Item 2 is on the Protection of Children and Prevention of Sexual Offences (Scotland) Bill. I welcome Hugh Henry, the Deputy Minister for Justice, and his team from the Scottish Executive: Hugh Dignon, Kirsten Davidson and Paul Johnston.
Thank you for this opportunity. I apologise for the delay in providing these amendments and for the non-availability of the other amendments.
Thank you. I appreciate that you have attempted to give us as much information as possible, albeit that we do not have the amendments. Given that the detail of amendments is sometimes different from the general principles, that causes difficulty for the committee in consulting others, but we are certainly alive to getting our heads round that. We may have to consult or take advice once we see the amendments.
The line of thought that is followed will influence the number of amendments that will be required. Some amendments are more extensive than others. Essentially, the committee will be right to take evidence on the general principles in order to try to work out whether a particular line of thought is the right one to pursue.
We will explore matters with you now.
I have a general question about the drafting technique. The drafting looks fine on paper, but it becomes very cumbersome and confusing when it is read. For example, saying in the proposed new section that
You will see that we use a similar procedure in defining "A" and "B" in the amendments that we will consider later. In a sense, we want to avoid using the words "adult" and "child" because we think that there could be unintended consequences in defining categories as "adult" and "child". Someone who would otherwise be defined as a child could be engaged in criminal activity but might not be able to be pursued as a result of the definitions in the bill. Using "A" and "B" for shorthand purposes when we are talking about a person who commits an offence against another person—irrespective of who those persons are—leaves the position flexible enough for those who are engaged in a particular activity to be pursued.
Do you agree that such things are a little confusing when they are read out loud? I agree that things look fine and are clear on paper, but there will be situations in which a judge is directing a jury and will have to read the act out loud. Bearing in mind such circumstances, there does not seem to be any particularly good reason for adopting the format, other than that it can be taken straight out of the English version. As I said, we have waited many months for the proposed new section and I would have thought that a little more attention could have been paid to the matter.
I do not agree with you at all. We considered different formulations, including being more specific, which you seem to be suggesting that we should be, but none of the other formulations worked as well as the one in question. The main aim is to have law that is precise, that meets the intended objectives as far as is humanly possible, and that is capable of delivering the required results. We would make a mistake if we were to go back and construct something that sounds good when it is read out but leaves us vulnerable in how it can be interpreted.
Rather than being more specific, I suggest that "E" or another bland term could be used. That is not impossible. The bill does not need to be specific—it simply needs to be not confusing when it is read out.
Are you suggesting that "E" rather than "A" should be used?
Something else, such as "X", could be used.
I am willing to go away and deliberate on whether "E" and "F" rather than "A" and "B" should be used. That is certainly worthy of further thought.
That would be helpful. Given that judges and sheriffs will read this out, if it is indeed your intention that the law should be clear and unambiguous, as you say that it is, it would be good if you were prepared to take this opportunity to improve the wording.
Minister, could I have further clarification on the drafting technique? You said that you wanted to avoid using the terms "adult" and "child" and would use "A" and "B" instead. Is that because you are worried about defining in the legislation the age of a child or what a child is?
The issue is not so much about defining the age of a child but more concerned with the amendments on grooming. We are trying to avoid a situation where someone capable of committing an offence might otherwise be defined as a child. This is a matter that I know the committee looked at.
I understand. You are saying that because someone is a child does not mean that they cannot be an offender.
That is correct.
That is helpful.
I will take this in little bites to make sure that I understand as we go along. My questions are on Council framework decision 2004/68/JHA, which the minister attached to his letter to the committee. In relation to the United Kingdom and, hence, to Scots law, what is the status of that framework decision? Is it one that we are required to place into Scots law or are we doing so voluntarily?
We are required to bring that decision into Scots law. The member will note that article 12.1 of the framework decision reads:
Thank you. I wanted to get that on the record so that we know exactly where we are coming from.
We are specifically concerned with children. To continue on from that paragraph, article 1 of the framework decision reads:
I accept that the decision itself does not refer to young persons but, before starting to engage in some of the issues involved and how they are translated into Scots law, I wanted to see—without any particular side to the question—whether the reference in the preamble meant anything that we should be taking into consideration. What you have said is basically that the answer to that question is no, so I shall move on.
From what I understand of your description, a 19-year-old being a breadwinner in a marriage does not constitute buying sex.
