Justice 2 Committee, 19 Sep 2001

Meeting date: Wednesday, September 19, 2001

Official Report 203KB pdf

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Sexual Offences (Procedure and Evidence) (Scotland) Bill: Stage 1

The next item of business is stage 1 consideration of the Sexual Offences (Procedure and Evidence) (Scotland) Bill. We will hear evidence from Dr Michele Burman and Dr Lynn Jamieson. I understand that Dr Jamieson may have to leave early to catch a flight. Members will have a copy of the witnesses' submission.

I welcome the witnesses to the Justice 2 Committee. We are sorry to have kept you waiting—we were dealing with stage 2 of a bill, but we managed to fly through that fairly quickly. Thank you for your submission, which is very helpful. Let us move straight to questions.

The evidence that we have taken shows that although there is some restriction on the use of past history and so on, that has not been sufficient. To what extent will the bill remove that discrepancy and ensure that the spirit of the legislation is carried through? Is there a need for additional training? How can we change attitudes rather than just practices?

I will start and then let Michele Burman follow up. Two brains are better than one and I do not think that fast on my feet.

The bill will significantly improve the current provisions in several ways. It will encompass bad character in a way that the current provisions do not. At the moment, only evidence relating to sexual history and sexual character—not bad character—is restricted. As I am sure members are aware, information about bad character is often introduced into a trial in a way that suggests that someone is not a credible witness and is likely to consent to sex. That can be quite prejudicial.

The bill will also improve matters by making the principles much clearer and requiring the court to balance the relevance of the evidence against the possible prejudice that it might introduce. Although that principle was clearly present in the intentions of the legislators, it was never absolutely enshrined in the law and it was possible for people to use the wording of the law in ways that did not honour its spirit. The bill spells out the spirit much more explicitly and we think that that will make an important difference.

Training is important. Michele Burman may have comments to make on that.

Training is an important aspect of the legislation. It is a good bill: it is much tighter and offers a fresher approach. One of its strengths is its focus on weighing up the probative value of evidence in relation to prejudicial effects. However, we must still tackle how the legislation is implemented in the courts.

On the basis of the research that we conducted some time ago and other research that has been undertaken since then, it is apparent that the courts are not always sensitive to all the issues at stake in sexual offence cases. There is a strong case to be made for judicial training and there is an argument to extend such training to the profession as well. As I am sure members are aware, other jurisdictions around the world provide judicial training on dealing with sexual offence cases. It is not a completely new thing.

From some of the responses that we received, it was evident that practitioners see difficulties rather than benefits with our proposals. How do we overcome practitioners' fears about the changes that they are being asked to make? How do we overcome their initial reaction?

There is no easy answer to that question. Our detailed research on the subject was conducted more than 10 years ago. At that time, we interviewed a range of practitioners, many of whom believed that a change of legislation was not necessary. That said, when particular cases were put to practitioners, they often agreed that sexual history and sexual character evidence should not have been introduced into the trial, because it could have been prejudicial. Defence advocates were often open with us; they admitted that they try deliberately to confuse and divert juries from the facts of a case by suggesting that a woman or a man—it is more often a woman—is of immoral character.

When people are taken through specific instances, they are often persuaded. Our research could be fed into training materials, were those to be developed. People would, however, have to be willing to undergo such training.

To some extent, my question impinges on your last answer, as I wish to pursue the issue of accused persons who conduct their own defence. I do so, well aware of the old adage that any person who defends himself has a fool for a client.

The issue is not much of a problem. At an earlier evidential session, we discovered that an accused person had conducted their defence on only three instances in the past 20 years and that one of those instances was a summary matter. We should also bear it in mind that if we prohibit what—in my view—is a foolish practice, we run the risk of an objection under the European convention on human rights.

Should we not approach the subject differently, by training judges and by encouraging them to come down heavily if a complainer finds herself or himself in a threatening situation in the witness box?

In our submission, we did not cover in any great detail the provision to take away the accused's right to defend themselves. That was not the subject matter of our research, but we are sympathetic to the change for the reason that defenders of the proposal give, which is that the situation is distressing for a complainer. Our experience of attending trials leads us to suggest that judicial and prosecution intervention on behalf of witnesses happens rarely. Sometimes things happen without intervention, including contravention of the legislation that we are discussing. The bill would change that.

