Item 7 is an evidence session on the Abusive Behaviour and Sexual Harm (Scotland) Bill. I welcome the Rt Hon Lord Carloway, the Lord Justice Clerk; Edward McHugh, deputy legal secretary to the Lord President; and Sheriff Gordon Liddle, vice-president of the Sheriffs Association.
I thank Lord Carloway for his statement, which will go on the Justice Committee website. Although the Sheriffs Association did not respond to the committee consultation, it did respond to the Government’s consultation, so I take it that it has not changed its position since then.
No, there is no change.
Excellent. That makes it simple for us. I go straight to questions from members.
The bill introduces for the first time in Scotland two statutory jury directions, which must be given by the judge when certain evidence is led. Do you consider that statutory jury directions represent an unacceptable precedent with regard to the independence of the judiciary?
I would not quite go that far. As you know, statutory jury directions have been introduced in other jurisdictions of the Commonwealth. What I am trying to say is that it could be done but it is not what we would see as the best way of doing it. In other words, it was suggested that, if what is wanted is for these facts to be accepted by the courts, the better way to do that would be to declare that they are within judicial knowledge, which would enable a judge in any given case to give these directions without the necessity of there being any evidence. It would then be left to the judge to decide in exactly what cases these directions ought to be given, the position being that jury directions are intended to be real conversations between the judge and the jury, and the bill is introducing a degree not exactly of artificiality but of a quite mechanistic way of doing things. A requirement to tell the jury those facts without more is going to be problematic.
Thank you. That is very helpful.
You are a bit tougher about that in your written statement, Lord Carloway. You say:
“what is proposed is that the judge should essentially take on the mantle of the prosecution in making statements of fact dressed up as law.”
That is a bit tougher, is it not?
Yes, I think that that is fair. The bill would require the judge to state facts as law; in other words, the law would say, “These are facts”, and those facts would be designed to be in favour of the complainer in the case. Traditionally, that has come under the mantle of the prosecutor, who argues such matters before the jury, and the defence makes such submissions as they wish to make in response and the judge acts as the arbiter between them.
Do you wish to comment, Sheriff Liddle?
Yes, convener. I have to say that I do not think that there is any difference between us here. The view of the Sheriffs Association is that there are dangers involved in legislating for something that goes in a jury speech. Just about every jury speech contains a repetition to the jury of the fact that its members are the masters of the facts and that they need not take into account anything that the judge says in charging it—or, indeed, anything that the prosecutor or the defence says. They are there only to indicate that the evidence exists and should be taken into account—or may be taken into account, depending on what the jury makes of it.
Depending on the evidence that comes out in trials, this sort of suggestion could well find its place in a number of them. However, no two trials are the same, and there might equally be circumstances in which, if this sort of thing were to be made mandatory in a jury speech, something would be needed to dilute it to ensure that a jury was charged fairly and that there was no encroachment on the jury function. After all, the function of the judge with the jury is entirely different.
In fact, I could see this proposal having an effect that was almost adverse to what would appear to be the desired effect. If it were necessary for such words to be used in every case and you had assessed that, because of circumstances, you really had to say to the jury, “However”, you could, for one thing, confuse a jury, whose members would be wondering, “Why are we being told one thing and then told another?” Another risk that you always run with juries is that, despite a judge stressing that anything he or she says need not be taken into account, jury members are looking for indicators from judges, and we have to go out of our way to avoid influencing a jury in any way whatever as a result of what we might say.
What I am really saying is that these are live situations and no two jury charges are ever the same. I think that the place for such suggestions would be the jury manual, which is a dynamic volume of suggestions and recommendations, and judges dealing with a certain array of facts and evidence could look at that and decide whether such things should be included in the charge.
On the back of that, I point out that we also have the High Court and that if a judge at first instance—which is what it is with a jury—makes an error, it will be correctable.
What about the role of expert witnesses in giving the same information?
As I mentioned in my submission, there is provision in the Criminal Procedure (Scotland) Act 1995 for the Crown to lead evidence, basically to the same effect as is stated in the bill. However, it would be very expensive for the Crown to do that in every case. On the other hand, that evidence is, in many cases, agreed, because ultimately it is not controversial. The Crown will have an expert report, and it can go to the defence and say, “Will you agree that, for example, there can be good reasons why a person has not reported an incident for a year, two years or 20 years?” The joint minute in which the evidence is agreed is usually much more expansive and will contain greater explanations than what will be covered by the provision in the bill.
