Hansard

This is a short but important bill, whereby the Executive fulfils a commitment to improve significantly the way victims of sexual crimes are treated in our criminal justice system, while still ensuring that those accused of such crimes receive a fair trial. Those have been our twin objectives throughout the process leading up to today's debate. I am therefore encouraged to see that the Justice 2 Committee's stage 1 report concludes that the bill strikes the right balance between the protection of the complainer and the rights of the accused, and that the committee recommends that the Parliament agrees to the general principles of the bill.

The committee's conclusion was reached after a searching process of evidence taking from a wide range of interests. I would therefore like to record my thanks to the members of the committee and their staff for the hard work that has gone into producing the report. The report highlights a number of issues for us to consider further. If, at the conclusion of the debate, the Parliament sees fit to support the general principles of the bill, we will ensure that those issues are addressed in full before stage 2.

The Executive made a commitment to introduce the bill in June 2000. A pre-legislative consultation document, "Redressing the Balance: Cross-Examination in Rape and Sexual Offence Trials", was issued on 9 November 2000 and the consultation period officially closed on 31 January 2001. Our deadline for introducing the bill was 28 June. That was a very challenging deadline, but one that we were able to meet. I would like to thank everyone who took the time and trouble to participate in our consultation exercise. Without their contributions we would not have been able to introduce the bill on time.

The single most important aim of the bill is to reduce the fear factor that alienates victims of sexual crimes from our criminal justice system. That aim is an integral part of the Executive's commitment to support the victims of crime, which we made in our programme for government and confirmed in the Scottish strategy for victims.

Although the bill focuses particularly on complainer witnesses in sexual offence cases, it is part of a wider programme of work. Next year, we will be consulting on whether further changes to the law of evidence are needed to help other vulnerable or intimidated witnesses testify in court. We will be considering the whole range of witnesses who may have additional needs and examining whether changes to practices and procedures are needed.

The bill slots into a much wider framework, within which it is designed to tackle some of the particular problems faced by victims of sexual offences. We all know that the majority of such victims are women, but we should not forget that there are also male victims of sexual abuse and assault. They share the feelings of shame, humiliation, fear and anger that all victims experience. The Sexual Offences (Procedure and Evidence) (Scotland) Bill will protect them, too.

If it is passed, the bill will do three things. It will ban an accused in a sexual offence case from conducting his or her own defence. It will strengthen the existing law regulating the use of evidence about the complainer's character and past behaviour. Finally, it will require any defence of consent or belief in consent to be notified before the trial.

The first part of the bill responds to the concern created by three recent cases where an accused charged with a sexual offence did not have a lawyer and questioned the complainers himself. We have always acknowledged that such cases are rare, but their small number does not diminish the trauma caused to those individuals most closely involved. Furthermore, the publicity about recent cases may have exacerbated the fear of going to court among victims. A victim is always likely to dread questioning about the humiliating details of a sexual attack. That dread can only be made worse if there is a possibility of the questioning being done by the person who may be responsible for the attack. If someone were to ask us today whether that could happen, we would have to admit that it could; passing the bill would mean that we would be able to say in truth that it could not.

The bill bans an accused charged with a sexual offence from conducting his or her defence in person at the trial. We are taking a different approach from that adopted in England and Wales. We considered carefully the solution chosen in England and Wales, but came to the conclusion that there are significant differences between our respective systems, which mean that a different approach is needed here. In Scotland, there is usually no disclosure of evidence by each side to the other before the trial. In England and Wales there are rules that require pre-trial disclosure. In England and Wales the defence will have seen the statements of the prosecution witnesses before the trial starts. In Scotland each side will interview witnesses separately as they see fit, and usually neither side will see the other's statements. A full picture of the evidence will emerge only during the trial itself.

A lawyer brought into the case for the sole purpose of questioning the complainer—who may not be the first witness—without having access to the prosecution statements, and without having had an opportunity to prepare the defence case in advance, would be unlikely to be able to represent the accused effectively. In our view, requiring the accused to be legally represented for the whole trial protects the interests of the complainer and the accused.

