Item 2 is the Abusive Behaviour and Sexual Harm (Scotland) Bill. I will try to ensure that we get through all the amendments today, so speeches should be short and sharp. Members should have copies of the bill, the marshalled list and the groupings of amendments.
I welcome to the meeting the Cabinet Secretary for Justice, Michael Matheson, and his officials. I do not need to tell members that the officials are in a supporting capacity and cannot speak during the proceedings. They know that and you know that.
Section 1—Aggravation of offence where abuse of partner or ex-partner
Amendment 69, in the name of Margaret Mitchell, is in a group on its own.
Amendment 69, which was lodged on behalf of the Law Society of Scotland, would restrict the test for the domestic abuse aggravation to intent rather than intent or recklessness to cause a partner or ex-partner to suffer physical or psychological harm. It was lodged as a probing amendment to generate further discussion about the inclusion of recklessness.
In its submission to the Justice Committee prior to stage 1, the Law Society expressed concern about the inclusion of the aggravation provision, which it stated would in practice be “difficult to prove” because of the requirement to establish intent or recklessness. It thought that that in turn would risk having the perverse effect of limiting the application of the domestic abuse aggravation, which is supposed to help to ensure that such acts are treated by the courts with the seriousness that they deserve.
Furthermore, it was established during stage 1 scrutiny that there is no requirement for a past pattern of abusive behaviour to be set out in the charge. In other words, it would apply to a first offence.
Although I believe that the intent test is robust and objective, I have concerns that the adoption of the recklessness test for a first offence, as opposed to a second offence or subsequent offences where a pattern of behaviour has been established, is potentially more subjective. I am less concerned about the technicalities of the amendment, which may, I readily accept, be faulty. The point of lodging the amendment and raising the matter is purely to generate more discussion about it and to hear the cabinet secretary’s comments on it, particularly on the first offence and recklessness issues.
I move amendment 69.
I oppose amendment 69. I think that it would provide abusers with a defence that they did not mean to do what they did. I listened to what the Law Society had to say in its evidence to us, but I am afraid that I do not accept it. It would be dangerous to remove the recklessness part, because that would provide that defence to perpetrators.
I concur with Elaine Murray’s views about the wideness of the provision. From looking back at its evidence, I think that the Law Society seemed to be instinctively of the view that domestic abuse cases are currently given a lot of special attention in the courts and that adding an aggravation would somehow be a step too far. I am not sure in many respects that I understand its position beyond that, and I would be grateful for further comment from the cabinet secretary on the issue of recklessness.
11:15
And, on cue, cabinet secretary.
Amendment 69 relates to the domestic abuse aggravator in section 1.
The bill provides that, where an offence is committed against an offender’s partner or ex-partner, it is sufficient to prove that the accused was reckless about whether, in committing the offence, they would cause their partner or ex-partner physical or psychological harm in order for the aggravator to operate. Amendment 69 would restrict the circumstances in which the aggravator would operate so that it would be only offences that involved abuse of a person’s partner or ex-partner where it was proven that the accused intended, in committing the offence, to cause their partner or ex-partner to suffer physical or psychological harm.
We have taken the approach in the bill because we consider that where, for example, a person commits a sexual offence against their partner or ex-partner, or assaults them, it should not be open to them to argue that the aggravation should not apply because it was not their intent to cause their partner physical or psychological harm. We consider it appropriate that in circumstances where it is a foreseeable consequence of someone’s actions that their partner or ex-partner was going to suffer physical or psychological harm, the aggravation should operate. That means that recklessness should be included.
We do not consider that it should be open to offenders to argue that the aggravation does not apply because, though they were reckless about whether, in committing an offence against their partner, they might cause them physical or psychological harm, it cannot be proven that that was their intention in committing the offence. Therefore, we would invite members to oppose amendment 69.
It is clear that amendment 69 is a probing amendment. What the cabinet secretary has not addressed in his comments is the issue of recklessness when it is a first offence. I would ask him at least to consider that at stage 3. I would have no difficulty with recklessness for a second offence, with a pattern established. However, it is worth teasing out the matter with the intention of making the legislation as robust as possible and giving the best protection to those people who suffer from domestic abuse.
Amendment 69, by agreement, withdrawn.
Section 1 agreed to.
Section 2—Disclosing, or threatening to disclose, an intimate photograph or film
Amendment 70, in the name of Margaret McDougall, is grouped with amendments 72 to 82.
The aim of these amendments is to expand the disclosure section in the bill. The bill only covers the disclosure of photographs and film. The amendments, which are supported by Scottish Women’s Aid, seek to broaden that to include a photograph or film of an intimate situation, sound recordings containing intimate content or an intimate written communication, which is the purpose of amendment 73.
If we cover disclosure only of photograph or film, there will be a loophole in the bill. When it comes to sharing, for example, screenshots of intimate text-based conversations or the sharing of intimate content in the form of texts or sound on the internet or social media, as Scottish Women’s Aid stated, by specifying photographs and films the bill excludes the sharing of private and intimate written and audio communications. The exposure of the threat of sharing those has the same outcome—it is designed to humiliate and control the victim. Sometimes, text and images are sent at the same time. Will we criminalise the image but not the abusive and threatening text? For example, the sharing of an intimate image on Facebook without consent would be a prosecutable offence under the bill. However, if someone were to share an intimate conversation or a screenshot of an intimate conversation, that would not be covered. I would argue that the sharing of that type of content could have the same effect as sharing intimate images without consent; it could cause just as much fear, alarm or distress to the victim and arguably would be designed to do so.
Amendment 70 is a technical amendment that updates the bill to reflect the expansion of the definition. In effect, amendment 70 removes the text
“A discloses or threatens to disclose, a photograph or film which shows, or appears to show, another person (‘B’) in an intimate situation”
and replaces it with a reference to
“an item”,
which is defined in the subsection that amendment 73 introduces,
“that involves another person ... in a way mentioned in that subsection”.
Amendment 72 and amendments 74 to 79 are all technical amendments that replace references to “photograph or film” throughout the bill to “item”. What we mean by “item” is defined in amendment 73.
Amendment 80 is a further technical amendment that adds a reference to the new section 2(1A)(a) that was created by amendment 73. Amendment 81 is again a technical amendment adding further reference to the new subsection that is created by amendment 73.
Finally, amendment 82 clarifies what we mean by “intimate” conversations, messages or communications. They need to include references to an act that is considered sexual or content that, taken as a whole, is considered to be of a sexual nature. Further to that, the content must not have been expected to be distributed or there was an understanding that it would be kept private.
These amendments are supported by Scottish Women’s Aid and Victim Support Scotland.
Police Scotland also gave evidence to the committee in support of including written and audio communication of this type in the bill. It said that the offence should take
“cognisance of all forms of communication and distribution.”
Although I understand that the sending of abusive messages is a criminal offence, the same does not always apply to the sharing of intimate material. These amendments ensure that the sharing of any intimate material without permission is covered under one bill. That cuts down on repetition and leads to a more streamlined and easier system. It also means that all offences are dealt with in the same manner.
The current offence under section 127 of the Communications Act 2003 is not an appropriate offence for dealing with this behaviour as, first, it sets a very high threshold of the content of the message or other matter being
“grossly offensive or of an indecent, obscene or menacing character”.
Unlike the proposed offence in the Abusive Behaviour and Sexual Harm (Scotland) Bill, the offence under section 127 of the 2003 act can be tried only under summary procedure, not solemn procedure. That limits the overall custodial and financial penalties. The proposals allow for offences under this section to be tried under either summary or solemn procedure.
Further, the maximum term of imprisonment under the summary procedure in section 127 is limited to six months, as opposed to the 12 months in the bill, meaning that women or men who are abused by having private written and audio communications shared without their consent would have a lesser protection, and perpetrators may well tailor their behaviour to accommodate that gap in the law.
With advances in technology making it easier to distribute information with or without consent, it is vital that the law keeps up to ensure that those who wish to cause harm are dealt with appropriately and consistently by the justice system.
I ask the committee and the cabinet secretary to support my amendments.
I move amendment 70.
I have to say that I have changed my position on this matter. The intention of this section of the bill is very clear. Margaret McDougall talked about those with criminal intent tailoring their conduct. I think that the term “displacement” might be more appropriate. I am concerned that the bill is not future proofed. I think that the support of Women’s Aid is important, and I think that the comments from the police are also important. For all those reasons, I support the expansion of this disclosure section of the bill, and all the other amendments that go with it.
I recognise that there are different opinions from various groups about whether the section should be extended. I take on board the point that Margaret McDougall made about section 127 of the 2003 act, but it still provides a punishment. Also, we should all bear in mind section 38 of the Criminal Justice and Licensing (Scotland) Act 2010, which criminalises behaviour that causes fear and alarm. However, as Professor Chalmers said, it does not extend as far as distress.
