Hansard

Amendment 13 is a drafting amendment. The words that are being removed concern the deadline for lodging an application to introduce evidence about the complainer's character or past behaviour. Amendment 16 creates a new, somewhat stricter provision about that elsewhere in the bill; members will see that in new section 275B(1), which amendment 16 would insert in the Criminal Procedure (Scotland) Act 1995. By removing the words from their current location, amendment 13 is simply clearing the way for amendment 16.Amendment 16 adds a new section 275A to the Criminal Procedure (Scotland) Act 1995. We have already discussed the way in which that has come about, and I will not reiterate the difficulties that we have had with it. The matter is complex and it is central to the bill redressing the balance, which was the Executive's intention when it lodged amendment 16.Sections 7 and 8 create a new regime for character and sexual history evidence. In the future, there will be tighter restrictions on the use of such evidence about the complainer. However, there will still be occasions when the accused succeeds in persuading the court that such evidence is relevant to his defence, has significant value and should be admitted.When that happens, a further question arises. If the accused has argued successfully that evidence about the complainer's past is relevant, what about the accused's past? Can the accused legitimately say that, although the complainer's previous behaviour is relevant, his own behaviour is not? The law allows evidence about the accused's previous convictions to be admitted in certain circumstances. When the accused has attacked the character of any prosecution witness, the Crown can apply to introduce evidence on the accused's previous convictions. It is up to the court to decide whether to grant the application.However, as committee members will be aware from Professor Gane's evidence at stage 1, the existing law is rarely used in sexual offence trials. The perception seems to be that the courts are reluctant to grant applications and the prosecution does not often make such applications. From a reading of the material on the matter, it is also evident that the need to attack the character of the complainer arises at a late stage. One of the central tenets of amendment 16 is to shift the stage at which the debate on such matters would occur.Amendment 16 will strengthen the existing laws in two ways. First, when the accused makes a successful application to introduce evidence about the complainer's character or past behaviour, the court will be required to consider disclosure of the accused's previous sexual offence convictions. That consideration will be done automatically, rather than the court waiting for the prosecution to make an application. Secondly, there will be a presumption in favour of disclosure. However, it will be open to the accused to overturn that by satisfying the court that it would be unfair in the circumstances of his case for his records to be disclosed.I turn now to the detail of amendment 16. Subsections (1) to (3) of the proposed new section that would be inserted in the bill by amendment 16 make consequential changes to the Criminal Procedure (Scotland) Act 1995. The sections to be amended contain rules forbidding disclosure of previous convictions before the sentencing stage and forbid questioning of the accused about them during the trial. As we have seen, the existing law includes exceptions to that, but an additional exception will need to be made to cover the proposed new provisions in amendment 16.Proposed section 275A(1) states that, where an accused makes a successful application to lead evidence about the complainer's character or past behaviour, the prosecutor shall forthwith place any previous relevant conviction of the accused before the judge. There will therefore be a duty on the prosecutor to do that.Proposed section 275A(10) defines "relevant conviction", of which there are two types. The first type is a conviction for a crime that is contained in the list of offences to which the bill's provisions apply automatically. The second type is a conviction for any other offence that has a substantial sexual element.There are two qualifications to that definition. First, a conviction is not a relevant conviction unless it has been specified in the notice of previous convictions that is served on the accused in advance of the trial. Sections 69 and 166 of the 1995 act currently provide for those notices to be served. Secondly, where the conviction is for an offence that is not on the list in the bill, it is not a relevant conviction unless the notice of previous convictions has been accompanied by an extract of that particular conviction. An extract is an official certified copy of the conviction. The extract must disclose the alleged sexual element in the commission of the offence, so it will have to set out the precise wording of the charge.The purpose of those qualifications is to ensure that the accused receives adequate notice of the previous convictions that might be disclosed. His lawyer will then be able to advise him appropriately. Members will notice that only sexual offence convictions are defined as relevant convictions. We think that it is those convictions that are most likely to have a bearing on whether the accused committed the current offence. Other convictions, for offences such as dishonesty, are of more dubious relevance and the existing law will continue to apply to those convictions.Proposed section 275A(2) provides that a relevant conviction will automatically be admitted in evidence, unless the defence objects. Proposed section 275A(4) sets out the grounds on which an objection can be made. The first ground for objection is that