Justice 2 Committee, 24 Oct 2001

Meeting date: Wednesday, October 24, 2001

Official Report 226KB pdf

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

We move on to our final session of oral evidence for the Sexual Offences (Procedure and Evidence) (Scotland) Bill before the preparation of the stage 1 report.

I apologise to the witnesses for the delay. As you have heard, we have been considering an important petition. I welcome Mrs Alison Di Rollo, Mrs Susan Burns and Frank Mulholland.

Do you wish to make a short statement before the committee asks questions? We would appreciate your keeping any statement short—we are a bit stuck for time.

Good morning convener and committee members. I thank you for inviting us to the committee. I have a brief introductory statement to make.

First, I will introduce the team from the Crown Office and Procurator Fiscal Service. On my left is Susan Burns, our principal depute in the policy group at the Crown Office. Her portfolio includes victims and sexual offences in general. She has been working closely with colleagues in the Scottish Executive on the bill with which we are concerned today.

On my right is Frank Mulholland, who is the assistant procurator fiscal in Edinburgh. His responsibilities in the Edinburgh office cover all the solemn work in that jurisdiction, which includes case preparation and the conduct of sheriff and jury trials in Edinburgh. I am Alison Di Rollo. I am another principal depute in the policy group. My portfolio covers children's interests and I am working on the departmental response to the Justice 2 Committee's inquiry into the Crown Office and Procurator Fiscal Service.

Between the three of us, we have about 42 years' experience in the service of prosecuting crime. We have all worked in the High Court unit at the Crown Office and in regional and upper level offices in the field. Frank Mulholland is in the unique position of having been a procurator fiscal and advocate depute and he prosecuted in the High Court between 1997 and 1999.

We were invited by the committee to give evidence on the general principles of the bill. We are happy to do that on the basis of our practical experience of the prosecution of serious sexual offences in Scotland under the current statutory regime. If the committee wishes, we will also assist with aspects of the practical application of the bill.

Dr Alastair Brown pointed out to the committee—on 13 June last year, I think—that the policy behind the bill is entirely for our colleagues in the Scottish Executive justice department. We have no comment to make on that. However, to assist the discussions that we will have, I will state briefly the Crown Office's policy and practice in relation to the two main areas that the bill covers.

As prosecutors in Scotland, we are alive to the possibility—however statistically unlikely it might be—that the accused might elect to defend himself and personally cross-examine the victim. If a victim asks us about that, we will confirm to her that the possibility exists. If it becomes evident in the course of preparing the case that the accused wishes to defend himself, our policy is that arrangements must be made to inform the victim of that. At that point, we remind the victim that the prosecutor and the judge have a duty to protect witnesses from aggressive cross-examination or from examination that is abusive in any other way. Our element of that duty is to object to such questioning. The court's duty is to regulate cross-examination by allowing or disallowing questioning. In that matter, as in all others, the court is the arbiter.

We recognise that the issue of questioning a victim about her sexual history and character is a matter of great concern to victims. Procurators fiscal and advocate deputes are aware of the relevant provisions in sections 274 and 275 of the Criminal Procedure (Scotland) Act 1995 and our departmental guidance reminds prosecutors in the plainest terms that if the criteria are not met, an application must be opposed. We also remind procurators fiscal and advocate deputes that, as the court has discretion to limit the extent of questioning at any time, prosecutors must remain alert to the scope of the exemptions and to our duty to object to a line of questioning if necessary. When the court permits questioning about sexual history or character, there remains a duty on the prosecutor and the judge to ensure that, within the confines of that questioning, the victim is not subjected to aggressive or abusive cross-examination. The Crown's duty is to object; the court's duty is to rule.

I need hardly add that fresh guidance will be issued to prosecutors in the light of any new statutory arrangements that are made.

It will reassure members to know that the witnesses have 42 years' experience between them—they will certainly need it in the next half hour.

We want methodically to go through some of the main provisions in the bill, starting with the prohibition of the personal conduct of defence by the alleged sex offender.

One of the suggestions that was put to the committee in previous evidence was that the person bringing the accusation could be protected from cross-examination by the accused through the role of an amicus curiae. I am interested to know your response to that. Do you think that that suggestion is valid?

I leave it to Susan Burns to comment on that in detail, in the light of her experience of the bill. Our general view is that the role of amicus curiae might produce an unnecessary complication in the context of a trial. We would prefer the rules of criminal evidence and procedure and the jurisdiction of the court to protect the witness.

I have set out a reasonable set of policy and practice guidelines in which it is our stated duty to object when examination is abusive or aggressive. We are moving away from the possibility of such abuse. However, if an accused was cross-examining a victim, I am not sure that the presence of an amicus curiae would sufficiently diminish the stress and anxiety that that position would cause the witness. Susan Burns may have more to say on the subject.

It is difficult to see what function an amicus curiae could fulfil in the court. One of the roles of the prosecutor is to ensure that the witness is not subjected to unnecessary cross-examination. That is also a function of the judge in the court. It is difficult to see how an amicus curiae could usefully interject in a way that would not already be open to other participants in the court.

Might the existence of an amicus curiae carry with it the risk that the witness would be accorded special status in the eyes of the jury, which might not be helpful to the aims of justice?

That is always a possibility.

Let us move on to the question of restrictions on evidence.

I would be interested to know when you believe that the evidence of a person's sexual history or character, or other evidence that is used to suggest bad character, should be allowed to be used in sex offence trials. When should such evidence be admitted?

It is impossible to give a paragraph that sets out specific circumstances in which such evidence would be appropriate. Clearly, an element of judgment and discretion is involved, with reference to the specific facts and circumstances of a case. Frank Mulholland has experience of dealing with such matters as they occur in the live dynamic of a trial, and he may be able to assist the committee.

It would be difficult to state in a paragraph the circumstances in which such evidence would or would not be relevant. However, I shall cite an example of its use in a case that I dealt with. The case involved an allegation of rape and the evidence was that the woman had had sexual intercourse with her boyfriend an hour after she was alleged to have been raped. The vaginal swabs were taken after that and, when they were examined at the forensic laboratory, they were found to contain a mixture that identified two separate persons. In such circumstances, the Crown would be under a duty to provide evidence to explain the identification of two separate persons in the tests for semen on the vaginal swabs. The defence would know about the double identification, as the results of the tests would appear in the forensic science report.

So forensic evidence is a vital part of such a case. Nonetheless, do you think that, as the victim's sexual character or background is usually investigated, similar requirements should be placed on the accused?

Yes. I shall cite another practical example of the problems in this area. I prosecuted a trial in Glasgow that involved the sexual abuse of a young lad and his brother and sister. The lad gave detailed evidence in a closed court, in which he stated that a friend of the family had abused them. A motion was submitted to cross-examine the young lad on a so-called sexual relationship that he had with his social worker.

The relevance to the court of the application to cross-examine the lad was that that would demonstrate that he got terminology from a sexual relationship that he had with his social worker. I considered that irrelevant so I opposed the motion to cross-examine him on that specific point. The judge backed up the Crown. However, I was dismayed to learn that the appeal court held that the judge had erred in refusing the motion. A retrial was granted and the young lad had to give evidence again.