Committee members could respond by arguing that training would alter the situation. As far as we have observed, intervention does not always happen when it is expected. The provisions in the bill that concern sexual history and sexual character evidence are likely to have a wider effect. That is because they touch on far more cases. As Bill Aitken said, the situation that he raises is rare. It is the sexual history and sexual character evidence part of the bill that we feel particularly strongly about and think is likely to redress significantly the balance.

Other members will pursue that point. Do you feel that the proposed prohibition of conducting a defence personally is using a sledgehammer to crack a nut?

I would rather not make a strong statement one way or the other about that.

I want to take Bill Aitken's line of questioning about the prohibition issue a bit further. You have concentrated primarily on sexual history evidence, but I wonder whether you believe that it is only when we consider the bill as a whole—the range of measures together—that that measure is in any way significant. There will be more rules of court in relation to admissibility of evidence, advance notice and special defences if the bill is passed. Do you think that, as a result, an accused person might be inclined to want more guidance, which might err on the side of the ECHR? Incidentally, the Executive has told us that the bill has been ECHR-proofed.

I am not a lawyer but I understand from my legal colleagues that the bill is compliant with the ECHR. It is the questioning of the complainer by the accused that may cause distress and humiliation and give rise to issues under article 8 of the convention. Is not it the case that the Executive has taken up the issue of prohibiting the accused person from questioning the complainer as a matter of principle? I agree with Lynn Jamieson that that is a good principle to uphold, whether the situation arises in a lot of cases or not.

Bill Aitken made an important point, which is that it has happened in a few high-profile cases. Is it better to have the measure as part of a comprehensive package?

Yes.

Yes.

You have said that you think that the bill is essentially a good one. Does it address all the issues that you identified in your research 10 years ago?

That is unlikely. It addresses most of them.

In our research, we found three main problems with current legislation. First, the rules were not being followed. Sexual history evidence and sexual character evidence were being introduced in the absence of an application.

Secondly, applications were being made where the evidence that was introduced strayed beyond the bounds of the application or where the evidence that was introduced in relation to, for example, credibility was somehow attached to questions of consent. The rules were being followed, but the aims of the legislation were not being achieved as anticipated.

The third problem, which was raised by the 1979 MacPhail report and the 1983 Scottish Law Commission report—although nothing was done about it in the legislation—was the problem of innuendo. Non-sexual character evidence that was introduced in a trial would have a kind of cumulative effect and would be used to suggest that the alleged victim was the kind of woman who would consent indiscriminately or was immoral or promiscuous.

The innuendo problem is addressed in section 7 of the bill, which will exclude evidence that shows or tends to show that the complainer has at any other time engaged in non-sexual behaviour from which it may be implied that she is likely to have consented or that she is not a credible or a reliable witness. We see that as an attempt to curb the innuendo problem.

As Lynn Jamieson said, a sharpened focus on balancing relevance and prejudice will go some way towards reducing some of the problems that we found in connection with the first and second problems. Elements of the new bill go a considerable way towards dealing with some of the problems that we identified in existing legislation.

The procedures are very important—for example, it is important that the application to introduce sexual history and sexual character evidence, under the allowed exceptions, has to come before the trial. That would be done in conjunction with a provision on lodging notice of a defence of consent. The discussion would be a pre-trial discussion involving written submissions and a written judgment. That would force—or encourage—a much more thorough engagement with what the line of questioning will be and what the intentions behind the questions are. In our research, we found that, under the current procedures, the dialogue can be cursory. It is over quickly and there is little exploration of or challenge to how the line of questioning will be developed. Subsequently, something unexpected may happen that goes much further and is more damaging in terms of generating prejudice and blackening the character of the complainer.

Are the three problems that your extensive research identified still as severe as they were, or have things moved on?

It is not possible to give a definitive answer to that, but we do not think that the situation is radically different now. I say that for various reasons, including discussions with members of the legal profession in a number of contexts and a more recent piece of research of ours that did not involve sitting through trials, and so could not give us the same insight, but which involved following the paper trail left as cases moved through the criminal justice system.

Are you satisfied that legislation is required to remedy the problem areas, rather than enforcement of rules that may not have been enforced until now?

Yes.

