Item 5 is the final evidence session on the Abusive Behaviour and Sexual Harm (Scotland) Bill, for which the cabinet secretary is staying with us. I welcome Scottish Government officials Philip Lamont and Patrick Down from the criminal justice division; Ian Fleming from the safer communities division; and Catherine Scott from the directorate for legal services. The cabinet secretary has indicated that he does not wish to make an opening statement.
The bill addresses six different areas. We have received the most conflicting evidence on judicial direction and on what was formerly called revenge porn, although we are not supposed to call it that any more—it is now the new offence of
“disclosing, or threatening to disclose, an intimate photograph or film”.
I propose that we take questions on those parts of the bill first, and then move on to the other areas that the bill covers. I ask members for questions on judicial direction.
As the convener has indicated, witnesses have expressed concern about the introduction of statutory jury directions in sexual offence cases, particularly with regard to undermining the independence of the judiciary. Does the cabinet secretary share those concerns?
No, I do not, although I understand the comments and the evidence that the committee has received on those matters. I believe that the provisions in the bill will provide judges with sufficient flexibility in respect of when they should issue directions to the jury.
It is worth keeping in mind that there are other times when judges issue directions to juries, particularly if expert evidence has been led. I do not believe that the provisions interfere with the judiciary in a way that compromises judges’ independence. The provisions provide sufficient flexibility for judges to be able to give direction as and when necessary; they also give judges a level of flexibility in deciding how such directions are put to the jury.
You mention expert evidence being led. That seems to be a perfect way round the issue, as someone would explain certain points. It is not always the case that a delay in reporting indicates a false claim, and the expert evidence may explain that. Some judicial direction at that point seems quite reasonable. However, to give direction without such expert evidence being led does not seem reasonable.
Expert evidence will be taken on issues in many cases. If such evidence is taken, the judge will consider giving some direction to the jury. However, there may not always be expert evidence, and it is important that we ensure that, in cases where a specific type of evidence is led and issues are raised, provisions are in place to ensure that the judge gives direction to the jury.
It may be that some judges already give direction to juries on some aspects, although other judges may choose not to do so. My view is that we should put the matter on a statutory footing so that we are clear about when direction should be provided, while giving judges the flexibility to put that to the jury in the way that they consider to be most appropriate.
We have had a clear steer from the Crown Office and Procurator Fiscal Service and from Lord Carloway that the cost of providing expert evidence would be prohibitive and that there would therefore be a real possibility that such evidence would not be led and would be replaced with statutory jury direction, which no one seems happy with.
Lord Carloway mentioned something being within judicial knowledge, and there is also the possibility of having guidance or mentioning the issue simply under the model directions that are contained in the Scottish jury manual. Could such compromises, if you like, be made, or could you look at adjusting the provision to address the very real concern that exists about the judiciary’s independence being compromised and a precedent being set?
The bill would not do anything that would affect the ability to take expert evidence in a case. If the Crown chose to introduce expert evidence on a particular issue—for example, evidence relating to a lack of physical force being used when a rape was committed—the bill would not prevent that from happening. Expert evidence and jury direction may sit alongside each other. The bill would in no way inhibit that or prevent it from happening. It makes no provision to prevent expert evidence from being led or to change that situation in any way.
You have no concerns that cost would come into it.
In what way?
I am talking about the cost of providing an expert witness. Expert evidence seems to be a way of getting around this. Although there has been a delay in reporting or someone has not used force, when a witness gives evidence about such things, experience may tell us that their evidence is sound, and that seems to me to be the best way to proceed. However, it has been suggested that a barrier to using expert evidence is the cost of providing it. That concern is out there—it is being raised—and, at a time when there are problems with and concerns about budgets, it would be unwise to dismiss it and simply say that, if an expert witness is needed, they will automatically be brought in.
The bill does not change anything around the decision to bring in an expert witness on a particular issue in a case. If it is being suggested that we are introducing statutory jury directions because that is in some way less costly, I have to say that that is simply not the case. It is about ensuring that we take action in an area in which we have identified the need for action. As you will be aware, that is supported by many stakeholders—particularly those who work with victims of such crimes. There is a need to make sure that juries have a clear understanding of the issues around the evidence that may be led in the course of a trial, but jury directions are restricted to certain areas, should those issues be raised in the course of the trial. There is sufficient flexibility in the provision to ensure that, if the context does not require jury direction, the judge is not required to give jury direction.
