especially in view of the comments that he has just made to Margaret McDougall about the unintended consequences of including an intimate voice recording or written communication. I move amendment 71.
In the same item of business
The Convener
SNP
Item 2 is the Abusive Behaviour and Sexual Harm (Scotland) Bill. I will try to ensure that we get through all the amendments today, so speeches should be sho...
The Convener
SNP
Amendment 69, in the name of Margaret Mitchell, is in a group on its own.
Margaret Mitchell
Con
Amendment 69, which was lodged on behalf of the Law Society of Scotland, would restrict the test for the domestic abuse aggravation to intent rather than int...
Elaine Murray
Lab
I oppose amendment 69. I think that it would provide abusers with a defence that they did not mean to do what they did. I listened to what the Law Society ha...
Roderick Campbell
SNP
I concur with Elaine Murray’s views about the wideness of the provision. From looking back at its evidence, I think that the Law Society seemed to be instinc...
The Convener
SNP
And, on cue, cabinet secretary.
The Cabinet Secretary for Justice (Michael Matheson)
SNP
Amendment 69 relates to the domestic abuse aggravator in section 1. The bill provides that, where an offence is committed against an offender’s partner or ...
Margaret Mitchell
Con
It is clear that amendment 69 is a probing amendment. What the cabinet secretary has not addressed in his comments is the issue of recklessness when it is a ...
The Convener
SNP
Amendment 70, in the name of Margaret McDougall, is grouped with amendments 72 to 82.
Margaret McDougall
Lab
The aim of these amendments is to expand the disclosure section in the bill. The bill only covers the disclosure of photographs and film. The amendments, whi...
John Finnie
Ind
I have to say that I have changed my position on this matter. The intention of this section of the bill is very clear. Margaret McDougall talked about those ...
Roderick Campbell
SNP
I recognise that there are different opinions from various groups about whether the section should be extended. I take on board the point that Margaret McDou...
Alison McInnes (North East Scotland) (LD)
LD
I will not say very much, because I do not have much of a voice. I suggest that we proceed cautiously. I agree with what Roddy Campbell said, and I do not su...
The Convener
SNP
Some people will wish that I would get that affliction occasionally. Laughter. The cabinet secretary is smiling in agreement at that comment, which is not a ...
Michael Matheson
SNP
Amendments 70 and 72 to 82 would expand the scope of the intimate images offence at section 2 to cover intimate sound recordings and written communications. ...
Margaret McDougall
Lab
I understand that amendment 70 might introduce unintended consequences, but you have to show criminal intent to break the law and be charged with a crime. As...
The Convener
SNP
You have already moved it and, because you have asked the cabinet secretary to respond, I will allow him to do so.
Michael Matheson
SNP
The first thing that I should say is that recklessness is not the same as intent, and the test is less onerous in those cases. I am always willing to have d...
The Convener
SNP
It is decision time, Margaret.
Margaret McDougall
Lab
I note what the cabinet secretary says, but I will press amendment 70.
The Convener
SNP
The question is, that amendment 70 be agreed to. Are we agreed? Members: No.
The Convener
SNP
There will be a division. For Finnie, John (Highlands and Islands) (Ind) McDougall, Margaret (Central Scotland) (Lab) Murray, Elaine (Dumfriesshire) (Lab...
The Convener
SNP
The result of the division is: For 3, Against 6, Abstentions 0. Amendment 70 disagreed to.
The Convener
SNP
Amendment 71, in the name of Margaret Mitchell, is in a group on its own.
Margaret Mitchell
Con
Section 2 will create a new offence of disclosing, or threatening to disclose, an intimate photograph or film. Under section 2(1), an offence will be committ...
Elaine Murray
Lab
I oppose amendment 71, for many of the reasons why I opposed amendment 69. As I said during the stage 1 debate, I have no sympathy for the flatmate who takes...
The Convener
SNP
Boxer shorts are featuring highly in today’s conversation. I know we are going to have more of this.
Roderick Campbell
SNP
Perhaps I should refer to my interest—
The Convener
SNP
I thought that you were going to refer to your boxer shorts for a moment. I beg your pardon—that was very silly of me.
Roderick Campbell
SNP
That would be too much information, convener. I was referring to my entry in the register of members’ interests and my membership of the Faculty of Advocates...