Good morning, ladies and gentlemen, and welcome to the meeting. I make my usual intimation that all mobile phones should be switched off.
Good morning. I want to ask about consent and free agreement, which section 9 covers. The ACPOS submission states that although the use of the term "free agreement" is okay as far as it goes, it is a bit "simplistic" and that it would be helpful if the expression were expanded
Good morning. ACPOS does not underestimate the complexity of that question. The definition of the word "consent" is key to later provisions in the bill.
I do not think that anybody would disagree with such an objective, but do the words "free agreement" not already imply an element of positiveness? I cannot read that term as meaning just the absence of denial.
We are saying that the guidance on free agreement—or on the indications that there has been free agreement—should be expanded. I understand the complexities of the issue. The bill states that "‘consent' means free agreement"; it then gives circumstances in which conduct takes place without free agreement—negative examples are given. We have suggested that it would be useful if the bill indicated positive things that showed that free agreement was present, such as indications of knowledge or of the person voluntarily taking part in whatever the act was.
I want to return to the initial point, which you did not entirely deal with. Do you have any examples of types of situations that you or your colleagues have come across that would illustrate the point you are trying to make or the difficulties with the current arrangements?
Often, agreement or consent is inferred by silence, or by nothing being given. With reference to section 12, the person who is accused of the crime is in some ways required to provide information as to their reasonable understanding or belief that free consent or agreement was present. As far as examples are concerned, we would look for positive consent or positive indications to have been given. That might be verbal agreement or behavioural indications that show agreement. That requirement is not intended just to benefit the victim; it could also benefit the suspect or accused, who might be able to show that such indicators were present.
Section 10(2) sets out some of the circumstances in which conduct takes place without free agreement. Does it not deal, in significant measure, with your point? That subsection illustrates a series of situations, whether raised by way of defence or otherwise, that have been the subject of legal cases over the past century and a half or more.
Absolutely. As I said earlier, the bill as drafted goes some considerable distance towards tackling the issue of defining consent, using the interpretation of free agreement. The instances given in section 10 indeed go some distance towards dealing with our point, but ACPOS feels that the bill could go slightly further. That is not to suggest that the bill does not address the issue, however; it certainly does.
Do you have any fears that making the definitions more complex will give rise to greater problems in what is already a difficult area for establishing and proving various facts, and that it will make it even more difficult to prove rape and similar offences?
I understand those concerns, which I am sure the Crown can articulate far better than I can. It is thought that, the more that we put into a piece of legislation, the more proof might be demanded—therefore, the higher the level of evidence required. It comes down to the art of drafting and to the question whether provisions should be in the bill or in guidance to follow, which might expand on the points that we have been making. I accept those concerns around the idea that, the more we include, the more we have to prove and the more complex things become. We feel that the issue is worth bringing to the committee. Beyond that, it is for you to decide where that issue sits.
I want to test the quality of what you are saying, and its evidence base. I will return to the initial point. From your experience, do you have in mind particular situations in which current definitions, or directions to juries, have given rise to problems following a police investigation and a case being brought to court?
Discussions around consent are central to almost every case that goes through the court system. When it comes to drafting new legislation to redefine, or to define better, what is meant by "consent" in the judicial process, we have borne in mind the fact that that question comes up on every occasion, and that is why it is so hugely important. You ask whether we have any examples of the problem; I reiterate that, in practically every case that goes through the court system, the issue of consent comes under significant scrutiny. At this stage, when we are discussing new legislation and the definition of consent as free agreement, it is vital to get the provision right, as the matter will come under intense scrutiny in the courts.
As lay people, we need to get some flavour of the issue. I realise that highlighting such matters is going to be somewhat difficult, but I wonder whether you can come back to the committee with any practical examples—obviously anonymised—in which the police service found it difficult to prepare a case for prosecution.
Absolutely.
That would be helpful.
Cathie Craigie will ask some questions on aspects of the bill that relate to children and young persons.
In what circumstances are the police called to investigate the possibility that a child has committed a sexual offence? In answering, could you distinguish between younger and older children, cover consensual and non-consensual aspects and tell us about the number and outcomes of such investigations?
Could you break that down a bit?
Okay. First, could you distinguish between younger and older children in such circumstances?
ACPOS has already provided written evidence on sex between or involving children, so I will try to keep my replies as succinct as possible.
That would be helpful. We will intimate to you the statistics that we might find useful.
It would be helpful if you could give us as much of a breakdown as possible on the numbers and ages of those involved in consensual and non-consensual sexual activity.
It will allow the police to continue to make an appropriate and proportionate response to incidents involving sexual behaviour among older children. Earlier in the bill's development, we were concerned by suggestions that such a provision might not be included.
So, as things stand, if the bill allows you to continue doing your job, there will be no change.
Yes. We will support it if the amendments stand.
No. I mean that if, as you say, the bill as it stands will allow you to continue to investigate as you do at the moment, there will be no change to what you do.
The change is in balancing the issues around gender. The current legislation criminalises only one gender, and the bill will address that anomaly. The investigative process will be able to continue as at present. The bill will assist us in relation to the manner in which we will be able to treat gender in matters of sexual behaviour between older children, which will be a great help. It will allow us to approach investigations on a legislative footing; without it, we would not have such an opportunity.
Good morning. Can you clarify for me the current process of investigation? Because sexual relations between youngsters are, by definition, illegal at the moment—albeit that only one party is criminalised—you have a duty to investigate. I presume that, if something came to your attention, you would do that as a matter of routine. Am I right in thinking that, once you have conducted whatever investigation you feel is appropriate—that is clearly for your discretion—it is up to you to decide whether to refer the matter to the procurator fiscal or to close the book on it? I am not sure how the process works. Can you please clarify that for me?
I ask Louise Raphael to expand on that.
As it stands, there is limited discussion following the police investigation. Ordinarily, we would report the circumstances to the procurator fiscal if that were appropriate; the decision regarding what happens after that rests with the procurator fiscal. Welfare services are engaged at that point as well.
Sorry, but I am still not quite sure about this. I presume that you have discretion to decide that there is nothing in the case to worry about and that, therefore, you will not refer the matter to the procurator fiscal, or do you refer every case to the procurator fiscal, once it has been investigated, for the fiscal to make the decision?
Yes.
You mean the latter.
Yes.
Thank you.
Louise Raphael used the caveat "if that were appropriate". Can you define that in wider terms?
By that I mean when there is evidence to substantiate that an offence has been committed.
I call Bill Butler.
Nigel Don has covered the point that I wanted to raise, convener.
The committee has been taking evidence on the bill for several weeks and has heard concerns from some quarters about our having unnecessary law that is not enforced. It is clearly a criminal offence for a person under the age of 16 to engage in sexual activity, although sometimes the whole force of the law is not applied. There have been suggestions that it is wrong to have something in legislation but not to enforce it. We have been told that it would be better for such matters to be dealt with as a welfare case, rather than as a criminal case. Do you have any comments on that? I am sure that you have read that evidence.
Our concerns revolve around the fact that the absence of the provisions would deny us the opportunity to investigate a case fully in order to establish whether there had been coercion or whether there had been informed consent. If the powers were not contained in legislation, we would not have the opportunity to investigate a case fully to establish such issues. Peer pressure is an extremely powerful aspect of older children's lives, and what may appear, on the surface, to be free agreement or consent might be revealed not to be that when we probe further. Our concerns revolve around our lack of ability to conduct a proper investigation.
I ask Nigel Don to come in on that issue. He can pursue a separate matter later.
I am confused. Surely, if there were any suspicion or evidence of coercion, we would be dealing with a section 1 or 2 offence, would we not? The fact that the person was under 16 would not be relevant. Why, therefore, do we need to create an offence relating to older children?
Sorry, could you repeat that? I did not quite understand your point.
My point is that, if there is any evidence or suggestion of coercion, it is an offence under section 1 or 2—it is rape or sexual assault.
Yes.
So you could investigate the matter on that basis. Why, therefore, do we need to create an offence relating to older children to enable you to investigate?
I will give an example from our experience of dealing with girls aged between 13 and 16 who have engaged in sexual activity and become pregnant as a result. In one particular example, on initial inquiry, the girl offered the information that the pregnancy was as a result of sexual intercourse with a 15-year-old boyfriend. In the absence of legislation, we would have taken the matter no further. However, on further probing, it transpired that the girl had had sexual intercourse with a much older person. Our concerns revolve around our ability to ensure that we are conducting a proper investigation and establishing what offences, if any, have been committed.
Our primary concern is over the safety and wellbeing of the child. We are not here to say that the police should be responsible for reporting all cases to the procurator fiscal because it is the procurator fiscal's role to protect children; it is everyone's role to protect children, which is our central aim.
I will distinguish between the provisions that relate to sex between older children—the 13 to 16-year-olds—and those that relate to an older person having sexual relations with an older child. If we accept that the latter provisions should exist—that was the premise of my question to Ms Raphael, although I am not sure that she realised it and I apologise for not making that explicit—I am concerned about whether the police need the former, which relate solely to sex between older children, in order to investigate coercion. I am still not happy in my own mind if you are saying that you believe that, if there is any element of criminality in such cases, you cannot proceed under sections 1 or 2.
Perhaps we have not been clear in our response to your questions. You are right; if a case shows elements of criminality, we have the power to investigate. That is not the basis on which we are saying the provisions that you are concerned about should be retained.