11:45Following on from what Sheriff Liddle said, one can envisage a situation in which a judge gives the jury the direction that is stated in the bill and, as Sheriff Liddle was saying, the judge immediately goes on to say, “However, in this case you will have to consider whether the delay in reporting is significant or not.” The same thing would apply in the other proposed direction. There is a danger of achieving exactly the opposite of what is intended by the bill, by focusing on something that is not an issue. In other words, if nobody has said in the jury speech that the delay in reporting is significant, why focus on it?
I want to make a small point about the minute of agreement. It will not be the first time that a very skilled defence lawyer has brushed over the minute of agreement and then made a lot of some other points to put doubts in the minds of the jury. I am always very sceptical about just using the minute of agreement.
I agree with that. Even if those facts were agreed, the fact that there can be good reasons why a person would not report does not preclude the defence from saying that in a given case it should be regarded by the jury as significant. The question is whether it is perceived that a judge stating those directions will achieve the object of the bill, which is intended, I think, to reverse perceived misconceptions in the minds of the jury members. It would be odd for that to happen when set against what Sheriff Liddle has said is our standard introduction, which is, “We are the masters of the law. You must pay attention to what we are saying about the law. You are the masters of the facts. It is a matter entirely for you, the jury, to decide what to make of the evidence.”
Gil Paterson has a supplementary question, but the trouble is that everybody is going to be asking about jury directions, so there really are no supplementaries on this. He will be next after Christian Allard. We will all be focusing on jury directions.
Good morning. My question is on jury directions. I want to ask the panel whether they are aware of the evidence that Professor Vanessa Munro has given us about research using mock juries. We have heard from Lord Carloway this morning that other jurisdictions are already using the proposed kind of procedure. Do you know about the evidence that is out there?
We are aware of the research that was carried out by Professor Munro and her colleague, which is referred to in the consultation paper. I have not looked at the research myself, but I am aware of what it is suggesting, which is that there is a view that some members of the jury may have preconceived views about the matters in the bill. That is accepted, which is why the Crown leading evidence to rebut such things may well be a good idea. As I said in the written statement, the idea that those facts should be regarded as judicial knowledge may be a good one, to enable the judge to give those directions in a suitable case.
Have any other members of the panel looked at the research?
I have read what is said about the research in the Scottish Parliament information centre briefing but not the research itself. I do not want to be critical of the research, but it involved only a very small sample and three scenarios that were set up. It can well be imagined that each juror, as an ordinary member of the public, brings with them—and I mean this in the most anodyne way—certain prejudices. They bring with them their own feelings and views on things. Those views will cover all manner of things and not just this single aspect. Short of abolishing juries, I do not see how that can be addressed.
We heard about that evidence and how these misconceptions are very much present not only in juries but in society at large and how the bill would be a way to address those. When we talk about how to address those misconceptions, if we are talking about your time being spent on that at the start of the procedure in such cases, it will be the same for all cases attributed to this subject. I was a bit surprised when I read some of the submissions saying that directions should be given only at appropriate times and for appropriate cases. That seems to miss the point of the evidence that it should be done for every case and at the start of the procedure.
The directions would be given in the charge to the jury at the end of the case. It is suggested in some of the documents accompanying the bill that it would remain for the judge to decide exactly what was said. I am not sure that that is right, because if an act of Parliament says that
“the judge must advise that”
and then states exactly—
Actually, Lord Carloway, new sections 288DA and 288DB of the Criminal Procedure (Scotland) Act 1995, as introduced by section 6 of the bill, each contain an opt-out. In each of those sections, subsection (3) states that subsection (2), which is mandatory,
“does not apply if the judge considers that, in the circumstances of the case, no reasonable jury could consider the evidence, question or statement by reason of which subsection (2) would otherwise apply to be material to the question of whether the alleged offence is proved.”
There is still some judicial discretion.