It is all very well to consider issues in committee rooms—that is where they must be considered. However, in the dynamics of a trial, events are fast-moving, unanticipated things happen and it is difficult to make split-second decisions.

Are you saying that it is impossible to legislate on this and that Scots law on sexual offences will be based on case law that will be quoted time after time in individual cases?

No. I am not dealing with policy. However, I believe that certainty and a statutory framework from which courts must consider rules and how matters are regulated would be good. Issues in trials can be difficult and legislation would assist courts.

The greater clarity and focus that the bill would provide as a framework for courts to take discretionary decisions would greatly assist in focusing their minds on the relevance and fairness of admitting evidence.

When I read the evidence that the committee took from Alison Paterson of Victim Support Scotland, I was struck by her mention of

"women's rights to assert their sexuality and to say no".——[Official Report, Justice and Home Affairs Committee,
7 June 2000; c 1379.]

That leaped off the page. Fundamental cultural perceptions and attitudes in Scottish society are the backcloth to the legislation.

On the technical matter of proceeding with cases in court and the combination of judicial discretion and legislation, the criteria set out in the bill will greatly assist in achieving fairness and relevance. The bottom line must be that it is proper in some cases to admit the type of evidence in question. There are questions of control and making the exercise of discretion properly informed.

I was going to ask about that, but I want to follow up what Margaret Ewing said about the use of sexual history and bad character evidence. In your experience, do defence advocates abuse the system? To what extent are current provisions breached?

It would be wrong for us to say that the situation is perfect from the complainer's point of view. It is impossible to achieve uniformity where discretion is exercised. Consistency is the best that can be achieved and perhaps even that has not been achieved. Frank Mulholland and Susan Burns are probably better placed to talk about recent experience in the High Court.

Later today, I will take part in the Judicial Studies Committee induction course for new senators and sheriffs, where I am delighted that I will have the opportunity to discuss child witnesses. Dr Jamieson, from whom the committee has heard evidence, will speak before I do. I am sure that the committee welcomes the fact that, before new senators and sheriffs go on the bench, they will have the benefit of a lengthy discussion with her. I am sure that such issues will be explored.

The committee should know that guidelines or a statutory framework for questioning on sexual character will not necessarily prevent such evidence from being used. I will give a live example, although such occurrences, I am glad to say, are few and far between. I was involved in the prosecution of a man who was charged with rape, in what is commonly referred to as a date-rape case. The defence was consent. When interviewed, the accused had said that the woman consented to sexual intercourse.

The forensic scientist was cross-examined. There was no need to cross-examine the forensic scientist on the presence of semen, but he was asked to look at the garments that the lady involved wore at the discotheque that night and to hold them up to the jury. The only reason for that was to show what she wore. At 11 o'clock on a Tuesday morning during a criminal trial, one does not appreciate the nightclub context, for which her clothing was perfectly acceptable. The proposals will not necessarily prevent what I described from happening.

The committee appreciates that. We are trying to put on record your experience of defence advocates using aggressive tactics—as they are perceived—and attacking an alleged victim's sexual history or bad character to portray them as an unreliable witness, rather than relying on the story itself. In your experience, have defence lawyers breached the current provisions by not asking for permission to raise some evidence?

No. If the defence wants to cross-examine on sexual character, it must make a motion. Otherwise, I would object as soon as the defence tried to carry out such cross-examination. However, the example that I gave was not cross-examination. It was another way of introducing such evidence.

"Aggressive" is not the only adjective for behaviour about which the committee should be concerned. As I suggested, there are subtle ways of appealing to the attitudes and perceptions in the jury without being overtly hostile to a complainer.

We are in the happy position of having an experienced team to question. I ask Mr Mulholland how many times during the conduct of a sexual assault trial he has raised objection to the defence's questioning.

It is hard to be entirely accurate.

I accept that.

I have probably objected twice.

Out of approximately how many cases?

Last night, I counted how many rape or sexual abuse trials I have participated in; I reckon that I have done about 25 in the High Court.

Were your objections upheld?

Yes. In the case that I mentioned, it turned out that my objection was wrongly upheld.

That is a matter of opinion.

I still think that I was right and that the judge was right to take the view that we did, but the appeal court thought otherwise.

That is a fair and reasonable position.

Some people have the perception that a problem exists whereby a complainer can be subjected to aggressive and intrusive cross-examination. We are anxious to establish from you whether the problem is as great as those people think or whether the emotive nature of the cases means that that perception may be wrong.

Such cross-examination is a problem, but I would not overly emphasise it.

An analogy might be drawn with conviction rates. My colleague Janet Cameron gave the committee information that showed that conviction rates were slightly higher in the recent past than has been suggested. A problem may exist, but the committee may be seeing a more focused and concentrated perception of what is happening than is actually the case.

There is concern that the acquittal rate in the cases under discussion is much higher than that for other offences. Does the Crown think that prosecutions should be pursued because of the nature of the offences, even when the evidence is not as firm as that required for other cases?

Given the history of prosecuting that type of offence, which is such a gross breach of the physical integrity of the woman, there is a presumption that, where a sufficiency of evidence exists, it must be in the public interest to ventilate that in court and pursue a prosecution.

That may be why there is a higher acquittal rate.

It may be one factor in a complex broth of factors. Janet Cameron touched on the fact that there are specific problems in cases where consent is an issue. Although we cannot inquire into their reasoning, juries appear more reluctant to convict where consent is the issue, as in date-rape cases.

What factors would you expect the courts to take into account when they are determining what is meant by the term "proper administration of justice"?

I would expect them to consider the relevance and significance of the evidence that the defence seeks to adduce. They should also consider the ultimate question of fairness to the accused, balanced with the right of the victims not to have their privacy invaded and their sexual history laid before the court unnecessarily.

Do you think that that balance can be achieved by the proposed changes?

The bill will certainly be of great assistance from the victim's point of view. It is not a disincentive to the accused, but it would certainly focus his mind. It also makes it clearer to the court that evidence must be relevant to the specific circumstances of the case, rather than simply offering another angle that could be taken.

It is important to keep the legislation in perspective and in context. It will not achieve change on its own. Susan Burns has been busy organising judicial training and training for prosecutors. We now routinely invite groups such as Scottish Women's Aid and the Scottish Rape Crisis Network to inform our legal discipline and the way in which we approach the task of prosecuting a case in court. Those wider considerations enable us to understand and take into account the victim's perspective. We cannot consider the legislation in isolation. We must have regard to what is fair and what the jury should have before them to try a case fairly and properly. The issue is no more complicated than that.

Is not there a similar provision—a kind of catch-all clause—in the 1995 act?

In section 275? I do not recollect there being a definition of the "proper administration of justice" in that act.

That is not the term that is used, but there is a way of dealing with situations in which there has not been an application in advance to raise sexual history or bad character evidence. Some legal writers have described that as a loophole in the provisions. Depending on how it is applied by the courts, the new legislation could be another loophole in the provisions if it is not used properly.