Okay. Having now set out the ground rules of what is law and what is not, why do you still think that there needs to be an offence of strict liability, although we will never enforce it, if older children have penetrative sexual relations with each other? Why do the police need that provision if you have sections 1 and 2 and the section that refers to older persons?
Its absence would significantly restrict our lawful ability to carry out our duty to protect young people. It is not about criminalising individuals; it is about giving us the lawful ability to investigate, to ensure that we are protecting young people.
Forgive me, convener, but this is a crucial point.
Under section 21.
Sorry—is it section 21? Let me check, to be absolutely clear.
It could be section 27.
Right. Let us make sure that we are absolutely clear, for the sake of the Official Report. Yes—it is section 27, "Older children engaging in penetrative sexual conduct with each other".
In Scotland, we consider 16 to be the age at which consent can be given to sexual intercourse, or to the sexual behaviour that is described in the bill. When such behaviour takes place below that age, society is concerned, even when consent or free agreement appears to have been given. Society believes that such behaviour is inappropriate and should be investigated, and that the people who should investigate it in the first instance are the police. While society in Scotland takes that view, we need the powers to be able to investigate.
I am sorry, Mr Skelly—I am with you, and I see where you are coming from, but I have still not got what I understand as an answer that tells me why you need section 27. I think that you can do all the things that you mentioned under sections 1 and 2. I wonder whether Ms Raphael can help.
Often, circumstances do not come to our attention in the first instance but are reported through schools or social services or by other means. In the absence of the provision, if a young person explained that they had engaged in sexual intercourse with a peer of similar age, there would be no requirement for those organisations to alert us, and we would therefore be denied the opportunity to investigate. The provision means that there is a legislative requirement on the bodies to report the matter to us, which allows us to investigate.
Thank you. I am with you.
Cathie Craigie has a question on this important point.
The change in legislation would mean that the 15-year-old girl that you gave as an example earlier would be a criminal. Under the existing law, and given the way in which you operate, is every 14 or 15-year-old girl who becomes pregnant in Scotland reported to the police?
Sorry, is every—
Is every young girl under 16 who becomes pregnant reported to the police?
They should be.
Are they?
As far as I am aware, they are.
Perhaps we can get some more statistics or information on that.
I think that there is some difference between the theory and the practicality. I very much doubt whether every girl aged under 16 who becomes pregnant comes to the attention of the police.
As I said, they should come to the attention of the police, because underage sexual activity has taken place.
It would not be different from any other crime. It is up to people to report incidents to us.
You said in response to Nigel Don's questions that there was a concern that some organisations and agencies, such as schools and the health service, would not bring such issues to your attention if there was a change in the law. I am trying to get at whether incidents of underage pregnancy are being brought to your attention at the moment. I know that, at the moment, a young girl in that situation is not committing an offence, but, if a girl aged under 16 has become pregnant, somebody has committed an offence. I am aware of the way that the law stands. I hear the evidence that you are giving, but I cannot quite understand where your concerns come from if incidents are not being reported at the moment.
I have no idea of the numbers that are not reported to us, but whatever that figure is, it would be significantly greater in the absence of the proposed provision in the bill.
I want to follow up Cathie Craigie's point about the criminalisation of the girl. What is the police's approach? Do they consider the welfare of the girl? You mentioned predatory behaviour. Would the identification of the girl, who might not have come to your attention before, assist in identifying and dealing with the male, whose behaviour might have been predatory?
Yes. The fact that the police are involved means that an investigation is carried out and both parties come to the attention of the care authorities, for example through social workers or the children's reporter. The police approach the case from the point of view of the wellbeing of the victim. Given that both parties may very well have consented—section 27 deals with situations in which both parties consent—we would approach the case from the point of view that both parties are potential victims. We can investigate the circumstances and then treat the parties appropriately, depending on what the investigation tells us. That means that both parties are on our systems, which means that we should be able to care for them better in future, whether they come to our attention because of their continued predatory behaviour or because they become a repeat victim. Vulnerable people who put themselves into positions of vulnerability often do so more than once. The point is to be able to prevent that from happening in the future through some kind of appropriate intervention, although not necessarily a policing one.
I invite Robert Brown to make a brief final point under this heading.
The nub of this is which cases get taken forward for prosecution. You referred to 19 cases in the east of Glasgow. Why do some cases get prosecuted and others do not? Is it to do with the presence of predatory behaviour or some other element?
That is a very difficult question to answer. It relates not just to the conduct itself but to social background or other factors that influence the circumstances. I apologise for not being able to answer your question with any great clarity, but it is an extremely difficult question to answer.
But you are saying that there are wider issues than just the behaviour.
Yes.
When we report cases to the procurator fiscal, the ones that go forward for prosecution are those in which there is concern that there has been significant criminality, beyond what we would see in most other instances, when the matter might be better dealt with in another way.
We will leave that point. It is a complex issue and we accept that you were put in a position of some difficulty.
Does ACPOS support the distinction that the bill draws between sexual intercourse between older children and other forms of sexual contact between older children?
We support section 27, which is the section to which you refer. The only part of it that we would put forward for further discussion is section 27(3), which refers to sexual activity other than using the mouth. The inclusion of activity using the mouth would require careful drafting because we would not want to criminalise kissing between older children, but by explicitly excluding it from the section we are allowing some types of sexual behaviour, such as oral sex, that we feel should be included. Although, broadly speaking, ACPOS supports the section—we have discussed the issue at some length—we think that that anomaly is a matter on which there should be further discussion.
That seems a fair enough answer.
I presume that you would prefer section 27(3) to be removed and an exception to be made for kissing, as you and I would understand it.
Careful drafting is required. We are happy to engage with those in the Scottish Government who are drafting the bill to establish what form of words might be better, but the solution would be something like the one that you suggest.
Under what circumstances should consensual sexual intercourse between older children be the subject of criminal proceedings? Do you have a view on that, or, as you stated earlier, is it your view that it is up to the procurator fiscal—in other words, you present the evidence and the procurator fiscal takes the view?
You have answered your own question.
I want you to answer my question, as I have a small element of doubt in my mind. Can you allay it?
It is for the procurator fiscal and the Crown to decide on prosecutions and how they go forward. We report the evidence as it is presented to us. I could foresee that when there is repeat offending we would be strong in our view that the matter should be dealt with by the criminal justice system but, ultimately, it is for the Crown to decide.
Do you think that only in exceptional circumstances will consensual sexual intercourse between older children be the subject of criminal proceedings? You said earlier that you need the ability in legislation to intervene or investigate on the basis that, as a result of your investigation, although you will pass the case on to the procurator fiscal, other arrangements can be made to protect the child in question.
Absolutely. There needs to be the ability to intervene and I foresee that, in sexual circumstances, it would result in conviction.
Some of the issues were touched on earlier, but I am keen to clarify a couple of points. I come back to the extension of the criminal law to girls under the age of 16. Do you see any practical difficulties being associated with the extension of the criminal law?
I do not, but perhaps my colleague might.
No, I do not. It is probably only right and proper that the law is gender neutral in that respect and that there is equity between boys and girls. I do not anticipate any practical difficulties in the investigation process.
Do you see any argument for treating young men and young women differently?
I do not. ACPOS welcomes the fact that the bill broadly addresses gender issues and we support the move to address the apparent and real gender imbalance in current law.
Your submission highlights section 29(3), on age proximity. You say that the section sets out
As far as anything is straightforward and unambiguous, yes.
Indeed. Surely making 16 the age of consent would be unambiguous and more straightforward than what is suggested in section 29.
I am not entirely sure that I understand what you mean because the legislation attempts in a coherent way to set out various age limits and types of offence that are committed and the reasons behind that. Section 29, "Defences in relation to offences against older children", attempts to be very clear about the position when there is a two-year age difference between the parties involved and so on. I am not sure whether I understand what you are saying.
It could be suggested that section 29 would allow sexual activity to take place even though one of those involved is under 16, although they will be in the older child category. If the section were not included in the bill, the bill might say that the age of consent is 16 and there should be no exceptions, so if anyone has sex with someone under 16, they should face the full force of the law. It could be suggested that section 29 dilutes the law and reduces the age of consent.
Thank you for helping me to understand. The bill attempts to introduce checks and balances in how the legislation should be implemented. It provides an opportunity for balance in that society would take the view that someone who is significantly over the age of 16 should be in a position of greater responsibility and understand that the person with whom they are going to have sexual activity should be 16 years of age, but when someone is close to the age of 16, it is reasonable for them to make the defence that they believed that the other person was their age. Section 29 is proposing that the age at which such a defence is reasonable should be within a two-year window. Our view is that that offers an appropriate balance to criminalising the behaviour. If there is a sea change of view that says, "Well, no, there should be no balance; there should be a cut-off at 16 and that's it," that is for a group beyond the police to decide. However, it seems to meet the test of reasonableness to allow the defence to be put forward if the people involved are within a certain age range. As with all statutory defences, the one in section 29 is intended to introduce a balance to the legislation.
The final question will be on abuse of the position of trust.
I note from ACPOS's submission that you welcome
Our point is that a number of people who have reached the age of 18 remain in the care system and are still highly vulnerable. It is necessary to set an age limit at some point; we are not suggesting that the age limit should be set at 19, 20 or 21, for example. Rather than proposing that the age limit in the bill be changed, we are simply making a general observation that, as I have said, a significant number of 18-year-olds remain in the care system. It might well be that the Protection of Vulnerable Groups (Scotland) Act 2007 provides an opportunity to deal with the issue in a different arena in a different way. We merely comment on the position rather than put forward any hard-and-fast change.