You are confident that, if the provision is introduced, there will not be calls for similar provisions to address other perceived misconceptions.
In the past, the Parliament has taken a view on areas of the law in which specific measures require to be taken. Trials for sexual offences—particularly rape trials—were identified as an area in which there were concerns about preconceived ideas or views about aspects of the evidence that can be led in such trials, such as whether there was resistance or a delay in reporting, that could have an impact on the jury if they do not have a proper understanding of the circumstances. Part of the reason for making provision for jury direction is to address that issue.
As I say, it is not unique, as judges give jury directions in other areas, and those have developed over the years. Also, other jurisdictions have jury directions in the area of sexual offences to help to address the particular issues that can arise around such crimes.
11:45
Lord Carloway covered that point. Although he acknowledged that jury directions exist in other jurisdictions, he said that they are far from ideal. Perhaps you will reflect on that at stage 2. Is there a possibility that you will look at some of the evidence that we have taken from academics and the judiciary?
I will look at all the evidence and consider all the views that have been given on the issue. However, we have made our position clear on jury direction. I have already considered the evidence that the committee received from Lord Carloway and in its round-table discussion on the issue. I am mindful that victims organisations are very supportive of jury directions. In drafting the bill, we considered many of the issues that have been raised and we came to the view that jury directions were an appropriate route for us to go down. That is why we introduced the measure in the bill. We will of course always look at the evidence that the committee receives and the committee’s stage 1 report. However, a number of the issues that have been highlighted by witnesses who are not in favour of jury directions are ones that we considered prior to drafting the bill.
If the issues of delay in telling people and the absence of signs of physical resistance are widely acknowledged, as they seem to be, why do the Faculty of Advocates and the Law Society of Scotland not support the approach that you suggest?
It is not for me to answer on behalf of the Faculty of Advocates or—
Would you like to speculate?
It would not be fair for me to speculate on what their views are or why that is. It would be better for the Faculty of Advocates and the Law Society to explain their position to the committee, as I believe they have already done. We believe that it is appropriate to introduce the measure to try to address some of the issues that we have when such cases come before our courts. I am sure that, for many members of the committee, the issue of how those areas can play out during a trial is not new, as it has been flagged up for a considerable number of years and concerns have been expressed about the need to address it more effectively.
Margaret Mitchell made the point that the issue might be within judicial knowledge. That might be the case, although I am not aware of clear action being taken over recent years to ensure that the issues are properly addressed. I believe that that lack of innovation suggests that there is merit in the introduction of statutory provision to address what has been a long-standing concern for many organisations that work with people, particularly women, who experience such offences. We want to ensure that clearer direction is given to the jury when certain issues are raised in the course of a trial.
If you have seen Lord Carloway’s evidence, you will know that he was very open with me and my colleague Alison McInnes about a particular case that we both have concerns about. He was also very diplomatic. He clearly did not want to say this, but I sensed that he resented political interference in the independence of the judiciary. Is that a reasonable summary of his position?
The issue is one for Parliament to consider. If we as a Parliament consider that there is merit in and justification for putting jury directions on a statutory footing in certain circumstances, I believe that that is a reasonable course of action for us to take to deal with particular issues in our justice system. Parliament regularly makes decisions on various matters that have an impact on the judiciary. I do not believe that the proposal is political interference that involves directing a judge on what they should or should not say.
The bill sets out what a judge can do in certain circumstances, if appropriate. The bill gives a judge sufficient flexibility to choose whether to issue a jury direction in a way that they believe is appropriate to the circumstances of the case before them. The bill does not specify what the judge has to say; the bill gives them flexibility to reflect on the evidence that they have heard when they are charging the jury.
My colleague Margaret Mitchell talked about the position of the Crown leading an expert witness. Is that not more inherently fair to the accused, because it gives their representative the opportunity to cross-examine, which clearly they will not have for the judge’s directions?