Yes. The wording of legislation is always important. At the moment, it is possible to stick literally to the wording of the provisions on exceptions and to bypass what I think were the intentions of the legislators. The wording of legislation must not allow that. By speaking about the relevance of evidence and prejudice, and by spelling out what that means—talking about the dignity and right to privacy of the complainer, for example—the wording of the bill is much stronger than the wording of previous legislation. It offers specific guidance on the intentions of the legislation in a way that the existing legislation does not. The existing wording tries to provide general exception clauses, but our research showed that defence advocates were skilled at using that wording to undermine the spirit of the legislation.

The requirement for evidence to be relevant and related to specific issues in the trial is a key strength of the bill; it is missing in existing legislation.

The procedures that the bill specifies are important, too. The procedures cannot be cursory.

Would better training for those who enforce the current restrictions overcome that? Do you feel that more legislative force is required?

Yes. We do not want judicial discretion to be compromised. We value judicial discretion. As Lynn Jamieson said, the requirement to focus more on set procedures and to stipulate what evidence might be relevant to what issue—and, following that, to set parameters on questioning—means that some standard procedure for judges to follow is needed. The bill does not compromise judicial discretion, however, which is another strength of the proposals.

The bill gives much clearer guidance by providing a framework for judicial discretion. In our interviews with judges and prosecutors, we found that sometimes both groups felt that it was the other's job to intervene. Judges felt that their role was sometimes one of umpire and that, if the prosecution did not object, they did not need to intervene. Prosecutors thought that it was sometimes not their job to intervene, but the judge's. In a sense, the present system gives people no reason to come together to confront such issues. Training would help with that, but a legislative framework would develop matters much further and faster.

A helpful part of your evidence is your point that judges and prosecutors have felt that it was the role of the other to intervene. That is a partial explanation of the situation. Procedures have been available, as Bill Aitken said, but they have not been enforced. Perhaps we would not need some of the proposed measures if that situation had been worked out. The evidence that you have given us will help us to lay the foundations of our consideration of the need for some of the measures in the bill.

I will flick back to the issue that I raised about a prohibition on accused people representing themselves. You talked helpfully about the nature of sexual offences and the position of women—I appreciate that such cases do not always involve women, although they mainly do. I know that you have not spent much time on prohibition, but I want to press you on it, because we need to get to the bottom of why you would legislate on sexual offences but not on other matters. Given your research on how women feel about how intimate the questions can become, do you feel that a reason exists for removing the right of accused people to represent themselves?

Sexual offence cases are different from other cases because of the evidence that must be produced in court. Personal information must be presented and going through that procedure can be distressing for women and men. The evidence and how it is elicited can often make sexual offence cases different from other cases.

You say that the personal nature of the evidence matters. I am focusing on that because complainers or victims in cases of other crimes feel distressed in the witness box, too. The same logic might be applied to them and their alleged attackers, but your academic research is that the personal nature of the evidence in sexual offence cases is what makes the difference.

I should clarify the matter. The research that we have conducted concerned the use of evidence in court. It involved clerks monitoring all sexual offence cases and us and other researchers attending proceedings in more than 100 cases. However, we did not interview complainers, so we were not taking testimonies of distress. The distress is visible in the court, but our evidence is not about that. The issue that we were examining was whether current legislation was working well. That was our explicit remit and that is what we were studying.

We were concerned about the high acquittal rate in cases of rape and serious sexual offences. Although it is not possible to quantify exactly what contribution sexual history and sexual character evidence makes to that acquittal rate, we know that in serious sexual offence cases, even under the current provisions, it is introduced in about half of cases. In about 35 per cent of cases it is introduced using the rules and in another 15 per cent of cases it is smuggled in despite the rules. We believe that it must be affecting the acquittal rate.

The defence of consent and suggesting that someone is an immoral character have no parallel in other kinds of cases and could not affect their outcome. Questions about sexual history and sexual character evidence are unique to sexual offence cases. It would sit uneasily to try to protect a complainer from irrelevant questioning of that sort but still to allow her to be cross-examined. I do not see how that situation could easily be squared.

Given what you have said, do you think that the measures will have any practical effect either on the number of women coming forward or on acquittal rates?

It is difficult to say. One would hope that it would encourage more women to report offences and to be prepared to give evidence.

It is common knowledge that giving evidence as a complainer in a sexual offence trial might result in one's sexual history and character being dredged up in court. I hope that it might become common knowledge that that will not happen. That is surely within the bounds of possibility. If it were common knowledge that only relevant evidence will be introduced, and if the legal professions in general were committed to that and accepted it as important, things could change radically.

