Hansard

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 committee to consider further issues.

The bill is a bold move on the part of the Executive to shape provisions that could have a wide-reaching impact in protecting the rights of complainers and increasing the confidence of women when reporting sexual offences to the police. That will redress the balance in court.

Preventing an alleged victim and their witnesses from being cross-examined in person by the accused is a principle that I support as being necessary to redress the balance. The vast majority of witnesses to the committee agreed that the move would not be contrary to the ECHR, although that was the main subject for discussion.

The bill has been criticised for the fact that it deals with only a small number of cases in which the accused has personally questioned the complainer in court. However, there is consensus in the Parliament that the fact that only a small number of cases is involved does not mean that the provision is wrong in principle.

The way in which the Executive chose to deal with the issue of the court-appointed solicitor did not meet with majority support in the committee. However, after carefully examining all the other ways of dealing with the matter, the committee decided to support the Executive on that point. According to the Public Defence Solicitors Office, which has experience of court-appointed solicitors through its pilot scheme, clients usually accept eventually that being represented is in their interests.

The committee noted the concerns of the Law Society of Scotland about the dismissal of solicitors and the appointment of new ones, as the bill is not clear on what is to happen in such cases. I believe that the Executive is right to be cautious about allowing an accused person to delay proceedings through repeatedly appointing and dismissing solicitors. Any amendment to the bill should be carefully drafted. However, it would be in the interests of the accused to have some flexibility of choice and we should consider amending the bill to address that point.

The question was asked why the provision on the personal conduct of defence would not apply to other serious offences, such as severe assault. The committee pressed a number of witnesses for an answer to that. We were satisfied that there was a distinction to be made between sexual offence cases and other serious criminal cases, given the intimate nature of sexual offences and the embarrassing lines of questioning that can be taken in sexual offence cases but not in other serious criminal trials involving severe injury or assault. Given that distinction, the Scottish Executive's proposal for having a solicitor appointed throughout the trial is the correct option.

The provision that I most welcome is the one dealing with restrictions on evidence. According to Dr Burman and Dr Jamieson, from Glasgow and Edinburgh universities, character evidence is widely used in rape cases to undermine the credibility of a rape victim and, often, that evidence is irrelevant. Having a tattoo, swearing and being a single mother were all used to imply that someone was of bad sexual character, was likely to consent to sex and was liable to be a liar. The requirement for written submissions and written determinations on the use of evidence will be crucial—I believe that to be the most important aspect of the bill.

The test by which the judge will decide whether an application to include sexual history evidence or evidence of bad character is to be accepted is whether the probative value of the evidence is significant enough to outweigh any risk to the proper administration of justice. The judge must therefore have due regard to the privacy and dignity of the complainer. That is a crucial step forward. Alison Di Rollo, from the Crown Office, told the committee that the legislation would be

"the first act of Parliament to recognise the victim's dignity and right to privacy."—[Official Report, Justice 2 Committee, 24 October 2001; c 520.]

That fact should be recognised by members of the Scottish Parliament this afternoon.

We heard evidence that medical reports were used as evidence of bad character, as people had attempted to claim that information gleaned from a gynaecological report or the victim's contraceptive history was somehow relevant. That is an example of the sort of evidence that is used to undermine women's cases in court. It should not be allowed.

I am pleased that the minister is going to address the equality issue, as the bill should not discriminate against gay men. The committee members were lukewarm on the issue of prior notice of defence of consent—we are not really bothered about whether that provision is in the bill and we saw no significant evidence on the matter one way or the other.

It is important to state that the committee members realise that, unless there is strong and proper monitoring of how the bill operates in practice, the bill's provisions will have no effect. We ask the minister to address that important point, which we have emphasised in our report because we agree with it whole-heartedly.