Hansard

As Peter Beaton said, members already have the policy memorandum and the explanatory notes. I will not repeat what they say in detail; instead, I will give a general overview of the bill. I was asked to cover some specific points and I will try to do so.My first point relates to the current law and procedure on cross-examination in sexual offence cases. At present, such cases are no different from any others. An accused is entitled to conduct his defence personally in any case. There are only limited circumstances in which the court would appoint a legal adviser for someone who did not have one—for example, if an accused who was representing himself seriously misconducted himself in court to the extent that the trial could not continue. We understand that, in practice, such cases are extremely rare.The bill prevents an accused in a sexual offence case from conducting his defence personally. Therefore, it also prevents him from cross-examining the complainer, or complainers, in a sexual offence case. The restriction will apply to all sexual offences, including rape, indecent assault, lewd and libidinous behaviour and all—or virtually all—the statutory sexual offences. There is also a provision whereby the court can apply the bill's provisions to a case that does not fall within the list that is given in the bill but that has a significant sexual element. That provision is intended to cover cases such as stalking, which might appear as a breach of the peace charge, or even offences such as housebreaking, where it is clear from the activity that went on in the house that the crime had a sexual motivation.The second part of the bill deals with the questioning of the complainer as to his or her character and other sexual activity or behaviour in which they have taken part. The existing rules about such questioning, which are contained in the Criminal Procedure (Scotland) Act 1995, make it inadmissible to ask any question or lead any evidence that is designed to show that the complainer—the victim—is not of good character in sexual matters, is a prostitute or has engaged in any sexual behaviour that is not part of the charge. An application can be made to allow such questioning on a number of grounds, including the general ground that it would be contrary to the interests of justice to exclude such evidence.At present, such applications are made orally during the course of the trial and arguments would be heard outwith the presence of the jury. The bill replaces the existing provisions with a new set of provisions that will cover the same list of offences but that adopt a different approach. The new provisions create a general rule that the court is not to allow questioning or evidence that is designed to show that the complainer is not of good character, has ever engaged in any sexual behaviour that is not involved in the charge or has engaged in any non-sexual behaviour, or is subject to a condition or predisposition that might be used to imply that the complainer had consented or that he or she should not be believed. Questioning about something that happens at the same time as, or close in time to, the acts that form part of the charge is allowed.The new provisions will require applications to be made in writing, usually before the start of the trial, and to be disposed of at that point if possible. Applications will have to give detailed reasons for the evidence that the defence seeks to introduce. Such applications will be determined outwith the presence of the jury and on the basis of argument.The intention of these new provisions is that questioning about the complainer's character generally, or questioning about any behaviour, either sexual or non-sexual, other than that which occurred at the time of the events described in the charge, or questioning on matters such as the complainer's medical history, usually will not be allowed. Their purpose is to focus attention on the events that took place as part of the alleged crime and on the accused's actions and intentions, rather than allowing attention to be diverted in such a way that the trial becomes more concerned with the complainer's behaviour or character than with that of the accused.The bill also provides a process in which evidence that would be excluded under the general rule can be admitted if the court is satisfied that it is relevant and sufficiently important to outweigh any possible prejudicial effect that it might have. The phrase "prejudicial effect" is intended to cover both the infringement of the complainer's privacy and dignity and any possibility that the evidence might distort the issues.I hope that that gives members an outline of the basic provisions of the bill.I was also asked to address the consultation process. As members are aware, in November last year we issued the consultation paper "Redressing the Balance: Cross-examination in Rape and Sexual Offence Trials". The consultation closed on 31 January and the bill was introduced in June, so the timetable between the end of the consultation and the introduction of the bill was pretty tight. We received a large number of responses—about 70 in total. Some did not arrive until March, but we still took account of them.While we were writing the consultation paper, we also held a number of meetings with interest groups, such as the legal professions, a senior judge, victim support groups, rape crisis groups and women's support groups. We received written responses from a similar range of groups, as well as from local authorities, legal academics, police organisations and some individuals. As we had expected, there was a fairly clear divergence of opinion between the legal professions and the judges on the one side and victims, women's support groups and other voluntary organisations