Surely everything comes back to the fact that, if people were doing their jobs properly, we would not face this difficulty. If, in a case of rape or sexual assault, evidence was introduced that the complainer and the accused had had a liaison in 1993, I would regard that as totally irrelevant. However, if it could be demonstrated that they had consensual sex three nights in a row prior to the alleged incident and had sex again two days later, that might well be relevant. If judges were much tougher about the kind of evidence being introduced, we would not have that problem, would we?

We saw a case in which a liaison had taken place even longer ago than the time gap in your example.

It was seven years.

Yes. The judge permitted that evidence within the current legal framework and I am sure that the judge would say that he was doing his job.

Did the prosecutor object?

No. The prosecutor suggested that the questioning should be limited to that one alleged previous incident. It was not clear from the dialogue that it had taken place as long ago as seven years and no one properly asked that question.

One of our findings is that there is little consensus on what counts as relevant information in sexual offence trials. Varying combinations of judges, defenders and prosecutors may make different decisions on the same evidence. What evidence may or may not be relevant varies widely.

Doing one's job properly means different things to different people. For many defence advocates, it means having every possible hare running and, if possible, a smokescreen of immorality around the complainer. Some prosecutors see it as their job to counteract red herrings more rigorously than other prosecutors do, while some see their job as being more straightforward and lay out all the relevant evidence.

If such evidence is to be introduced, is there merit in a system in which there is provision for a trial within a trial to establish whether the evidence is pertinent?

Such a suggestion appeared in the pre-legislative discussion documents. I presume that it is not part of the bill because it did not receive widespread support.

Written submission goes some way towards scrutiny and has a less elaborate procedure than a trial within a trial. There are advantages in such action being taken before the start of the proceedings, so that there is no interruption, although I am not unsympathetic to the idea of calling witnesses and taking evidence, as would happen in a trial within a trial.

I have two final questions. Does Dr Jamieson know of other countries that have dealt with similar matters in relation to the proper administration of justice?

The pre-legislation discussion document refers to Canadian legislation. I have not kept sufficiently abreast of developments in other countries to give the committee a well-developed answer. Dr Burman may have something to say about the matter.

Sexual offence courts have been introduced in South Africa. Those who appear in the courts undergo training in awareness raising. The procedures have been changed slightly so that the defence is made more explicit at an earlier stage and it is known whether it will be a defence of consent. That is the extent of my knowledge. I am sorry.

Your paper refers to issues that the bill does not tackle but that might be a future matter for Parliament depending on the result of the Lord Advocate's reference. Is it your view that we must tackle the clarity of the definition of rape before we can make any real progress? How important is that in relation to a sexual offences bill?

We mentioned some anomalies such as clandestine injury and the fact that it is not possible under the present definition of rape to recognise an assault as rape if the woman is unconscious at the time. There is also a mistaken belief in consent defence that someone can argue that he mistakenly believed—even if that belief is unreasonable—that the woman consented, so that the act is defined as not one of rape. That kind of judgment brings the law into disrepute. In the 1990s, it was upheld at appeal in the case of Jamieson—who was no relative of mine, I hasten to add. The judgment does not undermine the bill, but it leaves unfinished business. The definition of rape or of a number of sexual offences should be examined.

Do you have a view about what the law should be on that question? Should we look at positive consent or should we look at the English version?

I do not have a clearly formulated view. I hesitate to give a strong view on that.

We would welcome the early intimation of a defence of consent in a trial. Another strength would be for everyone to know what to expect at as early stage as it was possible for that to be intimated.

I want a version of intention where it is not possible to privilege force, as currently happens. Lord Abernethy's judgment reflected the privileging of force whereby, if someone does not resist until the last, the action is not rape. That is not what Lord Abernethy said, but women continue to get the impression that, if they are so terrified that they do not do something, such as poke the person in the eye, they will somehow not be treated with dignity as a victim. We have to avoid a definition of rape that privileges force.

As there are no further questions, I thank the witnesses for giving evidence to the Justice 2 Committee.

That concludes our main business today. The next Justice 2 Committee meeting is to be held on 26 September, when we will hear evidence from a number of organisations as part of the stage 1 scrutiny of the Sexual Offences (Procedures and Evidence) (Scotland) Bill. Are we agreed to meet in private at 9.45 am to consider lines of questioning and to focus our attention on the issues that the bill has not resolved?

Members indicated agreement.

Meeting closed at 12:47.