There is judicial discretion as to whether to give the directions, but if you decide that a case is one in which subsection (2) applies, you must give that particular direction. I do not think that the bill in its present form allows the judge to vary it in some way; that would seem to be contrary to what Parliament would state. It will remain the case that, when the judge in a given case is giving a charge to the jury, he will say, “I am required to advise you that there can be no good reason why a person” et cetera, and then will be free to give such other directions as he thinks are appropriate to achieve the appropriate balance of fairness in the case. That is what would cause me concern. In certain cases, the bill is going to focus on an issue for the jury that is not really in dispute.
I understand.
I do not think that any of us has a problem with this type of direction being given in appropriate cases. We think that there may also be force in the view that some judges might be reluctant to give these directions in the absence of evidence to support them—that is to say, evidence in the case—but the way round that is to state that they are judicial knowledge, which enables the judge to state them as fact.
Do judges say that just now? Do they say that as a general statement, or do they make a specific statement on a case? What do judges say at the end if someone has delayed reporting and did not show signs of violence? What would a judge or a sheriff say just now, if anything, in directions to the jury?
The answer is that it is variable, as I think is recognised. Imagine that there has been a delay in reporting. There can be different types of delay. There could be a delay of a week, a year or 20 years. Imagine the dynamic of the trial. Somebody is going to ask the complainer why there was a delay in reporting, and the complainer will give a response to that and the response could be a number of things. If there is an explanation from the complainer as to why there has been a delay in reporting, which could be to do with embarrassment or with not wanting to go through the trial process, the judge will listen to what is said about that in the speeches from the Crown and the defence and will then try to balance the two things up.
However, in the situation that we are envisaging here, many judges will say, “Of course, ladies and gentlemen, you will appreciate that just because someone has not reported an incident for a period of a week”—or a month, a year or whatever it is—“it does not mean that the incident did not happen. You have to listen to what the complainer said about why she did not report, and you have to appreciate that there may be many reasons why somebody might not report an incident. On the other hand, you have the submission of the defence counsel to the effect that this is significant, and that is something that you will have to bear in mind when assessing the credibility and reliability of the complainer.” That would be relatively commonplace. On the other hand, some judges would not go into the issue and would just leave it for the jury to determine.
One of the things that we all say, in every charge to a jury, is that, on the one hand, depending on what the jury has made of the evidence, they may draw certain inferences from it, but on the other, they must not speculate—they are given a specific warning against speculation. If such a thing arose in a trial that I was dealing with—and I think that the same would apply for all my colleagues—a warning against such speculation might well be given with specific reference to a piece of evidence, in order to illustrate to the jury where they could be entering into the realm of speculation rather than drawing a reasonable inference from the evidence.
Thank you, that is very helpful.
How would panel members react if they became aware that an individual jury member had preconceived ideas?
Do you mean if it came to light during the course of the trial that a juror had views that a person could not be considered guilty of rape if there was no use of violence, for example?
Yes, something like that—maybe if you were aware that, before the trial started, someone had preconceived ideas.
I am not sure that we would ever know that.
Unless they put it on Facebook or something.
If we did know, someone would object to that juror sitting on the jury.
The evidence from Professor Vanessa Munro suggests that the public—never mind juries—have preconceived ideas about how someone should react. In other words, if someone claims rape, the public believe that that person should not be calm and should act in a particular way, and that they should have automatically resisted and been injured in some fashion. As we know, that does not always happen.
There is other evidence, mainly from women’s groups, that suggests the same thing. That is anecdotal evidence, but people engaged in that area talk about it all the time. The evidence stacks up. If you would react to one jury member having preconceived ideas, then, given that the evidence suggests that a good part of the general public have preconceived ideas about how people should perform and act in such cases, should we not do something about it?
We are not in any way suggesting that what is contained in the bill should not be said to juries in a given case. Rather, we are suggesting that what is proposed is not the best way to go about it procedurally and nor is it the best approach in practical terms. To some extent, we must trust judges to act in an appropriate way in an appropriate case. That is why, if a suggestion of the nature that you raise is made during the course of the trial by, for example, defence counsel, I would expect the judge or sheriff to react to that comment and to correct it. It would be part of his or her job to do that. However, to make it a mandatory direction in almost all cases is what causes the problem.
