Sexual Offences (Procedure and Evidence) (Scotland) Bill: Stage 2
Agenda item 3 is the Sexual Offences (Procedure and Evidence) (Scotland) Bill. I welcome the Deputy Minister for Justice, Richard Simpson, and his legal team.
Members should, as usual, have in front of them a copy of the bill, the second marshalled list of amendments—this is day two of stage 2 of the bill—and the suggested groupings of amendments. Members should also have received copies of a letter from the Deputy Minister for Justice and the Executive's justice department relating to a group of amendments on the disclosure of previous convictions. Submissions on that group of amendments have been received from the Equality Network and Professor Christopher Gane. In addition, we have received a fairly weighty submission from the Law Society of Scotland. It is our intention to complete stage 2 of the bill today, as we have only three groupings of amendments to deal with.
Before we consider the amendments, I have a matter to raise. I have not had an opportunity to discuss the matter with the committee before the meeting, but I will take any comments after I have said what I am going to say and will ask the minister to reply. As the convener of the Justice 2 Committee, I am unhappy that the amendments on the disclosure of previous convictions have been lodged after the stage 1 debate. I do not have any difficulty with the content of the amendments, which we are about to debate, and we will hear from the minister about that. However, I feel strongly that the fact that we have not been able to take oral evidence on the amendments has put the committee in a very difficult position.
We have checked the Official Report to remind ourselves exactly what was said about the matter at a previous meeting. I asked the Executive officials whether it was the Executive's intention to lodge such amendments. Barbara Brown said:
"We wanted to think further about that provision, about which we received a number of comments. It is a difficult proposal and we might lodge a stage 2 amendment to deal with it."—[Official Report, Justice 2 Committee, 5 September 2001; c 347.]
I am sure that the minister will say, in defence, that it was stated that lodging amendments at stage 2 was a possibility, but I feel that it should have been made clearer at that point.
I have to discuss with the committee how to deal with this. However, if we get calls for evidence before stage 3, it would be only fair to consider that. The provisions might not be contentious, but it is a principle of the Parliament that they should be scrutinised orally by people who have an interest. We have not been allowed to do that.
Will the minister take the opportunity to reply to those comments before we start on the marshalled list of amendments?
Previous convictions have always been capable of being admitted to the court. There has been a process for that, as I will explain when we debate the amendments. We are proposing a change to the way in which that is done, to bring it forward and to balance more directly the interplay between the rights of the accused and the rights of the complainer. There was always an intention to consider that. As members will see from the length of the amendment, it was always going to be very detailed; it took longer to draft than we had anticipated. I apologise for the fact that you received the letter so late in the day.
That does not address the central point of the committee's argument, which is that, in a unicameral system, the need for the committee to be given the opportunity to take evidence at stage 2 on all the elements of the material is very important. Having been a back bencher until recently, and having been faced with a similar situation in the committee of which I was a member, I understand the committee's feelings. We will fully understand if the committee feels the need to consult widely on the issue before stage 3. I hope that amendment 16 is robust and will not require further amendment. However, we appreciate the fact that the committee may wish to consult further; it is the right of the committee to do so.
I welcome the indication from the minister that a period for consultation on the subject might be available to us.
With the convener's indulgence, I would like to broaden the matter slightly in anticipation of what the Appeal Court may do today with Lord Abernethy's judgment in Aberdeen on the subject of what defines rape. Might the opportunity exist for some limited consultation on the subject, with a view to deciding at stage 3 whether a definition could be incorporated? I realise that that is not a trivial subject, but on the other hand it could fit within the bill. That might be the earliest opportunity for the Parliament to address the Appeal Court's decision. To say that may be to anticipate the decision, but it is important that we at least table the decision as something to think about. I would not like it if the Appeal Court's decision were to leave things as Lord Abernethy left them, which would severely restrict the definition of rape.
It is significant that we are discussing the Sexual Offences (Procedure and Evidence) (Scotland) Bill on the same day that seven judges in the High Court will determine Scots law on rape. However, the Lord Abernethy ruling is not within the scope of our discussions on the bill. The scope of the bill is defined as procedure and evidence in court, although it would apply to the law of rape and other sexual offences. I realise that there is a connection, but we are not at liberty to deal with anything that is outside the scope of the bill. The amendments that we will deal with this morning are within the scope of the bill—that is clear—and no one will argue that they are not. The basic principle is that the Parliament was unable to discuss previous convictions at stage 1, when many organisations would have liked to have had their say. We will need to come to that and make a decision on how to deal with it.
The minister has been conciliatory in his approach. He recognises that the matter has not been handled terribly happily. I do not propose to labour the point unduly, but I have serious concerns. We are dealing with a principle of Scots law that has probably been enshrined in statute for 300 years, yet we are seeking to amend and dilute that principle in rather a cack-handed manner.
I will listen with interest to what the minister says. I accept that there is an arguable case for the amendment, but it is a pity that we cannot deal with the matter in a more considered manner.
Does the minister accept that, whatever the result of the division today, the committee reserves the right to discuss how it wishes to deal with the matter and that there would be no problem in our taking evidence if we so wished?
I am not clear whether the Parliament's procedures would allow the committee to do that, but I have no problem with the committee consulting before individual members lodge stage 3 amendments.