Are you quite certain about, and prepared to put on the record, the fact that the provision of food, bed and lodging to a 17-year-old within a normal relationship—whether it is a marriage or a relationship having the general characteristics of marriage—does not, and under no circumstances could, constitute remuneration or consideration as payment in exchange for sex?
Yes. Within the context of a marriage or relationship, someone sharing the money that they earn and making a contribution to a household is an entirely different proposition from someone selling sex as a commercial or other activity. We are not saying that there can never be circumstances within a marriage where coercion, force or threats are used. We know that there have been cases in this country where that has been an issue. Equally, I would not anticipate that, in a marriage, as we understand the term, in which only one party is earning, the party who does not work will be considered to be selling sex. That is not the intention and I do not think that it could be construed as such.
To build further on that example, let us suppose that the same couple are neither married nor in a relationship having the characteristics of marriage. On a one-night stand or a blind date, the man buys a meal for the 17-year-old girl, and that is followed by sexual activity. Is that covered? If that is not intended to be covered—I hope that it is not necessarily intended to be covered—how do we ensure that it is not caught by the law as drafted, both in the European framework decision and in the amendments that you are lodging?
Whatever happens in the construction of the European framework decision or in what we put into law, we have other safeguards in the application of our law. Activity needs to be deemed worthy of a charge by the police, who would have to approach the procurator fiscal, who would determine whether to pursue action. Therefore, all the circumstances of a case would be examined before it reached court.
Do you accept that whether the sexual activity is consensual is no longer an issue in the legislation that we are considering?
That is correct. However, I tried to explain the other matter, which is the wider nature of that brief relationship. Did the availability of sex depend on the remuneration? The provisions would not make it an offence for someone aged 16 or 17 to have sex, but if that person sold sex or someone had bought the sex, whether with cash or other forms of remuneration—if the appropriate authorities deemed an action to be a purchase—that would be an offence. However, that does not mean that someone who went out for a meal or a few drinks and decided to have sex later would necessarily commit an offence in the circumstances that you described. The decision would depend entirely on the circumstances.
I will make clear where I am coming from. I would be happy for an offence to be created and I would prefer it to become an offence for a person of whatever age to pay for sex. However, we are leaving that matter for another time. If I pursue the issue, it is not because I resist what you are trying to achieve—on the contrary, I am trying to ensure that what you are doing delivers what you want.
Subsection (2) in the first draft amendment says:
So, you are saying that, in the example that I have given, the expenditure by the 19-year-old male, which creates the circumstance that leads to sexual activity taking place between the 19-year-old and the 17-year-old, is not, in itself, a contractual or quasi-contractual arrangement that inevitably leads to sex, although that expenditure creates the circumstances in which that sex happens.
That is correct. It would not necessarily lead to an offence. It would be for the relevant authorities to determine whether the circumstances were appropriate. However, I presume that if someone said at the beginning, "If I buy you a meal, will you engage in sexual activity?" and there was an agreement, that would be an entirely different proposition from someone going out for a meal, having a few drinks and deciding, later in the evening, to engage in sexual activity. For an offence to be committed, there must be an element of commercial activity—an element of payment by whatever means—that provides a financial advantage and the provision of sex as a result of an agreement to provide that financial advantage.
Therefore, a young man should be very careful, in inviting a young lady out to dinner, not to suggest that the outcome of that social activity might be sexual activity.
If it was in relation to a person of 16 or 17 years of age, I think that that would be responsible. It would be reprehensible of someone to try to induce someone of that age to have sex in return for some financial advantage, and I hope that the law will protect young people. It must be remembered that other considerations would apply, which the prosecution authorities and the procurator fiscal would look closely at. However, it is right that we apply the law in this way, not just so that we implement the framework decision but so that we protect young people.
I have a final, slightly different point to raise under the same heading before I surrender the baton to someone else. Paragraph 1 of article 5 of the framework decision requires that the offences
There is a difference between a minimum range and a maximum range of sentences, and article 5 relates to a maximum range. What we propose is entirely consistent with the framework decision. Subsection (5) in amendment 1 states:
It is based on the ability of the sheriff court to refer a case for sentencing to the High Court, where the sentence that can be passed falls within the range that is required by the framework decision.
Yes. I think that alternative court procedures are being outlined.
Let me ask you in a bit more detail about the construction of the crime. You say that the key test is whether the payment or financial advantage is conditional on the provision of sexual services. Is there a requirement to have that in the drafting?