As I said, the bill has no provision that would prevent the leading of expert evidence as well. The bill does not alter the position on that. It might be that where expert evidence is led, there will also be jury direction from the judge. It is important that we give sufficient flexibility to the judiciary to ensure that the direction that a judge gives to a jury reflects the circumstances that they have heard about in the evidence that has been led in a trial, and the bill makes provision for that and gives them sufficient flexibility to do it.
The Law Society talks about unfairness if the provision relates exclusively to sexual offence cases. I will not linger on the point, but the Law Society gives the example of corroboration applying, or not applying, to particular cases. Is the Scottish Government so concerned about using the word “victim” as frequently as it does that there is a danger that it is setting aside the hard-fought-for rights that accused people rightly have?
That is why we have tried to give a balance to the provision in limiting the circumstances in which it would apply. As you will be aware, the bill sets out when jury direction should be issued, but it also gives the judge sufficient flexibility to determine whether, depending on what they have heard during the trial, direction is necessary and what any specific direction to the jury will be. We have sought to ensure that we provide a balance to give judges sufficient flexibility and at the same time address a long-standing concern about how certain information can be presented in court and its impact on a trial.
Finally, has any assessment been made of whether there will be an increase in the number of appeals against conviction as a result of the introduction of the jury direction provision?
It is very difficult to assess how many appeals there might be as a result of legislative change, because appeals can occur for a variety of reasons. We cannot make realistic projections about that prior to legislation being implemented.
But it is not unrealistic to say that that is a factor that you could anticipate. Jury direction is an additional factor that could be the subject of an appeal.
Of course. The defence might seek to appeal as a result of the judge’s direction. However, it is very difficult to quantify how many such appeals might be made.
Okay. Thank you.
It is fair to say, cabinet secretary, that there is some research on how juries react in rape cases but that it is indeed sparing. I think that that is because the Contempt of Court Act 1981 prohibited research being carried out with live jurors. However, Professor Vanessa Munro and Professor Louise Ellison conducted a study using mock jurors that showed that jurors expect particular reactions from rape victims. In a written submission to the committee, the professors said that the jurors
“expected a visible display of emotion”
from the victim and that
“a ‘normal’ response to sexual attack would be to struggle physically”.
The two professors summed up their study by saying:
“Overall, while jurors in the no-education”
mock trial
“paid lip-service to the notion that ‘different people will react differently’ to traumatic experiences, such as rape, assumptions regarding the instinct to fight back, the compulsion to report immediately and the inability to control one’s emotions continued to influence their deliberations.”
I know that that is very much in line with the concerns that have been expressed over many, many years by women’s groups that jurors in rape trials are influenced by their prejudices and preconceptions about how people react. I am wondering what the bill will do to overcome those prejudices.
Part of the research that Gil Paterson referred to has highlighted some of the concerns about the preconceived ideas and views that jurors can have in relation to these particular types of offences. That is partly why we have gone down this particular route of considering having a statutory provision in particular sets of circumstances, where the judge will be required to give jury directions on those matters in order to address those issues much more effectively. The research that the member referred to raised concerns about some of the possible misconceptions or preconceptions. Jury directions would enable those to be much more effectively addressed prior to the jury making any decisions. Jury directions are a specific way in which we can address the issues that Gil Paterson has raised—issues that have been highlighted through research and by the victims organisations.
I should perhaps declare an interest. I am a former board member of Rape Crisis. Common currency within that fraternity was the notion that trials did not proceed or failed because jury members had preconceived ideas, as I have already expressed, that people should react in a particular fashion if they had been raped—particularly at the trial—and that they should notionally show those emotions in a predictable way. If that is the case, is there not a need for wider education? Is there not a need for not just the bill and jury directions being in place, but wider education—and for some money to be spent to highlight the point that people react differently?
For instance, I am in the motor trade and I know from experience that if somebody has a bump on their car and they turn up to the reception area to get their car repaired, some people—including men—can be very emotional and some people are very calm about it. People react in lots of different ways. Would the Government consider an education programme to highlight how people react in different circumstances?
