Meeting of the Parliament 22 March 2016
I refer to my entry in the register of members’ interests as a member of the Faculty of Advocates.
I begin by acknowledging Alison McInnes’s immense contribution to the issue of the alternatives to Cornton Vale. [Applause.]
I turn to what is perhaps the most controversial part of the bill. The provisions in the bill on jury directions are designed to tackle two very important issues: first, any delay in the reporting of a sexual offence; and, secondly, any absence of evidence of physical force. We know that those two issues regularly feature in crimes of sexual violence. We know, from the Police Scotland management information for 2013-14, that a quarter of all sexual crimes and 36 per cent of rapes were reported one or more years after the incident.
We have to accept that Lord Carloway’s view was that there were other ways of dealing with those issues, one way being to seek to declare the matters to be within judicial knowledge. However, even he acknowledged that that approach was not without difficulty. While he took the view that it would be easy to encompass within the two directions the concept that the matters are within the ambit of judicial knowledge, he did not think that every member of the judiciary would necessarily share that view. Yes, issuing such directions breaks new ground, but the approach is not unfamiliar to other jurisdictions. Yes, jury research might have assisted but, alas, the provisions of the Contempt of Court Act 1981 have prevented that up until now.
We know from expert evidence elsewhere that juries often have misguided as well as preconceived views on these issues. Above all, we need to remember that such directions apply only where the issues are raised in the trial itself—they will not be given as a matter of course. Let us remember that judges are used to giving directions to juries. I believe that they can give directions in such cases without undermining the role of juries as masters of the facts. As the cabinet secretary has said, nothing in the bill restricts the leading of expert evidence in any particular case.
We should also bear in mind one other matter that I do not think has been referred to this afternoon, which is the issue of a joint minute of agreement between the prosecution and the defence on matters that could be considered uncontroversial. Mr Meehan of the Faculty of the Advocates said that more use could be made of the statement of uncontroversial evidence to reduce the likelihood of evidence being led on the matters addressed in the two directions. Lord Carloway agreed with that view. Therefore, there are ways of looking at the matter other than by using the two directions.