I am repeating myself to some extent, but if you imagine the dynamic of the trial as it happens, and we give the jury the direction that is required by Parliament, that would be fine, but then the judge would go on to say that the jurors must consider the case before them and the evidence in that case. We give juries direction specifically to deal with general prejudices in the case. We give jury directions that they must decide the case purely on the evidence that has been led before them. One would expect, again in the dynamic of the jury room, that if someone had a prejudice of some description, the other jurors would attempt to address that in their deliberations—they may not, but I would expect them to.
12:00
How would you overcome the issue that, if the evidence on this is correct, a percentage of the public do not see that as prejudice? If the people who are involved in these cases do not conform to a particular way of acting, reacting or composing themselves, they are automatically not believed. The evidence would suggest that that attitude is held by members of the public and people on juries, so in every trial there will be jurors who have preconceived ideas. They are not bad people; they just think that the woman, or man, in the case must be lying because they are not acting in the way that they expect them to act, so they think that the offence did not happen.
If that is the case, as the evidence suggests, how do we overcome it, other than through education by the Scottish Government? I suggest that the court is the best place to do that. People are there to listen to the evidence presented, but they might be wrong at the start. Should all that be explained or is there a good reason not to do that?
You have raised an interesting point about the way that people think generally in society. We are trying to look at this from a practical point of view. We are not in any way suggesting that efforts should not be made to correct misconceptions among juries. In any given case, the judge will be expected to do that—if those misconceptions are detected.
I return to what I have said already: we the judges direct the jury on the law that is to be applied to the case. That is our primary purpose. We tell juries at the beginning that the facts are for them and that it is for them to assess the witnesses and make up their minds, applying their collective common sense. That is the jury’s function. If a judge is seen to dictate, or attempt to dictate, to a jury on what facts should or should not be found, that would be in the realms of counterproductive.
I do not think that I can answer the question about how to deal with the problem other than to say that we have offered an alternative solution, which we think would be more practical and would fit in with our system rather better than what is proposed in the bill. If we go back to approaching these facts as judicial knowledge, we can go back to the Judicial Institute for Scotland and ask it to devise some model directions along the lines of what has been done in England.
If I noted this correctly, Lord Carloway, you used the phrase “appropriate manner”, but not all judges act in an appropriate manner. I refer in particular to the Court of Appeal’s ruling in the past couple of weeks where criticism was made of the judge, who was quoted as saying that the victim of multiple rapes had acquiesced in those rapes. Comment was made about delayed reporting and the fact that the victim had continued to cohabit with the accused. I am trying to understand the difference between comment and direction and where there is an overlap. Will you give me some guidance on that, please?
In the case to which you refer the important thing to bear in mind is that there was no criticism whatever of the judge’s directions to the jury, nor indeed of his conduct of the trial. The convictions followed quite an unusual trial. I am not aware of there being any criticism of a judge’s directions to the jury on the particular points with which the bill is concerned.
What about the relationship between comments that a judge would make and directions that they would give? You said that directions are given on the specifics of the law.
There has been no criticism of the judge’s conduct—
Could you set aside that case and respond in general terms, please?
I wonder whether you could repeat the question.
What is your general question, John?
Judges will presumably make comments in the course of their direction on what has been heard and they will comment specifically in relation to their position on the legal issues that that gives rise to.
In the course of directions to the jury, a judge will be expected to direct the jury in accordance with our well-known principles and practice. Again, I am unaware of any criticism of a judge’s directions to the effect that they would contradict or in any way affect what was contained in the bill. I think that what you are referring to are not directions to a jury—nor, indeed, any statements made in the course of the trial—but certain comments made by the judge at the point when he is reporting to the appeal court on the reasons for his sentencing. Those reports are released to parties and may be mentioned during the appeal proceedings.
It is important that a judge should feel free to state exactly why he has selected a particular sentence and be given free rein to explain his reasoning. If in the course of that reasoning he says something that the appeal court determines is wrong, we will say that, as we did in that particular case, and we will expect the judge to take into account the appeal court’s view and to act accordingly.
