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Plenary, 21 Nov 2001

21 Nov 2001 · S1 · Plenary

Item of business

Sexual Offences (Procedure and Evidence) (Scotland) Bill: Stage 1

Cunningham, Roseanna SNP Perth Watch on SPTV

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 Scottish courts, albeit not for that length of time. It is true that eyebrows were raised about why the judge did not step in considerably earlier in that case. However, it happened in a court; not a court in some far-off country about which we know little, but in an English court. Clearly, that caused a great deal of distress at the time.

In Scotland, in February 1999, Jacqueline Radin was cross-examined in court by her assailant. The then Scottish Office minister with responsibility for home affairs, Henry McLeish, ordered a review. In March 1999, John Anderson made his first appearance in court. He was accused of raping three women, but he was allowed out of prison to interview the mother of one of his alleged victims. Anderson then cross-examined the other two women in court. He walked free when the case against him collapsed because of the lack of corroborating evidence. Henry McLeish again called for a report, saying that the situation was unacceptable.

In July 1999, a bill in England and Wales to end cross-examination of rape victims by the accused received royal assent but, in January 2000, the Scottish Executive warned that a Holyrood bill to prevent cross-examination of alleged rape victims could contravene the ECHR. The then Deputy Minister for Justice, Angus MacKay, told the Parliament that he would report within 90 days on the issue of rape victims, but made no commitment to change the law. In June 2000, a written answer by Angus MacKay indicated that he had instructed civil servants to find ways in which to ensure that women are not cross-examined. On 20 June, a report by civil servants conceded that the ECHR was not an insurmountable obstacle.

Eventually, we have reached the position in which we are today, but there has been an incredibly long catalogue of such milestones over many years. I say again that it is instructive that it is only now that we have a Parliament with so many women that we are confronting a problem that has faced society for a very long time. We have come this far, but I cannot help but notice that the time scale for change in Scotland seems to have been uncommonly slow.

On leading evidence in court of the sexual history and sexual character of the complainer, international examples of change have been available for much longer. Canada, New Zealand and many American and Australian states introduced safeguards in the 1970s. In 1976, safeguards were introduced for England and Wales. In 1979, Sheriff McPhail produced a report, but there was no action until 1982.

In 1985, nine years after the English bill to protect complainers in rape trials, the Scottish Law Commission's draft bill was passed by Westminster, with a few minor amendments. That legislation requires an application by the defence to introduce questioning or evidence about sexual history or the character of the complainer in certain circumstances. It also included instruction that the court must be satisfied

"that it would be contrary to the interests of justice to exclude the questioning or evidence".

Again, it took an extremely long time to bring even that limited protection into Scotland, and that last exception provided wide discretion to the judge.

There have been difficulties and failings in the application of the law. In 1992, a Scottish Office central research unit study, "Sexual History and Sexual Character Evidence in Scottish Sexual Offence Trials", was published. That study detailed serious problems. It struck me in particular that 70 per cent of all applications to question on sexual character or history were made just before cross-examination began and 22 per cent were made during cross-examination. Thus the complainer had no formal notice of the questioning in at least 92 per cent of the cases. That seems to me to be like a kind of legal sandbagging in court. No action was taken by the Government, either as the Scottish Office or as the Scottish Executive, to update the law after the publication of that study in 1992. It has taken until now to reach this stage.

Down the years, Scotland's justice system has failed victims of rape, and Governments in various guises have been exceedingly slow to respond. We must start to put that right—the bill is that start.

However, I want to sound a note of caution.

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Plenary, 21 Nov 2001

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