Today is the final planned evidence session on the Sexual Offences (Scotland) Bill. I welcome the Lord Advocate, Elish Angiolini QC; Fiona Holligan, principal procurator fiscal depute; and Andrew McIntyre, head of victim policy in the Crown Office and Procurator Fiscal Service. We are grateful to you all for giving evidence. We will go straight to questions.
Why do you believe that it is now necessary to put the law relating to rape, sexual assault and other matters that are covered by the bill on a statutory footing? What is wrong with the common law in this area of the criminal law?
You used the word "necessary"; what is proposed is probably not necessary, but the question is whether it is desirable and in the public interest. We could continue to prosecute with the common law as it is.
That is very clear—thank you.
I appreciate that section 41 suggests that the common law will be abolished at the time of commencement, in so far as the provisions relate to offences that take place post-commencement. I am not convinced that that is absolutely necessary. It is for the committee to consider whether to remove law, or simply to allow it to fall into desuetude as we begin to use the statutory offences. There are many instances in which codification or statutory alternatives have been developed by Westminster and the Scottish Parliament but in which we have retained the common law. For instance, the crime of vandalism is a statutory offence that goes back to the Criminal Justice (Scotland) Act 1980 but which has a common-law equivalent of malicious mischief. Although prosecutors use vandalism, malicious mischief is available at common law should they wish to use that. The extent to which we want to have that facility is a matter of choice.
That was clear. Basically, you are not saying that there is no risk that, by placing the law on a statutory basis, we will lose the flexibility that is inherent in the common law; you are saying that there is little risk.
The common law has been set out and we have a significant body of jurisprudence on it. In some respects, we have a fairly restrictive jurisprudence on rape. If the Parliament passes the bill, it will give a much wider definition of rape—in a sense, it will become a different crime. That has risks attached to it because of the other factors and variables. Many of the people who are selected for jury duty when the indictment is one of rape have a narrow notion of what rape amounts to—they have the classic notion of a woman being dragged off the street. However, at least 90 per cent of cases are not like that, as they involve acquaintance. Rape may occur in the context of a marriage, a partnership or an otherwise consensual sexual relationship. If we are widening the crime of rape, we have to hope that there will also be an education campaign to enable the public to understand that rape is no longer the narrow crime that it was prior to the commencement of the provisions.
The term "sexual" appears throughout the bill and at various points the bill provides that conduct is sexual
The alternative would be to have a subjective approach to what is sexual. What might be sexual in one person's mind might be utterly innocuous in another's. It is a question of how we draw the boundaries. A reasonable, objective test is a sensible way forward.
That is very clear. Thank you.
We turn to part 1 of the bill.
Good morning. In your experience, what are the main obstacles to conviction in rape and sexual offences cases?
Using the current law?
Yes.
They vary, but there are universal obstacles throughout the world. Part of our problem in Scotland has been that some of the debate has been inward looking. In particular, the media sometimes imply that Scotland is a social backwater in relation to the crime of rape.
Thank you for that comprehensive answer. To what extent will the bill improve conviction rates?
There is no panacea for the low conviction rates for these types of crime. It must be made clear that there is no magic bullet. I hope that a package of changes and reforms and consideration will adjust the situation. It is not about improving the conviction rate; it is about ensuring that sound cases are put before juries, that juries are placed in a position where they are able to test the evidence that is available and that the process has been expeditious and supportive for the victim as well as fair to the accused. That balance must be achieved because this is a very difficult area of criminality. It is not about looking at a barometer and saying that we want to achieve a certain quota of convictions next year. That would amount to a drive towards miscarriages of justice.
On that point, would it be appropriate to do what I think was suggested by a witness at last week's committee meeting, which is to undertake research into why jurors come to the conclusions that they do in rape cases?
Research on jurors' decisions is currently prohibited by law. That is partly in order to protect jurors from intrusive, invasive questions that may render them more vulnerable and perhaps less willing to do jury service. Again, that is an issue for the Parliament to consider because we would need an amendment to the law to allow such research.
Witnesses to the committee have been exercised about the use of the word "rape", and have endorsed your view that the current use of the word is far too restrictive. What are the distinctive characteristics of rape?
They are about to change. Are you asking about the current law, or—
What should the definition be? We acknowledge that the current definition is restrictive—and any new definition ought to include it—but what criminal offences should the word "rape" cover?
Section 1 of the bill relates to penetrative abuse with a penis—and it relates to abuse committed by both men and women. I think that there has been a suggestion in the committee that such abuse could be committed only by a man, but it could be committed by a woman with an artificial penis or by a woman who has a surgical prosthetic. Equally, it can be committed by a woman art and part, or in concert, with a man. There is no intention to abbreviate or adjust the common law or the statutory provisions on art and part as they appear in the Criminal Procedure (Scotland) Act 1995. Such provisions will still apply.
Can I therefore take it that you would support the idea that there might be a further statutory crime of rape with an object, or possibly another body part?