In sexual offences generally, as I am sure the committee will appreciate, in relation to the matters that have been raised—and I hope that Mrs McInnes has got my reply—about the prosecution and sentencing of sexual offences, the law is progressing. It is moving from a certain position, where it was 20, 30 or 40 years ago, into the modern era. We are trying to keep the law, so far as approaches to both directions and sentencing are concerned, in tune with modern thinking.
Reference has been made to something called acquiescence, or condonation, as is sometimes said. That was mentioned because a particular case in the late 1980s, which was the first case in which a husband had been prosecuted for the rape of his non-estranged wife, and in which it so happens that I was the advocate depute at first instance, went to the appeal court, where the Lord Justice General made remarks of that nature, primarily in relation to whether a person should or would be prosecuted for the rape of his wife with whom he was continuing to live where the wife had, as it was put, forgiven the act.
We are sitting on an appeal court decision of that nature where those words have been used. Those or similar words have also been used in the sense of whether the fact that someone is continuing to live with someone should be taken into account not in relation to the rape, which would be proved—and there is a conviction—but in deciding whether that is a significant feature in sentencing. The issue of continued cohabitation with someone and its effect on sentencing is something that most jurisdictions are wrestling with, and different views are being expressed in the Commonwealth as to how significant that is, not in relation to whether the person was raped and not in relation to conviction, but simply in relation to the appropriate sentence in that type of case.
I am grateful for that detailed explanation. It is not everyone who gets the Lord Justice Clerk’s personal explanation in that way. Public perception is very important and there are reports of some terms being used—I will not repeat them—that people would find deeply offensive. I want to maintain an open mind, and that is why I am trying to understand to what extent freedom is afforded to a judge to make comment in general terms, away from the specifics of direction in law.
I will try to clarify John Finnie’s point. A judge gives the jury specific directions after all the evidence has been led. However, if the judge at any point makes a highly inappropriate remark that might affect the jury’s decision but it is not part of the jury directions, the question is what impact that would have on the jury’s decision. I think that John Finnie is separating remarks that are made in the process of the trial from jury directions. Is that right?
No, not entirely. In the totality of summing up, presumably a judge can say things that might be determined as legal direction, and there will be comment allied to that.
May I comment on this matter?
Yes, please.
I am sure that committee members understand how a jury trial unfolds, but it might be important just to lay it out. The judge sits and listens to all the evidence, takes notes on it and reviews it when it comes to charging the jury. First, there is a prosecution speech to the jury, in which the prosecutor will probably suggest what the jury should make of the evidence; then there is a defence speech, in which the defence will probably suggest what the jury should make of the evidence. The judge listens to all that and, according to what they have heard, might modify what they intended to go into the charge to the jury.
The charge is dynamic and deals with everything—the evidence in the case and what was said in the speeches. At the point of charging the jury, the judge will be at pains to say that the judge is the master of the law, and will give the jury what assistance it requires in understanding the law that has to be applied but make it clear that the facts are for the jury. If necessary, the judge will draw attention to parts of the evidence but only because the jury has to know what to do with it—how to take it into account and where to place it, if the jury makes something of it.
The situation is very dynamic and every case turns on its own circumstances. The biggest danger from the proposed mandatory jury direction would be possible unintended consequences. The mandatory aspect could take prominence to such an extent that I as a judge might be required by law to interfere to an extent with the jury function, which I never do. It is hardwired into judges that they do not interfere with the jury function, which is consideration of the evidence.
With respect, do you resent lawmakers suggesting the kind of approach that is proposed? As we have heard from Mr Paterson, there is genuine public concern about matters in rape trials. As I have said, I am probably more minded to support the prosecution leading an expert witness. However, is there resentment on the part of the judiciary that politicians are interfering?
No. I would not describe it as resentment. 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.
Good.
We will certainly do that. However, 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.
Okay. Thank you.
Thank you. We appreciate that if we make that law, you will not break it.
Absolutely.
That is handy to know, even though there will be a bit of difficulty for you.
12:15
I have a follow-up question before I go on to my main question. I am concerned that if a judge, in giving an appeal court his reasons for sentencing, has views that are so significantly out of step that you describe them as “pithy”, those strong views would be present all the time in that judge’s consideration and so would influence whether he gave a direction to a jury about any particular thing. Is that not the case?