I want to clarify which vulnerable groups you refer to. Section 35 mentions specifically the abuse of trust of persons who are mentally disordered. Do you have in mind other vulnerable groups that you did not mention in your submission?
I have no more detail. We would welcome the opportunity to clarify the detail that lies behind what we said in our submission.
There are three outstanding matters to be dealt with in correspondence—you have a note of them. The clerk will give you precise notification of the statistics that we would like to be provided with.
Meeting suspended.
On resuming—
I welcome the second panel, which comprises Professor Pamela Ferguson from the University of Dundee, James Chalmers from the University of Edinburgh and Professor Michele Burman from the University of Glasgow. We have received submissions from some members of the panel. We will move straight to questions. I repeat my request to the previous panel: answers should be as succinct as possible.
Good morning. Mr Chalmers and Professor Burman suggest that further changes to the law beyond what is proposed in the bill will be necessary if conviction rates in cases of rape or sexual assault are to improve. In general, will the bill have any positive effects?
It is reasonable to say that simply clarifying the definitions of the relevant offence should ensure that there is less possibility of a jury being misdirected, for example, which might be helpful. I do not envisage any detrimental effects coming out of the bill. All told, I simply do not envisage there being much effect one way or the other.
I think that the bill will have a positive impact. In particular, it marks an attempt to place existing common-law and statutory sexual offences in a single act, and represents an important attempt to bring clarity into this area of law. The provision of a statutory definition of consent is important, because it brings much-needed clarity, and will be a positive impact of the bill. One of the previous witnesses referred to the centrality of consent in rape cases and other cases of sexual assault. Consent is, indeed, a central part; it is at the heart of sexual offence cases. Having a clear understanding of what consent means will be especially helpful to juries, as well as to complainers and, dare I say it, to the accused.
I agree. The bill is to be welcomed because it provides clarification. However, more needs to be done on the law of evidence, such as sexual history evidence. That needs to be looked into next. In addition, there is a greater role for education, particularly in schools, about what we mean by rape and sexual offences. We must try to get across to young people that it is never acceptable to have sexual intercourse with someone who does not welcome it.
That leads us to the second question that we would like to pursue, via Cathie Craigie, on the definition of rape.
Good morning to all the panel members. The bill makes it clear that only a man can be guilty of rape, although the victim can be a man or a woman. Do the witnesses support that limited gender neutrality?
Yes. I support the view that penile penetration is a crucial element of rape. I think that I said in my written submission that rape is a powerful and weighty word that taps into complex symbolic meanings. It conveys in specific terms the nature of the offence and denotes a specific type of wrong, with characteristics that are quite distinct.
That is clear.
It is fair to say that penile penetration is a different form of wrong. Technically, the bill is gender neutral, because any person can commit the offences, so the bill therefore avoids the questions of gender that might arise due to gender reassignment. However, once the wrong of penile penetration is identified as being separate and distinct, it flows from that that essentially only men can commit the crime of rape—at least, as the principal actor.
I agree. Women could be liable art and part if they became involved in rape. However, for the principal offender, it is appropriate that rape is defined as penile penetration.
Over the past few weeks, the committee has taken evidence from a number of different interested parties who have suggested that it should be considered rape if a perpetrator abuses someone with an object. Can you comment on that? I do not know whether you have read any of the evidence that we have taken over the past few weeks, but it has been powerful.
There might be merit in having a separate offence of penetration with an object. Currently, that offence is included in section 2 as part of sexual assault. However, it is a serious form of sexual assault and, for the point of fair labelling and having previous convictions reflect the gravity of the offence, having a separate offence has merit.
I agree. The insertion of an object into the anus, vagina or other part of the body is extremely brutal sexual exploitation and a violation that can be as devastating as penile penetration and should be treated as no less serious a crime than rape. I support the proposal to have a separate offence that is distinct from sexual assault and equivalent in seriousness and maximum sentence to rape.
I have nothing to add, save to say that any offence involving an object would obviously have to be gender neutral in a way that the offence of rape is not.
I agree.
We turn now to consent and reasonable belief.
The definition of consent in section 9 has been welcomed by other witnesses. Are members of the panel content with "free agreement" as a general definition of consent, or could that definition be improved?
Defining consent in terms of free agreement is a step forward, but I would prefer it if we simply used "free agreement" and left "consent" out of the picture all together. Rape would then be defined as penile penetration without the free agreement of the other party. Using "consent" in the bill can only lead to confusion. If, for example, a woman ultimately submitted to intercourse on the basis that she feared that she would be killed or seriously injured if she did not, that would be consent but not free agreement. It would be simpler to leave out "consent" and use "free agreement".
The words "free agreement" are preferable to the convoluted definition that has been used in recent English legislation. The correct approach to the definition of consent has been reviewed in a number of countries in recent years and the words "free agreement" are the best that anyone has come up with. Recent evidence suggests that if we continue to use "consent" juries might enter the jury room with preconceptions of what that means and apply their own understanding, rather than any statutory test that is given to them. I am not sure that that situation would be altered terribly much by leaving out "consent", as I think that such offences are still understood as non-consensual offences, and that understanding would permeate any discussion among jurors.
I largely agree. In Victoria, in Australia, where "free agreement" is used, the fact that someone did not do anything to indicate their free agreement is enough to show that intercourse took place without it. That is the kind of direction that is given by the judge to the jury as a way of clearly explaining the idea of free agreement. There might be scope for the bill to incorporate something like that. The directions to the jury need to be clear about what is meant by "free agreement".
Are you otherwise content with those words being used?
Yes. The term has lots of advantages, especially when compared with the situation in England and Wales. The term is simple and succinct.
Do you agree with Professor Ferguson's concerns about the use of "consent"?
Yes. I had not thought about the issues that Professor Ferguson raised, but, having listened to her, I feel that there is something to be said for her view.
Do you agree with Professor Ferguson that "consent" should be excluded entirely and that it should be replaced by "free agreement"?
Yes. I can see that "consent" could lead to confusion.
I would like to pursue the question of prior consent in sections 10(2)(a) and 10(2)(b), which has been the subject of some criticism, particularly from Professor Burman and other witnesses. I would like to be clear about the principles behind this matter. Is the objection that people should not be allowed to make a choice in advance in that respect? Is it that the idea of prior consent might allow spurious defences to be raised? Is there some other reason? It would be useful to clarify this matter in relation to the point about sexual autonomy.
If the notion of prior consent is introduced, it will make rape very hard to prove. Rape is already extremely hard to prove, but the Crown would need to disprove the existence of prior consent in any trial. That goes against the philosophical underpinnings of the bill, which are based on sexual autonomy and the idea that a person can withdraw their consent at any time. The notion of prior consent is problematic if, at the same time, there is a recognition in respect of sexual autonomy.
What happens under the current law when there is some suggestion that people gave consent at an earlier stage? I assume that that must arise from time to time.
It arises a lot. Consent is at the heart of all sexual offence trials.
Are you suggesting that the provision relating to prior consent be removed as a complicating factor or that it be amended?
I would remove it.
Would that cause any problems? What would be the effect of removing the provision?
I do not think that it would cause any problems, but I defer to my criminal law colleagues on the matter.
The issue of prior consent would arise in only a small minority of cases, when a person was insensible through either drink or drugs. It would not arise in every case.
You are quite right.
The bill provides no guidance on when a person is too drunk to consent to sexual activity, which is a complex issue. How should we deal with that? If prior consent is removed, will we criminalise something that is probably a common activity between adults who have had too much to drink, and one that is, arguably, not criminal?
I can base my answer only on my empirical research in the area. At the moment, many rape cases are characterised by one or other party having had drink. There are endless debates in court about the amount that has been drunk and the extent to which someone is intoxicated. Often, such evidence is introduced to suggest that a woman is of a particular character, has a particular disposition and leads a particular kind of lifestyle, and opens the door to attacks on her credibility and character. There is a danger of opening the floodgates to discussions about character in relation to drink.
I see that, but the central issue is that people have sexual relations after one, other or both parties have had too much to drink. That is a practical human situation with which we and the courts must deal. You say that character issues come into the picture. If we set aside such procedural matters, what guidance can you give us on how we should deal with the question whether people are too drunk to give consent and the issues that surround that?
I am unable to answer the question just now. If you give me a moment, I will think about how to do so.
Do your colleagues have any thoughts on this common and complex issue? If we set aside the procedural implications and character issues, there is still a central point with which we are often required to deal. We need clarity on when conduct is and is not criminal.
Professor Burman, we have all found ourselves in your position from time to time. Feel free to respond to the question later, when you are able to answer it.
Do Professor Burman's colleagues have thoughts on the matter?
There may be little that we can do. It is difficult to lay down a precise test of when someone is too drunk to consent. In cases involving alcohol, it is inherently difficult to establish the precise circumstances and just how drunk someone was. I suspect that we can only reinforce the general test—that for sexual activity to be lawful there must be free agreement in all cases. That requirement is in no way diminished by the fact that someone has taken drink—drink is not a licence to exploit someone.
That is a helpful comment. Do the definitions in the bill need to be changed to bring about the position that you describe?
It is purely a matter of public education. I am not sure what can be done in the bill in that regard.
Professor Ferguson, do you have any thoughts on the issue?
Section 12 refers to the accused's belief as to whether a person consented and states:
That is helpful. Professor Burman, do you have any further thoughts? I will not press you if you have nothing to add.
I agree with what has been said on the accused being requested to state the steps that he took to determine free agreement.