the conviction is for an offence that is not included on the list in the bill and the accused denies that there was a substantial sexual element in the commission of the offence. The second ground for objection is that admitting the previous conviction in evidence"would be contrary to the interests of justice".We anticipate that that will be the most commonly used basis for objections. The third and fourth grounds relate to alleged inaccuracies in the prosecution's claims about the accused's record—for example, that the accused was not the person convicted of a particular offence in the past.Proposed section 275A(7) provides that where the accused has objected on the basis that disclosure would be contrary to the interests of justice, the onus is on the accused to satisfy the court that that would be the case. Whenever the onus is on the accused in a criminal trial, it is always on the balance of probabilities rather than being beyond reasonable doubt. There is no need for the bill to spell that out.We have not restricted the accused in the arguments that he can make to overturn the presumption in favour of disclosure. For example, it would be possible for the accused to argue that the extent of his exploration of the complainer's past was minor and that the prejudicial effect on him of disclosing his past record would be disproportionate. It could also be argued that his previous sexual offence convictions were not analogous to the current charge and so lacked relevance.Proposed sections 275A(3), 275A(5) and 275A(6) explain what information about previous convictions can be admitted in evidence. An extract of a previous conviction can set out the full wording of the charge, providing more than the basic details such as the name of the offence and the date of conviction. Proposed section 275A(3) states that an extract cannot be allowed as evidence unless it has been served on the accused before the trial. That is so that the accused can predict the material that is liable to be disclosed if he attacks the complainer's character.Where the accused objects to his previous convictions being disclosed, proposed section 275A(5) allows the prosecutor to put an extract before the court in response to that objection and without any prior notice to the accused. The prosecutor cannot know beforehand what the accused intends to do. It would not, therefore, be reasonable to make the prosecutor give notice in those circumstances. When an extract is placed before the court for that purpose, it must be used only to consider the accused's objection. Once the judge has made a decision on the disclosure, the extract must be discarded and must not be shown to any jury. In other words, the conviction will be presented to the jury but the extract will not be shown unless prior notice was given at the beginning of the trial.We have taken care throughout to ensure that the accused's advisers will be able to establish exactly what information about the accused is liable to be disclosed, if the complainer's character is attacked. Proposed section 275A seeks to ensure that fair notice is given to the accused.We believe that, when the accused has insisted on bringing in evidence about the complainer's past, the court should also receive relevant information about the accused's history. That provides the balanced picture to which we are endeavouring to give effect in the bill. Otherwise, there is a danger that the evidence that the court hears will be skewed in favour of the accused.The accused will continue to be entitled not to have his past behaviour disclosed and to be tried purely on the evidence of what happened at the time of the alleged offence. However, he must accept that that cuts both ways. When the accused argues successfully that the complainer's history is relevant and significant, the prosecution should, in principle, be able to disclose the accused's past record.There is a balance to be struck between the rights of the accused, the rights of the complainer and the rights of the wider community. Rape, in particular, is a crime with a low conviction rate. Consent defences that involve an exploration of the complainer's past are commonplace in sexual offence trials. It is in the public interest that accused persons who have committed sexual offences are convicted and are not allowed to escape justice by criticising the complainer's character or behaviour in a one-sided way, given the accused's past. It is not in the complainer's interests for the accused to be able to attack her character in the knowledge that it is unlikely that there will be any adverse consequences for him, despite his previous convictions for similar offences. However, nothing that we do can, or should, deprive the accused of the presumption of innocence. The accused has a fundamental right to a fair trial and, to that extent, his rights must be paramount.It might help the committee if I were to say something about the impact of the European convention on human rights on amendment 16. Article 6 of the convention confers the right to a fair trial. In particular, article 6.2 entitles an accused to the presumption of innocence. That means that it is for the prosecution to show that the accused committed the offence. Until that happens, the accused is entitled to be regarded as innocent of the charge. However, article 6.2 does not mean that the accused is necessarily entitled to have evidence that might reasonably affect the likelihood of his having committed the offence concealed from the court.In many of the continental countries that are signatories to the convention, the accused's previous convictions are disclosed during the trial as a matter of routine. The European Court of Human Rights has held that that practice does not, in itself, infringe