I am happy to look at that point and to explore it further. It is difficult to do anything around jury aspects because of the Contempt of Court Act 1981. As the committee will be aware from my previous appearance before it in relation to Lord Bonomy’s report, we are looking at carrying out jury research into some wider aspects of how juries operate. That will largely be based on academic experience from places where this type of research has been able to take place.
In our earlier session, when I was being asked about the Crown Office and Procurator Fiscal Service and demands on the system, John Finnie raised the very issue of delayed reporting in relation to historical abuse cases. An increasing number of historical abuse cases are being reported. The fact that something may not have been reported earlier does not mean that the offence did not take place. There can be a whole range of circumstances that could lead to that delay.
It is important that we do not lose sight of what we are trying to achieve. We are not trying to create an advantage for the defence or a disadvantage for the accused, but to ensure that we take account of some of the underlying research that indicates that people can enter into such cases with some misconceptions about issues such as the timing of when the incident was reported and to ensure that, if that becomes an issue in the trial, the judge is able to issue a direction to the jury to explain that the fact that there was a delay does not mean that the offence did not take place and that the delay is not necessarily material to the jury’s decision on the matter.
I am more than happy to consider what further education would look like. Given Gil Paterson’s personal interest in the issue over many years, I would be more than happy to discuss it with him.
12:00
One of the questions that I posed to Lord Carloway was what the reaction would be if a juror had indicated some prejudice—it was not regarding rape. I do not want to put words into his mouth, but I think that he said that he would take action on that juror. However, it seems that quite a section of a jury would have a prejudice automatically before a trial starts. Rather than being about preferring one against the other, is the measure not about creating a level playing field and educating a jury that victims of serious sexual assault do not all react in the same fashion?
It is to ensure that the jury has an understanding. If evidence has been led on some specific areas, as is set down in the bill, it is for the judge to assess whether it is relevant that he should give some direction to the jury on the matter and then offer that direction to it. It is not unusual for judges to give some direction to juries on particular issues, but the provision relates specifically to a sexual crime and is specific about the kind of information that may be brought before the court in the course of a trial. It is about assisting the jury to understand that information, rather than trying to give either side an advantage over the other.
I will pull together some of the threads that have been talked about in the past three questions.
On whether expert evidence would be suitable, if I recall correctly, Professor Chalmers pointed out in his evidence that the law currently provides for expert evidence only on delayed disclosure and reporting. It does not provide for such evidence on the absence of physical resistance during the act. Clearly, expert evidence would not be a panacea without changes elsewhere in the law.
On Mr Finnie’s point about the view of the Faculty of Advocates, notwithstanding the fact that I am a member of the Faculty of Advocates I hesitate to speak for it. However, Mr Meehan made the point:
“If mandatory directions are to be given on one matter, there will inevitably be requests for them to be considered across the board. The difficulty is that, in the absence of jury research, one does not really know whether the jury would find that helpful.”—[Official Report, Justice Committee, 17 November 2015; c 22.]
Gil Paterson referred to the jury research that Professor Munro carried out. I do not think that any of that was specific to this jurisdiction. Given the fact that there is the possibility of jury research being carried out under the auspices of Lord Bonomy’s review group, would it not be prudent to take account of that research, perhaps, if the bill is passed, by not having a commencement date for the provisions until the research has reported? Would the Government consider that?
I am not persuaded that that is necessary because of the level of understanding that we have on the matter at present. In addition, the jury research will take a considerable time. It is not a short piece of work. It will also take a considerable time to evaluate the outcomes from it and come to a decision on whether we want to make further changes in our justice system. I am due to appear at the committee in a few weeks on another issue that is related to other aspects of jury research.
Given the level of understanding that we have on the issue, I am of the view that there is sufficient evidence to justify moving in a restricted, limited set of circumstances towards statutory jury directions that give the judge sufficient flexibility on when they apply and how the judge puts them across to the jury.
Thank you.
We are talking about jury directions in relation to sexual offences cases, and early on we talked about precedents in other jurisdictions. Do you or your officials know of any precedents in other jurisdictions where such jury directions have been expanded to apply in other cases?