To my knowledge, there is no procedural difficulty. We would get ourselves into difficulty if we were to support the amendment without saying anything to the contrary, then to go to Parliament at stage 3. If we said at stage 3 that we were unhappy, other members would rightly question why we supported the amendment at stage 2. It is correct to get it on the record that we reserve our right to take evidence before stage 3. That would give us the opportunity to air anything that we were unhappy about. The procedure is unusual, but to do it the other way would give us difficulties when we voted on the amendments.
The wish of all of us is that the legislation should be robust. If the committee feels that that is an appropriate way to proceed, I have no objections.
I want to return to my point about Lord Abernethy, without pushing it too hard. Proposed section 288C(2) lists rape as one of the offences, at paragraph (a). With the Protection of Wild Mammals (Scotland) Bill, words have created some difficulties, so a set of definitions of what offences mean has been incorporated in the bill. If doubt is emerging about what an offence might mean, we could consider introducing a definition. I may come back to that at a later date.
Our view is that the matter is outwith the scope of the bill. The Parliament has made its view clear that it might wish to return to the issue in a future debate, depending on the Appeal Court outcome on the Abernethy decision. It is the right of Parliament to do that, and I do not think that the Executive would have any objection. However, we would feel that to extend the problems—which, to some extent, we have created with amendment 16—by introducing yet further amendments at this stage, without taking evidence formally, would be to compound the problem. Therefore, if the matter needs to be raised—and I accept its importance—that should occur at a separate time and a separate place.
With that understanding, we can move on. I will give the committee an opportunity after today to decide how it wishes to proceed.
Section 8—Exception to restrictions under section 274 of 1995 Act
We move to the second marshalled list of amendments at stage 2. Amendment 13, in the name of the minister, is grouped with amendments 16 and 17.
Amendment 13 is a drafting amendment. The words that are being removed concern the deadline for lodging an application to introduce evidence about the complainer's character or past behaviour. Amendment 16 creates a new, somewhat stricter provision about that elsewhere in the bill; members will see that in new section 275B(1), which amendment 16 would insert in the Criminal Procedure (Scotland) Act 1995. By removing the words from their current location, amendment 13 is simply clearing the way for amendment 16.
Amendment 16 adds a new section 275A to the Criminal Procedure (Scotland) Act 1995. We have already discussed the way in which that has come about, and I will not reiterate the difficulties that we have had with it. The matter is complex and it is central to the bill redressing the balance, which was the Executive's intention when it lodged amendment 16.
Sections 7 and 8 create a new regime for character and sexual history evidence. In the future, there will be tighter restrictions on the use of such evidence about the complainer. However, there will still be occasions when the accused succeeds in persuading the court that such evidence is relevant to his defence, has significant value and should be admitted.
When that happens, a further question arises. If the accused has argued successfully that evidence about the complainer's past is relevant, what about the accused's past? Can the accused legitimately say that, although the complainer's previous behaviour is relevant, his own behaviour is not? The law allows evidence about the accused's previous convictions to be admitted in certain circumstances. When the accused has attacked the character of any prosecution witness, the Crown can apply to introduce evidence on the accused's previous convictions. It is up to the court to decide whether to grant the application.
However, as committee members will be aware from Professor Gane's evidence at stage 1, the existing law is rarely used in sexual offence trials. The perception seems to be that the courts are reluctant to grant applications and the prosecution does not often make such applications. From a reading of the material on the matter, it is also evident that the need to attack the character of the complainer arises at a late stage. One of the central tenets of amendment 16 is to shift the stage at which the debate on such matters would occur.
Amendment 16 will strengthen the existing laws in two ways. First, when the accused makes a successful application to introduce evidence about the complainer's character or past behaviour, the court will be required to consider disclosure of the accused's previous sexual offence convictions. That consideration will be done automatically, rather than the court waiting for the prosecution to make an application. Secondly, there will be a presumption in favour of disclosure. However, it will be open to the accused to overturn that by satisfying the court that it would be unfair in the circumstances of his case for his records to be disclosed.
I turn now to the detail of amendment 16. Subsections (1) to (3) of the proposed new section that would be inserted in the bill by amendment 16 make consequential changes to the Criminal Procedure (Scotland) Act 1995. The sections to be amended contain rules forbidding disclosure of previous convictions before the sentencing stage and forbid questioning of the accused about them during the trial. As we have seen, the existing law includes exceptions to that, but an additional exception will need to be made to cover the proposed new provisions in amendment 16.
Proposed section 275A(1) states that, where an accused makes a successful application to lead evidence about the complainer's character or past behaviour, the prosecutor shall forthwith place any previous relevant conviction of the accused before the judge. There will therefore be a duty on the prosecutor to do that.
Proposed section 275A(10) defines "relevant conviction", of which there are two types. The first type is a conviction for a crime that is contained in the list of offences to which the bill's provisions apply automatically. The second type is a conviction for any other offence that has a substantial sexual element.
There are two qualifications to that definition. First, a conviction is not a relevant conviction unless it has been specified in the notice of previous convictions that is served on the accused in advance of the trial. Sections 69 and 166 of the 1995 act currently provide for those notices to be served. Secondly, where the conviction is for an offence that is not on the list in the bill, it is not a relevant conviction unless the notice of previous convictions has been accompanied by an extract of that particular conviction. An extract is an official certified copy of the conviction. The extract must disclose the alleged sexual element in the commission of the offence, so it will have to set out the precise wording of the charge.