I do not know whether Frank Mulholland would agree that the court has inherent discretion to admit evidence where it is in the interests of justice to do so. The bill seems relatively strict in setting out the precise requirements that the accused has to go through to apply to have such evidence admitted. We are quite satisfied that the provisions could be applied rigorously to avoid loopholes of the kind that you describe.

Do you not see the need for more codification of what is meant by "proper administration of justice"?

That is an extremely difficult thing to codify. Given the dynamics of a trial, one does not know what the issues are or how they will impact on the evidence. It would be extremely difficult to define that concept further.

As I recollect, the bill goes quite a lot further than previous legislation. This afternoon, I shall mention to the judges that, if the bill is passed, it will be the first act of Parliament to recognise the victim's dignity and right to privacy. That would be a great step forward in focusing the court's mind on the need to exercise discretion.

Previous witnesses have talked about the trial within a trial. Under the bill, could that procedure be used more frequently? If so, do you see any difficulties in that?

Do you mean that the procedure will be more frequently used by the accused?

Yes.

The current position is that the defence must give notice that it intends to use such a procedure. The bill builds in a requirement for the defence to give notice in advance of the jury being empanelled. We envisage that that will work partly in accordance with the current procedure for preliminary diets. We are discussing with the Executive the best way of implementing the bill so that it has the least impact on the operation of courts and sittings. We anticipate that, once matters have been fully discussed, the way forward will be to use the current procedure that allows such matters to be resolved in advance of trial diets. The question is not necessarily whether there will be a greater number of applications; the applications will be addressed slightly differently.

The bill does not offer the accused more scope for attempting to have sexual history and character explored. If anything, the reverse is the case.

That is reassuring. In the past, procedures have often been put in place with the intention of helping, but people have found a way round them with the result that things are made more complicated. Do you feel reasonably reassured that that will not become a major difficulty?

On the basis of what we have seen in the bill, we do not anticipate that there will be either a flood of applications to use sexual character in evidence or insurmountable procedural difficulties.

We are running out of time. Do members have any final questions to put to the Crown Office witnesses?

In reply to one of the earlier questions, it was mentioned that, even once the bill is passed, training to ensure that the proper procedures are followed will still be key. What work is being done to ensure that proper training is carried out and that proper instructions are given to judges, prosecutors and defence lawyers?

She is sitting to my left and her name is Susan Burns. I can confirm that she is working hard and is examining the precise and detailed implications of the bill. In practice, what will happen first is that a stonking great bit of written guidance will go out to every prosecutor in the country to explain what the legislation contains and how it should be applied in practice. The guidance will then be built into future training, on which Susan Burns will elaborate.

It is important to realise that the prosecution in Scotland takes the rights of victims very seriously. We have on-going training on the rights of victims and their needs in relation to the prosecution. As Alison Di Rollo mentioned, she is involved in judicial training and, early next year, I will be involved in training sheriffs on the rights of victims.

The Crown Office and Procurator Fiscal Service has undertaken a number of on-going projects. On Friday, the issue of customer needs will be addressed. We appreciate that we come into contact with a huge number of customers, so we will focus particularly on our victim-type customers. Presentations will be given by Scottish Women's Aid, the Scottish Rape Crisis Network and the victim liaison office, which is under the Crown Office umbrella. There will also be the opportunity for a discussion on the way forward and on how the service wants to address the needs of victims in the criminal justice system. The needs of victims is a live issue, which is constantly being considered.

On a very practical matter, one of the benefits of e-mail and technology is that we have started producing learning packs. Although we might have 40 or 50 prosecutors at an individual event, we are trying to disseminate the training to as many people as possible. That has worked well.

Has such training been a recent development or has it been going on for some time?

It has been going on for quite some time. However, as people become more aware and practitioners, procurators fiscal and precognition officers and offices become more alive to the needs of victims in the criminal justice system, an increasing number of people express an interest in such training. As a result, the training starts snowballing and is disseminated throughout the service. The good thing is that people are actively showing an interest in the rights of victims, which represents a bit of a shift in the criminal justice system.

I think that your course is oversubscribed.

It is.

Just to give the committee some context, I can remember doing a similar course eight years ago. This work has been going on for at least a decade; there is no doubt that it is increasing in profile and importance as the years go on.

My point has already been picked up. However, in light of the damning verdict in The Herald today that, according to a survey, seven out of 10 people think that judges are out of touch, are you convinced that all your work with defence lawyers and solicitors is moving up through the system to ensure that such headlines are obviated in future?

We hope so. Judicial studies are a matter for the director of judicial studies and the judiciary, and I think that it is really helpful and constructive that we should have been invited to participate in that work. Such opportunities are relatively few and far between, which is possibly a result of the independence of the judiciary. Although we take up any opportunity to feed into judicial awareness—an issue that the committee is no doubt interested in—we cannot take on that responsibility as well.

That is a very big issue for us. I thank the three witnesses for their very valuable evidence.

I invite Professor Christopher Gane of the University of Aberdeen to the table. Professor, I thank you for travelling from Aberdeen to speak to the committee this morning. I apologise for being behind time. If you do not mind, we will go straight to questions.

That is perfectly acceptable.

If you think that some issues have not been covered, we will give you a chance to raise them at the end of the session.

Professor, I know that travelling back and forth between Aberdeen or Inverness and Edinburgh is always a pleasure. I am quite sure that you enjoyed your trip.

Are the bill's proposals on the personal conduct of defence by the alleged sex offender perhaps beyond the level of necessity? Do you think that we could tackle the problem by other means? If so, could you describe what those other means might be?

If we based an answer to the question whether the bill is an overreaction or is disproportionate on the number of instances in Scotland in which a complainer has been subjected to such a distressing experience, history suggests that, in practice, it has not been a substantial problem up to now. As far as I am aware, it has been an issue in one case in the High Court and in one case in the sheriff court.

However, the more important question concerns the impact of the possibility of such an experience on potential complainers rather than the impact on those who have unfortunately been subjected to it. Although we have no way of judging this, there is a perception among people who deal with victims of rape and other sexual assault that the possibility of facing the offender in such an environment and in such circumstances is likely to have a chilling effect on the willingness to make complaints and pursue what is in the interests of the whole community, which is that offenders be brought to justice.

As to alternative methods, I was struck by Stewart Stevenson's question on the possibility of using a third party—an amicus—to defend the interests of the complainer. As I understand it, that policy has recently been adopted in Ireland, where the Sex Offenders Act 2001 provides that, at the point in a criminal trial at which the accused applies to the court for permission to cross-examine the complainer with respect to previous history, the complainer is entitled to be represented and supported by independent counsel—there is a right to legal aid—who can intervene and raise appropriate objections to the nature and purpose of the questioning.