We should not forget that we have alternative ways to deal with these issues. I am still on the side of academics such as Professor McGlyn who do not recommend that the law should cover text messages. We included a big section in our report about unintended consequences, and I think that those issues are still relevant. For the moment, I oppose the amendment.
I will not say very much, because I do not have much of a voice. I suggest that we proceed cautiously. I agree with what Roddy Campbell said, and I do not support this group of amendments.
Some people will wish that I would get that affliction occasionally. [Laughter.] The cabinet secretary is smiling in agreement at that comment, which is not a good thing to do.
Amendments 70 and 72 to 82 would expand the scope of the intimate images offence at section 2 to cover intimate sound recordings and written communications.
As I set out in the Scottish Government’s response to the committee’s stage 1 report, we took a decision to restrict the offence to the sharing of intimate images because almost all the cases that we are aware of have involved the sharing of images. Unfortunately, we are all too aware that there are far too many websites set up specifically to enable people to post intimate photographs or films of their partners or ex-partners. I am not aware of similar websites on which people post voice messages or emails written by or to their partner or ex-partner.
The sharing of images that may enable a complete stranger to identify the victim is, in our view, a betrayal of trust and a breach of privacy, which is especially likely to cause distress. That is, of course, part of the justification for the new offence.
It is worth remembering that it will remain possible for prosecutors to use existing laws in relation to the sharing of written or recorded material—in appropriate cases—by using, for example, the Communications Act 2003 offence, or the offence of threatening or abusive behaviour.
The committee’s stage 1 report noted that a majority of the committee support restricting the scope of the offence to photographs and films, and that the committee is mindful of the risk of unintended consequences if the bill takes too wide an approach in this area.
On the question of unintended consequences, I note that these amendments apply not only to intimate recordings—written or spoken by the victim—but also those directed to or left for the victim. A perverse effect of that is that a person could face criminal liability for publishing or disclosing a communication that they themselves had written, or a voicemail message that they had left.
More generally, although it is hard to envisage circumstances in which someone would have legitimate reason to share intimate photographs or films of their partner or ex-partner with a third party without their consent, it is easier to imagine circumstances in which they might wish to share a written message or voice message with a friend. They may, for example, be confused or even fearful because of what they might consider to be disturbing sexual content in a message sent to them. They may wish to seek advice about what to do about that and, if these amendments are agreed to, they could be criminally liable in those circumstances. It may be helpful if I give the committee an example of how that could apply in our understanding of Margaret McDougall’s amendments—how they could criminalise behaviour in the following circumstances.
11:30Two 13-year-olds exchange messages about a celebrity. During the exchange, one of the teenagers indicates that they fancy the celebrity and would like to have sexual relations with them. The other teenager decides to share that text with other people in their class at school. In that situation, a communication has taken place that a reasonable person would consider to be sexual in nature and a reasonable person would expect to be kept private. The person who shared the text has committed a criminal offence if it can be shown that they were reckless about whether sharing the message would cause the other person fear, alarm or distress. However, although it would probably be embarrassing and distressing for the person whose message has been shared, our view is that the person who has shared the message should not be committing an offence. It is our understanding that Margaret McDougall’s amendments would criminalise such behaviour.
As we said in our response to the committee’s stage 1 report, we are happy to monitor the issue as the offence is implemented to assess whether we need to reconsider the scope of the offence in the future. However, we consider that the scope of the offence that is contained in the bill takes the right approach and therefore ask members not to support amendments 70 and 72 to 85.
I understand that amendment 70 might introduce unintended consequences, but you have to show criminal intent to break the law and be charged with a crime. As the amendment has been written, it will still be in line with the aims of the bill and it should be included.
The cabinet secretary gave an example of two 13-year-olds. Tam Baillie, the children’s commissioner, gave evidence that young people should not be exempt from the bill, because their age is taken into account; they would go before the children’s panel and be dealt with in that way.
If the cabinet secretary is not inclined to accept these amendments, would he be happy to work with me to ensure that the expanded definition goes into the bill in some form? If it does not go into the bill, the system will be left open to abuse as too many loopholes exist that allow the law on the sharing of photographs and films to be circumvented. If an offence exists under the Communications Act 2003 and the act has been used without any unintended consequences, the Scottish offence is perfectly capable of being defined in similar terms to meet the lack of suitable penalties under the 2003 act. I am going to move—
You have already moved it and, because you have asked the cabinet secretary to respond, I will allow him to do so.
The first thing that I should say is that recklessness is not the same as intent, and the test is less onerous in those cases.
I am always willing to have discussions with members, but I have set out the potential unintended consequences of taking the route of expanding the offence. I am not minded to do so, but I am more than happy to discuss that with the member if she chooses to do so prior to stage 3. However, that is not a commitment to look at extending the scope of the offence.
It is decision time, Margaret.
I note what the cabinet secretary says, but I will press amendment 70.
The question is, that amendment 70 be agreed to. Are we agreed?
Members: No.
There will be a division.
For
Finnie, John (Highlands and Islands) (Ind)
McDougall, Margaret (Central Scotland) (Lab)
Murray, Elaine (Dumfriesshire) (Lab)
Against
Allard, Christian (North East Scotland) (SNP)
Campbell, Roderick (North East Fife) (SNP)
Grahame, Christine (Midlothian South, Tweeddale and Lauderdale) (SNP)
McInnes, Alison (North East Scotland) (LD)
Mitchell, Margaret (Central Scotland) (Con)
Paterson, Gil (Clydebank and Milngavie) (SNP)
The result of the division is: For 3, Against 6, Abstentions 0.
Amendment 70 disagreed to.
Amendment 71, in the name of Margaret Mitchell, is in a group on its own.
Section 2 will create a new offence of disclosing, or threatening to disclose, an intimate photograph or film. Under section 2(1), an offence will be committed if, among other things, person A
“intends to cause B fear, alarm or distress or A is reckless as to whether B will be caused fear, alarm or distress”.
Amendment 71, which I have lodged on behalf of the Law Society of Scotland, is a probing amendment that seeks to limit the offence to being proved if person A had intended to cause fear, alarm or distress to person B, as opposed to having been reckless as to whether B would suffer fear, alarm or distress as a result of the disclosure of or threats to disclose an intimate photograph or film.
During stage 1, the Faculty of Advocates and the Law Society expressed concern about the inclusion of recklessness within the mens rea of this offence. The faculty provided the example of a person who comes home to find his flatmate asleep on the sofa wearing only his boxer shorts and takes a picture of the flatmate, finding it amusing. He has no intent to cause fear, alarm or distress, but is reckless in that regard. The faculty pointed out that in such a scenario, if the person showed the picture to someone else, he would, under the bill, be guilty of an offence, and the bill would offer no defence. Similarly, the Law Society said:
“There should be intention to cause harm or humiliation, rather than recklessness. The term ‘recklessness’ is too wide.”—[Official Report, Justice Committee, 17 November 2015; c 39.]
I would therefore welcome the cabinet secretary’s comments, especially in view of the comments that he has just made to Margaret McDougall about the unintended consequences of including an intimate voice recording or written communication.
I move amendment 71.
I oppose amendment 71, for many of the reasons why I opposed amendment 69. As I said during the stage 1 debate, I have no sympathy for the flatmate who takes a picture of his flatmate in his boxer shorts and posts it round the world. That is completely unacceptable, and I cannot see why there should be any sort of defence in such circumstances.
Boxer shorts are featuring highly in today’s conversation. I know we are going to have more of this.
Perhaps I should refer to my interest—
I thought that you were going to refer to your boxer shorts for a moment.
I beg your pardon—that was very silly of me.
That would be too much information, convener. I was referring to my entry in the register of members’ interests and my membership of the Faculty of Advocates.
I take a contrary view to that of Mr Meehan, and I remind people that Catherine Dyer, from the Crown Office and Procurator Fiscal Service, talked about the important test being the impact on the victim. People do not regard themselves as victims unless something has happened to them, and in the scenario that was described, it is hard to see that the person would regard himself as a victim.
Thank you, and I apologise for my frivolity. I must take my pills.
I agree with Rod Campbell. The issue is what happens to the victim, rather than the perpetrator.
On amendment 71, which relates to the intimate images offence in section 2, the bill provides that where a person discloses or threatens to disclose an intimate image of another person, it is sufficient that they were reckless as to whether they would cause the person who was featured in the image fear, alarm or distress for the offence to be committed. Amendment 71 seeks to restrict the circumstances in which the offence could be committed to ones in which it was proven that the accused had intended to cause the person featured in the image to suffer fear, alarm or distress.