The purpose of those qualifications is to ensure that the accused receives adequate notice of the previous convictions that might be disclosed. His lawyer will then be able to advise him appropriately. Members will notice that only sexual offence convictions are defined as relevant convictions. We think that it is those convictions that are most likely to have a bearing on whether the accused committed the current offence. Other convictions, for offences such as dishonesty, are of more dubious relevance and the existing law will continue to apply to those convictions.
Proposed section 275A(2) provides that a relevant conviction will automatically be admitted in evidence, unless the defence objects. Proposed section 275A(4) sets out the grounds on which an objection can be made. The first ground for objection is that the conviction is for an offence that is not included on the list in the bill and the accused denies that there was a substantial sexual element in the commission of the offence. The second ground for objection is that admitting the previous conviction in evidence
"would be contrary to the interests of justice".
We anticipate that that will be the most commonly used basis for objections. The third and fourth grounds relate to alleged inaccuracies in the prosecution's claims about the accused's record—for example, that the accused was not the person convicted of a particular offence in the past.
Proposed section 275A(7) provides that where the accused has objected on the basis that disclosure would be contrary to the interests of justice, the onus is on the accused to satisfy the court that that would be the case. Whenever the onus is on the accused in a criminal trial, it is always on the balance of probabilities rather than being beyond reasonable doubt. There is no need for the bill to spell that out.
We have not restricted the accused in the arguments that he can make to overturn the presumption in favour of disclosure. For example, it would be possible for the accused to argue that the extent of his exploration of the complainer's past was minor and that the prejudicial effect on him of disclosing his past record would be disproportionate. It could also be argued that his previous sexual offence convictions were not analogous to the current charge and so lacked relevance.
Proposed sections 275A(3), 275A(5) and 275A(6) explain what information about previous convictions can be admitted in evidence. An extract of a previous conviction can set out the full wording of the charge, providing more than the basic details such as the name of the offence and the date of conviction. Proposed section 275A(3) states that an extract cannot be allowed as evidence unless it has been served on the accused before the trial. That is so that the accused can predict the material that is liable to be disclosed if he attacks the complainer's character.
Where the accused objects to his previous convictions being disclosed, proposed section 275A(5) allows the prosecutor to put an extract before the court in response to that objection and without any prior notice to the accused. The prosecutor cannot know beforehand what the accused intends to do. It would not, therefore, be reasonable to make the prosecutor give notice in those circumstances. When an extract is placed before the court for that purpose, it must be used only to consider the accused's objection. Once the judge has made a decision on the disclosure, the extract must be discarded and must not be shown to any jury. In other words, the conviction will be presented to the jury but the extract will not be shown unless prior notice was given at the beginning of the trial.
We have taken care throughout to ensure that the accused's advisers will be able to establish exactly what information about the accused is liable to be disclosed, if the complainer's character is attacked. Proposed section 275A seeks to ensure that fair notice is given to the accused.
We believe that, when the accused has insisted on bringing in evidence about the complainer's past, the court should also receive relevant information about the accused's history. That provides the balanced picture to which we are endeavouring to give effect in the bill. Otherwise, there is a danger that the evidence that the court hears will be skewed in favour of the accused.
The accused will continue to be entitled not to have his past behaviour disclosed and to be tried purely on the evidence of what happened at the time of the alleged offence. However, he must accept that that cuts both ways. When the accused argues successfully that the complainer's history is relevant and significant, the prosecution should, in principle, be able to disclose the accused's past record.
There is a balance to be struck between the rights of the accused, the rights of the complainer and the rights of the wider community. Rape, in particular, is a crime with a low conviction rate. Consent defences that involve an exploration of the complainer's past are commonplace in sexual offence trials. It is in the public interest that accused persons who have committed sexual offences are convicted and are not allowed to escape justice by criticising the complainer's character or behaviour in a one-sided way, given the accused's past. It is not in the complainer's interests for the accused to be able to attack her character in the knowledge that it is unlikely that there will be any adverse consequences for him, despite his previous convictions for similar offences. However, nothing that we do can, or should, deprive the accused of the presumption of innocence. The accused has a fundamental right to a fair trial and, to that extent, his rights must be paramount.
It might help the committee if I were to say something about the impact of the European convention on human rights on amendment 16. Article 6 of the convention confers the right to a fair trial. In particular, article 6.2 entitles an accused to the presumption of innocence. That means that it is for the prosecution to show that the accused committed the offence. Until that happens, the accused is entitled to be regarded as innocent of the charge. However, article 6.2 does not mean that the accused is necessarily entitled to have evidence that might reasonably affect the likelihood of his having committed the offence concealed from the court.
In many of the continental countries that are signatories to the convention, the accused's previous convictions are disclosed during the trial as a matter of routine. The European Court of Human Rights has held that that practice does not, in itself, infringe article 6. Of course, there are substantial differences between those continental systems and our system. Many of the continental systems do not use lay juries and do not have an adversarial court procedure; instead, they have a process of fact finding by a trained judge. It could be argued that the judges who operate in those systems are more likely to evaluate accurately the relevance to the case of a previous conviction, rather than responding rapidly to it—such a response might be too adverse to the accused.