I heard what the representatives of the Crown Office said, and undoubtedly it is the responsibility of the court and the Crown in Scottish procedure to ensure that the complainer is not subjected to inappropriate questioning and that the questioning is conducted within the limits of the existing law. However, occasionally there might be a perception that it is a judgment issue for the Crown as to how actively it intervenes. After all, the Crown has a responsibility to remain impartial in criminal proceedings. In a sense, that problem is avoided by allowing the complainer to have someone who is there very clearly to represent her, or occasionally his, interests. As I understand it, the Irish procedures kick in when the application is made for the right to cross-examine, so the issue would not be manifest in front of the jury, because it would be dealt with outside the hearing of the jury.

It would be appropriate to hand you on to Stewart Stevenson, because he is dealing with the amicus curiae.

I will develop the last point that Professor Gane made, because much of the ground has been covered. In what way is it not apparent to the jury that the witness is being treated specially? By what mechanism is that achieved? I understand your point that the appointment of an amicus curiae and the circumstances that lead to the appointment will not necessarily be visible to the jury. However, the operation of that person clearly will be.

As I understand it—I claim no particular expertise in Irish law—this is a recent introduction into Irish law. The amicus has a responsibility at the point when the accused applies to the court for permission to cross-examine the complainer in a certain way. Whether that line of questioning is to be permitted is dealt with as a trial within a trial. The jury is excluded and representations may be made on behalf of the complainer by his or her counsel.

I am not aware of how the Irish intend to deal with the possibility of the representative playing a more proactive role during the trial. The relevant provisions do not seem to indicate that the representative of the complainer would have a role to play during the rest of the trial, but of course, if they did, there would be a question about alleged imbalance. It is difficult to see how jurors would perceive that.

So the Irish legislation simply provides for an amicus curiae during the trial within a trial, not within the trial itself.

As I understand it, yes.

As I understand it, the Law Society suggests that the amicus curiae should be present during the trial. Therefore, we are perhaps dealing with a rather different situation from the one that the Irish have proceeded with. Are you aware whether that has actually happened in Ireland?

I do not know whether that has happened.

More critically, how would you react to the amicus curiae being visible within the trial itself?

I am not sure that there is any strong objection to that. It is not clear to me how juries would perceive such things—it is difficult to assess that. Nor indeed does the measure seem to be necessarily adverse to the interests of the accused. It is the right of the accused to have appropriate legal representation and to have the evidence of the Crown properly tested in the trial. I am not sure that the presence of someone representing the interests of the complainer would adversely affect the interests of the accused.

In what circumstances would you envisage a court using its power to apply the provisions of the bill to other alleged offences of a substantial sexual nature? In your opinion, does the bill provide the courts with adequate guidance on when that power should be used? In written evidence it was suggested that it did not.

The bill certainly provides much greater guidance to the courts on how to exercise their discretion than the current provisions do. I am not sure whether the committee is aware of some rather elderly research—it was published eight years ago—on the operation of the current law. Two leading conclusions from that research were that in a substantial number of cases the law was simply not applied and that, even where it was being applied, it did not achieve its intended functions.

One reason for that is that the current law does not give adequate guidance to the courts on how to exercise their discretion. For example, in the current legislation there is an overriding provision about the interests of justice—the court can admit questioning if it would be contrary to the interests of justice not to allow that to happen.

As I understand it, the bill gives a greater degree of guidance by interpreting

"the proper administration of justice"

to include certain matters, including the

"protection of a complainer's dignity and privacy"

and ensuring that the questioning is relevant to the facts at issue.

It is extremely difficult to set down in greater detail factors that should guide judicial discretion in such areas. The experience in a number of other jurisdictions, notably in the United States, has been that restrictive rules tend to provoke repeated challenges to the fairness of the procedure and—in the United States—the constitutionality of the procedure.

I would be concerned if, in an attempt to protect the interests of the complainer, we went too far and consistently received the complaint that the system had become biased against the accused. I do not think that the bill is open to that accusation at the moment.

On the fairness of the proposals as they affect both the accused and the complainer, what is your opinion on the compatibility of the bill with the European convention on human rights?

That involves two separate questions. First is a view that has been more widely held than it should have been. It has been suggested that the proposal that the accused should not have the right to conduct his—or, exceptionally, her—defence personally is somehow contrary to article 6 of the European convention on human rights. In my view, it is not, for two reasons. First, although article 6 refers to the accused's right to represent themselves in person, it does not mean what it says. Article 6 has not been interpreted in that way by the convention institutions—there is ample case law to back that up.

Secondly, if there were a personal right to question witnesses, the European Court of Human Rights has made it very clear that any such right should be balanced against the interests of the witness and the interests of the administration of justice more generally. In one case, the European Commission on Human Rights referred specifically to the difficult and distressing nature of the questioning that may arise in sexual offence cases and emphasised the need to protect the privacy and dignity of the complainers in such cases.

I believe that the first aspect of the bill is beyond any reasonable prospect of challenge. In so far as the bill seeks to balance the interests of the accused with those of the complainers in restricting questioning, it contains very little that would be open to challenge on the basis of the convention. Indeed, in the case of R v A, in which rather more restrictive provisions than those contained in this bill were being discussed, the House of Lords took the view that the Youth Justice and Criminal Evidence Act 1999 was compatible with the convention. I imagine that any Scottish court would take the same view of the provisions set out in the bill.

The provisions concerning restrictions on evidence are likely to be the most controversial aspect of the bill. In what circumstances, if any, do you believe that the sexual history and character of the complainer should be admissible evidence in a trial for sexual assault?

I am inclined to take the view that, so long as a fair trial can be achieved for the accused, the prior history and character of the complainer should be regarded as irrelevant. It may be relevant in some instances where it can be established that the complainer is likely to be lying. The question whether the complainer consented is much more difficult. In the past, questioning about a complainer's prior sexual history has roamed far and wide and has usually been based on the assumption that women are rather indiscriminate about who they have sex with. That cannot be acceptable. In most instances, it is not even relevant to the question of consent. The bill manages to achieve the appropriate balance in this respect. I am not convinced that the occasions on which, as an exception to the general rule, the court should allow questioning about the complainer's prior sexual history are likely to be frequent. I am not sure whether that answers Bill Aitken's question.

I notice that, for perfectly understandable reasons, you have not cited any specific examples. However, let me present you with an example. If the defence wanted to introduce evidence to the effect that, over a period of some months, a woman had made allegations of rape against a number of men, would that evidence be relevant and acceptable?

It would be relevant to the credibility of the complainer. At issue is whether that evidence can be introduced in such a way that its probative value outweighs its prejudicial effects, that the complainer's dignity is not impugned and that their privacy is not invaded beyond what is necessary to explore the question of credibility. However, such evidence would not necessarily be excluded in cases of the sort to which Bill Aitken refers. The bill would allow it to be introduced.

We all accept that giving evidence of the type that many complainers have to give in cases of this nature is distressing and evokes memories. Do you think that if the prosecutors and judges had been doing their job properly, there might not be a need for us to legislate?