I will move on to section 12. The bill tries to make the approach to consent objective rather than subjective, which most people accept is a satisfactory approach in principle. However, Mr Chalmers and Professor Burman have both questioned whether the bill will achieve that aim. Will you elaborate on your concerns and how we might deal with the question of reasonable belief against the background of trying to make the approach as objective as possible?
Currently, consent requires an honest belief by the accused, regardless of how reasonable or otherwise that belief is. As you say, that enables a subjective interpretation to be applied, and it has allowed the accused in trials to maintain that the victim's behaviour amounted to what he believed to be consent.
Do you suggest, therefore, that there should be the right to draw an inference from the accused's failure to explain his position in suitable instances? I know that you touched on that in your submission.
Yes, I would support the bill making it more explicit that some inference may be drawn from the accused's refusal to outline the steps that he took to ascertain free agreement.
Mr Chalmers, do you agree with that approach? If so, do you have any fears about it moving the burden too far?
At present, where the circumstances are crying out for an explanation, the jury can be directed to take into account the accused's failure to give evidence. However, it would be inappropriate simply to direct a jury that it could draw certain inferences from the fact that the accused had not given evidence, when the accused is entitled to do so.
Are you saying that there might be compliance problems with article 6 of the European convention on human rights?
I doubt that there would be compliance problems if the rule were carefully drafted. At present, judges have discretion in appropriate cases to direct the jury that it may draw inferences from the fact that the accused has not given evidence when there are circumstances that cry out for an explanation. That is compatible with article 6.
But are we not talking about going a bit further?
If we went as far as saying that simply not giving evidence would count against the accused, it would cause problems with article 6.
I have one final question. Is it possible or desirable to deal with that issue in the bill and in the context of the particular offences rather than consider it as part of a more general review of the laws of evidence and procedure?
It would be far preferable to deal with the issue as part of a general review of evidence and procedure, although it might be some time before that opportunity presents itself.
I accept that.
I would like to pursue that point to its logical conclusion. Is there scope within the bill to say that the accused is duty bound to provide evidence in the particular circumstances of a rape or serious sexual assault accusation, or are we not able to say that in the context of human rights law?
We could not say that. We can have regard to the failure of the accused to put forward an explanation, but we cannot drag them on to the stand to give evidence.
Not no way.
Not no way is the broad answer.
We move to the question of those who are euphemistically described as older children.
Professor Temkin, in her written submission, objects to the use of the term "older children" on the basis that
I think that Professor Temkin is right, but it would be better to talk about children aged 12 and under on one hand, and children aged 13 and older on the other. It would be preferable for the bill sections to have those headings.
I do not share that concern. Professor Temkin has made a similar point in the past about the use of terms such as "consent" in relation to children. The concerns that she expresses fail to give sufficient weight to the distinction between consensual sexual activity and non-consensual sexual activity by children under the age of 16. That is a serious distinction, and to say that the matter is as simple as recognising that children under 16 cannot consent does not acknowledge the complexity of the situation, nor does it recognise the law as it currently stands, in which there is a very sharp distinction between those two areas.
I support what James Chalmers says. The area is very complex.
I will ask James Chalmers a couple of questions based on his submission, but I welcome comments from the other two panel members. Section 4 deals specifically with children. James Chalmers states in his submission:
Government has other tools at its disposal to put across the message that certain things are not a good idea. A lot of things that we all might do are not good ideas, but the Parliament has not yet proposed legislation to outlaw them. It is a matter of public education as much as anything else—I am not sure that there is an easy way to achieve that.
Do you have any thoughts on how the bill could be amended to address those concerns?
The concerns could largely be addressed by taking the approach that the Scottish Law Commission proposed. I would not propose anything significantly different from what the commission had in mind. The possibility of referral to a children's hearing is a serious prospect, and I am sure that it would be viewed as such.
I agree. The arguments are difficult, but I am persuaded by the evidence from people such as Kathleen Marshall. My worry is that, under section 27, in cases involving a pregnant 15-year-old, the police will have to treat her as a potential accused rather than as a victim. There will always be an allegation by the accused that the activities were consensual. The defence will be able to put it to that pregnant teenager that because she was worried about being prosecuted, she said that it was rape. Section 27 would open up all sorts of horrendous possibilities for girls to be accused of engaging in consensual activities that they did not agree to.
I very much agree with that. As James Chalmers said, rather than make sex criminal, there are other opportunities for Governments to persuade young people not to indulge in sex. The issue is about providing easier access to appropriate advice and information. I support what Kathleen Marshall said the week before last about the need for a robust public health campaign that conveys a clear message that we do not condone sex for under-16s. That is a more appropriate route than criminalisation.
My final question is for James Chalmers.
No, you are not misreading. It is probably just as well that you did not go on, because that sentence is badly worded and does not make much sense. I meant to say that the bill will not affect the conviction rate if we continue to express the rate as a proportion of the number of rapes that are reported to the police, as we often do at present. That is different from expressing the conviction rate as a proportion of the number of rapes that are prosecuted, which is a small fraction of the number of reported rapes.
Is that sufficient, Cathie?
Yes—that is food for thought.
I thank the witnesses very much for their evidence. It was given with great clarity and very succinctly, which is greatly appreciated.
Meeting suspended.
On resuming—
I welcome Professor Gerry Maher, professor of criminal law at the University of Edinburgh, who will give evidence in connection with his former duties as a commissioner of the Scottish Law Commission. We have read the commission's discussion paper and report, which give the principles behind the proposals. We will proceed directly with questioning.
Good morning, professor. The principles behind the bill were given in those earlier papers. Will you clarify for the committee what the principles of this reform of our law should be?
There are a variety of interlocking principles, but first and foremost we are concerned about sexual autonomy as a principle: the bill should both promote and protect sexual autonomy. Of course, the sexual autonomy principle has important implications for the provisions on consent.
Are those principles present in the bill?
I hope so. As I said, the protection and promotion of sexual autonomy require some sort of conceptual framework. That is what we had in mind when we considered the consent model. The bill contains a number of provisions on the protective offences. My hope is that the law will now be clearer. The present law, which does not define consent, is certainly much less clear than any other attempt—especially our attempt—on that fundamental concept.
I will pursue the last question that I put to the previous panel. Will clarification and rewriting of the law change the number of convictions, or do you agree with the previous witnesses?
I tend to agree with the previous answers. The conviction rate is a fairly complex issue that seems to me, however one interprets the problems, to involve many possible explanations and causes. Concurrently with the commission's project, the Crown Office conducted a review of the procedures for prosecution and investigation of rape and other sexual offences. It seems to me that the Crown Office's review will have as much impact—probably more than—as our project will have on the conviction rate.
Why did the commission believe that rape should continue to be defined as a crime that can be committed only by a man?
We took the view that, in trying to separate out the different types of sexual assault offences, of which rape is one, it is important to make it clear that the law should reflect the specific type of wrong that has been done to the victim. It seemed to us that penetration with someone else's sexual organ is a distinct type of wrong that should have its own offence, which should be a separate offence from other types of sexual assault, including other types of penetration.
According to written and oral evidence that we have received from women's organisations, the effects of being penetrated with an object can be just as bad—and, if we are talking about physical damage, can be worse, especially for women. What is your view on that?
I totally agree. There is no suggestion that in confining rape to penile penetration we are saying that all instances of penile penetration are worse than other forms of penetration, or that there is some form of hierarchy in that respect. The question is how to find an appropriate label with which criminal law can refer to such conduct. Although all types of unwanted sexual penetration are horrible for the victims, we felt that being penetrated by someone else's sexual organ seemed to be a distinctive type of wrongdoing.
What is your view of the suggestion that there should, in this respect, be another offence of similar seriousness to the crime of rape?
The commission originally proposed a set of three sexual assault offences: rape defined as penile penetration; sexual penetration not just with objects but with other parts of the body; and a residual category of sexual assault. For a variety of reasons, we changed our minds. However, section 2 still refers to the offence of sexual assault by penetration, which suggests that the legislation marks out non-penile penetration as a specific type of wrong.
I do not know whether you have followed the evidence that the committee has taken, but a significant number of people feel that the bill will not fully cover their various areas of concern, nor will it protect many men and women out there. I have to say, however, that we do not yet have suggestions for amendments in black and white.
Are you talking about sexual assault?
Yes.
As we have argued, there is an offence of rape—in other words, penile penetration. The bill also sets out four types of conduct covering a wide range of sexual assaults. The common law would remain in force for anything that would not be covered by sections 1 and 2 including, for example, assault under circumstances of indecency. If a person is assaulted as a result of being urinated on by someone else, that might not fall four-square within the categories of sexual assault—indeed, it could be argued that it does not fall within those categories at all—but the Crown could prosecute on the grounds of assault under the aggravation of indecency.
I want to be quite clear about the potential penalties. The maximum penalty for rape is, of course, life imprisonment, subject to a punishment part. How, under the bill, would a case such as we had a few years ago, in which a baton was forcibly inserted into a woman's vagina, be classified?
It would be classified as assault.
What is the maximum penalty that that would attract?
Under schedule 1, the maximum penalty for a prosecution on indictment would be life imprisonment.
So, the same maximum penalty will apply under each heading.
Yes.
I was anxious to clarify that.
Let me make this absolutely clear. Section 1 rapes and section 2 assaults will carry a maximum penalty of life imprisonment. That will apply to all types of sexual assaults that are prosecuted on indictment.
That was my understanding, but I was slightly vague about it. I think Nigel Don is similarly vague.