article 6. Of course, there are substantial differences between those continental systems and our system. Many of the continental systems do not use lay juries and do not have an adversarial court procedure; instead, they have a process of fact finding by a trained judge. It could be argued that the judges who operate in those systems are more likely to evaluate accurately the relevance to the case of a previous conviction, rather than responding rapidly to it—such a response might be too adverse to the accused.Even in England and Wales, where jury trials are the backbone of the system, evidence of previous convictions is admitted more often than in Scotland. The doctrine of similar fact allows evidence of past offending behaviour to be introduced where it reveals a pattern of similar behaviour that can also be seen in the case that is being tried. Similar fact evidence can also include evidence of behaviour that has never resulted in a conviction. An example in the rape context is the recent case of R v Z, in which the accused was being tried for a rape. Four different women had previously accused him of raping them, resulting in one conviction and three acquittals. Details of the accused's alleged behaviour were similar in all the cases. The House of Lords held that the prosecution could put the four previous complainers into the witness box and use their evidence of what had happened to them against the accused in the current trial.English case law on similar fact evidence has become very complicated, with a long line of decisions about just how similar the past behaviour must be. The Law Commission for England and Wales has suggested a simplification of the law, in which the probative value of the past behaviour could be weighed up against its prejudicial effect. As far as we are aware, it has not been suggested that English law in that area contravenes the ECHR, or that the Law Commission's proposals would do so. For all those reasons, we are confident that amendment 16 is ECHR-compatible.Members of the committee may know that the Executive's original proposal, which was outlined in the consultation paper "Redressing the Balance", was to make disclosure of the accused's previous sexual offence convictions automatic following a successful application by the accused to introduce evidence about the complainer's character or sexual history. A majority of the consultees supported that proposal, but, on further consideration, we decided that such a provision could be too sweeping, for two reasons. First, the bill creates a weighing exercise that must be gone through before evidence about the complainer's past can be admitted. The original proposal on previous convictions would not have involved any weighing exercise for the accused's convictions. In the context of the other provisions in the bill, we thought that the original proposal could be unfair to the accused by removing the judicial screening that would have taken place when he applied to lead evidence about the complainer. Secondly, we thought that we needed to make some allowance for our system of criminal justice, which is confrontational in nature and which relies on lay juries in serious cases. Without some measure of judicial control, there could be a danger that individual juries would react negatively to a criminal record that was not really similar to the offence that was being tried. Our view was strengthened when we considered how those matters are dealt with in England and Wales.We were anxious to be able to introduce the bill before the summer recess, so that MSPs and others would be able to consider it during the summer. We did not want the provision on previous convictions to hold up the introduction of the bill. However, we did not feel that we could simply press ahead with the original proposal on previous convictions in the light of some of the concerns that had been expressed and which we felt, on further consideration, might be justified. We decided to introduce the bill without a provision on previous convictions and to take time to work out and draft a proper alternative to the original proposal. Hence, we are in the position that the convener referred to. We believe that amendment 16, as lodged, is fair and practical and that it respects the accused's human rights.Before I conclude, I will deal briefly with proposed section 275B, which is also inserted by amendment 16 into the Criminal Procedure (Scotland) Act 1995. Proposed section 275B(1) will require applications to introduce evidence about the complainer's character or past behaviour to be made no later than "14 clear days" before the start of the trial"unless on special cause shown".That provision should avoid the unnecessary disruption that would be caused by applications being made shortly before or part of the way through the trial. Where that happens, there is a risk that the trial may need to be postponed or adjourned. We think that applications at such a late stage should rarely be justified. A defence solicitor who has been involved from an early stage should have taken statements from all the witnesses and should know how a witness is likely to respond to a specific question.Proposed section 275B(2) of the 1995 act simply provides that an application to introduce evidence about the complainer and an objection by the accused to disclosure of his previous convictions must be heard in the absence of the jury, for obvious reasons, and in the absence of the complainer, other witnesses and the public. The existing provisions of the 1995 act make corresponding provision for sexual history evidence applications.Amendment 17 adds some wording specifically on disclosure of previous conviction to the long title of the bill, and follows on from amendment 16.I move amendment 13.