Hansard

I thank the clerks, as well as the witnesses who gave written and oral evidence at stage 1.

Two parts of the bill were more contentious than the rest: judicial directions and whether the provisions about the distribution of intimate photographs without consent ought to be extended to other forms of communication.

Section 1, which introduces a statutory aggravation where an offence consists of the abuse of a partner or ex-partner, was generally welcomed by witnesses. The aggravation also applies where an offence is committed against a third party with the intent of causing distress to the partner or ex-partner, such as actions taken or threatened to be taken against a person’s child, and where the offender has been reckless about whether they caused the victim to suffer physical or psychological harm; the intent to cause harm does not need to be proved for the aggravation to apply.

Some witnesses would have liked a specific offence of domestic abuse to be introduced. The bill does not do that, although I understand that the Government is consulting on that possibility. The aggravation in the bill also applies only to partners, ex-partners and people who are or have been in an intimate personal relationship. Therefore, it does not apply to the physical or psychological abuse of children or elderly relatives, for example. I hope that were a specific offence to be introduced in the next Parliament, coercive control of a wider range of victims would be included.

Section 2 introduces an offence relating to so-called and inappropriately termed “revenge porn”: disclosing or threatening to disclose intimate photographs or films without the person’s consent. Again, the offence covers both the intention to cause fear, alarm or distress and recklessness about whether fear, alarm or distress is caused. In the case of both the aggravation and the new offence, not meaning to cause harm to the victim will not be able to be used as a defence.

Witnesses were strongly supportive of that proposal, believing that it will send out an unequivocal message about the unacceptability of such behaviour, which, as Professors McGlynn and Rackley stated in evidence, contributes to the

“normalization of non-consensual sexual activity and creating a climate in which women’s sexual expression is not respected.”

Some witnesses, such as those from Scottish Women’s Aid and Abused Men in Scotland, argued that the offence was too narrow and should include sound files or texts relating to an intimate situation. Some of us on the committee had considerable sympathy with that viewpoint, but a majority agreed with the cabinet secretary that drawing it too widely could have unintended consequences. I know that my colleague Margaret McDougall, who pursued the matter at committee, will be speaking on it this afternoon.

Other witnesses argued that the offence as drafted was already too broad. Michael Meehan of the Faculty of Advocates cited the example of a person taking a photo of their flatmate asleep on a couch in their underwear and sharing it with another person and that being within the scope of the offence, as the term “intimate image” also includes non-sexual images. I have to say, though, that I would not have much sympathy for the person who shares the image in that situation if it is shared without the consent of the other person.

Concerns were also expressed about whether the offence would criminalise young people involved in sexting. The Children and Young People’s Commissioner Scotland argued that the Crown would have discretion and that offences involving children would be referred to the children’s hearings system rather than the criminal court. He also argued strongly for an education and information programme to advise children and young people of the dangers of some of these activities.

The bill provides for a defence of sharing an image that was taken in a public place, which means that images of people on a public beach, for example, would not be covered. However, other witnesses drew our attention to the disgusting practice of upskirting, in which photographs of body parts are taken without a woman’s consent and distributed. Although such activity is in itself illegal, the distribution of such photographs is not caught by the bill.

The other more controversial issue in the bill is jury direction. The bill amends the Criminal Procedure (Scotland) Act 1995 to ensure that when in a sexual offences trial evidence is led that the victim—or perhaps more accurately complainer—did not tell or delayed telling people about the offence, or did not report or delayed reporting the offence to the police, the judge must advise the jury that there might be good reasons why victims of sexual offences sometimes do not immediately report the offence to another person or the police. Similarly, if evidence is led regarding a lack of physical resistance by the complainer or if the line of questioning elicits such information, the judge must also advise the jury that there can be good reasons why victims of sexual offences do not necessarily physically resist their attackers.

Members of the judiciary such as Lord Carloway and Sheriff Liddle were opposed to such directions, arguing that making such judicial directions mandatory in cases where such evidence has been led or elicited would introduce a precedent and there would be pressure for similar treatment of other offences. They also argued that advice on these matters could be included in the jury manual. The Law Society and the Faculty of Advocates, as well as some committee members, were also unconvinced.

However, Labour members of the committee agree with the Scottish Government on this matter. When the abolition of the requirement for corroboration was introduced in the first draft of the Criminal Justice (Scotland) Bill, we thought long and hard before deciding that we could not support it. We felt that although more sexual offence and domestic abuse cases might come to trial, the prosecution would, without corroboration, be more likely to fail. We were also concerned about the prosecution of other offences on the basis of the evidence of one person.

However, the circumstances that we are talking about here are very different. Juries are made up of ordinary people, and we do not need to undertake a lot of jury research to know that the general public hold misconceptions about sexual offences. Unfortunately, a lot of people still think that a woman’s behaviour can contribute to the offence committed against her, and such perceptions can be compounded if the victim has delayed reporting the offence or has not physically resisted her attacker. If evidence on those matters forms part of the trial, the judge should remind the jury that such factors do not constitute consent.

The bill also extends the court’s ability to award a non-harassment order for a domestic abuse offence in circumstances where the alleged offender has not been fit to stand trial and the evidence suggests that the person is guilty. Although the committee did not oppose such a measure, members were not clear about how useful it would be in practice, particularly if the person in question was not fit to stand trial in the first place. The bill also extends Scottish courts’ jurisdiction to prosecute offences committed against children elsewhere in the United Kingdom—I think that the provision, although welcome, needs to be amended slightly—and it replaces sexual offences prevention orders, foreign travel orders and risk of sexual harm orders with the sexual harm prevention orders and sexual risk orders that can be found in the rest of the UK.

We look forward to having further discussions on the bill at stage 2, but I will be happy to support it tonight at stage 1.