Can you please clarify your point, Professor Maher? My understanding is that, under those circumstances, prosecution would proceed under section 2(2)(a), which concerns sexual penetration. You are suggesting that if that provision and all the words that are associated with it were removed to another section—which is what a lot of people have asked us to do—there would be a struggle to attach the same penalty to what remains in what is currently section 2. Is that your view?
That is one consideration. There are conventions about maximum penalties for statutory offences. I am not saying that it would be impossible to argue for life imprisonment as a maximum penalty for the residual category of assault, but it seems to us that it would be easier, instead of making such distinctions, to have a general section 2 type assault that is constituted by four types of behaviour.
Would it necessarily be a bad thing if that were to be the consequence? If we removed all the offences of penetration with objects or body parts to another section, would it be a bad thing if the residual sexual assault did not carry the same penalty? It is not clear to me that it should.
That would give rise to the problem that was mentioned earlier of trying to avoid hierarchies—saying that one thing is always worse than another. From the victim's perspective, a sexual assault that is not penetrative can still have a terrible impact. To be told that it is okay because they have not been raped or sexually penetrated does not bring comfort to the victims in that scenario.
Okay. We turn now to the issue of consent.
Let us return to the general point about free agreement. The clarification in the bill has been broadly welcomed. Is it possible for that definition to stand on its own without reference to the categories in section 10, which have been at issue?
When you say "stand on its own", are you asking whether we could do away with section 10?
Yes.
That is possible. However, we feel that an important role of the definitions in section 10 is to spell out to people who are contemplating sexual activity that certain forms of such activity in and of themselves count as rape or sexual assault. We feel that the law would not give a strong enough message if we left consent as defined in the general definition of free agreement.
I am concerned that the whole issue looks very complicated, in terms of directions to juries and that sort of thing. At the end of the day, we want something that is transferable into judicial language and comprehensible to a jury so that juries can make clear-cut decisions. Do you think that, in broad terms, part 2 allows for that?
I think it does. The problem that arose in the state of Victoria, which a witness mentioned earlier, was that judges and prosecutors tended to treat the list of definitions as a checklist. They went through the checklist to see whether an offence fitted in with it. However, the definitions are meant to apply simply when the facts bring one of the definitions four-square within a case; they are not a checklist. A judge would not direct a jury by going through each of the definitions. In many cases, no particular definition will be relevant and the direction on what constitutes free agreement will be the important factor.
You make the interesting point that there has been an example, in another jurisdiction, of a section 10 equivalent being treated as a definitive list, with other situations being difficult to consider.
The list is not definitive in the sense that it covers the field of what constitutes free agreement; it is a non-exhaustive list of cases of lack of free agreement. In our report, we said that we looked at the experience in the state of Victoria when the new law first came into effect. We found that after some initial problems and misunderstandings there was, among the wide range of legal practitioners and judges, general acceptance that the new law was working. Our concern was that that would not be the case. You say that the provision seems to be complicated, but no problem was found in putting it into practice in Victoria.
In that context, I assume that the key phrase is:
Yes—that is right.
Significant concern has been expressed on the concept of prior consent. We are getting a sense that people view the provision as being somewhat theoretical and therefore difficult to apply to actual cases. In addition, we are hearing that it may, if it is applied, have adverse implications for the sexual autonomy point on which you place such emphasis. Having listened to and read the evidence, do you now consider that the view that is being expressed is reasonable or do you stand by the idea that prior consent continues to be relevant to the bill?
We have to be careful about what we say in this regard. Most of the focus has been on section 10(2)(b), where I think the phrase "prior consent" is used. My worry is that the notion may get out that the law does not allow prior consent. I take the opposite view: there must always be prior consent. The focus of the commission's message is that if no consent is given prior to a sexual act, the sexual act is a criminal act.
From the evidence that we have heard, I sense that people view the provision as an artificial concept. One difficulty is the distinction between consent and prior consent. Also, people are not signing up to a document or saying hours in advance of the act taking place exactly what will happen later on, after they have fallen asleep or whatever. Do you accept the artificiality of the concept?
I do not see what is artificial about the scenario. By way of illustration, I will set out a scenario and ask the committee to reflect on whether it is so statistically freakish that the law can ignore it. A couple go to bed and one says to the other, "If you are first awake, can you wake me in a nice way?" We could say that their having said so does not matter and we should make that activity illegal, but for me that would be an infringement of sexual autonomy. Removal of section 10(2)(b) would not solve the problem, but would simply move the focus to section 9. If the bill were to be passed with section 10(2)(b) absent, this question would arise: is it an offence of rape in Scots law for a man to have intercourse with a woman while she is asleep? The answer should depend on whether she has consented to having sex in that state. In my view, the problem will not go away if we remove the provision in section 10(2)(b).
Rightly, you say that it goes back to the general definition of consent. Is that not a more flexible and satisfactory way of tackling the issue than the slightly artificial provision in section 10(2)(b), which seems to imply signed documents and so on?
The implication that signed documents are required is a criticism that can be levelled at the whole consent model, not simply at this definition. My point is that going back to section 9 will not give us an answer. If the question were asked whether it is rape in Scots law for a man to have sexual intercourse with a woman while she is asleep, what would the answer be? In my view, it is better for the definition to be spelled out.
Would spelling out the issue in that way assist juries that are faced by the practical and varied circumstances in which such situations arise?
For section 10 to be brought into effect, the victim would have had to be asleep or unconscious. The answer is that sex with such a person would be assault or rape unless the exception applied; in most cases, it would not. We are talking primarily about cases in which men find women asleep in the street because they are drunk. In such situations, there has been no previous contact between those persons, so the law should spell out that that is rape.
You have made your position clear.
It was the commission's intention that historic abuse should come into play in such circumstances. The key point about section 10(2)(c) is that it relates to situations in which there is a causal link between violence and consenting or submitting to sexual activity. If the violence took place far back in time, it may be more difficult for the Crown to show that there is such a causal link, but our intention was that the definition would apply to historic violence or abuse.
We are dealing with a serious criminal offence, so it is important to establish the existence of a causal link between violence and agreeing to sexual activity. We need to do more than establish background circumstances.
Establishment of a causal link is important because if the Crown proves a case under the definition, that is the end of it—there is no defence in relation to consent, because it has been proved that there was no consent.
Are you aware of any cases under the old clandestine injury charge in which the defence was that consent was granted before sleep or intoxication took over?
That is a peculiar rule. Case law provides no guidance on the scope of clandestine injury. The offence still exists, but it will be removed.
It is historical to the extent that it is no longer used by the Crown.
Yes.
Section 12 of the bill provides that, in determining whether a person's belief about consent was reasonable,
I will outline the scenario that we had in mind. If the bill became law and the law spelled out that there would be an inquiry about what steps, if any, the accused took to ascertain consent, we hope that the proper police procedure would always be to ask about that when the accused was being questioned. In interviewing the suspect, the police could say to him that so-and-so had said that the accused had raped her. He may deny the whole thing and say, "Yeah, I had sex, but she agreed." We would hope that, as part of their standard questioning, the police would then say, "Okay. What steps did you take to make sure that she consented?" The suspect would either answer that question or he would not answer it, but the interview would be part of the Crown evidence.
I accept that, but what if the suspect still declined to give evidence, despite that? Would it be possible, as was suggested earlier, to draw an inference if he refused to take the stand?
The response could be, "Well, what would you think?"
Do you agree with Mr Chalmers that the ECHR could be contravened?
Yes—I think there are potential problems with the ECHR.
Okay. That is clear.
I would like to clarify something with Professor Maher. Perhaps I am being characteristically obtuse this morning, but is it intended that the provisions in part 2 of the bill should apply to attempts to commit rape or general sexual assaults? Section 9 refers only to parts 1 and 3 of the bill, section 10 refers to section 9, and section 12 refers only to part 1. You can understand my confusion.
That is an important point—it is not confusion. There is a view that there is a problem with how the English legislation was drafted, in that the consent provisions do not apply to attempts. We had that specifically in mind in instructing our draftsmen about the draft that the committee has. In the light of the provisions of the Criminal Procedure (Scotland) Act 1995, on attempting to commit crimes, we are quite satisfied that for our purposes we need only define consent in relation to committing the crime, and the provisions on attempts will kick in. In trying to get the drafting right, we had it in mind that those provisions would apply to attempted rape and attempted assault.
That is fine. I appreciate that drafting difficulties are involved, but we may have to reconsider that issue.
Yes. It is essentially a drafting issue. The policy was certainly to apply the consent provisions to attempts.
That is fine.
The bill draws a distinction between young children and older children, but it has been suggested that that distinction undermines the bill's protective dimension. Children are, after all, children—that is Professor Temkin's contention in her written submission. Does that aspect of the bill undermine what would otherwise be a clear message that it is not right to engage in sexual activity with or towards a person under 16?
There is a danger of making things worse by simply treating all people under 16 as children. The law should mark out a distinction between, on the one hand, an older man having sex with a seven-year-old girl and, on the other, an older man having sex with a seemingly consenting 15-and-a-half-year-old girl. Those are not the same scenarios, and the law should draw a distinction to reflect that difference.
The Law Commission's original proposals were to decriminalise all consensual sexual conduct between young persons aged over 13 and under 16. First, why did the commission support decriminalisation? Secondly, what are your views on the bill's position on sexual relations between older children? Thirdly, would the move proposed by the commission not have reduced the legal age of consent by the back door?
I will try to take those questions in the right order; you can prompt me if I forget one.
Some of the evidence that we have received has suggested that such a move could be construed as lowering the age of consent.