Again, I am anxious not to stray into a particular case. We said all that we wanted to say about it in the opinion of the appeal court. As I have written, the word “pithy” was not intended to be pejorative—it means that those were succinct remarks that the judge made in certain areas of sentencing. The particular directions in that case, so far as we are aware, were impeccable. There is no sense of the judge’s remarks being—
It is the absence of direction. I do not want to talk about that particular case, but I draw from that that some judges give directions in some areas in relation to some of the things that Gil Paterson spoke about and some do not. We are trying to get to the bottom of why they do not give such direction. Is it due to their beliefs?
No. The reason why there is a problem in this area is that some judges take a very strict view of what they can tell the jury. In other words, if we take the proposition that there can be good reasons why a person may not tell others of an incident for a while, some judges will take the view that in a particular case there is no evidence to support that proposition and therefore that they should not give a jury such a direction. Of course the Crown may lead evidence that the proposition is correct, in which case the judge will give the direction. Other judges may be more proactive in what they say to juries and may give the directions contained in the bill, without there being an evidential base for it. If they do so, they risk the appeal court stating to them that they should not have given the direction because in that particular case there was no evidence to support it. There is that difference of view between different members of the judiciary and that is the problem area, which is why the legislation is in contemplation.
Thank you. I turn to the jury manual, which Sheriff Liddle described as a “dynamic document”. How is that document changed over time? How and when is it amended and why have model directions for the situation that we are discussing not yet been developed?
The jury manual is a fairly substantial document. It is online, if you wish to view it in its entirety.
There is a challenge for you, Alison.
I mean that you can see what it looks like online. We have created it over the past 20 or so years, and before that there was essentially nothing but word of mouth. First, it contains statements of what the law is thought to be and secondly, it contains model directions to the jury. Judges do not have to follow those directions and, depending on the particular circumstances of a case, they will not follow them. Many judges have their own speaking styles, which are not consistent with the model in the jury manual.
The jury manual is under the auspices of a committee, which is headed by one of the High Court judges, who will revise its terms on a roughly annual basis—it is in a position of constant revision. If a judge has a particular problem with a direction or some new case arises—or if Parliament decides that a direction must be given—the jury manual will be amended. The amended manual is then sent out to all judiciary.
Have I missed anything?
Yes. Earlier, you said that the law was moving and that things were changing, particularly in relation to sexual cases. Women would say that the progress is glacial. I am trying to understand at what point someone might be able to suggest that something is what you referred to as “judicial knowledge” and so would make its way into a model direction. Is that what would happen or is that separate?
If it were judicial knowledge, it would enable a judge to give a direction because there would then be no fear that there was a lack of evidential base. Judicial knowledge is basically a statement of things that are universally acceptable, such as the basic rules of mathematics or geography. If Parliament said that X and Y are facts that are judicial knowledge, the judge would not have to worry about giving the jury a direction that had no evidential base, because they would be able to state those things without fear of contradiction.
Okay, so that is separate.
You asked why that in particular was not in the jury manual. I understand, having spoken to the Judicial Institute for Scotland, which tends to deal with such matters, that it was put on hold. This is not a criticism, but when the institution’s consultation came out, that area was left to see what was going to happen. Maybe we should have proceeded to develop model directions at that point.
Until then, people might not have been aware that there should be model directions. That is what I am trying to get at. How do judges, or the people in charge of the jury manual, say, “We need to update things.”?
Not the jury manual.
Sorry. I mean the judicial manual.
No—it is called the jury manual.
Is it really? I beg your pardon. I drifted there.
That area has been under contemplation for some time, in the sense that the amendment to the 1995 act that was made in 2004 and which enabled the Crown to lead evidence was made because of the same concern that we are discussing now—that some jury members may have a preconception. The intention was to allow the Crown to lead evidence that would previously probably have been regarded as inadmissible because it is evidence that is directly about somebody’s credibility, which we tend to exclude as collateral. The issue has been under contemplation, and it may be that we should have followed the English line sooner and got some model directions out. I accept that.
