Hansard

I welcome the debate, which is likely to continue for some months and, indeed, years, because we must get this particular legislation right. I also welcome the exceptionally helpful clarification from the Lord Advocate today, following yesterday's publicity.

I will deal with three principal issues, although there are other important matters—for example, the involvement of children, which Pauline McNeill raised. The three main issues are consent, the extension of the law and the rules of evidence and corroboration.

As we know, rape is a very difficult crime to prove. I sometimes feel—and I know that this view is shared by others—that juries have considerable difficulty in that respect. There was a need to clarify the law following the Lord Advocate's reference in the case of Watt, but the situation is perhaps still not as clear to juries as it might be. The public perception of rape is of a woman who has been forced, possibly as a result of extreme violence or threat of violence, to have sex with an individual. Of course, that is rape, and juries' attitude to that is quite clear. It is easy to make a determination. So-called stranger rape usually results in a conviction, but so-called date rape is much more problematic.

The Scottish Law Commission's report, by including the requirement for consent to be demonstrated, makes that much easier, and it is very helpful. The examples that it cites cannot be exhaustive, nor are they intended to be, but it is a good framework from which to proceed. The Lord Advocate raised the issue of women's risky behaviour, and quite properly so. If I leave my car unlocked with the keys in the ignition, I might be a very silly chap, but it does not entitle someone to steal my car. If a woman goes out scantily dressed, gets drunk and behaves in a flirtatious manner, she might be foolish, but that certainly does not entitle anyone to have sex with her without her consent. The definition of consent will be particularly helpful, and we must examine the way in which consent is measurable, particularly—as the Lord Advocate said—as heavy drinking is involved in so many cases.

The extension to the law is welcome. In these gender-neutral days, we must acknowledge the fact that homosexual rape should be defined simply as homosexual rape, and we will certainly support those changes to the law.

Not for the first time, I listened with considerable interest to the Lord Advocate on the other types of sexual assault that are not at present classified as rape and which certainly skew the statistics on conviction rates—I accept that. My initial argument had been that, providing that a suitable penalty was in place, the definition of the crime did not matter particularly. However, having examined the matter further, I now have some sympathy with what the Lord Advocate has said today and what she has been saying for some time. The Justice Committee and the Parliament will have to consider the issue carefully—the insertion of implements into the anus and other parts of the body is certainly a very brutal assault.

The extension of the definition of rape to include sodomy is entirely appropriate. I ask members to picture the scene of a woman who is alone in a house and is confronted by two intruders who might have broken in for the purpose of assaulting her or purely for the purpose of house breaking, after which they decide to assault her. If that woman is physically beaten and repeatedly sodomised, there can surely be no worse experience that anyone could suffer, yet, as the law stands at the moment, that is not rape. I think that there is a unanimous view among members in the chamber that the law should be extended in that respect.

I turn to the rules of evidence and the requirement for corroboration, which has been a matter of concern. Scots law has long recognised that rape cases are difficult to prove and that many such cases would be downright impossible to prove if the normal standards of corroboration were applied. As such, the law has been clarified and extended over the years, which is entirely appropriate, as it would be difficult to get the corroboration from two eye-witnesses that would be necessary in relation to any other assault.

I fully understand and sympathise with the frustration that prosecutors inevitably feel when cases cannot be proved or even proceeded with at all. However, suggestions—and I note that they do not come from the Lord Advocate—that the law in that respect should be radically changed are fraught with danger. The function of any justice system is, in equal measure, to protect the innocent and to punish the guilty, and we must consider why the requirement for corroboration is viewed as such a vital component of Scots law.

The requirement for corroboration is a bulwark against injustice where false evidence is given. It defends the poor against the rich and the inarticulate against the articulate and, in many cases, it protects society's most disadvantaged, whose ability to give coherent evidence may be limited. Those who suggest that a wholesale change in the law of corroboration is necessary must realise that there would be a real, albeit unintended, consequence: a significant increase in miscarriages of justice would be inevitable. Most members and the general public would be profoundly uncomfortable with that happening. That must be remembered.

I have listened to the arguments about the Moorov doctrine. There is validity in what has been said, which must be carefully considered, and it was not inappropriate for the cabinet secretary to refer the matter back to the commission. Real considerations are involved and there are real arguments to be made. I commit the Conservatives to listening to those arguments exceptionally carefully. Like Pauline McNeill, I would have serious difficulties with a change unless someone suggested additional checks and balances, which would be necessary in our legal system.

The law required clarity, which the Scottish Law Commission's report gives us. It is highly likely that the report will be closely examined, analysed and digested in a complex but interesting and important parliamentary process, and it is highly probable that some of its proposals under the headings that I have mentioned will be changed during that process. That would be appropriate. However, I congratulate the commission on the report, which takes a sound, professional and, above all, reasonable approach that gives us every opportunity to do what we all seek to do: not only to clarify the law, but to support the victims of one of the most horrible crimes that can be committed. I fully commit the Conservatives to giving the matter our fullest earnest and sympathetic consideration.