Even in England and Wales, where jury trials are the backbone of the system, evidence of previous convictions is admitted more often than in Scotland. The doctrine of similar fact allows evidence of past offending behaviour to be introduced where it reveals a pattern of similar behaviour that can also be seen in the case that is being tried. Similar fact evidence can also include evidence of behaviour that has never resulted in a conviction. An example in the rape context is the recent case of R v Z, in which the accused was being tried for a rape. Four different women had previously accused him of raping them, resulting in one conviction and three acquittals. Details of the accused's alleged behaviour were similar in all the cases. The House of Lords held that the prosecution could put the four previous complainers into the witness box and use their evidence of what had happened to them against the accused in the current trial.
English case law on similar fact evidence has become very complicated, with a long line of decisions about just how similar the past behaviour must be. The Law Commission for England and Wales has suggested a simplification of the law, in which the probative value of the past behaviour could be weighed up against its prejudicial effect. As far as we are aware, it has not been suggested that English law in that area contravenes the ECHR, or that the Law Commission's proposals would do so. For all those reasons, we are confident that amendment 16 is ECHR-compatible.
Members of the committee may know that the Executive's original proposal, which was outlined in the consultation paper "Redressing the Balance", was to make disclosure of the accused's previous sexual offence convictions automatic following a successful application by the accused to introduce evidence about the complainer's character or sexual history. A majority of the consultees supported that proposal, but, on further consideration, we decided that such a provision could be too sweeping, for two reasons. First, the bill creates a weighing exercise that must be gone through before evidence about the complainer's past can be admitted. The original proposal on previous convictions would not have involved any weighing exercise for the accused's convictions. In the context of the other provisions in the bill, we thought that the original proposal could be unfair to the accused by removing the judicial screening that would have taken place when he applied to lead evidence about the complainer. Secondly, we thought that we needed to make some allowance for our system of criminal justice, which is confrontational in nature and which relies on lay juries in serious cases. Without some measure of judicial control, there could be a danger that individual juries would react negatively to a criminal record that was not really similar to the offence that was being tried. Our view was strengthened when we considered how those matters are dealt with in England and Wales.
We were anxious to be able to introduce the bill before the summer recess, so that MSPs and others would be able to consider it during the summer. We did not want the provision on previous convictions to hold up the introduction of the bill. However, we did not feel that we could simply press ahead with the original proposal on previous convictions in the light of some of the concerns that had been expressed and which we felt, on further consideration, might be justified. We decided to introduce the bill without a provision on previous convictions and to take time to work out and draft a proper alternative to the original proposal. Hence, we are in the position that the convener referred to. We believe that amendment 16, as lodged, is fair and practical and that it respects the accused's human rights.
Before I conclude, I will deal briefly with proposed section 275B, which is also inserted by amendment 16 into the Criminal Procedure (Scotland) Act 1995. Proposed section 275B(1) will require applications to introduce evidence about the complainer's character or past behaviour to be made no later than "14 clear days" before the start of the trial
"unless on special cause shown".
That provision should avoid the unnecessary disruption that would be caused by applications being made shortly before or part of the way through the trial. Where that happens, there is a risk that the trial may need to be postponed or adjourned. We think that applications at such a late stage should rarely be justified. A defence solicitor who has been involved from an early stage should have taken statements from all the witnesses and should know how a witness is likely to respond to a specific question.
Proposed section 275B(2) of the 1995 act simply provides that an application to introduce evidence about the complainer and an objection by the accused to disclosure of his previous convictions must be heard in the absence of the jury, for obvious reasons, and in the absence of the complainer, other witnesses and the public. The existing provisions of the 1995 act make corresponding provision for sexual history evidence applications.
Amendment 17 adds some wording specifically on disclosure of previous conviction to the long title of the bill, and follows on from amendment 16.
I move amendment 13.
Thank you for your comprehensive and helpful statement, minister.
I suspect that my points, which seek clarification, are relatively simple. First, when speaking about section 275A(10) in amendment 16, the minister used the word "charge" rather than the word "conviction". If he meant the charge rather than the conviction, I suspect that that would change the effect of section 275A(11), because the conviction might reflect evidence of a sexual element in the commission of the offence, which emerged quite separately from anything that the charge might say. I would like clarification on that. I suspect that the minister might wish to change the word that he chose, "charge", to "conviction".
Secondly, the phrase "substantial sexual element" appears in the bill in subsection (4) of the proposed new section 288C and in amendment 16 in subsection (10)(b) of the proposed new section 275A as the test that will admit evidence of previous convictions. Section 275A(11) does not use the word "substantial". Perhaps the minister will be able to confirm that the reason for the omission of "substantial" is to provide wider scope for the court to consider what will be substantial in regard to convictions. I would welcome confirmation of that.
Thirdly, on section 275A(10), the minister referred to a similarity test in his statement to us. I can see nothing in amendment 16 that makes any requirement for similarity to be a test in allowing previous convictions with a sexual element to be admitted. It merely allows any previous conviction with a sexual element to be admitted. I would welcome clarification on the intention and effect of the similarity test that the minister introduced.
On indictment, the charge will list the convictions, so that answers your first point about the word "charge". The extract will add to the name of the offence that the accused was convicted of by indicating whether there was a sexual element.
I want to clarify that the word "charge" refers to the current case and the word "conviction" refers to previous cases.
That is correct.