I would like to add a piece of information, because I had the benefit of hearing from the director of the Judicial Institute very recently. The jury manual has recently gone exclusively online for the first time. It used to be published annually, as Lord Carloway said, but it is no longer published. My understanding is that that means that the manual is now continually updated and that, when something happens such as a decision from the High Court or a recommendation, updating it is a continuing process because it is easier to do that online.
There is a little debate going on here about judicial knowledge and jury manuals, which we will save for later. I turn now to Roderick Campbell.
Most of my questions have been answered, but I wanted to put something to you, Lord Carloway, that was suggested in evidence by Mr Meehan, who represents the Faculty of Advocates. He said that, if matters were in the jury manual, there would still be a danger of a direction on which no evidence had been led. Do you think that that is a real danger?
Yes. Although I do not have the precise name of the case, I understand that, south of the border, where there are model directions, there have been instances—or at least an instance—where the judge has gone off piste, so to speak, and has given a direction that goes a little further than that and which has been criticised as not having an evidential base. People are quite capable of challenging the jury manual directions as not being correct in law, or there could be a challenge on the basis that a particular direction in the jury manual did not have an evidential base in fact. That is a possibility, and we would have to decide whether it was well founded or not. Does that answer your question?
Yes, I think so.
Mr Meehan was basically asking whether, if the direction was not statutory and was just in the jury manual, it would be possible for a conviction to be overturned because a judge had given a direction that was in the jury manual but which did not have an evidential base. The answer is possibly. From time to time, we get challenges to the contents of the jury manual. It is not law; it is guidance.
Mr Meehan went on to discuss what would happen if there were mandatory directions in this area, which would set a precedent. In the absence of jury research, he was not sure whether the jury would find that helpful—if there was a pressure to be considered across the board. What view do you take on the issue of precedent? Would jury research assist? We are now embarking on an era of jury research.
I do not think that the cabinet secretary has given us the full scope of the proposed research, but this area would be an obvious one for ascertaining whether the research carried out by Professor Munro and her colleague is valid—correct is not quite the right word.
I am not quite sure how to answer your question.
I am trying to discern the distinction between “valid” and “correct”.
I take the point that this would be an ideal area for jury research. What is your view on whether the measure sets a precedent on its own, if we were to proceed with mandatory directions?
That relates to the general constitutional position, although, with reference to Mr Finnie’s comments, I am anxious not to talk about us resenting it or getting upset. Yes, 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.
I take it that that point relates to concerns about that becoming the politicians’ role, breaching the very clear and important line between the judiciary and politicians.
Yes.
That is not good news, is it?
No, we would not think so. Mutual respect is very important, and I think that we have it in this jurisdiction.
Would it not be important also to retain the tensions between the judiciary and the politicians—tensions that are useful for democracy? Would you subscribe to that view?
I would. The balance is very important: that form of tension should remain, as long as it does not drift into resentment.
I was not suggesting that for a moment.
What is your view on that, Sheriff Liddle? I have concerns about section 6, as is obvious from what I am saying.
I entirely agree with what Lord Carloway has said on the matter. Those tensions are important, and the distinction is important. If there is a clear and defined line and that line is crossed, it often disappears—we look back, and it is gone.
I have some questions about sexual risk orders. One of the features of the sexual risk order is that, according to the bill as introduced, the order may be imposed on a person who has not been convicted of any offence, but who has
“done an act of a sexual nature”.
However,
“an act of a sexual nature”
is not defined in the bill. Could the panel give me their understanding of what
“an act of a sexual nature”
is, as provided for in the bill?
That is not something that the judges have expressed any views on. We regarded that as primarily a matter of policy for Parliament. We did not really have any views on it at all. It is entirely a matter for Parliament to determine. We would address that in a given case. I am sorry that I cannot help further on that; we thought that that was policy.
Okay. Maybe you will not wish to answer any of the questions on the issue, because it is not in your remit.
It is not a question of not wishing to answer them; we thought that we would be straying into policy.
It is not appropriate for the witnesses to comment on that.
12:30
Okay. Are you concerned about the fact that sexual risk orders could be imposed on an individual who has not committed an offence?
The judges have not made any comment on the validity or otherwise of that proposed legislation, on the basis that it is Government policy and a matter for Parliament to rule on, rather than for the judges to comment on.
