Hansard

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, contains the list of offences that will be automatically covered. Proposed section 288C(2) talks about sexual offences, not alleged sexual offences. It is taken as read that when the provisions are applied, a trial will not have begun or will be in progress, and so it will not have been proved that the accused committed the offence.Subsections (3) and (4) of proposed section 288C allow the court to extend the provisions to an offence that is not on the list, when a substantial sexual element is involved in the case. Those subsections refer, respectively, to"alleged commission of the offence"and "alleged offence". They spell out the fact that the case against the accused has not yet been proved, but that is unnecessary, because it states the obvious. It could also give the false impression that the word "offences" in subsection (2) is intended to have a different meaning from the words"alleged commission of the offence"or "alleged offences" in subsections (3) and (4) respectively. Amendments 3 and 4 would delete the surplus wording in those subsections.Amendment 20, in the name of Bill Aitken, is misconceived and unnecessary. Proposed section 288C(4) is perfectly adequate to cover the process by which a court can decide whether to treat an offence as a sexual offence and so prevent the accused from questioning the complainer personally.The intention of the bill is that an accused who is charged with any sexual offence will be prohibited from conducting his defence in person. The prohibition does not depend on whether there is a relationship between the accused and the complainer, or whether the quality of the complainer's evidence would be affected by the fact that the accused was conducting the questioning. The Executive believes that, as a matter of principle, complainers in all sexual offences should not have to contemplate the possibility of being questioned personally by the accused.Complainers in all such offences should also have the benefit of the restrictions on the use of evidence about their sexual history or character. The only question to be determined by the court in deciding whether to treat the offence as sexual is whether it is, to all intents and purposes, a sexual offence—whether it has a substantial sexual element.Amendment 20 would bring into the process criteria that are irrelevant to the question whether the offence is sexual. Those criteria are not relevant to the question whether the provisions of the bill will apply to the sexual offences on the main list in proposed section 288C(2). They should not, therefore, be applied to any other offence that is basically a sexual offence.Amendment 20 would also greatly complicate what should be a relatively simple process. The prosecution will be aware of the circumstances of the alleged offence and will draw to the court's attention those factors that show that the offence has a sexual element. It is then up to the court to decide whether that element is substantial enough for the offence to be treated as a sexual offence. There is no need for a complicated set of criteria to be set out in statute, and I ask Bill Aitken not to move amendment 20.The Executive is content to accept amendment 26. We take the point that, at the time of arrest, it will be possible to advise the accused that the offence is one to which proposed section 288C applies only if the offence is listed in proposed section 288C(2). It will not, at that time, be possible to say whether the court would consider whether any other offence is one to which proposed section 288C should apply by virtue of proposed section 288C(4).We do not, however, think that amendment 27 is necessary and it might have an unintended effect that would not be beneficial to the accused. Amendment 27 seems to assume that a hearing under proposed section 288C(4) to decide whether the offence had a substantial sexual element could not take place at the same time as the judicial examination of the accused. We see no reason why those two processes should not happen at the same time, given that the prosecution should have sufficient information at that point to be able to explain to the court the sexual nature of the charge. The earlier that a decision is made on whether the alleged offence is to be treated as a sexual offence, the better. The accused would then be clear, as soon as possible, whether he is required to have a lawyer.Amendment 27 would not stop the decision being made at the judicial examination, but it would mean that an oral warning about obtaining legal representation need not be given following that decision. That would not be beneficial to the accused. I request that Mr Aitken not move amendment 27.I move amendment 3.