The answer to your second point is that it is up to the court to decide whether the sexual element is substantial. We did not want to limit the court's right to determine that.
I have taken advice on the similarity test. Its purpose is to protect the accused by enabling the judge to decide whether to admit the sexual offence element on the grounds of its relevance to the charge. Even although there was a sexual element in the extract that accompanied an offence of which the accused had been convicted, it might not be of a type that has any bearing on the current charge. The similarity test further protects the accused's rights in that respect.
For my benefit and, I suspect, for the benefit of my colleagues, I ask the minister to point to the part of amendment 16 that introduces the requirement for the court to apply the similarity test. Does the phrase "relevant conviction" introduce that requirement? If not, where is it required that the similarity test be applied in deciding what previous convictions with a sexual element can be laid before the court?
I think that the relevant paragraph is section 275A(4)(b), which refers to whether the disclosure would be
"contrary to the interests of justice".
That is an all-embracing provision, which allows a judgment to be made at that point.
It is important that we pin the matter down. Is it an existing provision in Scots law that that would imply the application of a similarity test, as you led us to believe?
I gather that, in the form in which it is written in amendment 16, the provision is new. On the other hand, there is an implication that that is the way in which the judge would act anyway. Section 275A(4)(b) clarifies that, because it is specifically relevant to the sexual element of cases. That is where the novelty comes in.
I suggest that the minister and his team should give some further consideration to that. I entirely support what you are trying to achieve, but I am concerned that amendment 16 might not be sufficiently specific on the similarity test, unless you can persuade me otherwise.
The reason that section 275A is very complex is to achieve a balance whereby the accused's rights are not infringed. Subsection (4)(b) allows the judge to give clear consideration to whether it would be
"contrary to the interests of justice"
to introduce the previous conviction and the extract that relates to the sexual content of an offence not listed in the bill. That additional element is important in protecting the accused.
Following from that, you spoke earlier of a weighing exercise. That is relevant to the present point. You are asking the judges to apply a weighing principle to that kind of evidence.
Absolutely. I referred to whether the admission of a sexual element in a previous offence would be disproportionate. If it was disproportionate to the material that was being led on the complainer, the judge or the sheriff would have to weigh that up.
Now that we have debated the issue at stage 2, Pepper v Hart would come into play. In other words, if the court was confused about what the Parliament meant by
"contrary to the interests of justice",
it could discover, by reading the Official Report of this meeting, that it was expected that there would be a weighing up of the evidence—that the admission of a sexual element in a previous offence should not be disproportionate.
The court will be able to have regard to the stage 2 proceedings.
Being able to refer to the Official Report always covers our back, if a court is in any doubt about what Parliament meant. However, Stewart Stevenson makes the valid point that perhaps there should be some consideration, before closing the matter, of whether the bill should include something more specific about how the weighing-up process is to be done.
We will certainly look at the Official Report of today's proceedings before stage 3 to assess whether we need to add anything. The feeling is that we do not need to add anything, but we will examine the issue closely.
As has already been said, we are dealing with a difficult and complex matter, which requires deep consideration. That is why I shall reserve my position on the matter until stage 3. Further evidence or research may be necessary.
There are a number of issues that I hope that the minister will address this morning. First, I would be interested to learn whether any statistics are available—I accept the fact that statistics may not be available—to indicate how many cases there have been in which an accused in a rape trial has had convictions for previous offences of the type that would be raised under the provisions in amendment 16.
Secondly, I would be grateful if the minister could explain once more the intention behind amendment 16. If an accused person seeks to attack the character of a witness, he does so in the hope of undermining the witness's credibility. The argument could be made that, for the sake of equity, the Crown should have the opportunity to do the same. However, it is perhaps not quite so simple. If a conviction is laid before a jury indicating that a person has been convicted some years or months before of an offence in which there was a sexual element, that evidence would be highly prejudicial to the accused's case. We must be very careful in achieving a balance.
Is the intention behind the proposed inclusion of these provisions in the bill to allow the prosecution to retaliate to an attack on the complainer's credibility, or is there an evidential reason for including them? I am thinking of the Moorov doctrine in relation to corroboration. When corroboration is difficult to come by—as it inevitably is in cases of this type—the evidence of a single witness can be corroborated if it can be proved that there is a pattern of behaviour. The provision could be used to corroborate the evidence of a complainer, as happened in the English case to which the minister referred. I am not certain whether that is a desirable situation.
Thirdly, the minister states, in his correspondence, that he does not think that a conviction for petty dishonesty—which would clearly not be analogous to the conviction that would be presented to the court in this instance—would be relevant. It would, however, be relevant if the accused had been proved to be dishonest in the past, when a court did not believe his evidence. The prosecutor may ask the court why it should believe the accused now if a court disbelieved him on that occasion.
I would like the minister to clarify those points.
In answer to your first question, we do not have any statistics on previous offences.
On your second question, I understand that the Moorov doctrine is not about corroboration. Nonetheless, I take your point that it could be regarded as being so if it were used to establish a pattern of behaviour. We are trying to achieve a balance. The provisions could not be used unless the accused wished to lead on the character of the complainer. That balance is important. The accused must realise that there are consequences for him if he chooses to seek the court's approval to lead material on the complainer's background, character and behaviour. In those circumstances, his behaviour should also be considered. The amendment seeks to achieve that balance. What you are saying makes sense. Such evidence could be used to establish a pattern of behaviour. However, that is not corroboration.