Subsection (2) of the new section that would be inserted by the draft amendment in the name of Cathy Jamieson states:
I thought that the draft provision was quite broad, because it refers to "any financial advantage". I did not think that it was clear that the Crown must prove that the goods, services or payment were in exchange for sexual services. If it cannot prove that there was such an exchange, there is no crime. You talked about the commercial context.
It comes back to some of the issues that Stewart Stevenson raised. We are not saying that, if sex takes place after a person has bought a meal for a girl of 16 or 17, that will ultimately lead to the person being convicted of a crime. A crime will have been committed if it was made very clear that the intention was for sexual services to be exchanged for something that has a financial connection.
I am clear about what you are saying. However, proposed subsection (2) states:
We have time to consider that issue. However, if proposed subsection (2) is examined with reference to proposed subsection (1)(b), it is clear that, before obtaining the services, A, E, F, G or H would have to promise the other party payment for them. There must be some indication that an agreement, promise or quasi-contract has been made before the financial advantage is delivered.
What would the Crown have to prove in such a case? I presume that it would have to prove that the person involved was a child as defined in the bill.
That is correct.
Would there be the usual defence against that charge—namely, that the accused could not reasonably have known that the person was a child? The Crown would also have to prove that sexual services were provided in exchange for a payment or financial advantage.
Broadly speaking, that is correct. Proposed subsection 1(c)(i) refers to the issue of reasonable belief, which the convener mentioned. The issue of payment being made in return for a sexual service has been covered in my answers to questions from both the convener and Stewart Stevenson.
Presumably, you would have to show not only that payment took place, but that it was a condition.
Yes.
Those are the elements that the Crown would be required to prove.
Yes. Before obtaining the services, a person would have to make or promise payment for them or to know
Picking up again on the point that Stewart Stevenson made, I am concerned about how explicit the contract needs to be before an offence is committed. The minister gave an example of a chap saying to a girl, "If I buy you dinner, will you have sex with me?" Although that is not the best chat-up line in the world, it is an explicit one.
No.
Surely, at a later stage, the clear intention of the male could be inferred. Where in the draft amendment is it made clear that the contract, for want of a better word, has to be explicit in the way that you suggested earlier?
I do not believe that inference would be sufficient. That said, there are people who will always be capable of suggesting that there was an inference. In such a matter of dispute, the proper authorities would have to determine whether what was said was more than an inference.
So, just to clarify matters, proposed subsection (1)(b) says:
It involves "B".
The draft amendment says:
But before that, it says:
Okay. I see that: "B", or a third person.
Yes. It says:
What corroboration will be required? We are talking about two people in a restaurant. I know what the Executive is driving at with the bill, and everyone agrees with putting a stop to child prostitution and so on. However, I am still concerned that the bill may have unintended consequences.
The Crown would have to prove beyond reasonable doubt not each and every part of what had happened but that the entire offence took place. Of course, the problem—if, indeed, it can be called that—exists at the moment, in which an offence of a sexual nature takes place with only two people involved. Clearly, issues of corroboration need to be determined in such cases and I am sure that the Crown looks carefully at them. Indeed, it would need to be satisfied that a case was capable of being proved beyond reasonable doubt.
Let us say that an exchange of money for sexual services takes place in the street and a young girl or boy is involved. In that instance—which is not uncommon—the circumstances that give rise to suspicion are obvious.
You underestimate the degree of diligence that the Crown would apply in determining whether the case was capable of being pursued. It would not be sufficient for a parent to make that allegation because, without evidence, there would be no reason to pursue the complaint. The simple purchasing of a meal would not be sufficient; the Crown would have to be satisfied that a promise of some reward had been made before sexual activity took place and that the reward was conditional on the sexual activity taking place.
That will be difficult to prove in all cases.
We accept that, but, however we constructed the measure, it would be difficult to prove that. Even when there is an exchange of money between two individuals, someone could argue that the transfer of money was for some allegedly benign reason and that it just so happened that sexual activity took place after that. I am sure that those who are potentially guilty of the offences will deploy fairly imaginative arguments to deny that criminal activity took place. We are faced with that situation, but, as I said earlier, we are required to introduce legislation that is consistent with the European framework decision. We believe that, in constructing the measure in the way that we have done, we are making it clear that, before the sexual services are provided, there must be the making or promising of a payment. We have described payment as "financial advantage", because it would be hard to include every conceivable type of activity. If we said that buying a drink or a meal was included, how many drinks would that be and what would the value of the meal be?