The reason why we have taken the approach that we have taken in the bill is that we consider that it should not be open to an accused to escape criminal liability because, although they might have been well aware that the disclosure of an intimate image would cause the person who appeared in the image to suffer fear, alarm or distress, that was not their intention. Instead, they might have disclosed the image for, say, financial gain, for a joke or to show off to friends.
We consider it appropriate that the offence is committed in circumstances in which it is a foreseeable consequence of someone’s decision to disclose or threaten to disclose an intimate image that they will cause the person who appears in the image to suffer fear, alarm or distress. That is what the bill provides by having recklessness as well as intent as the mens rea of the offence. We do not consider that it should be open to offenders to argue that they are not guilty of the offence because, although they were reckless as to whether, in disclosing an intimate image, they might cause the person to suffer fear, alarm or distress, it cannot be proven that that was their intention.
I therefore invite members to oppose amendment 71.
Clearly, a balance has to be struck. I think that today’s discussion has been useful in highlighting the issue and teasing out the intention behind the inclusion of recklessness with regard to not only the impact on the victim but the powerful warning that it sends to individuals posting images to always stop and think about the potential consequences, unintended or otherwise, of doing so.
With that in mind, I seek leave to withdraw amendment 71.
Amendment 71, by agreement, withdrawn.
Amendment 72 moved—[Margaret McDougall].
The question is, that amendment 72 be agreed to. Are we agreed?
Members: No.
There will be a division.
For
Finnie, John (Highlands and Islands) (Ind)
McDougall, Margaret (Central Scotland) (Lab)
Murray, Elaine (Dumfriesshire) (Lab)
Against
Allard, Christian (North East Scotland) (SNP)
Campbell, Roderick (North East Fife) (SNP)
Grahame, Christine (Midlothian South, Tweeddale and Lauderdale) (SNP)
McInnes, Alison (North East Scotland) (LD)
Mitchell, Margaret (Central Scotland) (Con)
Paterson, Gil (Clydebank and Milngavie) (SNP)
The result of the division is: For 3, Against 6, Abstentions 0.
Amendment 72 disagreed to.
Amendment 73 moved—[Margaret McDougall].
The question is, that amendment 73 be agreed to. Are we agreed?
Members: No.
There will be a division.
For
Finnie, John (Highlands and Islands) (Ind)
McDougall, Margaret (Central Scotland) (Lab)
Murray, Elaine (Dumfriesshire) (Lab)
Against
Allard, Christian (North East Scotland) (SNP)
Campbell, Roderick (North East Fife) (SNP)
Grahame, Christine (Midlothian South, Tweeddale and Lauderdale) (SNP)
McInnes, Alison (North East Scotland) (LD)
Mitchell, Margaret (Central Scotland) (Con)
Paterson, Gil (Clydebank and Milngavie) (SNP)
The result of the division is: For 3, Against 6, Abstentions 0.
Amendment 73 disagreed to.
Amendment 74 moved—[Margaret McDougall].
The question is, that amendment 74 be agreed to. Are we agreed?
Members: No.
There will be a division.
For
Finnie, John (Highlands and Islands) (Ind)
McDougall, Margaret (Central Scotland) (Lab)
Murray, Elaine (Dumfriesshire) (Lab)
Against
Allard, Christian (North East Scotland) (SNP)
Campbell, Roderick (North East Fife) (SNP)
Grahame, Christine (Midlothian South, Tweeddale and Lauderdale) (SNP)
McInnes, Alison (North East Scotland) (LD)
Mitchell, Margaret (Central Scotland) (Con)
Paterson, Gil (Clydebank and Milngavie) (SNP)
The result of the division is: For 3, Against 6, Abstentions 0.
Amendment 74 disagreed to.
Perhaps I should remind the committee that these are technical amendments. The member may wish to consider that. I will just leave it at that.
Can I ask a question, convener?
No. I have said that they are technical amendments. It is up to the member who is moving the amendments.
Are they competent?
Of course they are competent, but the matter is for the member to consider.
Amendment 75 moved—[Margaret McDougall].
The question is, that amendment 75 be agreed to. Are we agreed?
Members: No.
There will be a division.
For
Finnie, John (Highlands and Islands) (Ind)
McDougall, Margaret (Central Scotland) (Lab)
Murray, Elaine (Dumfriesshire) (Lab)
Against
Allard, Christian (North East Scotland) (SNP)
Campbell, Roderick (North East Fife) (SNP)
Grahame, Christine (Midlothian South, Tweeddale and Lauderdale) (SNP)
McInnes, Alison (North East Scotland) (LD)
Mitchell, Margaret (Central Scotland) (Con)
Paterson, Gil (Clydebank and Milngavie) (SNP)
The result of the division is: For 3, Against 6, Abstentions 0.
Amendment 75 disagreed to.
Amendment 76 moved—[Margaret McDougall].
The question is, that amendment 76 be agreed to. Are we agreed?
Members: No.
There will be a division.
For
Finnie, John (Highlands and Islands) (Ind)
McDougall, Margaret (Central Scotland) (Lab)
Murray, Elaine (Dumfriesshire) (Lab)
Against
Allard, Christian (North East Scotland) (SNP)
Campbell, Roderick (North East Fife) (SNP)
Grahame, Christine (Midlothian South, Tweeddale and Lauderdale) (SNP)
McInnes, Alison (North East Scotland) (LD)
Mitchell, Margaret (Central Scotland) (Con)
Paterson, Gil (Clydebank and Milngavie) (SNP)
The result of the division is: For 3, Against 6, Abstentions 0.
Amendment 76 disagreed to.
Amendment 77 moved—[Margaret McDougall].
The question is, that amendment 77 be agreed to. Are we agreed?
Members: No.
There will be a division.
For
Finnie, John (Highlands and Islands) (Ind)
McDougall, Margaret (Central Scotland) (Lab)
Murray, Elaine (Dumfriesshire) (Lab)
Against
Allard, Christian (North East Scotland) (SNP)
Campbell, Roderick (North East Fife) (SNP)
Grahame, Christine (Midlothian South, Tweeddale and Lauderdale) (SNP)
McInnes, Alison (North East Scotland) (LD)
Mitchell, Margaret (Central Scotland) (Con)
Paterson, Gil (Clydebank and Milngavie) (SNP)
The result of the division is: For 3, Against 6, Abstentions 0.
Amendment 77 disagreed to.
Amendment 78 moved—[Margaret McDougall].
The question is, that amendment 78 be agreed to. Are we agreed?
Members: No.
There will be a division.
For
Finnie, John (Highlands and Islands) (Ind)
McDougall, Margaret (Central Scotland) (Lab)
Murray, Elaine (Dumfriesshire) (Lab)
Against
Allard, Christian (North East Scotland) (SNP)
Campbell, Roderick (North East Fife) (SNP)
Grahame, Christine (Midlothian South, Tweeddale and Lauderdale) (SNP)
McInnes, Alison (North East Scotland) (LD)
Mitchell, Margaret (Central Scotland) (Con)
Paterson, Gil (Clydebank and Milngavie) (SNP)
The result of the division is: For 3, Against 6, Abstentions 0.
Amendment 78 disagreed to.
Amendment 79 moved—[Margaret McDougall].
The question is, that amendment 79 be agreed to. Are we agreed?
Members: No.
There will be a division.
For
Finnie, John (Highlands and Islands) (Ind)
McDougall, Margaret (Central Scotland) (Lab)
Murray, Elaine (Dumfriesshire) (Lab)
Against
Allard, Christian (North East Scotland) (SNP)
Campbell, Roderick (North East Fife) (SNP)
Grahame, Christine (Midlothian South, Tweeddale and Lauderdale) (SNP)
McInnes, Alison (North East Scotland) (LD)
Mitchell, Margaret (Central Scotland) (Con)
Paterson, Gil (Clydebank and Milngavie) (SNP)
The result of the division is: For 3, Against 6, Abstentions 0.
Amendment 79 disagreed to.
Amendment 80 moved—[Margaret McDougall].
The question is, that amendment 80 be agreed to. Are we agreed?
Members: No.
There will be a division.
For
Finnie, John (Highlands and Islands) (Ind)
McDougall, Margaret (Central Scotland) (Lab)
Murray, Elaine (Dumfriesshire) (Lab)
Against
Allard, Christian (North East Scotland) (SNP)
Campbell, Roderick (North East Fife) (SNP)
Grahame, Christine (Midlothian South, Tweeddale and Lauderdale) (SNP)
McInnes, Alison (North East Scotland) (LD)
Mitchell, Margaret (Central Scotland) (Con)
Paterson, Gil (Clydebank and Milngavie) (SNP)
The result of the division is: For 3, Against 6, Abstentions 0.
