Chamber
Plenary, 21 Nov 2001
21 Nov 2001 · S1 · Plenary
Item of business
Sexual Offences (Procedure and Evidence) (Scotland) Bill: Stage 1
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 change the social climate of sex offence trials.
Although the bill has received much support, I am concerned about the apparent split between the legal profession and others, particularly those who support victims and witnesses. I can understand that the legal professionals must take a balanced view on the protection of the rights of the accused and the complainer. However, I was disappointed that their approach to the bill was sometimes negative. They recognised that there are problems with the judicial system in relation to sexual offences, but had no new ideas on how to address those problems. Perhaps they feel that that is not their role, but I suggest that, in the new political environment that has come about with the birth of the Scottish Parliament, it is open to everyone to express his or her views on how to improve a given situation.
One of the main issues in the bill is the cross-examination of the complainer by the accused. As has been said, there have been only a few cases in which the accused have sought to represent themselves and so be able personally to cross-examine the complainer. However, the experience of those complainers has been so traumatic that such an experience should not be allowed to happen again. In the wider context, there can be little doubt that the fear of such a situation arising has been a deterrent to others who have been the victim of a sexual assault from reporting that offence.
It has been asked why the bill does not cover other crimes, particularly violent ones. I agree with the view of the witnesses from the Scottish Human Rights Centre, which Pauline McNeill mentioned. They said that the intimate nature of the crime should lead to its being treated differently.
It was also suggested that preventing the accused from cross-examining the complainer might not assist the complainer as much as intended, because the cross-examination from counsel can also be extremely unpleasant. I believe that the point about the intimate nature of the crime answers that suggestion. No matter how aggressive the counsel's cross-examination, it is not the same as having to face the accused.
The committee questioned whether the removal of the right of the accused to conduct his own defence would be compliant with the ECHR. The general view was that, on balance, it would be. The suggestion was made that the accused could conduct his own defence and would need to appoint a counsel only to cross-examine the complainer. However, I felt that that was cumbersome and that further thought would need to be given to the practicalities if it were to be taken further.
I listened to what the Law Society of Scotland said about the problems that would arise for its members, particularly when an accused did not co-operate with a court-appointed solicitor. The bill will have to be clearer on the procedures for such an appointment to ensure that the solicitor is not open to claims of unprofessional conduct. I accept that the accused must have some say in who represents them, but that will have to be tempered by the need to ensure that the trial is not delayed unnecessarily.
The other major part of the bill is the strengthening of existing law restricting evidence on the sexual history of the complainer. The Law Society of Scotland pointed out that there are restrictions at the moment and said:
"That is an issue of training and education."—[Official Report, Justice 2 Committee, 26 September 2001; c 426.]
If that is the case, why has the issue not been tackled before? Other witnesses said that sexual history and sexual character evidence deter victims from reporting crimes and going through the legal process. Given that, as Dr Burman and Dr Jamieson reported, the spirit of the current restrictions is often breached, I do not believe that training and education alone will make a difference—legislation is needed.
I am pleased that the Executive is proceeding with the bill. It is clear that the bill does not address all the concerns that have been raised about how we as a society deal with rape and sexual assault. Prejudicial attitudes towards women's sexuality cannot be addressed simply by changing the law. Moreover, other areas of law still need to be addressed; I hope that that will happen. The bill tackles specific difficulties, while maintaining a balance between the rights of the accused and the rights of the accuser. I hope that the Parliament will support it.
Although the bill has received much support, I am concerned about the apparent split between the legal profession and others, particularly those who support victims and witnesses. I can understand that the legal professionals must take a balanced view on the protection of the rights of the accused and the complainer. However, I was disappointed that their approach to the bill was sometimes negative. They recognised that there are problems with the judicial system in relation to sexual offences, but had no new ideas on how to address those problems. Perhaps they feel that that is not their role, but I suggest that, in the new political environment that has come about with the birth of the Scottish Parliament, it is open to everyone to express his or her views on how to improve a given situation.
One of the main issues in the bill is the cross-examination of the complainer by the accused. As has been said, there have been only a few cases in which the accused have sought to represent themselves and so be able personally to cross-examine the complainer. However, the experience of those complainers has been so traumatic that such an experience should not be allowed to happen again. In the wider context, there can be little doubt that the fear of such a situation arising has been a deterrent to others who have been the victim of a sexual assault from reporting that offence.
It has been asked why the bill does not cover other crimes, particularly violent ones. I agree with the view of the witnesses from the Scottish Human Rights Centre, which Pauline McNeill mentioned. They said that the intimate nature of the crime should lead to its being treated differently.
It was also suggested that preventing the accused from cross-examining the complainer might not assist the complainer as much as intended, because the cross-examination from counsel can also be extremely unpleasant. I believe that the point about the intimate nature of the crime answers that suggestion. No matter how aggressive the counsel's cross-examination, it is not the same as having to face the accused.
The committee questioned whether the removal of the right of the accused to conduct his own defence would be compliant with the ECHR. The general view was that, on balance, it would be. The suggestion was made that the accused could conduct his own defence and would need to appoint a counsel only to cross-examine the complainer. However, I felt that that was cumbersome and that further thought would need to be given to the practicalities if it were to be taken further.
I listened to what the Law Society of Scotland said about the problems that would arise for its members, particularly when an accused did not co-operate with a court-appointed solicitor. The bill will have to be clearer on the procedures for such an appointment to ensure that the solicitor is not open to claims of unprofessional conduct. I accept that the accused must have some say in who represents them, but that will have to be tempered by the need to ensure that the trial is not delayed unnecessarily.
The other major part of the bill is the strengthening of existing law restricting evidence on the sexual history of the complainer. The Law Society of Scotland pointed out that there are restrictions at the moment and said:
"That is an issue of training and education."—[Official Report, Justice 2 Committee, 26 September 2001; c 426.]
If that is the case, why has the issue not been tackled before? Other witnesses said that sexual history and sexual character evidence deter victims from reporting crimes and going through the legal process. Given that, as Dr Burman and Dr Jamieson reported, the spirit of the current restrictions is often breached, I do not believe that training and education alone will make a difference—legislation is needed.
I am pleased that the Executive is proceeding with the bill. It is clear that the bill does not address all the concerns that have been raised about how we as a society deal with rape and sexual assault. Prejudicial attitudes towards women's sexuality cannot be addressed simply by changing the law. Moreover, other areas of law still need to be addressed; I hope that that will happen. The bill tackles specific difficulties, while maintaining a balance between the rights of the accused and the rights of the accuser. I hope that the Parliament will support it.
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...