There is some support for that view in the study that was conducted some time ago. The research indicated that in a substantial number of cases the law was not being applied and cross-examination was being permitted in circumstances in which it should have been subject to regulation and control. We should treat that research with caution—it is eight years old and we do not have more detailed or recent research—but it provides an objective foundation for the view that the law has not been applied in the way in which Parliament intended it should be and has not achieved the intended results.

Bearing in mind the fact that that determinations in cases of this type will almost invariably be the result of the deliberations of a jury, do you feel that the jury is able to accept or reject evidence that it might feel is unnecessary or irrelevant?

It is difficult to answer that question, given that we have no way of knowing how juries work and we are not allowed to ask. We have to accept that juries approach their task seriously and that an appropriately directed jury should be able to accept or reject evidence that it feels is unnecessary or irrelevant. However, we have no way of excluding the possibility that jurors continue to be influenced by their personal views about what is appropriate behaviour, particularly in a sexual context.

In its evidence, the Law Society of Scotland said that the definition of the proper administration of justice needed to be amended and suggested that it should include

"the importance of ensuring that the accused can lead evidence in a full and fair defence".—[Official Report, Justice 2 Committee, 26 September 2001; c 424.]

What is your view on that?

That is stating the obvious—it is a fundamental and implied principle in our criminal procedure and is backed up by the rights that are secured by the European convention on human rights. The point about the proper administration of justice is that the bill directs the court's thoughts to matters that might not have been immediately apparent or an automatic line of thinking—that is particularly true of the emphasis on the protection of the complainer's dignity and privacy. The bill also re-emphasises the important issue of relevance.

I am not concerned about the absence of an exhortation to be good as I believe it to be implicit.

Would that provision be similar to the existing provision that the court must be satisfied that it

"would be contrary to the interests of justice to exclude the questioning or evidence referred to"?

There is a difference. First of all, the phrase "interests of justice" is very broad and not particularly helpful. It might be argued that the phrase "interests of justice" seeks to draw a balance between the interests of the complainer, the accused and the community in ensuring that justice is done, whereas the proposed provision places more emphasis on respect for the situation of the complainer. That is not necessarily a bad shift in emphasis, if that is what is intended. Secondly, there is a great deal of importance in the emphasis on relevance in that provision, which goes to the interests of justice.

I asked that question because, in a Scots law text book—I think that it is by Field and Rait—it is stated that that provision was potentially an enormous loophole in the law. I suppose that all the provisions could lead to enormous loopholes if they are not applied properly by the courts because, in effect, they are catch-all phrases. If all else fails, the defence can have a go at using the provision, and we rely on the court to be stringent.

I accept what you say about there being an additional emphasis on protecting the complainer's privacy. The Crown Office has pointed out that that is an important provision; nonetheless, I was worried that it could provide a loophole.

If it is a loophole, it is a much narrower one than the provisions of section 275 of the 1995 act. That section has a curious structure. The preceding section sets out the general principle: we do not go down this road. However, if I remember rightly, section 275 begins with the words "Notwithstanding that principle," and then all the other things come in, including the broad statement about the administration of justice and the interests of justice. That suggests that Parliament states the principle and then says, "We are not really serious about that principle." Perhaps we should not put too much emphasis on the wording, but when a provision in an act starts by saying "Notwithstanding what we have already said, you can go on and do the following things that are not wholly consistent with that", that suggests that the exception becomes wider than the rule.

It is important that the structure of the new sections 274 and 275 maintains the same relationship, but with a narrower range of exceptions and a greater restriction of discretion. They are not introduced by the idea that, notwithstanding what has already been said, you can do something rather different.

Do you agree with the evidence that the committee has received from the Crown Office, regarding the issue of the trial-within-a-trial procedure? It feels that the provisions in the bill would not make that procedure more likely. Would you concur with that view?

That is probably a fair judgment on the balance of the bill. The opportunities for legitimately pursuing that line will be more limited under the bill than they are at present. I understand the concern, which is the repeated questioning of the complainer, but the bill will not make the procedures any worse in that respect. It may make them better.

As legislators, we want to put the best possible statute on to the statute book. Can you suggest how we might best monitor and measure the effectiveness of the legislation that we are trying to introduce?

As a member of the academic community, I am bound to say that there is no substitute for good quality, properly informed scientific research. The study that was conducted by Beverley Brown, Michele Burman and Lynn Jamieson some years ago is of a high quality and very objective, and it comes to reasonable conclusions. That kind of research is precisely what much of the criminal justice system in Scotland needs. There are many excellent academic institutions that can pursue that research, but there must also be follow-up.

Are there any final points that you would like to make to the committee?

Without delaying the committee long, I disagree with one issue of principle in the bill. That is the question of the notice of the so-called defence of consent, as it reveals a serious confusion of principle. The bill proposes to put advanced notice of consent on the same footing as advanced notice of so-called special defences in related matters such as self-defence, alibi and impeachment. The consequence of that is that, if the accused does not give notice, the accused will not be able to run with the so-called defence of consent.

I have two reasons for being worried about that. First, it confuses responsibility for establishing what is a particularly important question. In a sexual assault case, it is not the responsibility of the accused to establish consent. It is the responsibility of the Crown to exclude consent. The Crown has to show that what happened took place without the consent of the complainer.

The implication is that we are moving in the direction that some kind of onus may be put on the accused to establish consent. If that is what we wish to achieve, we should have a straightforward debate about how we want the crime of rape to be established. Do we want to define it as the accused having sexual intercourse with the complainer? In that case, in order to avoid responsibility, it is up to the accused to show that the complainer consented. If not, do we want to maintain the existing principle of a rape having been committed? In that case, the Crown has to show that the complainer did not consent.

That shows confusion of thought as, after all, the notice provisions for special defences relate to matters that are not necessarily within the advance notice of the Crown. They are there to prevent the Crown being ambushed by surprise defences. In a rape case, the Crown will always have to consider consent and prove that there was no consent. I am not sure that I accept the argument about advance notice.

In some of my previous evidence, I suggested that, if the real purpose of the provisions is to give proper and fair notice to the complainer, the Crown can achieve that by advising the complainer that the defence may well seek to claim that consent was given. That was also suggested in the Executive's response to the consultation. In the present situation, I would be surprised if that message does not get across.

In passing, I noticed that, if members look at the proposed new section 275, it contains a reference to

"the issues falling to be proved by the prosecutor or the accused in the trial".

So far as I understand the procedures that apply in all sexual offence cases, I cannot see what falls to be proved by the accused, although the new section 275 contains that provision. It might be useful to seek clarification from those who are putting forward the bill.

I have one final comment, which arose out of a question that was raised earlier, about the questioning of the accused as to his previous record. One of the curious things is that, if the accused chooses to conduct his case in such a way as to put the prosecution witness's character at issue, the accused can be questioned about his prior history.

It is interesting to note that, although that rule has been around since 1898, it has never been interpreted as applying in sexual offence cases. If a police officer who appears for the prosecution is called a liar, that is seen as an attack on the character of a prosecution witness. If it is said that he concocted a story with his colleagues, the accused will expose himself to the possibility of cross-examination about his prior record.