It would lower the age of consent only for sex between teenagers. The message would have to be put out that it was still an offence for somebody over 16 to have sex with somebody under 16. The age of 16 as the age of consent would still exist in general law. The question is how to deal with sex between children under 16, who are by definition the parties to be protected—the age of consent is a protective provision. How do we deal with a scenario in which the two parties fall within the category of those who must be protected because they are both under the age of 16?
What are your views on the bill's position? Are you happy with it?
In relation to sex between teenagers?
Yes.
I adhere to what the commission said in its report, which is that such matters are best dealt with through a welfare intervention by the children's hearings system. I think that the bill represents the worst of all worlds, because it will extend decriminalisation by listing a wide variety of what would otherwise be offences, but will keep criminal liability for certain acts, which I will not say have been randomly picked, but it is difficult to see where the line has been drawn. Moreover, it does nothing to establish a new ground of referral to the hearings system—that children are engaging in sexual behaviour. To me, that is the worst of all worlds, from the perspective of the position that we in the commission arrived at.
Does Cathie Craigie want to pursue that? We have been given a fairly clear answer.
That is fine. I would love it if we had more time to debate the issue with Professor Maher, who has made his position pretty clear, but there is one point that I would like to ask about. We have heard evidence that it is not good legislative policy to enact criminal law provisions that it is broadly agreed will be enforced only in exceptional cases. Another consideration is that the European Court of Human Rights has held that a state cannot claim that the retention of criminal sanctions is necessary while indicating that, ordinarily, there is no intention that the criminal law will be applied. How can we square that with what the bill proposes?
As a law reform body, it seemed to us that we would not be fulfilling our role if we recommended that the law should change but asked for it not to be enforced. That did not seem to be a good way of making new law.
Let us continue to examine the issue of responsibility through a question from Stuart McMillan.
In the context of the criminal responsibility of older children, will the extension of the criminal law to girls who are under 16 present any practical difficulties as regards enforcement? Are there any circumstances in which the law should treat young men and young women differently in that regard?
I want to ensure that I understand your question. Are you asking whether the bill's provisions on teenage sex would be difficult to enforce?
Yes.
I think that they would. I have enough problems trying to explain the law to law students. In difficult situations, there comes a time when people just have to make their minds up. The commission made its mind up that the law would be in a very unsatisfactory state if you brought in such phantom quasi-offences, which give the appearance of criminal offences but are not really criminal because they are being decriminalised by another route: Crown Office discretion. That makes things messy. If it is decriminalisation that you want, decriminalise; but if you want to punish children through the criminal justice system and give them convictions for rape and sexual assault, put the law in place and give the Crown Office the understanding that those cases must be prosecuted: the police must investigate all such cases and the criminal courts must listen to them all. Decriminalisation by the side door is inappropriate. If decriminalisation is what is wanted, the law should state that.
You indicated that the bill does not allow referral to the children's hearings system. Is that correct? Section 27 creates an offence and a child can be referred on offence grounds. Most offences committed by people under 16 would not go to the courts—they would go to the children's hearings system. Leaving to one side the broader matter, does the bill not continue that pattern?
I meant to say that the bill does not add a new ground for referral, which would be that children have been engaging in sexual activity. Other witnesses have mentioned that there are problems about the use of the criminal ground of referral anyway, as there is a higher standard of proof and the need for corroboration. If the concern that leads to any teenage child being put before a hearing is that they are engaging in sexual activity, a much more straightforward way of achieving their appearance at a hearing is to have that as a ground rather than relying on the peripheral cases caught by section 27, which must then be processed through another ground of referral. Those are the very children that we want to go through a hearing, but they have to go through a different ground of referral, which might not be as easy to establish on the facts.
I will bring us back to an important point, on which we want to be clear. In so far as the law is concerned, rather than in respect of a referral to the reporter or by the reporter, can you see any circumstances in which two people under the age of 16 have sex and one is charged but the other is not? If the provision is retained, would there have to be consistency in that both of them would be charged?
That highlights one of the practical problems. If both children are in need of protection, but the law says that both are committing an offence, why should we distinguish between them? That is a good example of the practical difficulties to which section 27, in its current form, would give rise.
We will now turn to what appears to be a sentencing anomaly.
Schedule 1 to the bill sets out the penalties for offences introduced by the bill. Can you advise me of any circumstances in which it would be appropriate to impose a fine for rape or for the rape of a child?
No.
I understood that such fines were one of the Law Commission's recommendations.
We were trying to clarify a technical anomaly, which is that there are certain offences for which there is no option of a fine. It is difficult to think of circumstances in which rape would attract a fine as a sole penalty, but we understood the law to be that if there were a very wealthy rapist, the law could put that person in prison for a very long time but could not fine him. We did not envisage that a fine would be the sole disposal for rape or rape of a child. It would be an additional penalty.
You have more experience in these areas than I have, Professor Maher, but schedule 1 says that, for rape, the "Maximum penalty" should be
We did not envisage that the rape of a child would lead only to a fine as a form of disposal. We were more concerned about ensuring that, in addition to imposing a period of imprisonment, the court fined the accused, if it was so minded.
So the paragraph that I quoted is wrong.
This may be a drafting point.
The phrase
It may be a technical drafting error. Our instructions were to ensure that the courts had the power to fine, in addition to the power to imprison. The bill's draftsman drafted that in the way that members can see. There may be technical drafting reasons for that that I do not know about.
We will have to pursue that point.
What circumstances was section 3, which has to do with sexual coercion, intended to cover? I do not think that we have heard anything from anybody about that. Does the section refer to something involving a third party or is it intended to cover two people?
It could apply to a range of circumstances. An example was given to us in the consultation. We were asked what offence would be committed under current law if a man forced a woman to have sexual intercourse with an animal for pornographic purposes or even just for purposes of sexual gratification. The law at present is not entirely clear on that. If a man forced a woman to masturbate herself for his pleasure, what offence would be committed? It seemed to us that there is an important gap in the law in that regard, which the bill's sexual coercion provisions are meant to cover. An accused can get sexual pleasure, for a variety of reasons, from forcing someone else to engage in a sexual act. We thought that the law should make it absolutely clear that that is a crime.
So section 3 is really a catch-all section that is not intended to cover any particular circumstance.
It is not a catch-all in the sense that we thought that we would cover everything else just in case we had not. We were addressing specific scenarios where someone is forced, under any circumstance, to have sex other than with the accused.
That is my point. You visualise, therefore, section 3 covering a situation in which there is a third party or, in the case of masturbation, possibly not a third party. However, section 3 is not intended to be an addition to sections 1 and 2, which essentially have to do with two parties.
That depends on whether your question is about the drafting, or the intent of the provisions.
It is about the intent.
The intent of the provisions is to cover circumstances to which sections 1 and 2 will not apply. Sections 1 and 2 will apply only where a person is forced to have sex with the accused. However, there can be plenty of scenarios where A, the accused, forces B, the victim, to have sex with somebody else or to engage in sex that does not involve the accused.
I am with you. Thank you.
Professor Maher, thank you for giving your evidence in what was, if I may say so, a stimulating manner.
Thank you.
There will be a five-minute suspension.
Meeting suspended.
On resuming—
I welcome the final panel of witnesses. Bill McVicar is the convener and Alan McCreadie is the secretary of the criminal law committee of the Law Society of Scotland, and Ian Duguid QC and Ronnie Renucci QC are from the Faculty of Advocates. I welcome you all and thank you for your attendance. I am sorry to have kept you waiting but, as you will appreciate, we are under considerable pressure this morning. We will move straight to questions specifically for the Faculty of Advocates.
The point of the legislation is to address the underlying issue that there are very few convictions for rape in cases that are brought before the High Court. We do not feel that the provision to which you refer will change that situation in any way. Judging from our experience, we think that juries will be reluctant to consider oral penetration as a form of rape, which is why we are against it. Anal penetration and vaginal penetration are quite understandable to the layperson as forms of intercourse that can be afforded the description of rape, but we think that oral penetration is in a different category.
Do you adopt those arguments, Mr Renucci?
Juries are reluctant enough to convict defendants of rape; to give them another option, and to call something rape that has not previously been called rape, will mean that there will be fewer convictions, as juries might be more reluctant to convict.
We did not receive a submission from the Law Society of Scotland. Mr McVicar, do you have anything to say on the issue?
We received a submission.
I am corrected.
We replied—we sent in written evidence, but we did not take issue with that point. We agree that there should be a standalone crime that deals with penile penetration, for the reasons that have already been given in evidence today. We disagree with the Faculty of Advocates' standpoint on that.
Thank you. The submission from the Faculty of Advocates states:
The issue of recklessness is currently a consideration in all rape cases. It arises in the assessment of the mens rea—the intention of the accused—and the law as it presently stands suggests that whether a man is reckless as to whether the party is consenting becomes an issue in a trial, so recklessness has a place in the ordinary consideration of such cases. Our concern, however, was that the extension of an offence that is substantially an offence of assault to include recklessness is a fundamental change in the law.
But juries would have to identify whether the conduct of the accused in, for example, a road traffic case was reckless. The word "recklessness" is well defined in Scots law. Is there a fundamental problem in extending that word to define sexual behaviour that could be viewed, in effect, as rape?
I am not sure whether you have in mind the criteria that used to apply around the offence of reckless driving, which, of course, was changed to dangerous driving. However, recklessness was a creation of statute in that instance.
Mr Renucci, have you anything to add?