Arguably, it is. There is a problem when a woman stands in a witness box and says "That man there raped me" but no one can corroborate her evidence. That is a difficult problem. None of us has the solution to overcoming the lack of corroboration in rape cases, no matter how we have tried to be fairer to complainers in the past. The problem is insurmountable. There would be her evidence plus a guy's sentence for a conviction—libelled and put in a schedule before the jury—for committing rape some years earlier. It is inevitable that that would be highly prejudicial and would corroborate—not in law but in the jury's mindset—that the accused had committed the crime.
I understand what you are getting at, but I want to make two points. First, the judge's direction would be important. Secondly, it is an inevitable consequence of the bill that, in redressing the balance, the character and past behaviour of the complainer and the accused will come into court. You are therefore correct. There would be an influence, otherwise there is little point in such evidence. However, the current charge will still have to be proven and I presume that the judge or sheriff will direct whether the previous rape is relevant.
Do you agree that there is inconsistency in that argument? Last week, you said that if fishing expeditions were undertaken by the defence, the judge's charge would not be sufficient protection from those expeditions influencing the jury.
Except with special cause, fishing expeditions are, in effect, being ruled out. I understand that the current practice is that evidence about the complainer tends to be introduced at the last minute—in more than 60 per cent of cases, I think, it is introduced just before the point at which that evidence is to be led. We are trying to shift the balance back to make it clear to the accused that, if that happens, there will be consequences in respect to revelations about his past and behaviour. We are trying to protect the accused by informing him fully about what will come out so that he can take it into account and, with his defence solicitor, weigh whether he wishes to proceed on that basis. We are trying to protect the accused and the rights of the accused while ensuring that the central thrust of the bill—to achieve a balance for the complainer—is achieved.
Thank you.
I have a few questions, minister. First, why have not previous convictions for perverting the course of justice or perjury been considered as examples of relevant evidence? If an accused person has been convicted of perjury or perverting the course of justice, that might be relevant. Has consideration been given to including those as relevant previous convictions?
I understand that the law currently allows those offences to be introduced as evidence if a prosecution witness is attacked. That practice will continue.
That would apply only during a trial.
Correct.
Do you want to give more consideration to that? Consideration can be given of whether an accused's previous convictions are relevant, as under sections 266 and 270 of the 1995 act in respect of the complainer and a Crown witness. However, it would also make sense to include the procedure at the beginning, when a written application is made.
We will consider that point further.
That relates to my second point, which is on a matter that I want to understand correctly. The new provisions allow for the previous convictions procedure to be considered at the beginning of the trial in response to an application to use evidence on sexual character or bad character. However, sections 266 and 270 of the 1995 act will remain intact.
Yes.
The provisions of those sections could be used during the trial.
Yes.
Is it also the case that, if a Crown witness is attacked, sections 266 and 270 of the 1995 act can be reverted to?
Yes, if the witness who was attacked was not a complainer.
My next question relates to serving notice of previous convictions. Has consideration been given to additional work load for procurators fiscal? Will the work load be the same because the fiscals would be doing that task anyway? Would making information about previous convictions available 14 days prior to the trial place an extra burden on any person within the criminal justice system?
Information about previous convictions will be served with the indictment, as happens at the moment.
So there would be no additional work load in bringing that forward.
There would be no additional work load.
My next point is about proposed section 275B, which refers to the 14-day notice. I wonder how that squares with the preliminary trial diet.
I have considered that matter. I am assured that all the timelines are correctly matched and that there is no problem between the different elements.
That would mean that, if one wanted to include evidence on sexual history, one would have to make an application 14 days prior to the start of the trial.
Yes.
The trial diet that might deal with that matter would be set 14 days before the trial starts. How that would work?
Amendment 14 deals with the different diets.
I realise that we will debate amendment 14. However, I wonder how both diets can run at the same time. The application for evidence on sexual history has to be made 14 days prior to the trial and the application has to be considered 14 days prior to the trial. Surely the application needs to be made before that 14-day period.
Those are two different notice periods, although they are both 14 days. There is no problem. I discussed that matter this morning with my officials, who assure me that there is no difficulty, as the timelines are not the same.
Perhaps it is just me. The timelines seem to amount to the same period.
I know. That was my initial impression, too. However, I am assured that, in fact, the timelines are not exactly the same. However, we will consider that matter further, so that we make it absolutely clear and certain that the timelines are not the same. I am assured that that is the case and that there is no problem.
Why are those periods set at 14 days? Last week we talked about a 10-day period for prior notice of the defence of consent. Why are the time periods different?
The 10-day period refers to the defence of consent, which is a different matter.
Why is the calendar for the defence of consent different from that for the notification of previous convictions?
That is just the way in which the defence of consent calendar has developed; the time period for prior notice was set at 10 days.
You are not convincing on this matter, minister.
I know. That time period has just been left at 10 days. I have tried to get a grip of all the timelines, because they are confusing if one is not a lawyer. However, I understand that one of the principles has been that we should not change more than we have to. Therefore, the 10-day period has not been changed.
It would be helpful if the minister was prepared to share the information on the timeline with the committee so that we can understand what the timetables are.
I will write to the committee and provide the information on that. I am assured that the timelines are correct.