Do you mean beyond sexual offences cases?
Yes.
I am not aware off the top of my head of any jurisdiction that has started by having jury directions for sexual offences cases and then extended them into other areas, but I am more than happy to take that away and check, and we can then come back to the committee, if that would be helpful.
That would be interesting. I heard both Gil Paterson and you, cabinet secretary, talking about preconceived ideas, but when I referred to the policy memorandum and looked for information, I noted that the words there are stronger. It states:
“Concern has been expressed that certain ill-founded preconceptions held by members of the public, who make up juries, about the nature of sexual violence make understanding victims’ responses to such crimes more difficult.”
That is a condemnation of how we are as a society and how we see things.
We have heard a lot of evidence that has suggested that the bill is perhaps not the way to do it, but we want to update things to ensure that society and juries follow such directions. It might reassure all those people who have been complaining if you could ensure that jury directions are reviewed and perhaps abolished in a certain time, such as five, 10 or 20 years, once society no longer has such misconceptions.
There are views out there from some parties that the bill is not the way to do it, but I am not necessarily persuaded that I have heard a clear example of a better way of dealing with the issue. I am also mindful of the length of time that the issue and concerns about it have been around without clear, concerted action being taken to address it effectively, and I believe that that lack of innovation merits statutory provision in the area.
On the question of reviewing the provisions in the bill, and particularly the specific provisions that we are discussing, there is a route for post-legislative scrutiny of legislation and how it is operating, and I am always open to discussions. I am conscious that the Justice Committee is a busy committee, which probably limits your opportunity to carry out post-legislative scrutiny. Another option is to commission some research at a later date, once the system has been implemented, to see how it is operating.
There are various means by which that could be operated, and I would be interested to hear the committee’s views on whether it feels that that would be useful. If it is something that I feel, from the Government’s perspective, we could agree to, I will be more than happy to consider that. I would be interested in hearing the committee’s views on what you feel might be a useful way of establishing that at some point, once the legislation has been implemented.
Thank you.
We move on to sections 2 to 4. I invite members to ask questions on them, although maybe not quite as many as we had on section 1.
We heard from witnesses who gave evidence that the bill’s provisions on the non-consensual sharing or distribution of private, intimate images should be widened and that different kinds of communication should be included, such as text messages and letters. What are your views on that?
We have gone for a definition that is slightly wider than the narrower definition that applies in other parts of the UK. I am conscious that we are discussing an example of the issues that are emerging through the use of social media, and we need to ensure that our laws are up to date to enable us to deal effectively with such issues.
I am aware of the written evidence that the committee has received regarding the possibility of widening the definition of the offence further to include private and intimate text messages, emails, voicemails and letters. We will consider those views, but there is a balance to be struck.
If we widen the definition further, the potential for unintended consequences to emerge from the legislation also widens. I am not set against such an approach, but we need to explore the issues carefully so that we do not widen the definition to such an extent that we create a lot of unintended consequences, which would not be our objective. I am interested in hearing the committee’s views on the matter, but there is a balance to be struck between widening the definition and drawing into the offence some areas that the provisions were not initially intended to address.
I welcome the fact that you are going to look at the matter again. Victim Support Scotland and Women’s Aid Scotland have argued that it should not matter what media are used, as the issue is the non-consensual sharing or the threat to share sensitive or intimate material that is designed to humiliate and control or cause distress to the victims.
Scottish Women’s Aid has also pointed out that sometimes images and abusive texts are sent at the same time. The Scottish Government could say that such texts may be captured by other legislation, but Scottish Women’s Aid has expressed concern that not including other forms of communication in the specific offence may create an unnecessary loophole in the law.
Will you take all that into consideration when you look at the matter again?
Yes, but just to be clear we are not looking at whether or not to widen the definition. We will consider the evidence that the committee has received and its report on the bill. If there is reasonable scope to widen the definition without producing unintended consequences on top of what we are trying to achieve, I am open to considering that.
We need to ensure that the definition in legislation is as clear as possible so that we get the maximum benefit from it and do not dilute it to the point at which it becomes unclear whether one issue or another is covered. If we widen the definition too far, that could potentially create some confusion.