When cases get to court, the court often has to explore such issues.
Yes, but it is for the Crown to decide whether the matter can be proved beyond reasonable doubt and, ultimately, it is for the court to determine whether the offence took place.
Until the last couple of paragraphs, you were using the phrase "sexual activity".
I beg your pardon—I meant sexual services.
Perhaps you were right, because the framework decision uses the words "sexual activity", whereas the draft amendments mention "sexual services". I raise the issue because I want to test whether certain activities would fall within the definition of sexual services in exchange for reward, but not within the definition of sexual activity in exchange for reward. I will give two examples.
Only Stewart would know that.
We could get into another discussion about that.
No thanks.
The purchase of a condom, possibly from a slot machine that is provided by a company rather than from an individual person, is the provision of a sexual service in exchange for money, albeit that it is not the provision of a sexual activity.
Whether I care to or not, I suspect that I will have to try. I honestly do not think that what you are describing is particularly relevant. For example, if a young girl obtains the contraceptive pill through her general practitioner, it could be for a number of reasons that are not necessarily related to contraception. That type of medication has a wider applicability, as I am sure you know. If someone buys condoms, whether to fit them over their rifle or air gun, to fill them with water or for any other reason, that in and of itself is neither a sexual activity nor a sexual service.
What about the use of spermicidal foam, which is used in connection with a contraceptive cap?
Perhaps I will pass on that.
I am only asking why the draft amendments say "sexual services" rather than "sexual activities".
Whether a girl, you, I or anyone else purchased such foam, the amendments are about a person intentionally obtaining, as the proposed new section says, sexual services. They are not about whether that person bought foam or whatever other accoutrements might be construed as capable of being used for that purpose in whatever shape or form.
It is just—
I think that it is clear. We will move on from that topic.
It is important that we be clear about the point that Stewart Stevenson has raised, because he is talking about sexual health services and there is no intention behind the bill or anything that the Executive or the committee is doing to stop sexual health services. It is really important that we be clear about the difference.
I am glad of that, because I was starting to think that I was in an Ann Summers shop.
Yes. Potentially it could.
I will turn to another issue. Under the bill, an offender could be aged 16 or above but the victim could be aged up to 18. Could there be a 16-year-old offender and a 17-year-old victim?
Yes, potentially.
Do you see a problem with that?
No. That is one of the reasons why we have tried to be careful in our construction of the description of the committing of the offence and of the victim.
Is the Executive comfortable with the concept that the offender could be younger than the victim?
If the person who is the victim is a person as described in the European framework decision, they are a victim irrespective of whether the perpetrator is a year younger than they are. One could be 17 and one could be 16. The issue is whether payment has been made in return for sexual services.
I understand that that is the obligation under the framework decision and the United Nations protocol. I do not have a particular view on the issue, although it strikes me as a wee bit of an odd concept that we are trying to protect children up to the age of 18, yet we could have that scenario.
That is no different from the concerns that the committee expressed in relation to grooming.
That is exactly the point that I was going to ask you about. Given that you are creating a sexual offence that applies to someone under the age of 18 in this context, are you minded to reconsider—in the light of concerns that several members of the committee have expressed—the provision in section 1, which makes grooming an offence for someone who is over 18 but not an offence for people who are 16 and 17? Section 1 states:
I thought that amendments had been lodged on that matter.
Sorry. In that case, I withdraw my comments.
We have not exhausted the issue yet, so I move on to Marlyn Glen.
I will ask a question about the right to privacy. Is there any incompatibility between article 8 of the European convention on human rights, on the right to privacy, and the provision in the bill?
I do not think that there is a problem. As you know, the provision relates to the Council framework decision, which we are obliged to implement. It is a pan-European issue, as is the issue of the right to privacy. We are saying clearly that we are extending, in an appropriate way, protection against people who buy sex from those persons. That does not contravene any right to privacy.
I will move on to the incitement of prostitution or pornography. I ask for a few points of clarification. The first is what you mean by pornography. Committee members have discussed exactly what we think it means. I want to be clear about what the Executive is saying.
I ask the committee to look at our proposed amendment 5, which begins "After section 8, insert—". I think that the definition in that amendment covers what Mary Mulligan is asking about.
