Hansard

Labour welcomes the long-awaited report from the Scottish Law Commission on the reform of rape and sexual offences law. The report is good and we thank the commission for its hard work on a difficult job. I believe that the commissioner, Gerry Maher, is in the gallery and I welcome him to the debate.

The Labour amendment calls for adequate time to scrutinise the bill when it is published. As the Lord Advocate said in her excellent speech, the report deals with complex legal issues and, as it took the commission about three years to make its proposals, the Parliament should have enough time to scrutinise their complexities.

Whatever else I say this morning, it will not be as important as what we do about changing the attitude of the public to women who are raped. Rape is an abhorrent crime, and it is part of the continuum of violence against women. It is tried in our highest court and I hope that there is a commitment that it always will be.

We know that juries can be reluctant to convict in cases in which alcohol has been consumed by both parties, or where a degree of intimacy has already been established. There are so many cases like that in our High Court, but the old adage still applies. When a woman clearly says no to sex, she means no, and no matter how intimate she has been with the accused, the fact that she has had too much to drink should not make any difference; the law should protect her. When she is so drunk that advantage can be taken of her state, there can be no consent to sex, even if her state is self-induced. I commend Rape Crisis Scotland for the work that it has done, because it is so important to tackle public attitudes to this abhorrent crime.

I preface my remarks by saying that mine will not be Labour's last word on every point. There is a lot to think about so I regard my speech as expressing our opening views.

Labour has no difficulty with supporting the report's proposal to broaden the definition of rape to include men or women who are raped; we will welcome that change to the law, and we are content that other forms of unwanted physical penetration should also be defined as a crime. We are also broadly happy that there should be a separate definition of sexual assault, notwithstanding the Lord Advocate's comments this morning. Sentencing should continue to be appropriate to the circumstances of both crimes.

The Scottish Law Commission's remit was primarily to resolve the issue of consent in rape cases, although it had a wider remit to do other things. Labour is a bit concerned that the commission's proposal to change the law as it relates to children and to cut to 13 the age in respect of what is, in effect, statutory rape might send out the wrong message. I simply say that we want to discuss that issue further.

On consent, the concept of free agreement seems to be clear cut and to strike the right balance. It is a phrase that the public can understand. In rape cases, it is crucial that the law is clear. We need to think about the ordinary person sitting on the jury and what they will commonly understand by the term "consent", so I welcome the commission's suggestion.

This week, the Parliament and press have had a lot of debate about Scotland's low conviction rate. I agree with the Lord Advocate that we cannot easily compare Scotland with other countries whose systems are not the same as ours. They might use different definitions, and some countries do not have juries, or have a different jury system. I agree that we must see our unique system in the Scottish context and choose the right course for Scotland.

I do not agree that we have the worst system in the world, although it needs to be substantively reformed. It would be wrong not to acknowledge the strengths in our system. There are mixed views about the use of the section 275 procedure, under which a judge decides whether evidence on sexual history or character can be allowed. On the one hand, defence lawyers say that they cannot get the relevant evidence into court, even when they think that that prejudices their client. On the other hand, Rape Crisis Scotland believes that judges are allowing all such evidence regardless of whether it is relevant. We have to get to the bottom of that issue, because the Sexual Offences (Procedure and Evidence) (Scotland) Act 2002 was well intentioned and was meant to be used to the victim's advantage. I call for an examination of the section 275 procedure before we make a final judgment on whether it does what we intended it to do.

The Vulnerable Witnesses (Scotland) Act 2004 is important in rape trials. We removed the right of the accused to conduct their own defence, which was another important step in handling rape cases. A jury can convict with a minimum of eight jurors, and a life sentence can be imposed, so there are some important aspects of our current law.

Given the number of cases that we decide to prosecute, it appears that perhaps not enough result in a conviction. That seems to be a concern, but we should start by getting the law right, not by saying that our conviction rates are wrong. Rape is an unusual crime, as the Lord Advocate has said, in that there tends not to be a witness and, until the evidence is led, the jury does not know whether a crime has been committed. In most cases, the outcome of the case turns entirely on the question whether the sexual act was consented to.

Whom the members of a jury believe is the determining fact in ascertaining whether a crime has been committed—that is the fundamental issue that we must address alongside reform of the law. We must be sure that we interrogate the system in the context of such facts. We need to know where the problem in getting a conviction lies. The view now is that a change in the law will provide clarity, but it will not necessarily affect conviction rates. As we redefine the crime of rape to include other things, the conviction rate for rape might increase, but the overall conviction rate for sexual crime will not alter a great deal. As I have said, the law must be clearer to understand, because when juries are making their determination, it is important that they believe that the law is clear for them to apply.

I am glad that the Lord Advocate has addressed some of the issues that were raised in the press yesterday about the law of corroboration. She said that if we are serious about reforming the law, the rules of corroboration must be examined. I would be grateful if the Cabinet Secretary for Justice would clarify when he agreed to examine the issue of corroboration and where it is going, because I do not recall any announcement on it. I am aware that reference was made to the Moorov doctrine, but not to corroboration.

Corroboration is a unique concept in Scots law. The fact that two sources of evidence are required to prove an offence is an important safeguard for the accused in our system. I have strong reservations about unpicking a law that fits with the other checks and balances in our system, and it would be controversial to go down the road of watering down that requirement. Although I have no issue with a review of the Moorov doctrine, I have some difficulty with supporting a change in the law on corroboration in rape cases without some proportionate way of ensuring fairness for the accused—I am not clear about how that could be done.

I agree that the application of the concept of honest belief is wholly wrong. Whether the Scottish Law Commission's proposal for a slightly more objective test will be better remains to be seen, but it will have to be scrutinised closely to give us clearer law.

Scrutiny is needed of the proposal on advance consent in cases in which a couple have previously agreed to have sex and a question of consent later arises. I have serious concerns about whether the proposal is practical, and it will be an important issue for the Justice Committee to examine when the bill comes before it.

I whole-heartedly welcome this difficult debate about complex issues. It is important that we get the law right—we need clear law—but we cannot rely only on the law; we must tackle attitudes to men and women who are raped, and we must make it as easy as possible for juries to determine how to apply the law. I look forward to the publication of the bill.

I move amendment S3M-1490.1, to insert at end:

"recognises that the proposals from the commission are complex and that it is important for the Parliament to be given every opportunity to interrogate the bill when it is published, and therefore calls on the Scottish Government to aim at an agreement with the Justice Committee on a timetable which gives adequate time to properly scrutinise the bill."