Amendment 80 disagreed to.
Amendment 4, in the name of Elaine Murray, is in a group on its own.
One of my colleagues was contacted on behalf of Professors Clare McGlynn and Erika Rackley, professors of law at Durham University and the University of Birmingham, in connection with this bill, to which they had submitted written evidence. They welcomed the proposal to introduce a new offence that criminalises the disclosure of an intimate photograph or film. Not only do such actions constitute a fundamental breach of privacy, dignity and sexual autonomy and a serious form of harassment and abuse, they are a form of cultural harm, impacting not only on the individuals involved but on society as a whole.
11:45However, the professors also consider that the bill does not make appropriate provision for the distribution of private sexual images non-consensually taken in a public place, including but not limited to, so-called upskirting images. As currently drafted, and in response to concerns about images of streakers or naked ramblers, distribution of such images is excluded from the criminal offence. Although I recognise that the taking of such non-consensual images is prohibited under the Sexual Offences (Scotland) Act 2009, there is no provision to prevent their distribution. Of course, the images might be distributed by another individual.
The bill should cover the distribution of so-called upskirt or downblouse images and related images. Such images often end up on websites that are dedicated to the sharing of non-consensually taken private sexual photographs and/or pornographic websites. I understand that those sites are big business. In May 2015, one such site was exposed by the Mail on Sunday, and it was said to be receiving 70,000 views a day and was valued at £130 million.
The professors’ recommendation is that the omission could be easily rectified by means of a defence of voluntary disclosure, which would prevent the criminalisation of images where the subject has voluntarily disclosed themselves, as in the case of a streaker. In addition, section 9(4B) of the Sexual Offences (Scotland) Act 2009 provides that an offence is committed where a person, A,
“records an image beneath B’s clothing of B’s genitals or buttocks (whether exposed or covered with underwear) ... in circumstances where the genitals, buttocks or underwear would not otherwise be visible”.
However, the bill also includes breasts and, apparently, in addition to upskirting websites, there are also downblousing websites where pictures of women’s breasts are exposed.
In order to cover the distribution of intimate photographs that are taken without consent in a public place and to include the wider definition of an intimate situation, the bill should be amended. Amendment 4 is a small amendment that I believe would achieve that. If the wording, which has been suggested by the legislation team and modified by Professor Rackley, could be improved, I would be happy to work with the Government on amendments at stage 3. However, I hope that I can have the committee’s agreement on the need for such an amendment—and I apologise for again having to discuss such unsavoury practices in public.
I move amendment 4.
I understand where Elaine Murray is coming from, but my instinct is that, if we were going to deal with the issue, it would be by a further amendment to the voyeurism offence under the Sexual Offences (Scotland) Act 2009.
There speaks an advocate for us. He refers us to other legislation, which is useful.
On amendment 4, which relates to one of the defences to the intimate images offence, the defence at section 2(5) currently operates so that, where the image or film that is shared has been taken in a public place with members of the public present, the accused will not be convicted. That is to avoid the situation where, for example, someone shares without consent a film or image of someone streaking at a sporting event and a criminal complaint is made to the police. In that situation, we do not think that a criminal offence should have been committed.
Amendment 4 seeks to restrict the defence to circumstances where the person in the film or image consented to being in that intimate situation. The effect of amendment 4 would be that the public place defence would be available only where the subject of the film or photograph consented to being in an intimate situation in a public place. That could be, for example, a person who deliberately chooses to streak at a sporting event or a person at a naturist resort. The defence will not be available where a person distributes an image showing, for example, a subject of a photograph or film who has been stripped against their will or sexually assaulted in a public place.
We understand and sympathise with the thinking that appears to lie behind amendment 4. We note that the defence would continue to apply where, for example, someone takes a photograph of a naked protestor in a public place. However, where someone had not consented to being in an intimate situation—for example, because they had been forcibly undressed in a public place—a person distributing the photograph or film could not avoid conviction simply because it was taken in a public place.
That said, we think that the exact wording of amendment 4 does not quite achieve what we consider to be the intended effect. In particular, we think that someone who is exposed in a public place cannot always be said to have consented to be in an intimate situation, as that implies that someone else is always involved in their being in an intimate situation. Instead, we think that it would be more accurate to say that, on that occasion, they chose to be in an intimate situation. Therefore, we do not think that the amendment is worded correctly.
The member has said that the amendment is intended to ensure that so-called upskirting or downblousing photographs taken in public places are covered by the offence. However, it is not clear to us that the amendment achieves that, as it is not clear that people who are photographed in such situations are in an intimate situation, as defined at section 3(1). In such cases, the person taking the photograph or film has operated equipment in such a way as to record an image of a person’s genitals, buttocks or breasts in circumstances where they would not otherwise be visible. Therefore, it is not clear that there was any exposure on the part of the person being recorded, either consensual or otherwise.
It is for that reason that, in our response to the committee’s stage 1 report, I said that, if the distribution of voyeuristic upskirting images were to be made an offence, that would be best achieved by building on the voyeurism offence contained in the Sexual Offences (Scotland) Act 2009. In addition, we would welcome time to fully consider the impact of restricting the defence, to ensure that there are no unintended consequences that would allow perpetrators to evade justice.
In light of that, I would be happy to work with Elaine Murray ahead of stage 3 to see whether a workable amendment can be developed to address the issues that she has highlighted. On that basis, I ask the member not to move amendment 4.
Well, she has already moved it, so she has to decide whether to press or withdraw it. She can wind up first.
I will not take up more time in winding up. I am pleased that the cabinet secretary has indicated his willingness to try to find a solution to what is an important and serious issue. The idea that young women or, indeed, young men—or women and men of any age—can be intruded on in this way and money made out of putting materials on to a website is abhorrent. I seek leave to withdraw the amendment, and I look forward to working with the cabinet secretary.
Amendment 4, by agreement, withdrawn.
Section 2 agreed to.
Section 3—Interpretation of section 2
Amendment 81 moved—[Margaret McDougall].
The question is, that amendment 81 be agreed to. Are we agreed?
Members: No.
There will be a division.
For
Finnie, John (Highlands and Islands) (Ind)
McDougall, Margaret (Central Scotland) (Lab)
Murray, Elaine (Dumfriesshire) (Lab)
Against
Allard, Christian (North East Scotland) (SNP)
Campbell, Roderick (North East Fife) (SNP)
Grahame, Christine (Midlothian South, Tweeddale and Lauderdale) (SNP)
McInnes, Alison (North East Scotland) (LD)
Mitchell, Margaret (Central Scotland) (Con)
Paterson, Gil (Clydebank and Milngavie) (SNP)
The result of the division is: For 3, Against 6, Abstentions 0.
Amendment 81 disagreed to.
Amendment 82 moved—[Margaret McDougall].
The question is, that amendment 82 be agreed to. Are we agreed?
Members: No.
There will be a division.
For
Finnie, John (Highlands and Islands) (Ind)
McDougall, Margaret (Central Scotland) (Lab)
Murray, Elaine (Dumfriesshire) (Lab)
Against
Allard, Christian (North East Scotland) (SNP)
Campbell, Roderick (North East Fife) (SNP)
Grahame, Christine (Midlothian South, Tweeddale and Lauderdale) (SNP)
McInnes, Alison (North East Scotland) (LD)
Mitchell, Margaret (Central Scotland) (Con)
Paterson, Gil (Clydebank and Milngavie) (SNP)
The result of the division is: For 3, Against 6, Abstentions 0.
Amendment 82 disagreed to.
Section 3 agreed to.
Section 4 agreed to.
Schedule 1—Section 2: Special provision in relation to providers of information society services
Amendment 5, in the name of the cabinet secretary, is grouped with amendments 6 and 7.
Amendments 5 to 7 are minor amendments to ensure that schedule 1 to the bill does what it is intended to do and to ensure that the wording is consistent. Schedule 1 makes provision in relation to the e-commerce directive, which requires the liability of information society service providers in respect of the section 2 intimate images offence to be limited in certain ways.
Amendments 5 and 6 adjust the wording of the provisions at paragraphs 2 and 3 of the schedule, which set out exceptions to the offence for internet service providers where they are caching or hosting information. To ensure consistency with paragraph 1 of the schedule, which sets out the exception for internet service providers that are acting as mere conduits, amendments 5 and 6 adjust the wording of those paragraphs to refer to the circumstances in which a service provider is
“not capable of being guilty of an offence”.