Only that my reading of section 1 led me to think that the bill itself was reckless. That caused me some concern. The bill is meant to clarify matters, but it certainly did not clarify matters for me.
But recklessness is a well-established, common-law concept.
But the bill appears to suggest that there would be recklessness in the physical act. I cannot envisage a situation in which that would apply. Is it suggested that someone is going to say, "I slipped and fell and somehow penetrated the person"? That does not make sense. Section 1 does not make clear to me that the notion of recklessness applies to the intention as opposed to the physical act. It is difficult to see how someone could be so reckless in the physical act that it would cause penetration. The notion seems unnecessary.
Our view was that the recklessness that is specified related to mens rea, and we did not have a difficulty with it being placed in the section. I hear what the Faculty of Advocates has said, and I understand its concerns, but if one considers the idea of recklessness as part of mens rea, there is no particular difficulty.
Cathie Craigie will ask questions around rape and sexual assault.
First, I would like to continue the current line of questioning.
As our submission says, further research should be done into what exactly the problems are. We do not know why juries do not convict in rape cases. We can speculate and guess, but we do not know. Our view was that, until some proper research is done into that specific difficulty—if there is, indeed, a difficulty—it is difficult to know how it can be fixed. We welcome the bill in the sense that it consolidates existing law and clarifies various factors and definitions. We just wanted to make it clear to the public that the bill is not the answer to the low conviction rate in rape cases.
Do you know what the answer is?
I think that further research needs to be done before anyone comes up with an answer. I have been defending people in the High Court and various other courts for the past 25 years and I could give you all sorts of speculative answers, but I would not know whether they were correct.
Is there any research in any other parts of the world that we could turn to?
We understand that research has been done elsewhere, particularly in the United States of America. However, we have not embarked on a review of that research as yet. When, in due course, proposals are introduced to amend procedural law and the law of evidence, as I assume will happen, that might be the time for us to consider those comparisons directly.
One of our previous witnesses has produced a paper on that matter that might be of interest to you. We will direct you to that later.
Does the Faculty of Advocates have anything to say about the Law Society's submission?
I wholly subscribe to what Mr McVicar said on behalf of the Law Society.
The submission by the Faculty of Advocates suggests that there is an overlap between sections 1 and 2, because conduct that might be charged as rape could be charged as sexual assault. Do you think that such an overlap is acceptable?
As you may have seen, neither I nor Mr Renucci was a member of the committee that prepared the faculty's submission. I am the chairman of the Faculty of Advocates criminal bar association; it is not clear that the bar that I represent subscribes to all the views that are set out in the submission. However, I will try to answer your question.
You have left me equally mystified. Given that the issue has been raised in writing, the committee will want to take it into account. If you think that further clarity is needed, I am sure that the committee will accept—
The concern was that the legislation would make the same situation eligible for prosecution in two different ways and that there was no obvious reason for choosing to prosecute a case under section 1 rather than section 2. We thought that you might try to suggest that section 2 relates to lesser offences—in other words, that you might distinguish such offences from rape, as we all understand it. We were not sure what was the intention or purpose of the provisions in section 2.
I understood from earlier evidence that it is not intended that the provisions should be seen as creating a hierarchy of offences—both rape and sexual assault can be punishable by life imprisonment. It occurred to me that section 2(6) might cover the bizarre situation in which the victim did not know what penetration was with. If the accused person were tried under section 2 rather than section 1 and gave evidence that penetration was with his penis, it would be open to the Crown to seek a conviction under section 2(6), even if it libelled something else to begin with. The situation that I describe is bizarre and unusual, but it provides a theoretical justification for the provision. Does that help?
Yes, but there seems to be a degree of redundancy in the bill. We may need to look at that.
It has been suggested to the committee in oral and written evidence that the bill should create a further offence of rape with an object. What are your views on that suggestion?
I thought that the issue was covered in section 2. I agree with Professor Maher, who explained why such a provision is unnecessary. The activity that you describe is an offence under the bill. It may not be the specific offence of rape, but it is clearly a serious offence. If we took up the suggestion that has been made, we would be adding another layer to the offence of rape. That is wholly unnecessary.
In my view, it would be redundant under the bill to create an offence of rape with an object. We should get away from the notion that the bill creates a hierarchical structure of offences—offences should be considered in the round, rather than on the basis that one offence is more serious than another. There is no need for a separate offence relating specifically to penetration with an object.
Okay.
The Faculty of Advocates raised the issue of sexual coercion, and you will have heard my previous conversation with Professor Maher. Would you like to comment further on what section 3 does or does not cover?
Yes. You addressed that in your questions to Professor Maher. I have nothing to add to what has been said thus far or to what is contained in the bill.
Thank you. The faculty made the only reference to that section. I wanted to ensure that we do not miss something.
No, not from my point of view. I have nothing to add.
Witnesses have broadly welcomed the definition of consent as "free agreement". Is that an improvement on the current law?
Yes. I agree that it is an improvement on the current law. It is difficult to express or draft in an elegant way the concepts that are involved in consent. When taken together, sections 9 to 12 set out clearly what a jury must consider in dealing with the question of consent.
I am not sure whether you heard Professor Ferguson's evidence, but she suggested that use of the word "consent" is unhelpful to jurors' understanding of and their preconceptions about the concept. What is your view?
I do not agree with the proposition. The definition that is advanced in the bill is as clear as any that I could come up with. In the evidence that I heard today, no one made an improvement on the formulation.
Does Mr Duguid or Mr Renucci have a comment?
I probably answered that in response to an earlier question. I said that no one who practises the law understands what it is in the word "consent" that people do not understand. If one word were to be replaced with two, the cause would not be advanced in any substantial way.
May I interrupt? Looking at section 10(2), I am having a wee bit difficulty in ascertaining precisely where you are coming from with that analogy.
Section 10(2)(e) states:
At that stage, we enter into a legal debate as to what is a material fact and what is not.
You are, of course, right about that, but we are talking about rendering people liable to prosecution. Mr Renucci may have something else to say about it.
No; I agree with those comments. In addition to the example that Mr Duguid gave, I would include the example of someone saying that they were not married when they were. In theory, at least, a female could say that she would never have had sex with the man had she known that he was married and that that is deception.
Since we are on the subject of section 10(2)(e), I wonder whether anyone can help me. What sort of deception was envisaged when it was drafted?
I had the advantage, along with Mr McCreadie, of speaking to the bill team about the draft bill. We raised the same issues as the faculty, because at first blush section 10(2)(e) might cause difficulties with regard, for example, to those who pretend that they are not married. I was told that
Unfortunately, people who read the bill or members of the public will not have the benefit of the draftsmen telling them exactly what was in their mind in drafting it. That is the problem with quite a lot of sections in the bill.
I hear what you say, Mr Renucci.
Section 10(2)(e) provides that there is no consent when the complainer agrees to or submits to the conduct because he or she is
Presumably, the accused is the person facing prosecution, so it would always be an issue of whether the accused had deceived the individual himself or been a party to deception by another. I am not sure whether the complainer's or victim's state of mind is important. It is important to the extent that she has gone through an act or acted as a result of a deception. The common-law offence of fraud turns on a pretence followed by a practical result. Presumably in this case, there is a pretence followed by a practical result, but we are talking not about fraud but about rape, because the practical result would be intercourse by deception, on which the victim has proceeded by mistake. I am not sure whether that answers your question, but I think that all the deception lies with the accused person, rather than the victim, in any situation.
Okay. Thank you.
To some extent, you might have anticipated Stuart McMillan's question, but he also has another issue to explore.
I just want to explore one other aspect. Previous witnesses have suggested that section 10(2)(c) should be reworded to take account of the historical context of relationships where violence and abuse have been present. Would that be a positive step, or is it not necessary?
I would think that that was a positive advance. I am not quite sure what sort of drafting amendment was proposed, but I take it that you are talking about the situation of battered wives or partners or persons who are subjected continually to violence over a long period.
Yes.
Well, the answer is undoubtedly yes. It would be advantageous at least to address that matter in the bill in some shape or form. I am not sure what form of amendment has been proposed, but I would not be averse to that matter being addressed.
Does the Law Society have a view on that?
We agree that there is room for reconsidering the way in which that section is drafted. However, I return to the suggestion in our paper that a reference to threats in general could replace what is in section 10(2)(c). That would be a broader brush with which to address the various issues of violence over time, as well as more immediate violence or threats of violence.
Ms Constance is satisfied that the issue of deception has been examined fully.
The bill provides at various points that conduct that was initially consensual ceases to be so if consent is withdrawn and that if conduct takes place or continues to take place after consent has been withdrawn, it is non-consensual. Do you agree with that general principle, or do you think that it has practical difficulties?
Yes, it has huge practical difficulties, as I am sure that everyone in the room can envisage. On the issue of consent, there are plenty of instances—certainly in my experience in the courts—when parties have started off in what, on the face of it, seems to be a consensual situation, but consent has been subsequently withdrawn, for any number of reasons. You can think of any number of instances when the potential victim or complainer in a sense changes her mind. Should that be addressed by the law? Absolutely, because there is no longer consent—or free agreement, if you are going to call it that. However, by putting it in a bill in the suggested form, you are placing entirely in the hands of the complainer or victim the point at which they withdraw their consent. There is no indication whether the state of mind of the accused is going to be addressed. How is the accused going to know that consent is withdrawn? What happens if, after the event, the person comes along and says that they decided that they were not agreeable to the conduct, which would technically render the other individual liable to prosecution for rape?
