Chamber
Plenary, 21 Nov 2001
21 Nov 2001 · S1 · Plenary
Item of business
Sexual Offences (Procedure and Evidence) (Scotland) Bill: Stage 1
Mr Gallie raises an interesting question, but it is perhaps not for this debate, because the bill would set such a situation right by changing the legislative framework. I might take advice on that issue and write to Phil Gallie.
The questioning that complainers experience in sexual offence trials may relate to rights that are protected by article 8 of the convention. Article 8 does not confer any absolute right to non-interference in privacy, but it requires such interference to be in the public interest and proportionate. Some interference with article 8 rights is justifiable as an unavoidable part of the prosecution of a crime.
When an accused conducts his or her own defence, the complainer and alleged attacker are in direct confrontation. Such a confrontation is unnecessary for a fair trial. There have been very few Scottish sexual offence cases in which the accused has conducted his own defence, but there have been some.
The courts have a duty to protect complainers from harassment and intimidation. I do not suggest that they failed to observe that duty in the three cases that we know have occurred, but even legitimate questioning of complainers in sexual offence trials is likely to be embarrassing, humiliating and intrusive. That position is aggravated if the alleged attacker conducts the questioning.
In relation to character and sexual history evidence, article 6.3(d) of the ECHR confers on the accused the right
"to examine or have examined witnesses against him".
That does not entitle an accused to put whatever questions he chooses to witnesses. It is permissible to restrict the evidence that is admissible, provided that the fundamental right to a fair trial is not infringed. Those provisions in the bill are also directed towards protecting the right of complainers to respect for their private lives under article 8.
Questioning about character and sexual history that is intended to back up a consent defence could cause a complainer great distress and be a considerable invasion of his or her privacy. The law already accepts that that needs to be regulated, but the law is too loosely drawn to ensure that aim. Once again, a balance must be struck between the rights of the complainer and those of the accused.
The bill's consultation document was not called "Redressing the Balance" for nothing. That title describes what the bill is intended to do. It should redress the balance between the rights of the complainer and those of the accused. The bill represents a reasoned, just and realistic balance for sexual offence trials. I urge members to support it.
I move,
That the Parliament agrees to the general principles of the Sexual Offences (Procedure and Evidence) (Scotland) Bill.
The questioning that complainers experience in sexual offence trials may relate to rights that are protected by article 8 of the convention. Article 8 does not confer any absolute right to non-interference in privacy, but it requires such interference to be in the public interest and proportionate. Some interference with article 8 rights is justifiable as an unavoidable part of the prosecution of a crime.
When an accused conducts his or her own defence, the complainer and alleged attacker are in direct confrontation. Such a confrontation is unnecessary for a fair trial. There have been very few Scottish sexual offence cases in which the accused has conducted his own defence, but there have been some.
The courts have a duty to protect complainers from harassment and intimidation. I do not suggest that they failed to observe that duty in the three cases that we know have occurred, but even legitimate questioning of complainers in sexual offence trials is likely to be embarrassing, humiliating and intrusive. That position is aggravated if the alleged attacker conducts the questioning.
In relation to character and sexual history evidence, article 6.3(d) of the ECHR confers on the accused the right
"to examine or have examined witnesses against him".
That does not entitle an accused to put whatever questions he chooses to witnesses. It is permissible to restrict the evidence that is admissible, provided that the fundamental right to a fair trial is not infringed. Those provisions in the bill are also directed towards protecting the right of complainers to respect for their private lives under article 8.
Questioning about character and sexual history that is intended to back up a consent defence could cause a complainer great distress and be a considerable invasion of his or her privacy. The law already accepts that that needs to be regulated, but the law is too loosely drawn to ensure that aim. Once again, a balance must be struck between the rights of the complainer and those of the accused.
The bill's consultation document was not called "Redressing the Balance" for nothing. That title describes what the bill is intended to do. It should redress the balance between the rights of the complainer and those of the accused. The bill represents a reasoned, just and realistic balance for sexual offence trials. I urge members to support it.
I move,
That the Parliament agrees to the general principles of the Sexual Offences (Procedure and Evidence) (Scotland) Bill.
In the same item of business
The Presiding Officer (Sir David Steel):
NPA
The main business today is a stage 1 debate on motion S1M-2459, in the name of Jim Wallace, on the general principles of the Sexual Offences (Procedure and E...
The Deputy Minister for Justice (Iain Gray):
Lab
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 c...