Amendment 7 concerns the exception to the offence for internet service providers that are hosting information on their servers on the basis that they have no actual knowledge of illegal activity on their server. The amendment is to ensure that the exception applies in the right circumstances. The exception should apply if the service provider had no actual knowledge that an offence was committed under section 2. The amendment also has the effect of simplifying the drafting in paragraph 3(2).
I move amendment 5.
Amendment 5 agreed to.
Amendments 6 and 7 moved—[Michael Matheson]—and agreed to.
Schedule 1, as amended, agreed to.
After section 4
Amendment 67, in the name of Alison McInnes, is grouped with amendment 68.
I hope that amendments 67 and 68 are uncontroversial. Amendment 67 would introduce a requirement on the Scottish ministers to carry out a public information and education campaign in connection with the new offence that is set out in section 2.
Members might know that, in England and Wales, where a similar offence has been introduced, the Ministry of Justice is already running the “Revenge Porn: be aware b4 you share” campaign, which includes a Facebook campaign page, a Twitter hashtag, a revenge porn helpline to support victims and other promotional material.
As modern technology is becoming a bigger part of our lives, we need to replicate that campaign to ensure that as many people as possible are aware of the new offence. That includes not just potential victims but potential perpetrators, because the idea is to reduce the number of instances of the new offence. The written submission from Zero Tolerance outlined why a public awareness campaign is important.
Similarly, my amendment 68 seeks to amend the current guidance on relationships, sexual health and parenthood education in schools. It has the same aims that I have already discussed. Barnardo’s and the National Organisation for the Treatment of Abusers have called for such a change, too.
I hope that the committee will support my amendments.
I move amendment 67.
I am very supportive of the amendments, especially given the inclusion of the recklessness provision in section 2.
I, too, am supportive of the amendments. An important part of what might be achieved by the bill is getting the message out that that sort of behaviour is unacceptable. It is also important that education in schools on sexual health and relationships gives out messages about consent and respect. Those are fundamental parts of what we used to call sex education, although it is taught in a broader sense now. It is important that the bill is accompanied by education of the general public and, particularly, education in schools.
I have to say that I am sympathetic, but—I beg your pardon, I see that Rod Campbell wants to comment.
I fully understand where Alison McInnes is coming from. There is a clear need to raise public awareness of the issue and to look at issues around education in sexual health. My query is whether we need to put that in legislation or whether we can rely on the Government’s general commitment to raise awareness. I do not see—
You took the words right out of my mouth—I am coming in now anyway, because I just want to.
I am sympathetic to what the amendments propose, but I do not think that it is appropriate to put it in legislation. Governments should publicise changes in the law, particularly when they are creating an offence that was not there before. My only objection to the proposals is that I do not think that they are appropriate in primary legislation.
I want to share a small worry about telling youngsters that such a website exists. A revenge porn website should not get any advertisement from anybody.
12:00
Amendment 67 would place a duty on the Scottish ministers to carry out a public information and education campaign when the intimate images offence is commenced. I can confirm that the Scottish Government will take appropriate steps to promote public awareness of section 2 and its coming into force. As it is our intent to ensure that public awareness is raised prior to the implementation of the offence, amendment 67 is unnecessary to achieve what Alison McInnes seeks.
In addition, such a requirement is not normally included in legislation. The statute book would become a bit crowded if we had a provision about publicity in relation to every new offence or policy that was put into law.
We also consider that amendment 67 focuses entirely on the method of seeking to raise awareness, as it would require a publicity and education campaign rather than the raising of awareness, which we presume is Alison McInnes’s intent. We therefore consider the amendment to be technically deficient in its wording. On the basis of the commitment that I have made to Alison McInnes, I ask her to withdraw amendment 67.
Amendment 68 would place a duty on the Scottish ministers to update guidance on relationships, sexual health and parenthood education in schools, to provide guidance on how issues relating to the intimate images offence are to be covered in such education.
It might be helpful if I explain that relationships, sexual health and parenthood education is a recognised subject in the health and wellbeing section of curriculum for excellence. In December 2014, the Scottish Government published guidance for schools on such education. The guidance notes that the education must take account of developments in online communications and ensure that children are informed of the law in Scotland on communications involving sexual content. Currently, that includes, for example, offences concerning indecent communications in the Sexual Offences (Scotland) Act 2009 and offences concerning the possession and distribution of indecent images of children.
When the intimate images offence comes into force, it will become part of the law of Scotland, and therefore the existing guidance already sets out that relationships, sexual health and parenthood education will cover the intimate images offence. I understand why the amendment has been lodged but, on the basis of the explanation that I have given and my commitment that we will work to publicise the new offence, I invite Alison McInnes not to move amendment 68, as it is unnecessary to achieve the policy aim.
I am grateful for the cabinet secretary’s reassurances, which I am happy to accept. I am particularly happy that he is talking about having a public campaign in advance of the legislation’s coming into force. Heaven forbid that I should press an amendment that has been found to be deficient, so I would like to withdraw amendment 67.
Amendment 67, by agreement, withdrawn.
Amendment 68 not moved.
Section 5 agreed to.
Section 6—Jury directions relating to sexual offences
Amendment 1, in the name of Margaret Mitchell, is grouped with amendment 2.
Amendment 1 would remove section 6, which sets a precedent by introducing statutory jury directions, and amendment 2 is consequential.
The section 6 statutory jury direction applies
“in a trial on indictment for a sexual offence”
when evidence has been given that the complainer
“did not tell, or delayed in telling, anyone ... about the offence, or ... did not report, or delayed in reporting, the offence to any investigating agency”
such as the police. It also applies when
“evidence is given which suggests that the sexual activity took place without physical resistance”
by the complainer, or when
“a question is asked, or a statement is made, with a view to eliciting, or drawing attention to, evidence of that nature.”
The Scottish Government has insisted that the introduction of the statutory jury direction would be sufficiently flexible for judges to make appropriate decisions. In reality, it strikes down one of the central tenets of Scots law: namely, the independence of the judiciary and the separation of powers.
Others have described it as a worrying example of constitutional creep, and those concerns are shared by the legal profession. The Law Society has stated that the move
“represents a major departure from existing practice where the distinct roles of a judge and jury are clear”.
Lord Carloway argued that the bill
“sets a precedent. If Parliament dictates what should be said to juries by a judge in this area, other people will no doubt seek to extend that to other areas and will wish other directions to be given, and that is where we get into the constitutional divide.”—[Official Report, Justice Committee, 8 December 2015; c 50.]
Both the Law Society and the Faculty of Advocates have argued that the Scottish Government has not made a sufficiently strong evidential case that, in the circumstances that the directions have been tailored for, juries acquit for the wrong reasons.
This dangerous precedent is being set despite the fact that, as I said in the stage 1 debate, the issues that the statutory jury directions seek to address can adequately be dealt with by the use of expert witnesses. The only reason that expert witnesses are not being used relates to the cost implications—a fact that was acknowledged by both Catherine Dyer, the chief executive of the Crown Office and Procurator Fiscal Service, and Lord Carloway, the then Lord Justice Clerk. Furthermore, given that the Scottish Government is in the process of undertaking jury research, there is a strong case for waiting for the results of that research, which would provide important evidence about how juries reach decisions and whether those misconceptions exist.
I therefore ask the Scottish Government to think again about interfering with judicial independence and urge it to remove the provisions from the bill.
I move amendment 1.
I support amendment 1—which goes to show that we are very flexible on this committee. I have a serious concern. I fully support the argument that has been made by Margaret Mitchell—and by Lord Carloway and Sheriff Liddle—that it is a serious matter for legislators to tell a judge what directions he must, with some exceptions, give to a jury. To me, that crosses a line. We have a clear division between legislators and those who implement the law, which it is important to maintain.
Both Lord Carloway and Sheriff Liddle made the point that there is a constitutional issue at stake. When John Finnie asked what the position would be if the provisions came into practice, Lord Carloway said:
“We are all members of a democracy and we respect Parliament’s legislative function. We do not get upset in the way suggested. If Parliament wants to tell judges to give the jury the directions proposed in the bill, we will give them.”
However, he went on to say:
“we have stated that it is traditionally the role of the judge, rather than Parliament, to decide on jury directions. That is the way that it has been in the division of constitutional responsibilities, but that takes us only so far. In any jurisdiction in the Commonwealth, it is very rare for a Parliament to dictate to judges what they should say in jury directions, although it has been done in a couple of jurisdictions. If you want us to say something specific in jury directions, we will do so. However, we are just saying that what is proposed is not necessarily the best way of doing that.”—[Official Report, Justice Committee, 8 December 2015; c 46.]