on the other.The legal professions and judges were generally not enthusiastic about the proposals. They tended to take the view that no changes to the law were required, whereas other respondents tended to agree that changes were needed, and were fairly supportive of our proposals. The divergence of opinion was greater on the question of preventing an accused conducting his defence personally compared to that of opinion on the sexual history and character evidence proposals.Nearly all respondents among the legal profession and judges took the view that none of options 1 to 4 in the consultation paper was necessary or acceptable. However, their opposition to the proposals on sexual history and character evidence was less strenuous. Some respondents acknowledged that there might be a problem, but most of them felt that those matters would be better tackled through training and encouraging changes in attitude. We published a report on the consultation in June, which is available on the Scottish Executive website. On the option chosen for cross-examination being conducted personally by the accused, a majority of respondents were in favour of option 3, which is adopted by the bill.I will turn now to legislative competence. I was asked to give an explanation of the Executive's reasoning on the option that has been chosen, specifically in relation to its European convention on human rights implications. If members bear with me, I will try to do so without using too much legal jargon. Members will be relieved to hear that I do not intend to quote specific case law. We have seen a research paper produced by the Scottish Parliament information centre that provides a very good summary of the background law and relevant cases. In prosecuting crime, the state has a clear interest in ensuring public order and safety and maintaining the confidence of members of the community. In doing so, it has to have regard to the rights of individuals, both those accused of crime and the victims of crime. The question is whether the bill strikes the right balance between those rights. In the Executive's view, it does. The convention right that most clearly concerns cross-examination by the accused personally is article 6.3(c), which is the right of an accused"to defend himself in person or through legal assistance of his own choosing or, if he has not sufficient means to pay for legal assistance, to be given it free when the interests of justice so require".The question is whether that confers an absolute right on the part of the accused to conduct his defence personally. In our view, having looked at the relevant case law, it does not. The convention case law recognises what is known as the margin of appreciation, under which it is left to individual states that are party to the convention to make rules suitable to their own circumstances within the general principles set down in the convention. The body of law that has been built up by cases in the European Court of Justice indicates that a rule requiring an accused to be legally represented will usually be considered to be legitimate. A number of the cases indicate that the accused does not have the absolute right to decide for himself how his defence is assured. It is clear that any limitations of the rights conferred by article 6.3(c) will be legitimate where particular circumstances make that appropriate in the interests of justice and, in particular, where the accused's rights under article 6 have to be balanced against the rights of others under the convention. In essence, we do not consider that the accused has an absolute right to defend himself in person and we consider that it is legitimate to require the accused to be legally represented in certain circumstances. The question is what the appropriate circumstances are under which such a requirement can be imposed. The questioning undergone by a complainer in a sexual offence case is always likely to be a distressing and, possibly, humiliating experience, involving detailed descriptions of sexual behaviour, frequently of a degrading nature. Such questioning may give rise to issues concerning the complainer's rights under article 8 of the convention "to respect for private and family life".Although article 8 does not impose an absolute prohibition on interference with the "Right to respect for … family life",any such interference must be in the public interest and must be proportionate to the purpose of the proceedings.Some interference with article 8 rights is justifiable as an essential part of the process of the prosecution of crime. However, that should be limited to the extent necessary for dealing with the crime involved and ensuring the fair trial of the person charged.Our policy aim is to protect the complainer in a sexual offence case from being subjected to the potentially humiliating experience of being cross-examined by the person alleged to have committed the offence. As a matter of principle, the Executive considers that in no case should a complainer in a sexual offence case be faced with the possibility of being questioned directly by the alleged attacker.In the Executive's view, the complainer having to fear the possibility of such a confrontation represents an unnecessary aggravation of an already distressing experience. Therefore, it seems reasonable to ensure that distressing questioning is done only by someone who is not personally involved and is carried out in a detached and professional manner, as we might expect of the legal professions.More generally, it could be asked whether the proposals contained in the bill are a proportionate response to circumstances that pertain in Scotland. There are two elements to that question. First, is there a real problem in Scotland that needs to be addressed? Secondly, have