Is it an issue, however, under the European convention on human rights, that a person on whom such an order is to be imposed will not have the right to appear before the sheriff to prevent it from being imposed on them? Can you comment on that, from a legal point of view?
The matter is judicially determined by the sheriff, so it would be—
Our briefing paper states:
“where an application is being made for a sexual risk order under section 26, the person against whom the order is being sought would have the right to make oral representation to the court before a sexual risk order is imposed.”
Can you clarify whether, in a case where an application is being made for a sexual risk order, the person will have a right to address that—it is not just discretionary?
Yes, as I understand it.
They will have a right—it is absolute.
The application is to go to the sheriff. I am not in a position to address that particular section. I did not think that I was going to be asked about it.
Forgive me for a moment while I find the section in the bill.
Sorry, I phrased it wrongly—it has been a long day. Maybe I am reading it too quickly, but section 26 does not actually say that, procedurally, the party has a right to appear before the sheriff. Am I right or wrong? Section 26(2) just says:
“An appropriate sheriff may make a sexual risk order only if satisfied that the respondent has ... done an act of a sexual nature”,
and so on. It does not at any point say that the party has a right to be heard.
As I said, I have not applied my mind to that. We may be called on to rule on that if there is a problem of that nature. Obviously, Parliament has obtained the usual certificate about ECHR compliance. It would depend on the procedural rules that surround the matter.
There is a right of appeal, but it would be better if the person had an opportunity to make a representation at the first hearing, rather than go through the appellate procedure.
The sexual risk orders will replace existing orders—the risk of sexual harm orders.
I will move on to my last question, unless Margaret McDougall is not finished.
I was going to ask a question on another issue.
Please do.
Are the witnesses able to comment on the reasons for the very low numbers of risk of sexual harm orders that have been granted by the courts in Scotland to date?
I cannot comment on that. I have done no research at all on that matter. I am terribly sorry, but I did not anticipate answering questions on chapter 4 of the bill, as we regard that as a matter of policy.
What about Professor Liddle? That is a matter for the courts, surely.
I am afraid—
Did I call you “Professor”? Sorry—I meant “Sheriff”.
I thought that I could hang on to that for a while.
I am really sorry, but there is nothing that I can add. I did not come prepared to answer that sort of question. It is a policy matter and therefore something that we should not comment on.
If you want us to take the issue away and think about whether we can make a comment, I am happy to do that and write in if—
That would be helpful, if you feel it appropriate.
I will ask a final question, although I am probably going to regret this, because I have already got muddled up with professors and whatnot. How does something become judicial knowledge and how do we know that it is judicial knowledge?
Judicial knowledge is something that grows over time. There are certain things that do not have to be proved, such as the fact that there is a railway between Edinburgh and Glasgow.
So it is basic stuff.
Yes, it is basic stuff that everybody ought to know and it is accepted as fact.
So is the fact that somebody might not report something of a sexual nature for a long period of time judicial knowledge? Does that fall into that category? As you say, it could be a month or years. Is the fact that that sometimes happens judicial knowledge, just like the fact that there is a railway line?
Personally, I think that the propositions in the bill may well be judicial knowledge, because I do not think that what is stated is controversial, as a matter of fact. I think that what is stated is correct. Therefore, in that sense, it is judicial knowledge. However, I do not think that every member of the judiciary would necessarily share that view. It goes back to how confident the judge feels about stating things to juries with no evidential base.
So judicial knowledge is not shared by all judges.
It ought to be shared by all judges. However, there comes a point where, say, a principle of mathematics requires expert evidence. There is an issue about exactly where the line is drawn. We might know that there is a railway line between Edinburgh and Glasgow but we might not necessarily know the composition of the points at Winchburgh. What is or is not within people’s knowledge is a matter of degree.
Okay. I knew that I did not want to ask that question, but I asked it.
We have to move on, because we have much more to do. I thank the witnesses very much for an intriguing evidence session, some of which was quite pithy—I am allowed to use that word now, because you have defined it for us, Lord Carloway.
Thank you very much indeed.
I suspend the meeting for a couple of minutes to allow the witnesses to leave.
12:37 Meeting suspended.Previous
Subordinate Legislation