That is a heavyweight opinion from the Lord President. As Margaret Mitchell says, he argued that
“it sets a precedent. If Parliament dictates what should be said to juries by a judge in this area, other people will no doubt seek to extend that to other areas and will wish other directions to be given, and that is where we get into the constitutional divide.”—[Official Report, Justice Committee, 8 December 2015; c 50.]
In my view, a line is being crossed that must not be crossed. The same point was made by Sheriff Liddle. There are other issues about the practicalities and how effective, or ineffective, the provisions will be if they are agreed to. I know that there is not a majority of committee members in favour of Margaret Mitchell’s position or mine, but that does not matter a whit to me; what matters to me is that we are crossing a very important constitutional line by telling a judge, in statute, what must be said to a jury. That has not been done before and, to use the thin-end-of-the-wedge argument, if we do it once, we might do it again because somebody will use it as a precedent.
I fully support amendment 1. Amendment 2, which amends the long title, is simply consequential to amendment 1.
I do not agree with my friends Margaret Mitchell and Christine Grahame on this issue. We know that the public have misconceptions about the way in which rape victims behave. For example, they often have misconceptions about the degree of physical resistance or the speed at which somebody would report the fact that they had been raped. Juries are made up of members of the public and members of juries may also have misconceptions about the reactions of people who have been raped. We know that it is difficult for rape cases to come to court for a number of reasons that relate to corroboration, although I will not go into that debate again. We also know that around 15 per cent of not proven verdicts—the highest percentage—are given on rape cases.
It is necessary for the judge to be able to put right any misconceptions that a jury may have that could prevent a victim of rape from getting the justice that they deserve. There is an argument about such provisions being extended to other areas, but we are legislating for a specific instance in which judges must give jury directions. To extend directions to any other area of law, we would have to legislate. Therefore, I do not agree that directions will suddenly creep into all sorts of other areas of law. They would have to be introduced by specific primary legislation for that to happen.
I will oppose amendments 1 and 2.
Not for the first time, I agree with Elaine Murray. The matter relates to sexual offences in which, unfortunately, the victim is more likely to be of a specific gender. Elaine Murray talked about misconceptions. The policy memorandum to the bill talks about
“certain ill-founded preconceptions held by members of the public”.
It is important to say that those preconceptions are ill founded and, as long as we have those
“ill-founded preconceptions held by members of the public”,
jury directions should be in legislation, because the preconceptions must be challenged in a non-adversarial manner. That would ensure that we had a way to rebalance what society thinks. If, in the future, society no longer has those “ill-founded preconceptions”, I would be happy for the provisions on jury directions to be removed from the legislation. However, given where we are just now, jury directions are the answer.
Unfortunately, I take a different view from Margaret Mitchell and the convener on the matter. I accept that section 6 does not find favour with what I might describe as the legal establishment. The key point to remember is that jury directions would be given only if there was an issue in the case in relation to delay or the absence of physical resistance. There is also a safeguard position that, if the judge feels that no reasonable jury could rely on the evidence, no direction needs to be given.
Yes, section 6 sets a precedent. Yes, we do not have jury research because of the difficulties with the Contempt of Court Act 1981, although we will address that through the jury research that Lord Bonomy is undertaking. However, it is well established from other sources that juries have preconceptions. The matter has been flagged up for a while, so we need to bite the bullet and pass the bill with section 6 in it.
The term “tradition” has been used a few times. The tradition that we have in Scots law is a fine one of an embarrassingly low level of convictions for heinous crimes. I set great store by the rights of the accused and do not doubt that the defence will tailor its comments to reflect any charge to the jury from the judge. Lord Carloway said that section 6 is not the best way of addressing the matter, but there have been plenty of opportunities for the judiciary to make suggestions of better ways of improving the situation. For those reasons, I will not support amendment 1.
12:15
My experience with women’s groups, particularly Rape Crisis Scotland, suggests to me that some people on juries have preconceived ideas about how somebody would present or handle themselves. Would they be calm? Some people would expect them not to be calm, so there is a prejudice in the first place. I think that it would be good for the courts and for the system for simple explanations to be made. I do not think that judges should try in any way to influence people’s minds on the case, but there is evidence that a substantial number of people on juries have expectations about when people report and believe that, if someone delays reporting, the alleged crime did not take place.
In fact, that is not the case, because there are complex reasons why people do not present. There could be a family reason. Quite often, people are raped by someone they know, and that could have a consequence because it could be a friend of the husband or wife. The consequences for the whole family, including the husband, the wife and the children, is a consideration.
The victim might stay quiet rather than do the right thing and be brave—it is a brave person who presents in a Scottish court with regard to rape, because it a horrendous experience for them and they need to relive what has happened to them. In such circumstances, someone who has been raped may reflect on the matter for a good number of years before reporting it. It might well be that a second rape takes place and the previous victim hears about the second rape, which gives them the courage to put themselves through the mill and report what happened to them.
It is a complex area for all those reasons, and it is good law that explanation and education are given if we know that people have preconceived ideas, which is prejudice.
Amendments 1 and 2 would remove the provisions in the bill relating to the introduction of statutory jury directions. The issue has been extensively debated during stage 1, and I am pleased that the majority of the committee supported the jury direction provisions in its stage 1 report.
Members do not need to be reminded that we have included those provisions in the bill to deal with the important underlying issue—which Elaine Murray highlighted—that some members of the public, and thus some members of a jury, will hold preconceived and ill-founded attitudes towards how sexual offences are committed and how someone who is subjected to a sexual offence is likely to act both when the offence takes place and afterwards.
Some people think that anyone who carries out a sexual offence will almost always require to use physical force. In addition, some people think that the victim will always offer physical resistance when an offence is being committed and that they will always make an immediate report to the police after an offence has been committed. When jurors hold those views and when any of those scenarios has taken place, those unenlightened views can, unfortunately, be allowed to affect how the jurors consider the evidence in the case.
Research clearly shows that people react in many different ways when a sexual offence takes place and in the aftermath of an offence having taken place. There is no one standard type of reaction that should be expected, and that body of research shows that it is a perfectly normal for a person not to offer physical resistance when a sexual offence is being committed or not to report the offence for a period of time.
It is clear to us that jurors must consider the evidence that they have heard in the case, so the intent behind jury directions is simple: we want the focus of the jury to be on the evidence that is laid before them. Any preconceived and ill-founded attitudes that may be held should not play a part in the jury’s decision.
Members are aware that judicial discretion as to whether jury direction is necessary is built into the provisions. If no issues relating to a delay in reporting a sexual offence are raised at trial, the jury direction is not required. Even in cases in which an issue relating to a delay may have been raised in evidence, the judge does not have to give direction if they consider that no reasonable jury would think that the issue of delay was material to whether the offence was committed. The judge has similar discretion over jury directions in relation to a lack of physical force or physical resistance.
We consider that the jury direction provisions that are contained in the bill provide the right approach, with judicial discretion and flexibility built in. Therefore, the Scottish Government does not support amendments 1 and 2 in the name of Margaret Mitchell.
Thank you. As you can imagine, I am itching to sum up. However, it is not for me to do so; I will save that for stage 3, if we return to the issue at stage 3. In my view, there is a lot of material to attack, and Margaret Mitchell has the opportunity to do that.
Thank you, convener.
This is not—as Roddy Campbell seems to suggest—about the legal establishment opposing progress. The concerns that have been expressed by the so-called legal establishment have been expressed because the provisions interfere with two important principles of democracy in Scotland. The first is the separation of powers, which is a fundamental constitutional principle. The second is the independence of the judiciary, which is a central tenet of Scots law. If section 6 started to interfere with that principle, a precedent would be set in one area of the law and it would then be fair game to argue that the same precedent and the same jury direction should apply in other areas of the law. In effect, once the genie is out of the bottle, it will be impossible to put it back.
The cabinet secretary argued, somewhat disingenuously, that statutory direction is the only way to tackle the misconceptions that may be held by juries about the evidence that is laid in sexual offence cases. I do not think that anybody is arguing that those misconceptions do not—and have not—existed or that those misconceptions do not affect conviction rates. The important point is that there is another very effective way to address that, which was confirmed by the Crown Office and Procurator Fiscal Service and by Lord Caroloway, although they said that that effective remedy could not be employed without cost being incurred. Cost considerations should not take precedence and allow interference with the independence of the judiciary or with fundamental principles.
For those reasons, I press amendment 1.
The question is, that amendment 1 be agreed to. Are we agreed?
Members: No.
There will be a division.