We have been careful in the bill to provide other protections for the accused. The schedule provides for a series of notices to be given, from arrest onwards, alerting an accused to the need to appoint a solicitor. He or she will have plenty of time to select their own lawyer, but if they refuse to appoint anyone, ultimately the court will choose a solicitor for them. That solicitor will be under a duty to try to get instructions from the accused. Where the accused does not co-operate, the solicitor will have the authority to act in the accused's best interests on the basis of the material available.

The other major change proposed by the bill is in relation to questioning about the complainer's character and past behaviour. At the moment, applications to introduce sexual history evidence about the complainer can be made orally in the course of the trial with no prior notice. Discussion of those applications may be fairly brief. Sometimes, the evidence slips through without application and before any objection can be made to stop it. Furthermore, there is currently no need to make an application when the evidence is about the complainer's general character or non-sexual behaviour, rather than about sexual activity. Questioning of the complainer as to whether she is an alcoholic, has used drugs or has suffered mental illness may be made without any formal application at all, and with little, if any, examination as to whether such questioning is relevant to the issues at trial.

Published research suggests that there are subtle character attacks, using non-sexual evidence to hint at sexual behaviour or to undermine the complainer's credibility, which the current law does little or nothing to prevent. That research is not recent, and it may be that that situation is now less common, but the perception is that it happens. The bill must give confidence that it will not.

The bill tackles those problems in two ways. First, it brings the question of the relevance of the evidence, and the purpose for which it is to be used, much more to the forefront. Secondly, it sets down a clear process by which the admissibility of the evidence is to be determined, a process that involves consideration of the rights of the complainer as well as of the accused.

The bill sets out the criteria to be used to decide whether an application to introduce character or sexual history evidence should be granted. There is a series of stages at which the evidence must be assessed before it can be admitted. First, the evidence must be about specific instances of behaviour by the complainer or specific facts. Secondly, the evidence must be relevant to an issue at stake in the trial. Thirdly, the evidence will have to have significant probative value, that is, it will need to be of potentially significant help to the judge or jury in resolving the case. Fourthly, that significant value must outweigh any prejudice to the proper administration of justice that will be caused by admitting the evidence. The proper administration of justice, of course, includes ensuring that the accused can present a full and fair defence. That is a fundamental pillar of our system of justice.

The bill does, however, draw the court's attention to two other factors in assessing whether justice requires that the evidence be admitted. One of those is the possibility of diverting the jury's attention from the major issues it has to decide. It is not, after all, the function of the trial to pass judgment on the character of the complainer. The other factor is the need to give appropriate protection to the complainer's privacy and dignity. This is the first time that the complainer's rights and interests have been given any express status in the process. I hope that members will agree that that is a major step forward.

The bill also introduces a written application process for the admission of that evidence and, unless there is a good reason for lateness, the application must be lodged before the trial. As the Justice 2 Committee recognised in its report, that is intended to ensure that such evidence is considered in a thorough, detailed and structured way. It is also intended to ensure that the issues are clarified and dealt with before the trial begins.

However, I note the concerns that the committee has expressed about some aspects of the application process and the potential for delay, either before or during the trial. I assure members that we will consider carefully how to address those concerns before stage 2 of the bill.

The bill will also require the accused to give notice before the trial of any intended defence of consent, including a defence of belief in consent. That would be the third effect of the bill, should it become law. Late notification will still be permitted on cause shown. I know that, at the committee stage, doubts were expressed about the practical benefit of such a provision to the complainer. I will therefore take a moment to set out clearly the aims of the provision.

First, the provision will give the complainer fair warning that consent will be an issue and will allow her to prepare psychologically for the type of questioning that she might face. Of course, in most sexual offence cases, the absence of consent is an essential element of the crime. Evidence of that will have to be led by the prosecution, and that might involve evidence of the use of force or threats.