I suspect that someone has been talking about working days and that someone else has been talking about calendar days.
I could not possibly comment on that.
We will get the matter cleared up one way or another. As no other members want to speak to the amendments, I ask the minister to wind up.
I am not going to reiterate how we arrived at where we are. However, I appreciate the fact that the committee will want to take a further look at the timelines before stage 3. If doubts arise, I hope that we can communicate with each other. I suggest that the convener and I meet should members become aware of any difficulties that have not hitherto been spotted because of the committee's inability to take evidence on the issue at stage 2.
The important thing is that we are endeavouring with amendment 16 to strike a balance between the complainer's rights, the public interest and the accused's rights. We believe that we have achieved that in the rather lengthy and complex section 275A that amendment 16 will insert into the 1995 act. I hope that the committee feels able to support amendment 16 with the reservations that members have indicated.
I thank the minister for his assurances; what he said was very helpful.
Amendment 13 agreed to.
Amendment 14 is in a group on its own.
Amendment 14 is a tool to prevent delays in trials. If a trial sitting is under considerable time pressure, it may be desirable to have an application to introduce evidence of the complainer's character or past behaviour. That should be dealt with before the trial, if possible.
The Criminal Procedure (Scotland) Act 1995 contains a system of pre-trial hearings, which can be used to assess how ready the case is for trial or deal with preliminary issues. Those hearings are called first diets in sheriff court cases prosecuted on indictment, preliminary diets in the High Court and intermediate diets in summary cases.
First diets are mandatory, so there will always be one. Amendment 14 allows such a diet to be used for the additional purpose of deciding an application under section 275. Preliminary diets are not mandatory. If either side wants one, it has to be applied for. The prosecution can apply for such a diet to be held to deal with a section 275 application at the moment, because a preliminary diet can already deal with a matter of which notice has been given. However, amendment 14 also gives the court the power to fix such a diet to deal with a section 275 application when the court believes that that is necessary, even if neither side has asked for a hearing to take place.
Intermediate diets are mandatory in most sheriff courts. However, there are some courts, mostly in fairly remote areas, where they are not. Amendment 14 allows an intermediate diet to be used for the additional purpose of considering an application under section 275. It also allows the court to fix a diet specifically to consider such an application. That is without prejudice to any duty that the court may have to fix an intermediate diet to deal with other issues, where intermediate diets are already compulsory in that court.
I move amendment 14.
I ask the minister to clarify a point. The committee recently visited Glasgow High Court, which does not have preliminary trials, because of difficulties with planning and the availability of sheriffs and judges. Has there been any discussion of the impact of the amendment on Glasgow High Court if such an application is made?
We have not had any discussions to date, but it is our intention to have a discussion if amendment 14 is agreed to.
My only worry is the inclusion of that provision. To our certain knowledge—we have visited the High Court in the past six weeks—the procedure is not used now. I suspect that that is because it imposes an extra burden of planning for additional courts and for judges to be available to hear the application.
Do you intend to deal with the matter on an accused-and-counsel basis only?
Yes, the procedure would be a legal debate.
The convener has outlined the problem. When we visited the High Court in Glasgow, I raised the possibility of intermediate diets, hoping that a lot of pleas and business could be taken out of the circuit in that way. I was told that there would be two problems with that. First, human nature being what it is, no one will ever plead guilty until they are confronted with a situation in which their conviction is inevitable. Secondly, those who run the court would encounter a difficulty in finding court space and available judges, as the convener said. Are you satisfied that the matter has been thought through, given that the vast majority of High Court business nowadays seems to emanate from Glasgow—to my eternal shame?
The measure is quite narrow. We are giving the court the power to fix such a diet in addition to the existing right of either side to apply for one. Our advice is that the amendment would not add significantly to the weight of the court's work load. Nevertheless, as the convener has made that point, we will consult further on the matter.
That would be helpful. Correct me if I am wrong, but I think that the Executive is trying to provide a range of options for courts to determine such an application.
Yes.
There was some confusion about the way in which that would be determined. We discussed at length the provision for a trial within a trial and the Faculty of Advocates took time to explain to us what that was, as none of us has been involved in such trials. I presume that that provision is intended to be used when a matter that arises during a trial has to be dealt with.
Yes. That situation can still arise if, during a trial, special cause is shown to introduce evidence on the complainer's behaviour and character. The accused will retain the right to introduce such evidence, but they must now show special cause. The jury and public would then be dismissed. Everyone would have to leave the court and there would be a discussion about whether that evidence could be led and whether the accused's convictions could be introduced. There is still the possibility of a trial within a trial.
We are now a bit clearer about what the Executive envisages. All the evidence seems to be stacked in favour of dealing with the application before the trial starts. The reason for the confusion is that many of our witnesses—who were not all totally familiar with the provisions of the bill—were concerned that the complainer might have to give evidence twice. The Law Society of Scotland made that point strongly. However, you are saying that, in the main, the complainer will not be involved specifically in giving evidence, as the matter will primarily be for the judge, which is what the Executive envisaged. Is that a fair summary?
Yes. The complainer may have to be involved, but that would not be the norm and is unlikely to occur.
If a judge cannot determine whether an application for the inclusion of sexual history evidence should be granted, it is open to him or her to call the complainer at the pre-trial diet.