For
Grahame, Christine (Midlothian South, Tweeddale and Lauderdale) (SNP)
Mitchell, Margaret (Central Scotland) (Con)
Against
Allard, Christian (North East Scotland) (SNP)
Campbell, Roderick (North East Fife) (SNP)
Finnie, John (Highlands and Islands) (Ind)
McDougall, Margaret (Central Scotland) (Lab)
McInnes, Alison (North East Scotland) (LD)
Murray, Elaine (Dumfriesshire) (Lab)
Paterson, Gil (Clydebank and Milngavie) (SNP)
The result of the division is: For 2, Against 7, Abstentions 0.
Amendment 1 disagreed to.
Section 6 agreed to.
It may be useful if I let the committee and the cabinet secretary know that we are going to go as far as amendment 18 and conclude at section 9 of the bill today. That will get us through a fair whack of it. We will not get through it all today.
After section 6
Amendment 3, in the name of Margaret Mitchell, is in a group on its own.
Amendment 3 provides that, when an application is made to recover the psychiatric, psychological or medical records of the complainer in the types of sexual offence cases that are listed in section 288C of the Criminal Procedure (Scotland) Act 1995, the complainer must be notified of their right to seek legal advice and to appoint a legal representative. They must also be given the opportunity to seek such advice and appoint such a representative.
The amendment also provides that, when the complainer appoints a legal representative, that representative must be given the opportunity to submit written evidence and to represent the complainer at any hearing that relates to the application. The fees incurred by the legal representative will be borne by the Scottish legal aid fund, under regulations made by the Scottish ministers.
As members know, this is the third bill in which I have sought to address the release of medical records, including psychiatric records, in sexual offence cases when the complainer would object to their release if they had the opportunity to do so. What is notably different on this occasion is that amendment 3 follows the recent decision, from February this year, in the judicial review petition of WF v the Scottish ministers, for which Rape Crisis Scotland was the intervener, which found that denying a complainer—in this case, a domestic abuse victim—the right to oppose the release of her medical records was a breach of her right to privacy under article 8 of the European convention on human rights.
The Scottish ministers, defending their position, refused to make legal aid available, arguing that the victim had no right to be heard or represented in front of the sheriff on that application. However, on hearing the petition, Lord Glennie held that the Scottish ministers’ decision to refuse legal aid was based on an error of law and was contrary to the duty imposed on them by the Victims and Witnesses (Scotland) Act 2014, section 1 of which provides that
“a victim or witness should be able to participate effectively in the investigation and proceedings.”
Lord Glennie went on to say:
“the complainer is entitled to have her ECHR rights protected effectively.”
In drafting amendment 3, I took account of comments that the cabinet secretary made at stage 3 of the Criminal Justice (Scotland) Bill. The amendment applies not only to applications in the sheriff court but to similar applications in the High Court for orders granting commission and diligence for the recovery of documents and orders for the production of documents. Medical records are often used to discredit a victim’s testimony. Therefore, it should be for the court to determine whether there is merit in having the documents released. The point is that, if the complainer is not there to object, only one side of the argument is heard.
There is no reason why amendment 3 should not be agreed to, as it seeks merely to ensure that the judicial review decision is put in statute.
I move amendment 3.
I congratulate Margaret Mitchell on her tenacity in bringing the issue to the fore. She said that she has raised the matter in the context of three bills, but I thought that it was in the context of more bills than that. I do not know whether she has just managed to wear me down.
You were doing so well.
Some of the issues about which I was previously concerned appear to have been addressed. I also think that the bill is probably the appropriate place for the provisions.
In the past, I was concerned about having three lawyers in court to represent different people, and at one point it seemed that all complainers would get legal aid whereas now I note that the Scottish ministers will make provision for fees, so there could be some sort of scale relating to a complainer’s ability to get legal aid, as is the case for the accused.
I have considerable sympathy with amendment 3, particularly in the light of the case to which Margaret Mitchell referred. Without such provisions, a person’s human rights might not be respected. Therefore, I am inclined to support amendment 3.
As Elaine Murray said, Margaret Mitchell’s tenacity on the issue is well known. I have supported her in the past, and I think that we have been vindicated by the recent judicial review. The Government has been wrong in law in its interpretation of the situation relating to petitions for the recovery of documents. It is clear that, in those circumstances, the Crown represents the public interest and not the victim’s right. However, at that point, the Crown should represent the victim’s right as one of a number of competing interests such as the right to a fair trial, the rights of any other victims and, indeed, public policy.
There is no doubt that there is an anomaly that needs to be addressed, although legislation is not needed to do that. The cabinet secretary could amend legal aid regulations to do it, and I urge him to tell us today that he is considering that, because there has been a misunderstanding in law. We need to move forward on this really important issue.
12:30
Margaret Mitchell has referred to the decision of Lord Glennie in the Court of Session on the judicial review petition of WF v the Scottish ministers. That relates to an on-going case, so I must be careful in what I say.
There were two important points in that decision. First, Lord Glennie clearly found that, procedurally, under article 8 of the ECHR, the lady concerned should have been given notice of the application for the witness summons. Having established that, Lord Glennie considered the issue of legal aid. As Margaret Mitchell suggests, he said:
“as a matter of Convention jurisprudence, the complainer is entitled to have her ECHR rights protected effectively.”
The key question was how those rights could be protected effectively if she was unable to have appropriate representation.
The issues that have been raised might cause a substantial increase in the cost to the legal aid fund, but I hope that the cabinet secretary can help us on them.
I concur with a lot of what Elaine Murray has said. For the second time today, this is an issue on which I have changed my position. Lord Glennie has made a very interesting ruling, and I am grateful that members are highlighting it. It brings us into the same realm that we were in regarding fatal accident inquiries, in which the public interest and the individual’s interest can sometimes conflict.
I do not share Rod Campbell’s view that there will be substantial costs associated with the amendment. However, there is certainly the potential for substantial injury to individuals if the abuse that can be associated with the mere request for information is allowed to go unchallenged. Therefore, I will support Margaret Mitchell’s amendment.
Members will recall, as Margaret Mitchell has alluded to, that similar amendments have been proposed in the past. I want to start now, as I started then, by sympathising very strongly with the intention behind the amendments.
The day after amendment 3 was lodged, the Court of Session issued its judgment in the judicial review by WF.
Can I confirm, because slight alarm bells are ringing, whether the case is sub judice? Are we quite satisfied that it is not?
I will come on to that.
The case dealt with representation from a complainer seeking to restrict access to her medical records in connection with a criminal case. I must remind the committee that the criminal proceedings concerned have not concluded.
The Scottish Government will not appeal the decision. It is an important judgment and clarifies a number of issues that will lead to significant changes in procedure in cases where an application is made to recover sensitive information.
The principles confirmed by this judgment apply in all applications for sensitive information—not just in cases of sexual offences. Lord Glennie applies his decision to:
“any person whose Article 8 rights may be infringed by an order for recovery of medical records and other sensitive documents”.
The article 8 right is to privacy. The rights that Lord Glennie found extend, therefore, not only to psychiatric, psychological or medical records, but to other sensitive information, and also to persons other than a complainer.
I have informed the agents acting for WF of my determination granting their application for legal aid. I recognise that it was important to deal with that matter first, to allow the associated criminal trial to proceed without further disruption.
Changes to the legal aid system require to be made for cases of this nature, and plans are being developed to deliver the necessary changes. Meantime, I have put in place interim arrangements that will allow the Scottish Legal Aid Board to provide legal aid in future similar cases. Importantly, a means test will not be applied in this interim arrangement. Legal aid, in the form of assistance by way of representation, will be available in appropriate circumstances for individuals whose sensitive records are being sought.
Lord Glennie has confirmed that a right to intimation and a right to be heard, together with—where appropriate—a right to representation, already exist. That means that there is no need for amendment 3, and as the amendment is set out in terms of sexual offences, it would introduce unnecessary confusion. What is relevant is the sensitivity of the records at issue, not the particular categorisation of the offences.
I note that amendment 3 does not provide for intimation of the application directly to the person whose records are being sought. The judgment confirmed that a complainer or witness ought to have intimation of the application regardless of whether they decide to appoint a legal representative. The judgment also confirmed that the courts now have the powers to protect the rights in question.
For the future, Lord Glennie recommended that rules of court be made to cover such applications. There is good reason for that. Rules are inherently more flexible. They are thus a more appropriate mechanism for dealing with the arrangements for asserting the rights. As Lord Glennie pointed out, that is the approach that is taken in civil cases in Scotland, and in England and Wales.
The challenge for those who are members of the Criminal Courts Rules Council in developing the rules includes that of preserving the fundamental principle that complainers have no right to appear in criminal trials. Lord Glennie outlined several ways in which the rules that he considered desirable could operate, and not all of those involve the complainer appearing in every relevant hearing. There is an additional challenge in that, at present, we do not have data that shows what the potential demand might be.