However, if a similar attack is made on the complainer in a sexual offence case, the law has never regarded that as being something that exposes the accused to cross-examination on his previous record. I have always found that to be somewhat anomalous, although I am sure that there is a historical explanation for that to be the case.

We will put that question to the Executive.

I want to spin back quickly to the point that you made about notice of the defence of consent. Surely there can be no question but that the burden of proof does not change, as it is for the prosecution to prove that beyond reasonable doubt?

Yes.

That is also the case with other special defences where the Crown is given prior notice. We have considered that question before, as the Law Society of Scotland put that to us—you may have read the evidence.

Having looked at the question again, I cannot see what difference would be made if it was included as a special defence, as the prosecution has to prove its case. The vast majority of cases are based on consent.

As I said, that is the case in the context of something that has to be proved by the accused in a criminal trial and it is set out in proposed new section 275. That is also the case in references to the so-called defence of consent—risks are presented, which are unnecessary. If the true purpose, and I accept that that may be the case, is to give fair warning to the complainer that that line of questioning may be pursued, there are other ways of doing that. As I said earlier, it would be unusual for the Crown not to make that line of questioning clear to the complainer.

One of the objections that the Law Society of Scotland raised in its evidence to us was that that would deny the defence the right to rely on the failure of the prosecution to make its case. Do you agree with that?

It is certainly a possible interpretation of the legislation and it would seem to be a consequence. If you do not say that the complainer consented, what implications does that have for the responsibility of the Crown to exclude consent?

We shall consider what you have said.

As there are no more questions, I thank Professor Gane for coming to give what has been valuable and clear evidence.

Thank you.

Can we have a comfort break?

A plea has been made for a comfort break. As we are behind time, I suggest that we keep the break to three minutes.

Meeting adjourned.

On resuming—

I welcome the Deputy Minister for Justice, Iain Gray, and his team to the Justice 2 Committee. We are running a bit short of time. Do you wish to make an introductory statement, minister?

No, I am happy simply to answer questions.

That is helpful. We move straight to questions.

I begin by asking you to go over the basic reasons behind the need for the Sexual Offences (Procedure and Evidence) (Scotland) Bill in the light of the small number of cases of the kind to which it would apply. It is important to allow you to get that on the record.

The essence of the policy intention of the bill is to remove fear of and to increase confidence in the judicial process. The intention is to remove fear on the part of the complainers and to increase their confidence that they will be treated fairly and with dignity. The two sides to that, as the committee is aware, are to remove the possibility of the complainer being directly questioned by the accused and to increase the assurance and broaden the scope of the provisions so that character and sexual history evidence are only introduced when relevant and necessary.

Relatively few cases are known in which the complainer has been directly questioned by the accused. One reason for that is that we would only know of that happening if it came to the attention of the public through the media, as has happened in—I think—three recent cases in Scotland.

However, the bill is much more about the confidence that complainers can have in the process that they might have to face. If somebody who had suffered the kind of offence that the bill covers were to ask, "If I go to court, will I be confronted by the person whom I am accusing and will they be able to question me?" the answer at the moment would have to be that that could happen. What they feel about the possibility of that happening rather than the likelihood of it happening is important for such complainers. We believe that it should not happen in Scottish courts, and the bill is designed to stop it.

Before committee members ask questions, I refer them to the paper "Memorandum From the Scottish Executive on the Sexual Offences (Procedure And Evidence) (Scotland) Bill", which clarifies a number of issues that have been raised in the evidence that we have heard. I thank the minister for the paper. It cuts out time in the committee's gaining an understanding of his response to some of the issues that have been raised.

Minister, one of the things that you have not responded to is the Law Society of Scotland's suggestion that the interests of the complainer could be represented through the appointment of an amicus curiae who would intervene during cross-examination. What is your attitude to that?

I am aware of the amicus curiae proposal. Such an approach might have a general role to play in how we deal with vulnerable witnesses, not just those in sexual offence cases.

The policy purpose of the bill is to deal with direct confrontation between the complainer and the accused, whom the complainer believes to be their attacker in most cases. The use of an amicus curiae might provide some assistance and support, but it would not prevent that confrontation if we made no other changes. The bill is not the right place in which to make such a suggestion.

Do you also feel that the existence of an amicus curiae would give special status to a specific witness—the complainer—which might influence the jury one way or another?

There is no doubt that, if such a facility were to be made available, it would give special status to certain types of witness, based on their vulnerability. However, that is an issue for broader discussions about how we deal with witnesses who might be vulnerable. The specific fear that the bill addresses is direct confrontation.

The Law Society raised issues in relation to the role of the solicitor, particularly when there might be perverse instructions or when grounds for appeal might open up. You should have the opportunity to respond to the Law Society's concerns in those areas. The Law Society mentions a possible code of practice and I have noted your response to that. However, it is important that you address that concern.

The Executive's memorandum makes clear our view that there is not a significant difference, because it is possible for a case to be appealed on the basis of poor legal representation. However, we acknowledge that the Law Society's evidence to the committee mentioned serious concerns about that particular instance.

My officials have held dialogue with the Law Society about that and other concerns. For example, we note that the bill sets out the solicitor's duty when receiving inadequate or perverse instructions. The Law Society feels that better protection would be provided if the bill were to set out the solicitor's duty in the absence of proper instructions. That expression relates to the Law Society's code of conduct and is well understood by the legal profession. We would therefore be willing to consider such changes if the Law Society feels they would make clearer the position of solicitors.

There is case law relating to the requirement on the legal representative to take account of the instructions that they receive from the client. In that case law, however, there is also an indication of the latitude that solicitors have to present a defence that they believe is in the best interests of their client.

In your memorandum, you accept the Law Society's point in relation to appointment by the court during a trial and state that you will propose an amendment at stage 2 to remedy that.

That is the case.

Section 5 of the bill would prohibit an alleged sex offender who has been released on bail from personally seeking a statement from the complainer. However, an alleged sex offender who is allowed to remain at liberty without being on bail is not covered by that provision. Is there a reason for that difference in treatment?

That is a matter of detail that is new to me. Perhaps I may consider it and come back to the committee.

I confess that the committee spotted that detail only recently, so there are confessions all round. However, the matter is important and it must be cleared up before the committee's stage 1 report.

The provision is clearly intended as protection, so that the complainer is not confronted by the accused outside the trial. If the bill contains a loophole, we will have to consider it.

The minister said that one of the reasons for drawing up the bill was to ensure that victims feel that they have some protection. It has been suggested to the committee in evidence from, I think, the Law Society of Scotland, that the protection already exists and that if the existing protection was used properly, or if proper training was given, we would not need the bill. Do you agree, or do you feel that the bill is required? Further to that, will you comment on the suggestion that the bill will not give the protection that we seek for the witness or victim?