As you have mentioned, there is other legislation that can be used to address some of the areas that have been highlighted in evidence to the committee. I can give Margaret McDougall and the committee an assurance that we will consider those issues. If there is reasonable action that we can take, I am more than willing to do so. I am mindful that we need to hear the committee’s views on the matter before we come to a final decision on any potential widening of the definition at stages 2 or 3.
Technology now allows certain things to be done. For example, a text could be sent, and then a screenshot could be taken of that text, so that it becomes an image. How do we define that, and should it be included in the definition in the bill?
It is worth keeping it in mind that we have set out in the bill some points regarding the nature of images and what would be included. Such an image would be slightly different from a text message.
12:15
Yes. If we want to widen the measures to include text messages, we should take that into account.
There is also the issue of sexting—the sending of sexually explicit images or videos—which lots of young people are involved in. There is concern that, if that were included, young people might be incriminated. However, at the same time, we need to get them to realise the implications of what they are doing and that the images that they are sending could finish up on a pornographic site because someone has crashed into somebody else’s computer or whatever. What will be done to try to educate young people so that they stop messaging in that way?
As I said earlier, we must be careful about certain issues, including sexting. Is there an intention to bring a lot of teenagers into our criminal justice system as a result of something like that or would that be more appropriately addressed through wider and better education about the issues and the promotion of safety programmes about the use of technology? In November 2013, we provided guidance to local authorities and others around those issues. Further work might need to be undertaken in this area. I am keen to hear the committee’s views on that matter, but I would be concerned about bringing a lot of teenagers into our criminal justice system unnecessarily when a more reasonable route could perhaps be taken to address the issue more effectively.
Of course, we not only have to educate people about not doing that; we have to educate them about what to do when it happens to them and about how to prevent it from occurring in the first place. For those reasons, the issue might be better dealt with through education than through the criminal justice system.
There must be education about taking responsibility, as well. We must instil that in our young people.
Sometimes, these images end up on social media—Facebook and so on. It is the responsibility of those sites to take down photographs that are inappropriate. However, there is no timescale for that at the moment. Do you have any intention of including in the bill a timescale within which those sites must take down an inappropriate image that has been posted without someone’s consent?
There are certain liabilities that internet service providers have. However, part of the challenge is that those ISPs might not be based in Scotland. I suspect that the vast majority of them are based outwith our jurisdiction, which means that we would not be able to take legal action against them.
The European Union could do more with regard to the way in which service providers respond to such issues. That strikes me as a much more effective way of addressing the issue than dealing with individual cases would be. It would also be appropriate to consider whether further provisions could be applied at an EU level to address some of the timeframes that are involved. There are already some aspects of European law around issues relating to intimate images and so on, and there are implications with regard to requests for such images to be taken down. However, it would be difficult to use the legislation that we are discussing to tackle something that is completely outwith our jurisdiction.
Are there any plans to look at the issue in the future or to raise it through the EU?
It is fair to say that there are areas that are reserved and which are outwith our competence. The EU has already provided some legal provisions on the issue, so a course of action could be taken with a provider through that route, but it would be difficult for us to do anything further in the bill, given that many of the service providers are outwith our jurisdiction.
Are there any other areas of the bill on which members have questions?
The final area of questioning relates to sexual harm prevention orders. We had some concerns about the fact that such an order could be imposed on an individual who has not committed a criminal offence of any kind. Is there equity in that? Should there be safeguards that make it clear that if an order is about to be imposed, the person against whom it is to be made will have the right to make oral representations in advance of that happening?
Are you talking about the concern that the offence might have been committed somewhere in the UK—
No. I am talking about sexual harm prevention orders and sexual risk orders, which are the final issue in our briefing paper. Such an order can be imposed on someone who has not committed an offence.
You are talking about situations in which no offence has been committed.
Yes. People have raised concerns about the equity of imposing orders in those circumstances.
I understand the concern that has been raised in that regard. The civil burden of proof will apply in relation to those issues. No offence requires to have been committed. The principle objective of the orders is prevention. It will be for a sheriff to consider the application, based on the information that is presented to them, and to decide whether they believe that the burden of proof has been met sufficiently to justify the issuing of an order.