No. What you said was clear. Do the witnesses from the Law Society agree with what Mr Duguid said, or do they have a different emphasis?
The difficulty is that, if we legislate to define what rape is, we must legislate on consent, on the circumstances in which it can be withdrawn and on when a criminal offence occurs in that respect. When we read sections 9 to 12 as a whole, there can be no real doubt as to what the law is intended to be. There is no great innovation in section 11, because that is what the current law is, as Mr Duguid said. I suppose the question is whether we need the legislation at all rather than whether there is anything wrong with section 11.
Do you think that the intention is correct but that the provision would be fraught with difficulties in practice, as the Faculty of Advocates said?
I do not share the faculty's view or believe that there will as many difficulties as Mr Duguid apprehends. The court, in interpreting the statute, will have access to the various cases that existed beforehand on consent and withdrawal of consent because the provision is simply a codification of the existing law, as I understand it.
So the Law Society's view is that the provision is workable.
Yes.
In the panel's view, are the provisions on reasonable belief in section 12 workable, given that the accused cannot be compelled to give evidence at his trial?
I think that you raised the issue with Professor Maher, and it is a well-made point. The accused cannot be forced to give evidence. Professor Maher talked about police interviews, but of course the accused is entitled to say nothing at a police interview and may not do so. We considered how the matter could be addressed in the way that Professor Maher suggested. There is a process of judicial examination. Could the question on belief be put to an accused person before a sheriff in judicial examination? However, outside of murder cases, a judicial examination is currently conducted in only a few cases because of pressure of business in the sheriff courts. If the issue of reasonable belief was to be addressed in the way that Professor Maher identified, there would almost certainly have to be a judicial examination in each rape case and the judge at the trial would have to be allowed to comment on any failure by the accused to respond. That is how the law stands according to, I think, the Criminal Justice (Scotland) Act 1980. A judge is entitled to comment on an accused's answer to, or refusal to answer, a question.
You said that there is a possibility of a judge commenting after judicial examination, but would that not raise the possible ECHR problem that I discussed with Professor Maher? Although it would be a judge's comment, it would channel juries along the way of inferring something from the accused's silence.
Professor Maher recognised that there was a problem with compliance with the ECHR, and I agree. I was trying to envisage the situation that he suggested might offer an out.
But would it offer an out as far as the ECHR is concerned?
The provision that allows a judge to comment on the failure of an accused to answer a question during judicial examination is in a statute from 1980. It has not been challenged as not complying with European human rights jurisprudence.
Would it be open to such a challenge?
I suspect that it might not be. Each of the member state signatories to the convention has what is called a margin of appreciation, which allows it to legislate in a way that, on the face of it, might appear to be non-compliant with the ECHR but for which there is justification. One would assume that if the 1980 act has not yet been challenged in that way, it must be compliant.
Do you want to add anything, Mr Renucci?
I agree with Mr Duguid, although I think that use of the relevant provision would be challenged. It has not been challenged up until now because it is never used. I have not been involved in a single trial in which the judge has used the 1980 act to comment on the silence of the accused. That might be why the provision has not been challenged. I am fairly confident that the first time that that happens, there will be a challenge.
I hear what you say; I am obliged to you.
It occurs to me that in the trial process, the jury has to consider the evidence that is led. That evidence might come from an accused person being interviewed by the police or his being judicially examined and saying that his position was that he believed that there was consent because of X, Y and Z. On the other hand, there might be no evidence of that sort at all, in which case the jury would be left with the complainer's account of events. She would, no doubt, be cross-examined about whether she had given consent, but if the accused does not give evidence, says nothing to the police and there is no judicial examination, what evidence is there from which the jury can infer that there was reasonable belief in consent? It is a point to do with the rules of evidence. We are in danger of crossing over into what happens in the trial process instead of considering a point of principle.
In such an example, do you see there being a problem with regard to the ECHR?
It would depend on what the judge said. If the judge said to the jury, "You can take it from the absence of evidence that there is no reasonable belief in consent," that would cause a problem, but if the judge simply said, "This is the evidence. You have to be satisfied that evidence exists from which you can hold that consent was given," there would be no problem.
Do you think that judges would be liable to phrase their direction to the jury in the latter rather than the former form?
I do not know—that would be a matter for the judges. We would have to wait and see what they did. We are embarking on a new definition of reasonable belief, which is subtly different from the present definition, so it is difficult to know what a court or an individual judge would make of it. I do not see how Parliament can offer any guidance to the judge in that context.
Would you like to add anything to that, Mr McCreadie?
I have nothing to add, other than that I think that it is a matter of evidence and for the judge's direction to the jury.
Paul Martin will ask questions on the abuse of the position of trust.
The correspondence that we received from the Law Society highlighted a number of concerns in relation to the detail and practical application of the abuse of trust offence relating to mentally disordered persons, which is dealt with in section 35. Could you expand on that?
Since we prepared that submission, we have had an opportunity to consider the submission from Enable Scotland, which raises concerns about whether sections 35 and 36 should be reconsidered. I would defer to that organisation's greater knowledge of the area. If its view is that those matters should be revisited, I would agree.
So you agree with Enable that we should not criminalise those who abuse trust but, instead, deal with the matter through regulatory means.
I am saying that the situation is not as straightforward as that. The matter should perhaps be debated further.
With the committee's indulgence, I could seek further comments from the Law Society's mental health and disability subcommittee.
Can that submission be made in writing?
It can.
Could you confirm that you do not think that criminal action should be pursued against those who abuse trust, and that you consider Enable's alternative course of action to be better?
We have not as yet reached a final view on that. The Law Society would want to consider what Enable has submitted before doing so.
I appreciate what you are saying with regard to those who have more experience than you, but there is an issue concerning the opportunities that are given to pursue legal action through criminal proceedings rather than through the regulatory processes, which is what Enable is proposing.
I appreciate that, but I do not have an answer to your question at this stage.
The committee is actively seeking further information under that heading.
I would like to pursue a subject that has been raised by members of the panel but which we have not considered at any stage, which is the question whether the statute is codifying the law or changing it to such an extent that it is not just codifying it. I appreciate that those are technical—and, perhaps, jurisprudential—issues, but I think that Mr Duguid suggested that people would be unable to refer to precedent if they had this kind of statute in front of them and that Mr McVicar is suggesting otherwise. Could you explain—in terms that are appropriate to those of us who are not lawyers—what you think the consequences of passing this kind of bill might be?
I can answer that quite quickly. We met the committee that was responsible for drafting the bill, and pointed out that, perhaps, changing the law in such a fundamental way—and, as one section would do, abolishing the common-law offences of rape and so on—would be likely to create a new jurisprudence that would have to evolve out of interpreting the provisions of the statute. We suggested that it might be a good idea to include a provision to suggest that the common-law precedent remained insofar as it was compatible with the terms of the bill, which would, presumably, allow the courts to have regard to decisions on particular matters, which could then become subjects of discussion.
I have the impression that there is a very fundamental question—if something can be very fundamental—about whether we are changing the law and starting again or are merely trying to nudge the law into a form of words that we think would put everything in one place. I think that most criminal lawyers would approve of the latter. The bill is attempting to codify what has gone before, so precedents will apply so far as they are relevant.
I hope that I am not being misconstrued. In my view, the bill changes the law in an unnecessary fashion. That is not to say that it does not contain some good provisions on the abuse of positions of trust and the extension of jurisdiction to cover offences that are committed abroad. The bill undoubtedly contains some advantageous provisions that will advance the law in a perfectly proper way. However, you asked whether the bill codifies the law or changes it, and my impression is that it changes it. If it were changing the law for the better, I would be in favour of it, but I am not convinced that a case has been made that it will do so. We will lose a lot if a new body of precedent and jurisprudence is established on the back of the bill. That will be expensive because it will inevitably take up court time, legal aid budgets and goodness knows what else.
If we argued about whether the bill is a good thing or a bad thing, we would be here beyond tea time.
I am not an academic lawyer, but I do not think that it necessarily follows that we need a provision in the bill stating that the pre-existing law still applies where appropriate. As you might have gathered from an earlier answer, I rather assumed that the existing law would still apply if the circumstances, offences and themes of the bill were the same as the common law. However, as I mentioned in my response to the question about belief, there is likely to be some debate about that because of what I described as a subtle change in the definition of belief.
Am I correct to take it that the panel agrees that holding on to previous decisions and precedents, where they are appropriate, is the right thing to do?
Absolutely.
Yes.
For the avoidance of doubt, is it not the case that, as Mr McVicar said, it is always permissible to consider legislative history? Mr Duguid, do you agree that we do not need to do what you suggested and write into the bill a statement that common-law precedent is admissible? It is always admissible, is it not?
It would depend on whether the court decided that there was a sufficient coincidence, not so much in the facts but in the legal argument. If the court was satisfied that there was a coincidental argument, the answer to your question would be yes. However, let us say that you redefine consent with the words "free agreement". Would any issue that arose about the interpretation of consent in previous cases and what was or was not consent be applicable?
Is it not always permissible and wise to look at legislative history because it informs the situation as it now is, or as it has been amended by a bill that has been enacted?
Yes, but acts are usually silent on the common law. Section 40 of the bill specifically makes it clear that the common law is abolished. That is the difference.
So you could not refer back to the common law at all.
No doubt that will happen in practice in court, but I fear that, if the bill is passed with section 40 in its current form, the appeal court will become even busier than it already is with some of our more litigious colleagues.
I am grateful for that answer.
Thank you for your helpful contributions, gentlemen.
Meeting suspended.
On resuming—