The bill provides two kinds of protection for victims or complainers. The first is to remove the possibility of the accused presenting his case and therefore conducting cross-examination. Of course, if inappropriate questioning is undertaken in a trial, the court should intervene and stop it. The evidence from the small number of cases—three—in which the accused has conducted the cross-examination shows that inappropriate questioning took place in only one of those cases. In the two other cases, the questioning was not inappropriate or inadmissible in court. However, that misses the point. Given the nature of the offences with which we are dealing, it is the fact that the complainer might be confronted and questioned by someone who has committed an intimate offence on her that leads to the fear. There is no current provision to prevent confrontations that happen within the bounds of propriety in the courtroom. We believe that no complainer in those circumstances should have to face such confrontation. That is why that aspect of the bill is required.

The current provisions restrict the use of sexual history evidence about the complainer; the judge must consider whether such evidence is admissible. The provisions in the bill are wider, in that they will place restrictions on character evidence that is not sexual character evidence. That is an extension of the current protection. An example would be evidence that relates to medical history or to a history of heavy drinking, which is not directly related to sexual behaviour, but is an attempt to undermine the character of the complainer or to present them as immoral.

Mary Mulligan asked whether the current provisions and protections are applied properly. Although much of the concern about the issue is anecdotal, the committee will be well aware of one significant piece of research entitled "Sexual History and Sexual Character Evidence in Scottish Sexual Offence Trials", known as the Jamieson report. I think that the committee has heard evidence from the authors of that report, which found clear evidence that evidence was sometimes admitted after an application had been made and then used in an unpredictable or undesirable way. The report also found that such evidence was sometimes slipped in without an application for its admission being made because the rules were not being enforced. Although we must acknowledge that the research for the Jamieson report was conducted some time ago, there is no evidence to suggest that there has been any change since then. As a result, we believe that there is a requirement to make the protection broader and perhaps more explicit, which is why this legislation is necessary.

Are you confident that the bill's proposals will mean that witnesses and victims will be more confident in proceeding with their cases?

We certainly think that they should be. For people who are afraid that they will be confronted and cross-examined by the accused, we are removing that possibility. However, there is still the possibility that sexual history and character evidence could be admitted. The new legislation will introduce the higher test that the information must be relevant and significant in a probative sense. That test will be a decision that the judge will have to make.

That said, it is incumbent upon us—and it is our intention—to monitor the effect of the new legislation, if it is passed by Parliament. We intend to establish some baseline figures now, and then to monitor how those figures change over time as the legislation is enacted.

We had not intended to ask about notice of defence of consent until about 10 minutes ago, when we heard some evidence from Professor Gane that we would like to put to you.

Given that the definition of rape is sexual intercourse with a woman without her consent and that, in a case of rape, the Crown would require to demonstrate that such consent was not present, is there really a requirement for the special defence of consent to be notified?

The purpose of introducing a requirement for prior notification of a defence of consent is to give fair warning to the complainer. Such notification will allow the complainer to be as well prepared as possible—not in a legal sense, but emotionally and personally—for what they are likely to face in a criminal court.

If I understand Bill Aitken, the question then is whether the complainer should understand that the defence of consent will be part of the trial. However, there are instances in which a complainer might find it unexpected. For example, when a woman has been attacked by a complete stranger, it might never cross the woman's mind that the accused might try to lead a defence that claims that she was a willing participant in what happened. The provision simply ensures that the complainer receives fair warning that the possibility that she consented to the act will be examined during the trial.

I understand that point. Such a possibility might not arise in the remotest dreams of a woman in that position. However, in practice, the depute fiscal dealing with the matter would point out to every complainer, "Look, I know you might find this distressing, but there is a possibility that it will be suggested during the trial that you gave consent." Does that not happen?

I would have thought that that was only good practice, but I see no harm in ensuring that good practice becomes 100 per cent practice in future, if we so desire. That is the bill's purpose.

Professor Gane pointed to part of proposed new section 275 of the Criminal Procedure (Scotland) Act 1995, in which it appears that the introduction of this measure would transfer the burden of proof to the accused. Will you comment on that?

There is no intention to do that. The prior warning that is required for the defence of consent does not change the position that the prosecution must show lack of consent as part of proving that the offence took place. The phrase in proposed new section 275 that probably concerned Professor Gane is:

"facts are relevant to issues falling to be proved by the prosecutor or the accused in the trial".

I repeat that we do not intend to shift the burden of proof. If the drafting of that section carries that implication, we may have to consider that. Other special defences require prior notification, but they are not intended to shift the burden of proof either.

I will return to the restriction on evidence. The Law Society of Scotland said that the bill's definition of the proper administration of justice should, to provide a more balanced definition, be amended to include reference to

"the importance of ensuring that the accused can lead evidence in a full and fair defence".

The Law Society suggests that those words be included. Part of the dialogue has concerned whether the proper administration of justice is defined enough. Do you have a view on that?

That seems to be the statement of a fundamental principle that we would not want to breach, but I will ask Mr Foubister to comment.

The purpose of the definition in the bill, as has been brought out in earlier evidence, is to draw attention to aspects of the proper administration of justice. We do not feel that there is an overriding need to include elements such as the fairness of the trial, which might be taken as obvious.

You might have had the chance to read the evidence that we received from the Equality Network, in which Tim Hopkins described what he believed to be discrimination in the bill against gay men. I notice that your memorandum makes some response to that, but what are your intentions on the points that he raised?

I read the evidence that Tim Hopkins gave. He had a point. We intend to ensure that the bill is not discriminatory. At stage 2, we intend to consider an amendment that might meet Tim Hopkins's concerns. He has some amendments in mind. We would be willing to examine what he might suggest.

The Equality Network suggested that proposed new section 288C(2)(b) should be amended to read

"without consent or with a person under the age of sixteen years".

That is a straightforward suggestion.

On the face of it, that is the case, but we should consider the drafting of amendments in more detail with the committee at stage 2.

We have some general questions about how the provisions will work in practice.

I thank the minister for making it clear that the Executive will focus on monitoring, because the committee is concerned that the bill should lead to change in the courts. There is concern that existing legislation has not resulted in the expected change. You said, minister, that you would draw together baseline figures, which you would use for monitoring. Could you develop that and explain the nature of the monitoring and of the baseline figures that you expect to gather and use?

It would be our intention to have the work done independently. We would have to work up some kind of brief, which we would pass to an independent research body. Potentially, we might put the research out to tender. The baseline figures should provide answers to some of the questions that have been raised about the situation following the Jamieson report, for example how often some of the things that we are concerned about and some of the measures that are in place have been used. We would then have a monitoring programme for the future. We would consider, for example, the number of applications for the use of sexual history or character evidence and the percentage of applications under which such evidence was admitted.

We heard encouraging information from Susan Burns and Alison Di Rollo of the Crown Office about planned training. It was not entirely clear that that training would be directed at everyone involved in the process and in the application of the new rules. We are keen for everyone involved to be well equipped to implement the new legislation when and if it is passed. How do you intend to take action to ensure that it leads to change?

We maintain an interest in the work of the Judicial Studies Committee for Scotland. The encouraging information that I assume the committee received from Crown Office colleagues was that they could not stay too late because they had to set off to be involved in induction training for new judges and sheriffs. That is a significant step forward compared with recent years and it is a sign that progress has been made. I hope that that progress continues.