Yes. Proposed section 275(6) states:
"The court may reach a decision under subsection (1) above without considering any evidence; but, where it takes evidence for the purposes of reaching that decision, it shall do so as if determining the admissibility of evidence."
That allows such evidence to be used if it is absolutely necessary.
Thank you, minister, for that helpful comment. Do you wish to make any winding-up comments on amendment 14?
I will be brief. Amendment 14 deals with preliminary diets and tries to tidy up the bill by allowing its provisions to be dealt with during preliminary diets in an appropriate way. I hope that amendment 14 fulfils that objective.
Amendment 14 agreed to.
Section 8, as amended, agreed to.
After section 8
Amendments 15 and 16 moved—[Dr Richard Simpson]—and agreed to.
Before section 9
Amendment 32 is in a group on its own.
Amendment 32 is not as complex as the other amendments that we have debated this morning. I hope that it is non-contentious. It is based on some of the evidence that was given to the committee by organisations such as Victim Support Scotland, which felt that regular reports back on the operation of the bill would be helpful. I echo that sentiment. Sometimes we legislators think that we have fixed a problem and go off to fix the next one that comes along without monitoring what we have done already. The issue is not substantial, but I think that the amendment would enhance confidence in the legal system and in the processes of the Parliament.
I move amendment 32.
If the committee had any worry about the bill, it would be about the operation of the bill in practice. In the stage 1 report, the committee felt that, in the main, the bill contained good, well-balanced provisions. However, we said in the report that there must be a robust way of considering whether the bill—which is soon to be enacted—has had an impact. Witnesses have made accusations that the bill will make no difference to what goes on in the courts. Your comments on the amendment are important, minister. I realise that it would be unusual for a bill to include such a provision, but if we do not include the proposal in amendment 32 in the bill, we will need strong reassurance from the Executive that a way of assessing whether the bill has achieved its objectives can be found.
There is no disagreement on the need to monitor the bill. However, amendment 32 would impose a statutory duty on the Executive to monitor the effects of the legislation. I want to put on record that the Executive has every intention of monitoring the bill. We believe that our intention should be made clear, but we do not believe that a statutory duty is required to ensure that the monitoring happens. We hope that the committee will agree that amendment 32 is unnecessary.
The Executive introduced the bill with the intention of improving the position of victims in our criminal justice system. We are determined to follow through on that commitment. I am happy to outline our plans to monitor the effects of the legislation in greater detail and to place those comments on record. We are starting with a research project that will establish where we are at the moment. As members know, the research by Dr Brown, Dr Burman and Dr Jamieson, which has been referred to on a number of occasions, is some 10 years old. We need to update that research so that a true comparison can be made between how the system operates at present and how it will operate after the bill has come into force. A specification for a research project to do just that has been prepared and will start as soon as access to tapes of High Court proceedings can be arranged.
As soon as the legislation has been brought into effect, we can start collecting statistical information on, for example, the number of solicitors who have been appointed by the courts, the number of section 275 applications that have been made and granted and the number of consent defences that have been lodged.
However, that will not give us the full picture. We also want to know what, if any, difference the provisions will make to the way in which victims perceive the court process. We will want to check whether the new provisions are successfully excluding irrelevant sexual history and character evidence and whether there is any correlation with the conviction rate. Qualitative research is needed for that type of information and that will take more time. The new provisions must be given time to bed in to ensure that any teething problems are sorted out. Starting the research too early might give us a distorted picture, so there would be no point in carrying out such research until 18 months to two years after implementation. It is therefore unlikely that a final report would be available until a year after that.
I am happy to assure Mrs Ewing and the committee that we are as concerned as she is to ensure that the bill has the desired effect. I also repeat our undertakings to monitor its effect carefully. No doubt Mrs Ewing and others will ensure that the Parliament holds the Executive to account. We believe that a statutory duty is not needed in this respect and I ask Mrs Ewing to withdraw amendment 32.
Although the minister's remarks are interesting, research projects by various academics do not give much reassurance to many of our citizens. If the collection of statistical information is to start as soon as the bill is enacted, I do not see why there is such a difficulty in giving more than a general commitment of the Executive's intention to monitor the bill's effects. Could some other mechanism be used to incorporate the intentions behind amendment 32 into the bill? The minister mentioned that it might be three years before the final report is available. If amendment 32 were lodged at stage 3 with the words "two years" changed to "three years", would that be acceptable to the Executive?
The most important point is that, on this matter, a statutory duty is not needed. We must set up the research in the way that is most likely to give us a clear answer. If the legislation appears to bed down more quickly, we can advance the point at which the qualitative research is undertaken. We would wish to make that judgment ourselves. However, if it will give the committee some comfort, I am happy to repeat at stage 3 the undertaking to monitor the situation that I have given on the record in this stage 2 debate. I believe that that is sufficient and that a statutory duty on the matter is not necessary.
As consideration will be given to the issue at stage 3, I ask to withdraw the amendment.
Amendment 32, by agreement, withdrawn.
Section 9 agreed to.
Long title
Amendment 17 moved—[Dr Richard Simpson]—and agreed to.
Long title, as amended, agreed to.
That ends stage 2 consideration of the Sexual Offences (Procedure and Evidence) Bill. I thank members, the minister and his team. We will have a brief coffee break before we go on to the next item.
Meeting adjourned.
On resuming—