Phil Gallie (South of Scotland) (Con):
Con
Under bail law, someone who has been charged with rape and who decides to conduct their own defence would have limited access to the complainer. Would that c...
Iain Gray:
Lab
Mr Gallie raises an interesting question, but it is perhaps not for this debate, because the bill would set such a situation right by changing the legislativ...
The Presiding Officer:
NPA
Before I call the next speaker, I see at least five members in the chamber who have indicated that they would like to speak, but who have not pressed their r...
Roseanna Cunningham (Perth) (SNP):
SNP
The Scottish National Party supports and welcomes the general intent of the bill, which is—of course—aimed at protecting the complainer and other witnesses f...
Lord James Douglas-Hamilton (Lothians) (Con):
Con
Does Roseanna Cunningham accept that it is extremely unlikely that a Scottish judge would ever have allowed such an outrage to occur?
Roseanna Cunningham:
SNP
It is difficult for me to answer that question. I understand what Lord James Douglas-Hamilton is trying to say, but such cross-examination does occur in Scot...
Scott Barrie (Dunfermline West) (Lab):
Lab
Will the member give way?
Roseanna Cunningham:
SNP
I am sorry, but I am in the final minute of my speech.The proposed changes will affect not just rape cases; they will cover a wide variety of offences, which...
Bill Aitken (Glasgow) (Con):
Con
In due course, the Conservatives might take issue with certain aspects of the bill, but we would be the first to concede that there are real difficulties in ...
Iain Gray:
Lab
Mr Aitken makes a fair point about the research being difficult. Will he accept that one construction of what he has related is that when we ask complainers ...
Bill Aitken:
Con
I am happy to concede that there is a difficulty, which is the polarisation to which I referred earlier in my speech. Everybody is working with the same diff...
George Lyon (Argyll and Bute) (LD):
LD
Before I begin, I welcome Baroness Michie of Gallanach to the VIP gallery. Applause.The Justice 2 Committee report states:"It is a general principle in Scots...
The Deputy Presiding Officer (Patricia Ferguson):
Lab
We now move to open debate. Several members want to speak, so I ask those who do to keep their contributions to four minutes.
Pauline McNeill (Glasgow Kelvin) (Lab):
Lab
I thank committee members and the committee clerks who worked hard on the report. I also thank the Parliamentary Bureau, which allowed extra time for the com...
Mrs Margaret Ewing (Moray) (SNP):
SNP
I join George Lyon in welcoming Baroness Michie of Gallanach to the VIP gallery. Although Ray Michie and I have been in different political parties all our l...
Mrs Mary Mulligan (Linlithgow) (Lab):
Lab
The bill appears to have two aims. The direct aim is to change the way in which the legal system works in relation to sexual offences. The indirect aim is to...
Stewart Stevenson (Banff and Buchan) (SNP):
SNP
I start by thanking the convener of the Justice 2 Committee for her welcome when I joined the committee. I was not just joining her committee; I was joining ...
Members:
Sook.
Christine Grahame (South of Scotland) (SNP):
SNP
Sit down now.
Stewart Stevenson:
SNP
—so all my faults are Pauline McNeill's as well.I want to talk about the climate of fear among potential complainers—those who have been victims of rape. Bil...
George Lyon:
LD
May I clarify what I said? I did not state that an amicus curiae was an alternative. I suggested that, before introducing any more measures, the minister mig...
Stewart Stevenson:
SNP
I thank George Lyon for that clarification, which I am prepared to accept. I was merely making the point that he would leave the option open, whereas I would...
Mrs Lyndsay McIntosh (Central Scotland) (Con):
Con
Members from across the political divide will recollect my contributions on matters of domestic abuse and abuse of women in general—in particular, rape or cl...
Johann Lamont (Glasgow Pollok) (Lab):
Lab
Will the member give way?
Mrs McIntosh:
Con
I have only a couple of minutes left and I am sure that Johann Lamont will make a speech of her own.The cynics among us may say that we need to have more fai...
Maureen Macmillan (Highlands and Islands) (Lab):
Lab
I welcome the bill and I commend the Justice 2 Committee for its report. The bill marks real progress in reforming the impact of the legal process on victims...
Mr Gil Paterson (Central Scotland) (SNP):
SNP
I have just returned from a seminar on counting the cost of violence against women, which had delegates from all over the world, so I especially welcome this...
Johann Lamont (Glasgow Pollok) (Lab):
Lab
I welcome the opportunity to speak on the stage 1 report on the Sexual Offences (Procedure and Evidence) (Scotland) Bill. It is a matter of personal satisfac...