In cases where the accused and the complainer are known to each other, the complainer might expect that the accused's position will be that the complainer consented. However, there are other cases where such a defence might be entirely unexpected—for example, in a case where the complainer has suffered injuries, clearly showing that force was used. It is not unknown for an accuser to counter such evidence with argument that the complainer enjoyed being treated roughly and that consent was given.

Even in cases where the accused and the complainer are total strangers, and where there is a strong prosecution case, the accused might still argue that the complainer consented. In such cases, the suggestion that she actually consented to the violence against her could come as a complete shock to the complainer. Advance notification will prevent that from happening.

The provision also links in with the requirement to make an application to lead evidence about the complainer's character or sexual history. That sort of evidence will rarely be relevant, unless the defence is consent. Before considering any application, it is important that the court knows that the accused is alleging consent.

In combination with the provisions on sexual history evidence, the provision tries to create a situation where, before the trial begins, both sides are clear on what the issues are and what evidence about the complainer the accused will be seeking to lead, if any. The trial should be concerned primarily with whether the accused did or did not commit the alleged offence and not with the conduct of the complainer.

During stage 1 evidence, it was suggested to the committee that the provision is an attempt to shift the burden of proof from the prosecution to the accused. That has never been our intention and I am pleased to see that the committee's report accepts that the provision would not have that effect. We acknowledge, however, that some of the words in the bill could be used to imply that a burden has been placed on the accused. We will consider that wording carefully and see whether a stage 2 amendment might be needed in order to dispel that ambiguity.

Some concerns have also been expressed about the range of offences to which the bill applies. The Equality Network has made some good points about the treatment of homosexual offences. We are committed to ensuring that the bill does not have a discriminatory impact based on sexual orientation. There are some practical problems with certain aspects of the Equality Network's suggested amendments. However, we intend to lodge an Executive amendment at stage 2 to deal with the issues that have been raised.

In the consultation document "Redressing the Balance: Cross-Examination in Rape and Sexual Offence Trials", we sought views on whether an accused's previous convictions for sexual offences should automatically go before the court following a successful application to lead character or sexual history evidence about the complainer. Large numbers of consultees backed that proposal. However, arguments were made in opposition to it. At the time that the bill was drafted, it was felt that such a provision could be too sweeping and that we should consider the matter further.

After further consideration, we have decided to introduce a modified proposal. If members agree to the general principles of the bill, we will lodge an amendment at stage 2 that will require the judge, following a successful application by the accused to lead evidence about the complainer's past, to consider whether any previous sexual offence convictions of the accused should be disclosed.

A presumption will be made in favour of disclosure, but it will be open to the accused to overturn that by satisfying the court that revealing his or her record would be contrary to the interests of justice. The normal presumption of innocence will apply in relation to the offence being tried, and it will be for the prosecution to convince the jury of the accused's guilt beyond any reasonable doubt.

Under current law, it is open to the court to grant a prosecution application to admit evidence of the accused's previous convictions when the defence has attacked the complainer's character. However, members of the Justice 2 Committee will be aware from Professor Gane's evidence to them that that provision is rarely used in sexual offence trials.

In the months preceding this debate, concerns have been voiced about whether the bill is compatible with the European convention on human rights. Such compatibility is a fundamental requirement of our legislative process.

At the heart of most human rights issues lies a balance that must be struck. The bill is no different. Article 6.3(c) of the convention confers on an accused the right

"to defend himself in person or through legal assistance of his own choosing".

The question is whether that gives him an absolute right to conduct his defence personally. In our view, it does not.

The body of case law that the European Court of Human Rights has built up suggests that a rule that requires an accused to be legally represented is usually regarded as legitimate. It is clear that limitations on the rights conferred by article 6.3(c) may be justified by circumstances that make them appropriate in the interests of justice. Such circumstances may arise when the accused's rights under article 6 must be balanced against the rights of others under the convention.