In those circumstances, we think that the inherent flexibility of rules of court in comparison with primary legislation is what is required. The Government has always made it clear that we wish to invest in support for victims. Members will be aware that I have previously outlined a monitoring exercise that we are undertaking of applications to lead character or history evidence. That is currently under way. The information that that exercise and any necessary follow-up provide, together with developing experience, will inform the development of the rules that Lord Glennie seeks.
In summary, the aims of Margaret Mitchell’s amendment 3 have already been achieved and do not need to be legislated for. It is the case that the position today is that a court will require to ensure that the rights of complainers and others whose sensitive records are sought will be protected through a right to be intimated that sensitive records are being sought, and that a right to be heard will be given as consideration is given to whether the sensitive records will be disclosed. The Scottish ministers have directed the Scottish Legal Aid Board to provide legal aid—in the form of assistance by way of representation—to afford effective representation to those who seek to protect their sensitive information, and we will work to ensure that a permanent solution is put in place that will meet the requirements of Lord Glennie’s judgment.
I therefore ask Margaret Mitchell to withdraw amendment 3.
I am greatly encouraged by the cabinet secretary’s comments. He said quite a lot, which needs to be looked at in some detail to ensure that the group of people we are talking about, for whom I have argued consistently over many years, will not be disadvantaged and that there will not be a time lag. It does not seem to me that amendment 3 would have that effect, but I am happy to seek to withdraw it at this stage and to work with the cabinet secretary to ensure that we have the kind of provision that Rape Crisis is in favour of on an issue that we know has been a barrier to getting a fair trial, and that we enable article 8 to be invoked for people whose medical, psychological and psychiatric records have been sought not for any justifiable reason but merely to discredit them in court. With that, I seek permission to withdraw amendment 3.
I think that you have done very well, Margaret. [Interruption.] We are not allowed to clap, although I know how you feel. It is a pity, but that is one of the little—well, I do not know; I could have let you clap. Why not? It is very unusual, but then we are quite an unusual committee at times. We have been sitting a very long time today.
Amendment 3, by agreement, withdrawn.
Section 7—Incitement to commit certain sexual acts elsewhere in the United Kingdom
Amendment 8, in the name of the cabinet secretary, is grouped with amendments 9, 10 and 18.
Amendments 8 to 10 and 18 address the point raised by Professor James Chalmers in his evidence to the committee during stage 1 about sections 7 and 8 of the bill concerning the extension of extra-territorial jurisdiction of Scottish courts to sexual offences against children committed in the other jurisdictions of the United Kingdom.
The concern was that the bill as introduced defined “habitual resident of Scotland” to include persons who had become habitually resident after committing the criminal acts that are the focus of these provisions. As a result, dual criminality requirements for non-habitual residents of Scotland would not apply in relation to persons who become habitual residents of Scotland at some point after the criminal act.
Professor Chalmers argued that the provisions as drafted had retrospective effect, because simply by moving to Scotland, a person could become criminally liable for an act that was not a crime in the place where they did it, at the time when they did it.
As I said in my evidence to the committee, that is a largely theoretical concern, as the law concerning sexual offences against children in the different jurisdictions of the United Kingdom is very similar and it is hard to envisage acts that are criminal in Scotland that would be lawful in England, Wales or Northern Ireland, or vice versa. However, we consider that it is appropriate to remedy the issue through our amendments.
Amendments 8 and 10 adjust the definitions of a “habitual resident of Scotland” that are to be inserted in sections 54 and 54A of the Sexual Offences (Scotland) Act 2009 so that they include only persons who were habitually resident in Scotland at the time that they committed or incited the act constituting a listed offence under Scots law. As such, a person can be held criminally liable for an act that was an offence under Scots law, but not under the law of the jurisdiction within the UK where the act took place, or where it was intended to take place, only if they were habitually resident in Scotland at the time they did so.
Professor Chalmers also noted that the existing provision concerning extra-territorial jurisdiction at sections 54 and 55 of the Sexual Offences (Scotland) Act 2009 has the same problem. Our amendments 9 and 18 address that.
It is worth noting that a slightly different approach has been taken with amendment 18, in that a person who was not a UK national or resident at the time that they committed the offence in a country outside the United Kingdom may be liable to be prosecuted for that offence if they subsequently take up UK residency or become a UK national, if the act in question also constituted an offence under the law in force in the country where the act took place at the time that it took place. We have provided for the amendment in this way to ensure that a person cannot take up UK residency or become a UK citizen and by doing so evade prosecution for a sexual offence against a child in another country.
I move amendment 8.
I very much welcome the cabinet secretary’s comments. Those points were made by an academic. For the record, the points in relation to sections 54 and 55 of the Sexual Offences (Scotland) Act 2009 were highlighted by Gerard Maher of the University of Edinburgh, rather than Professor Chalmers. We had two academics making points and that really helped us with our evidence session on 17 November. I am really pleased that the cabinet secretary has taken note of it.
Amendment 8 agreed to.
Amendment 9 moved—[Michael Matheson]—and agreed to.
Section 7, as amended, agreed to.
Section 8—Commission of certain sexual offences elsewhere in the United Kingdom
Amendment 10 moved—[Michael Matheson]—and agreed to.
12:45
Amendment 11, in the name of the cabinet secretary, is grouped with amendments 12 to 17.
Amendments 11 and 17 are intended to enable a prosecution to be brought in Scotland for a listed sexual offence against a child in a case where it is known that the act took place in the UK but the jurisdiction in which it took place is not known.
Committee members will be aware of a case highlighted during a stage 1 evidence session in which it was alleged that a child was abused in a van travelling on the M74 between Carlisle and Dumfries and the abuser could not be prosecuted because it was not possible to establish whether the offence had been committed in England or in Scotland. Although such cases will be very rare, discussions with the Crown Office indicate that there has been at least one other case of this kind.
We consider that it is also possible that a historical child sexual abuse case could arise where the victim lived as a child in Scotland and in another part of the UK—possibly even several other parts of the UK—and might not be able to say with certainty whether the abuse occurred in Scotland or in another part of the UK.
Amendments 11 and 17 provide that an indictment or complaint in which a listed offence is charged does not need to contain information on which country in the United Kingdom the act took place. However, if the indictment does not identify the country where the act took place, certain extra limitations apply to the prosecution of the offence in Scotland.
Those are, first, that prosecution is not competent if the person charged with the offence has been or is being prosecuted for the act constituting the offence elsewhere in the UK and, secondly, that the director of public prosecutions in any jurisdiction in which the offence may have been committed must be consulted before the prosecution is initiated.
Provision is also made for the unlikely situation in which, as part of a course of conduct also involving offences alleged to have been committed by the accused person in Scotland, the prosecution wishes to libel a listed offence that may have been committed in England, Wales or Northern Ireland but which it is not alleged was committed in Scotland. In those circumstances, both heads of public prosecution must be consulted and the person must also be charged with a listed offence alleged to have been committed in Scotland.
Amendments 12 and 13 are minor amendments concerning the requirements that must be satisfied before a prosecution can be brought in respect of a listed offence. When taken together, the effect of amendments 12 and 13 is to remove the condition that an act must be a criminal offence in the UK jurisdiction where it took place to trigger the need to satisfy the requirements, including the Crown Office obligation to consult with the prosecution service in the other jurisdiction ahead of a Scottish prosecution.
There is a high degree of uniformity across the UK jurisdictions in relation to sexual offences against children and we think that it is appropriate simply to require prosecutors in Scotland to consult with their counterparts in other parts of the UK whenever they are contemplating prosecuting an act that has occurred in another UK jurisdiction.
Amendment 14 deals with circumstances where the prosecutor allows a complaint or indictment to fall and serves a new complaint in respect of the same conduct. It provides that the consultation with the local prosecutor must take place before the particular prosecution that is being taken forward.
Amendment 15 ensures that the existing provision in the bill that is intended to prevent people being prosecuted more than once in the UK in relation to the same act does not prevent a prosecution in Scotland where a prosecution in another jurisdiction is withdrawn specifically to allow the Scottish prosecution to go ahead.
Amendment 16 is intended to provide greater certainty as to when a prosecution can be said to have been initiated.
I move amendment 11.
Amendment 11 agreed to.
Amendments 12 to 17 moved—[Michael Matheson]—and agreed to.
Section 8, as amended, agreed to.
After section 8
Amendment 18 moved—[Michael Matheson]—and agreed to.
Section 9 agreed to.
That concludes stage 2 consideration of the bill for today. We have a little bit still to do next week. I thank the cabinet secretary and his officials for attending, and I praise the fortitude of the committee—although the meeting is not yet finished.
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