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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

Dr Simpson: Watch on SPTV

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 an accused charged with such an offence would not be able to conduct his defence personally. The list in section 1 of the bill is intended to cover all sexual offences. It already covers indecent behaviour, which is stated to include"any lewd, indecent or libidinous practice or behaviour".In the categorisation of crimes in the leading text book of Scottish criminal law, shameless indecency is treated as a subcategory of crimes involving indecent behaviour. I understand that in practice the charge is little used, but if it is, it would be caught by the provision in the bill that covers indecent behaviour. For that reason, we see it as unnecessary to add it to the list separately. I ask Bill Aitken not to move amendment 18.We have considered amendment 19 very carefully. Section 10 of the Criminal Law (Consolidation) (Scotland) Act 1995 covers offences that could involve the questioning in court of a girl who was the victim of a sexual assault or had been seduced or prostituted at the instigation of a parent or someone who had parental responsibility for her. The parent would be the accused. We agree that in those circumstances the girl should have the protections offered by the bill and that the offences covered by the relevant section should be added to the list. For that reason, we accept the amendment.The first part of amendment 30, in the name of Margaret Ewing, would restrict the benefit of the protections of the bill that are afforded to complainers to what might be described as more serious cases—that is to say, cases tried by a jury. We do not think that that is justifiable in principle. An offence may be relatively minor from the point of view of the accused, who may face only a fine or a short period of imprisonment, but the impact of the offence on the victim can be very severe. We considered carefully the scope of the bill as it was being drafted and came to the conclusion that summary cases should also be covered. A complainer in a summary case could potentially be questioned about intimate sexual matters and find the experience distressing. We think that all complainers in sexual offences cases should have the benefit of the protections that are offered by the bill. Members will no doubt recall that one of the cases that the press reported, which started the call for changes in the law, was a summary case.We were rather unclear about the second paragraph of amendment 30. The amendment is unnecessary and unhelpful. Few cases will have no complainer. There may be a difference of opinion in some cases about whether a complainer exists, but the vast majority of instances of the offences that are listed in proposed section 288C of the Criminal Procedure (Scotland) Act 1995 will clearly involve someone against whom the offence was committed. It is not sensible to modify the bill fundamentally to take account of the few cases in which it is arguable whether a complainer exists.Amendment 30 would just add another test that the police and the courts would apply to determine whether the alleged offence is covered by the bill. That complicates matters unnecessarily. As early as possible, it must be as clear as possible whether the provision covers a case. The best way of ensuring that is to refer to the offence charged. That is simple and clear and does not involve anyone deciding whether a sexual offence is victimless.Adding a further test would just create more room for differences of opinion and argument as to whether a complainer exists, and therefore more opportunity for uncertainty. That is unhelpful to the accused and the complainer. I therefore ask Mrs Ewing not to move amendment 30.Scott Barrie raised points, which the convener repeated, about the equality issue, which we believe has been fully addressed. The international criminal court issue is covered adequately by proposed section 288C(4). That allows the matter to be brought back, if the court decides that the offence has a substantial sexual element. The problem is that if we put such offences back in the 1995 act, the police will have to warn people at the early stages and make a decision. For clarity, we feel that that matter is best dealt with separately under proposed section 288C(4), rather than in the list of offences at the beginning of that section.

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Justice 2 Committee, 12 Dec 2001

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