We may return to the broader questions around vulnerable witnesses in the court system early next year, when our consultation paper is published. There are other parties involved, including solicitors and advocates. I understand that during evidence-taking sessions the committee discussed the compulsory professional development training that lawyers have to undertake. We hope that that training is improved and that more of it is done in future. I will ask Mr Beaton, who has more experience in such matters than I do, to say whether things are improving.

The committee has heard evidence, most recently from the Crown Office, about the recent developments in training. My colleagues, in anticipation of the passage and implementation of the Sexual Offences (Procedure and Evidence) (Scotland) Bill, have discussed with the Law Society of Scotland the nature of the training arrangements that it wishes to put in place. It is important for us to include all the component parts of the system in a uniform strategy.

On judicial training, there is no doubt that the establishment of the Judicial Studies Committee has led to a much higher level of activity and a much greater focus on training for sheriffs and, now, senators of the college of justice and lords commissioners of justiciary. That is a major innovation. The fact that they are opening themselves up to hear from interests other than themselves—that idea is gaining ground—is of major importance.

Officials and, I am sure, ministers wish to encourage all initiatives in that regard. As we hold discussions with all the interested parties, including the Law Society, we will emphasise the need for a comprehensive package of implementation measures. I have spoken to the director of judicial studies about the matter with a view to having a dialogue about the nature of the training that he might want to propose to the judiciary to reflect its interests.

I want to come back briefly on that answer. My business background means that alarm bells ring whenever I hear the words "hope", "try", "encourage" and "emphasise". I would like us, if we can, to be much more positive and proactive. I am sure that we all share the goal of the bill—I have no concerns about that at all—but I would like to focus on using language that is more engaged than some that we have heard.

The point is well made. I add the specific detail that those solicitors who are appointed by the court to represent those who had wished to represent themselves will be potentially important actors in the new procedures. I am pleased to say that the Law Society revealed in the discussions that it had with my officials that it is considering setting up its own database of solicitors who would be willing to volunteer to represent such people and who perhaps have experience of similar circumstances. Having taken an interest, those solicitors might also have undertaken some training, have considered the procedures and have a good understanding of the position in which they would be placed, as we discussed.

That seems to be by far the best way forward. It is much better than having to set up the kind of formal duty solicitor scheme that might have been the alternative. With regard to such specialism, there is hope of progress and a positive response from the Law Society.

You will gather that that is of primary importance to the committee and will be reflected in our report. I am particularly pleased that you mentioned that the provisions would be monitored after they had been enacted because we feel that although the provisions are welcome, if concerns are not addressed we might as well stick with the old provisions.

Before we conclude, I will ask a few questions by way of tidying up, as this is the last meeting at which we will take evidence from the Executive on stage 1 of the bill.

You talked about the formal procedures by which an application is made prior to the trial for the use of sexual history or character evidence. The Law Society has expressed worries about how cumbersome that procedure might be. I ask you to address a point that the Law Society made to the committee. The concern was that the judge would make decisions that the jury would usually make.

The bill is about striking a balance between protecting the complainer and protecting the right of the accused to a fair trial. I believe that judges already have the role that you mentioned in the case of some other special defences and have to screen the admissibility of evidence. There is not a significant shift of responsibility between the judge and the jury. There is experience in the Scottish system of that kind of screening of evidence for admissibility.

A number of witnesses have raised concerns about the trial within a trial process. We have noted that whether a trial within a trial should be held is within the judge's discretion, so it is not absolutely necessary that the complainer be present to give evidence twice.

The committee's understanding is absolutely correct. It is possible for such a procedure to take place, but it is not necessary because the judge can decide on the basis of the written application. At the moment, judges seldom, if ever, use the trial within a trial to decide whether evidence is admissible. They do not ask for evidence that has by its nature been tested for admissibility to be given again in full court in front of the jury. The evidence that we have at the moment leads us to believe and hope that the trial within a trial procedure would not be necessary in most cases.

A balance must be struck between ensuring that the evidence is tested for its admissibility before it is allowed in court and doing so in a way that ensures that that is done properly, so that such evidence can be used in a trial and the right of the accused to a fair trial is maintained. It is fair to say that it is not impossible that the complainer might have to give evidence twice, but we believe that that would happen seldom, if at all. We expect that research will be carried out on that aspect of the workings of the new provisions.

Should the judge be able to make a decision on the evidence without a trial in the vast majority of cases?

That is our belief, but the application of the provisions will have to be tested.

Is that one of the aspects that you could include in the monitoring process?

Yes.

I have a final question. At our previous meeting, we heard from witnesses from the Faculty of Advocates who made a controversial proposal for the redefinition of the crime of rape. Although it does not relate directly to the bill, we thought it important to ask you about that. The Faculty of Advocates gave evidence to the effect that juries tend not to convict when presented with a typical date-rape scenario, but if different categories of rape were to be defined, a higher conviction rate for serious crimes would result. Obviously, we thought that the proposal was controversial and we are not saying that we agree with it, but we felt that in the context of the whole dialogue about the crime of rape and sexual offences, the point was an important one, on which you should be given the opportunity to comment.

I will take the opportunity to comment, but only in a limited way. The proposal is controversial and has been examined to some extent in England and Wales. The Home Office review "Setting the Boundaries: Reforming the law on sex offences" concluded that a change similar to that proposed by the Faculty of Advocates should not take place. I remain to be convinced that a rape that occurs between strangers is somehow worse than a rape that takes place between two people who know each other. It seems to me that the impact of the latter could be just as bad or worse—it depends on the circumstances. The seriousness of the individual case must be reflected in the sentence and the court has broad discretion in such cases. I think that part of the case that the witnesses from the Faculty of Advocates were making was probably that that led to some reluctance in juries to convict.

For today's evidence, the key point is that the definition of rape is not the business of the bill. We await the result of the Lord Advocate's referral on the definition of rape. I have no doubt that the Parliament and/or its committees will return to this controversial matter, but it is not a matter for discussion today.

Stewart Stevenson has a question. Please make it brief.

May I suggest a useful comparison? In charges of theft, the jury may, as an alternative, give the verdict that the defendant is guilty of reset. In your opinion, would juries be likely to convict more often if they had an alternative conviction of, say, serious sexual assault instead of rape?

I do not know and it is difficult to find out because it is not possible to do research with jury members in Scotland. It is difficult to find the evidence base for that. I can see why some people might think that that is the case. Such questions are difficult and complex and should be properly addressed, but they are not—and are not required to be—in the bill that we are dealing with today.

That concludes our evidence-taking session. I thank the minister and his team. The session has been helpful.

May I say one final thing in closing? Mr Stevenson made the point that we will know that the legislation had succeeded if there is a change in the courts. Although I think that that is true, I would like to leave the committee with the thought that we will know that the legislation has succeeded if there is a change in the fear that is felt by those who have to face entering the courts in such circumstances. That is the real policy purpose of the bill.

That is accepted. Thank you.