There is recourse available. The judiciary must make sure that the way in which they apply such orders and the way in which such proceedings are conducted in court is compliant with the European convention on human rights. Someone can choose to appeal against any such decision, so there is a right of recourse that someone can pursue once a sexual harm prevention order has been applied. The orders are primarily preventative in nature—that is the intention behind them.
The bill is currently silent on whether there is a right of representation in advance of an order being imposed. Will you reconsider that, to ensure full compliance with the ECHR?
I am not persuaded that what is proposed is not compliant with the ECHR. The sheriff would have to consider that at the time in deciding how to proceed, based on the information that was presented to them. Recourse is available.
I am always mindful of the fact that there will be ways in which we can improve the operation of the system, but I am not of the view that the imposition of such orders would not be compliant with the ECHR, as long as the process had been appropriately applied by the sheriff who considered the issue.
Can you clarify whether it will be open to the sheriff to allow oral representations if they deem that to be appropriate?
The defender can have an oral hearing in the form of a plea in mitigation on the matter, although the fact that a sexual harm prevention order can be granted in civil proceedings makes it slightly different from a sexual risk order. Therefore, it will be possible for the defender to have an oral hearing, if the sheriff considers that to be appropriate.
That is helpful—thank you.
I have a brief point. As the cabinet secretary may know, on 17 November, we took evidence from Professor Chalmers on the drafting of proposed new section 54A(8) in the Sexual Offences (Scotland) Act 2009. Professor Chalmers suggested that, in reference to habitual residence, there might be merit in removing the words
“or who has subsequently become”.
I do not want to get too bogged down in the technicalities, but will the Government take on board the comments that Professor Chalmers made?
I am aware of the concerns that Professor Chalmers raised. The slight issue that we have is largely a theoretical point rather than a practical issue. I am not aware of any significant difference between sexual offences law in Scotland and that in other parts of the UK. I am not aware of something that would be an offence in England but not here. However, we will consider whether there is a way in which we can, at stage 2, clarify the bill more. As I said, the point is largely theoretical rather than practical, because we have not been able to identify any difference in sexual offences legislation between the jurisdictions.
The statutory aggravation in section 1 will apply when a person either intends to cause or is reckless as to causing a partner or ex-partner physical or psychological harm. However, there is no requirement for proof of a previous similar act, so there is a concern that the aggravation could be libelled in practically every case involving physical or psychological harm against a partner or ex-partner. Is that the intention of section 1?
It is.
Okay.
The Scottish Government is considering introducing a specific offence of domestic abuse. Why was it decided not to include such an offence in the bill?
As you are aware, we have already started consulting on the specific offence of domestic abuse. The purpose behind the aggravator is to ensure that the issue is formally recorded by the court and recognised at the time of an offender being sentenced. We have taken a similar approach in other areas of the law in relation to issues such as religious and racial hatred. We believe that a specific aggravator will provide reassurance to victims that the issue will be formally taken into account by the court when the effects of the offence are being considered. The purpose is to ensure that the matter is formally recorded and recognised by the court.
Concerns have been raised about the non-harassment orders under section 5. Somebody who has been assessed by the court as being unfit to stand trial could still be subject to a non-harassment order. Breaching that order is a criminal offence, but the person might still be unfit to stand trial. That is a bit circular, so you may not be achieving very much by that measure.
The challenge is that someone can be considered to be unfit for trial but there can be an on-going issue with harassment or stalking. The purpose of the non-harassment order is to provide a mechanism that gives clarity to the police that they can take action should the order be breached, which will therefore provide greater reassurance to the victims in such circumstances. A person’s circumstances may change before they are presented before the court again, so they could be prosecuted. The measure provides the police with clarity on enforcement should an order be in place, despite the fact that the person may not have been fit for trial previously.
Thank you for that and for your attendance at what has been another long session.
I suspend the meeting briefly to allow the clerk to find out which of the petitioners are here for agenda item 6. Obviously, we are keen to ensure that we attend to those petitions first.
12:30 Meeting suspended.Previous
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