we gone too far in requiring the accused to be represented throughout the trial, rather than simply during the cross-examination of the complainer?On the first issue, we are aware that there have been few reports of Scottish cases of sexual offences in which the accused has chosen to represent himself. An analysis of the cases that there have been does not show that complainers were subjected to serious humiliation without the court intervening. The court has the power and the duty to protect complainers from harassment and intimidation.In Scotland, there have not been cases of the seriousness of, for example, Ralston v Edwards in England in 1996, in which the complainer was subjected to six days of questioning by the accused. However, that does not mean that such cases could not arise here—in the Executive's view, the risk of that happening and accordingly of a complainer's rights to dignity and privacy being infringed beyond what is necessary for a fair trial, is more than negligible. Therefore, it is appropriate to propose measures to Parliament that would have the effect of protecting complainers from such a risk.On the second issue, as we consider that it is legitimate to prevent the accused from representing himself for part of the proceedings, we examined how that would affect the whole conduct of the trial in the context of the Scottish criminal justice system. We were concerned that although requiring the accused to be represented for only part of the trial was justifiable under the ECHR, in some circumstances that might have a knock-on effect on the adequacy of the presentation of the defence of the accused.Option 3 offers clear practical advantages in reducing that risk by giving the lawyer the chance to prepare the defence case, ensuring consistency of presentation during the trial and avoiding disruption during the trial. As I have mentioned, ECHR case law confirms that the accused does not have an absolute right to decide in what manner his defence is assured.An accused who does not take heed of the numerous occasions on which he is advised that he must be legally represented at the trial will end up with a lawyer appointed for him by the court. Some might argue that that infringes the right of the accused to "legal assistance of his own choosing",in that he cannot then dismiss that lawyer. We do not think that there is any substance to that argument. The accused will have had ample opportunity to appoint his own lawyer up until shortly before the trial.The court's duty to appoint a solicitor for the accused comes into effect only where the accused has no solicitor and the court is not satisfied that he intends to engage one—where the accused is not exercising his right to appoint legal assistance of his choosing. If the accused were able then to change his mind and dismiss the solicitor appointed by the court, saying that he wanted to appoint his own solicitor, that would give him a way of delaying the trial indefinitely. That cannot be consistent with the interests of justice.On the provisions of the bill that relate to evidence about the complainer's character or sexual history, the relevant convention right to be considered, as regards the interests of the accused, is article 6.3(d), which is "to examine or have examined witnesses against him".In the Executive's view, that does not give the accused an absolute and unqualified right to put whatever questions he chooses to witnesses. Therefore, we take the view that it is permissible to modify or restrict the right, as long as the fundamental right of the accused to a fair trial is not infringed.The provisions of this part of the bill are directed at protecting the rights of complainers in sexual offence cases in respect of their private lives, as outlined in article 8 of the ECHR. Again, it is a question of finding the right balance between the competing interests of the accused and the complainer. Because of the impossibility of predicting in advance what kinds or items of evidence may be relevant in a particular case, we did not think it appropriate to provide that a particular type of evidence is never relevant. In some cases, such a provision might tip the balance too far in favour of the complainer and give rise to unfairness to the accused.Instead, we set out a general rule that restricts the admissibility of certain types of evidence and combines that with a judicial discretion that would be exercised within clearly defined boundaries and according to a detailed two-stage process. The court has to decide whether the evidence is relevant and then weigh its value against any prejudice that it might cause in relation to invasion of the complainer's rights to privacy or distorting the issues.Such a process should achieve a reasonable balance between the interests of the accused under article 6 of the convention and those of the complainer under article 8. Members might be aware from press reports of a recent case in the House of Lords—R v A—which concerned the ECHR compatibility of comparable English provisions in section 41 of the Youth Justice and Criminal Evidence Act 1999. The outcome of that case has confirmed our view that the courts are likely to consider our approach to be compatible with the convention.Overall, the Executive considers that both parts of the bill strike a reasonable balance between the community interest and the rights of individuals, but that is a matter for the Parliament to debate and decide on. I hope that my explanation of the Executive's views on those issues will inform the debate and help the committee and Parliament to reach a conclusion on the acceptability of the bill.As I have been speaking for more than 15 minutes, I will say no more at this stage. I will be happy to take members' questions.