Would the recording of an indecent image of a 17-year-old be described as pornography?
As far as child prostitution or pornography is concerned, this provision deals with individuals or others who catch people up in the commercial activity of pornography and encourage and engage them in certain activities that could be exploited. We are still examining the question of taking the image or a photograph of a 16 or 17-year-old.
I appreciate that you are still examining the matter, but I want to push you a little bit to find out whether you have resolved your thinking on it. Would the image of a topless 17-year-old woman used for commercial purposes in a newspaper constitute pornography? What would be the difference between that image and a similar image of a 17-year-old woman taken on her holidays?
There is an overlap between that issue and the issue of the taking of an indecent image, and we need to examine that matter. However, it would be for a court to decide the very specific example that Mary Mulligan has raised. People can refer to a significant body of case law on these matters. Even leaving aside the question of exploitation, I think that the matter would come down to the definition of indecency and whether a certain image would be construed as indecent. That definition is covered elsewhere, and court cases have been brought on the matter.
Can you point us to that definition of indecency?
The bill itself does not contain that definition. We draw such definitions from common law, which refers to material that is
I shall return to a point that was raised earlier. Does incitement with regard to prostitution or pornography apply where B—I shall use these terms—is the spouse or registered partner of or has a recognised relationship with A? Are there any exemptions in that respect?
As far as exploiting someone for the purposes of pornography is concerned, there are no such exemptions. As I have said, we are still looking at the different issue of the taking of pictures.
I share your feeling that it would be difficult to introduce exemptions, because doing so might be a problem in some cases. I recognise why you do not want to go down that road, but it is important to put that on the record.
We intend the common-law definition.
Purely and simply.
I ask you about the thinking behind the provision. I appreciate that you did not do the thinking; it was done elsewhere.
I will take that as backhanded compliment, convener.
You know what I mean.
You know me too well.
I mean that it is European Union thinking that I cannot follow. The framework decision states:
All that the framework decision adds is the age thing.
That was my conclusion.
We are not changing any of our other definitions; we are adding protection for 16 and 17-year-olds.
Our common-law definition of pornography is anything that is
That is correct, but none of that changes the provisions that we have just now. We are extending the age range because we believe that protection should be given to 16 and 17-year-olds. Whether we believe in it or not, we are required to extend that protection to 16 and 17-year-olds.
I find it confusing that we rely on the current definition of pornography, which is that it is
I presume that the argument would be that if an image is not
I understand. The likeliness to deprave or corrupt is the test for who needs protection.
If I have given you that impression, I apologise, convener. You are probably thinking of the previous discussion. There are circumstances, as we know from much of the evidence that this committee has taken, in which the distribution of pornography is not done for commercial advantage. For example, there are some people who obtain some satisfaction from taking and exchanging such photographs.
Would a man who transmitted through a mobile phone an indecent photograph of his wife who is under 18 be caught by this legislation, providing that the image passes the test of being likely to deprave or corrupt?
What you describe could be caught by the legislation, but other aspects would have to be considered by the Crown. To some extent, we have dealt with child prostitution. As far as pornography is concerned, the issue is partly to do with somebody being used or drawn into a wider lifestyle.
Are you going to consider further article 3.2(b) of the European framework decision? In respect of children who have reached the age of sexual consent but who are still children, it makes a limited exemption in relation to pictures that have been produced with their consent and are solely for private use. The example that the convener gave would seem to fall within that area. Is there further room for you to express that limited exemption within what you are planning to put into Scots law?
That is exactly the dilemma that we are trying to resolve. The third page of my letter to the committee describes the options that are available to us. We will come back to the committee on that issue.
Does anyone else have a question?
My brain hurts.
We are wrestling with this issue because of the need to include in legislation those who are above the age of consent but are still under 18. From evidence that we have had, we are aware that other European countries have an even bigger age gap than we have in that regard. The decision says that everything must be in line by January 2006. Are we aware of the deliberations that are taking place elsewhere on this issue?
No, we are not. We take our responsibilities seriously and have drafted the amendments that we are discussing to ensure that the legislation is consistent with our obligations. We have further thought to give to the question of what further exemptions, if any, should be considered in respect of the parts of the decision that Stewart Stevenson referred to.
I thank you for your attendance, minister. As you are fully aware, the situation is not ideal from our point of view but at least we have had a chance to air some issues before the final text of the amendments is produced.
Meeting suspended.
On resuming—
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