Committee
Justice 2 Committee, 12 Dec 2001
12 Dec 2001 · S1 · Justice 2 Committee
Item of business
Sexual Offences (Procedure and Evidence) (Scotland) Bill: Stage 2
Amendment 30 has two parts. The first part is to stop the provisions that prevent the accused from representing himself from applying to summary cases. It seems to me, and to others, that the right to represent oneself in court should be removed only when the Crown believes that the offence is sufficiently serious to merit being tried on indictment.Lewd behaviour covers a wide range of offences. Some could be serious and others could be fairly mundane. Of the offences listed as lewd behaviour in Gordon's "Criminal Law of Scotland", the statutory offences to which the bill applies are specified in paragraphs (g) and (h) of proposed section 288C(1) that the bill adds to the Criminal Procedure (Scotland) Act 1995. That leaves indecent exposure and shameless indecency. The recent cases on indecent exposure indicate that it has to be intentional, although possibly subjectively reckless with"awareness of the risk of exposure", as was found in the McDonald v Cardle case of 1985, reference Scottish Criminal Case Reports 195. Only 39 per cent of those with a charge proved of indecent behaviour receive a custodial sentence. That statistic comes from table 8(c) of "Criminal Proceedings in Scottish Courts, 2000".The second part of the amendment would prevent the same provisions from applying to crimes such as shameless indecency when there has been no direct victim or when the victim consented. Although it is apparently rarely charged, shameless indecency could be almost anything. Many of us might have difficulty in defining it, although there was a case, McLaughlin v Boyd 1934, reference Justiciary Cases 19. Theoretically, as I understand it, shameless indecency that could include a display in a nightclub, intercourse with consent, intercourse in a car or a deserted street, and intercourse with an animal. There is no reason to include that kind of behaviour, when there is no complainer, in the bill.
In the same item of business
The Convener:
Lab
Item 3 is stage 2 of the Sexual Offences (Procedure and Evidence) (Scotland) Bill. I welcome Richard Simpson, the new Deputy Minister for Justice, to the com...
Section 1—Prohibition of personal conduct of defence in cases of certain sexual offences
The Convener:
Lab
I call amendment 1, which is grouped with amendments 18, 19, 2, 30 and 15.
The Deputy Minister for Justice (Dr Richard Simpson):
Lab
Before I talk to the amendments, I thank you for your forbearance, convener, with regard to the letter that we wrote to you about holding back the amendments...
Bill Aitken (Glasgow) (Con):
Con
The issues here are fairly straightforward. Having been convinced of the efficacy of section 1 of the proposed legislation, I am seeking to make it more effe...
Mrs Margaret Ewing (Moray) (SNP):
SNP
Amendment 30 has two parts. The first part is to stop the provisions that prevent the accused from representing himself from applying to summary cases. It se...
Scott Barrie (Dunfermline West) (Lab):
Lab
I would like the minister to clarify amendment 2, as I am not very au fait with the Criminal Law (Consolidation) (Scotland) Act 1995. Was the change to the d...
Dr Simpson:
Yes.
Scott Barrie:
Lab
That is all that I needed to know.
The Convener:
Lab
The committee may want to be assured that amendment 2 deals with the points that were made to us by the Equality Network, which claims that the bill as it st...
Dr Simpson:
I would be happy to.Amendment 18, in the name of Bill Aitken, seeks to add shameless indecency to the list of offences that are covered by the bill, so that ...
Amendment 1 agreed to.
The Convener:
Lab
Amendment 18 was debated with amendment 1. Does Bill Aitken wish to move the amendment?
Bill Aitken:
Con
Having heard the minister, I will not move amendment 18, but I reserve my position for stage 3 until I have checked the matter.
Amendment 18 not moved.
Amendment 19 moved—Bill Aitken—and agreed to.
Amendment 2 moved—Dr Richard Simpson—and agreed to.
The Convener:
Lab
Amendment 3 is grouped with amendments 20, 4, 26 and 27. If amendment 20 is agreed to, amendment 4 will be pre-empted.
Dr Simpson:
Amendments 3 and 4 are tidying amendments. Proposed section 288C(2) of the Criminal Procedure (Scotland) Act 1995, which section 1 of the bill will insert, c...
Bill Aitken:
Con
I disagree with the minister. Amendment 20 is well conceived and would provide a necessary part of the bill. To some extent, it seeks clarification of the te...
Stewart Stevenson (Banff and Buchan) (SNP):
SNP
In commenting on amendment 20, in the name of Bill Aitken, I shall focus particularly on proposed subsection (4A), paragraph (c), to which the minister refer...
Scott Barrie:
Lab
I concur with what Stewart Stevenson said. Amendment 20 strikes against what the bill intends to do. We should be wary of that. Anything that promotes the qu...
The Convener:
Lab
I want to make a few comments in opposition to amendment 20.The committee thought long and hard about the way in which complainers should be protected. We sp...
Dr Simpson:
In our view, the bill should cover all sexual offences. The only relevant question, therefore, is whether the offence is a sexual one. Amendment 20 would mea...
Amendment 3 agreed to.
Amendment 20 moved—Bill Aitken.
The Convener:
Lab
The question is, that amendment 20 be agreed to. Are we agreed?
Members:
No.
The Convener:
Lab
There will be a division.
ForAitken, Bill (Glasgow) (Con)AgainstBarrie, Scott (Dunfermline West) (Lab)Ewing, Mrs Margaret (Moray) (SNP)Lyon, George (Argyll and Bute) (LD)McNeill, Paul...