The penis of an animal is another object that can be used. We have had to deal with such a case.
So you would be supportive of such a further statutory crime.
It is a matter for the Parliament. Sections 1 and 2 do include such crimes—there is no question about that. It is a matter for the Parliament to determine whether it wishes to identify such a crime as something separate and distinct from what is covered by sections 1 and 2, or whether it is content that the fact that the two crimes rank equally means that it would be of no particular consequence to cover such offences in either of those two sections.
Quite a number of witnesses were exercised by the fact that section 2 does not include the word "rape" under circumstances where they felt that it would be appropriate. Many people have told us that they would like there to be some mention of rape with an object, in addition to the provisions in section 2 as they stand.
It is important to listen to such requests, and I hope that the committee will give consideration to such matters.
I have a point about the overlap between section 1 and section 2—section 2(6) in particular. Some people who have given us evidence believe that an overlap is created between sexual assault and rape. Are there any cases where it might be appropriate for the Crown to charge penetration with the penis as a sexual assault, rather than as rape?
Not if it could be proved. The difficulty would be in cases where it might not be possible to corroborate the fact that it was a penis that made the penetration. Victims might be blindfolded in some cases, and they might have no idea with what they have been penetrated. That is why I mentioned the somewhat grotesque descriptions of what is possible.
I turn now to the coercive aspect that is dealt with under sections 3 to 5. With your experience as a prosecutor, can you describe some of the situations that those sections are intended to cover?
There is an infinite selection of scenarios. My colleagues might be able to provide more examples than I can. The classic situation would be where an individual is detained and obliged to watch other people engaging in sexual activity in front of them, or they are forced to watch hardcore pornography, with the clear inference that it is being done for the sexual gratification of the individual or for the purposes of humiliating or distressing the individual.
We always have to look for the unintended consequences of certain situations. For example, what would happen with a situation in which a couple have consensual sex in the bedroom where their infant child is? The child might be aware that some activity is going on and clearly has not consented to sex taking place. Technically, that would stand as an offence under the bill.
Let us consider people's economic circumstances. Many people in Glasgow lived in single ends, and if they were ever going to have a family, they had no choice but to have sex in the presence of their children because they all slept in the same bedroom. To an extent, one has to consider the prosecutor's common sense. When conduct takes place in a flagrant, reckless way—with wilful blindness—and people who are out of their minds with drink strop about naked having intercourse in an obvious way in front of children who are conscious and running about, those facts and circumstances clearly demonstrate if not intention, then recklessness.
I am relaxed about the idea that the prosecutor would use their powers with discretion, but I wonder whether we might still have to look at the drafting of the bill.
Andrew McIntyre has a comment.
Under the bill as currently framed, I hope that we will not run into such situations, because the bill includes the purposes behind such conduct. We would have to show not just that the child was present during the act but that the intention of the parties was to obtain sexual gratification or to humiliate or distress the child. We have expressed concern that that approach sets a standard that is too high for the prosecutor. Our concern might be addressed by having a reasonable inference test, which would allow us reasonably to infer that, in all the circumstances, the purpose of the conduct was to obtain sexual gratification or to humiliate or distress. That would solve our problem of the standard in the bill being too high—we did something similar with the Prostitution (Public Places) (Scotland) Act 2007. In cases involving circumstances such as those that the Lord Advocate described, in which there was anxiety that the act was perfectly reasonable, it would not be reasonable to infer that the conduct met that test.
Do both the conditions that are outlined in paragraphs (a) and (b) of section 4(2) have to apply, or does one in isolation suffice?
As I read it, only one condition has to apply. My reading of section 4(1) is that we would have to prove that one of those conditions, rather than both, applied.
We will have to look at the matter again.
To further clarify the matter, we could simply insert an "or" between paragraphs (a) and (b) of section 4(2).
It will not be beyond the wit of the Scottish Government to come up with a drafting amendment at stage 2. Thank you for that, Mr McIntyre.
Section 9 defines consent as "free agreement". Does that definition advance the law? Does it offer a scintilla of extra meaning? If that is what consent means, why is the phrase "free agreement" not used throughout the bill? Using two words rather than one might make things simpler.
The term "free agreement" is readily understood in that context because of its breathtaking simplicity and beauty. The term "consent" is in use, but we know from the authorities and case law that, in developing jurisprudence, people have struggled with the extent to which consent can be inferred.
I agree that there is something attractive about replacing "consent" with the term "free agreement" throughout the bill. I have said in the past that that would be better as it would remove one of the layers of definition. The only thing that makes me pause is the extent to which the common law will continue to apply, which we discussed earlier. There is a great deal of common-law interpretation of consent. I do not know authoritatively, but I wonder whether retaining the term "consent" in the bill will allow us to introduce more easily its interpretation in the circumstances of a case, which has assisted us in the past. That is one thing to bear in mind. If we decide that the term "consent" should no longer apply, we might be putting a pen through all the authorities that have considered what consent is—and what it is not.
If I understand correctly, there are two issues. First, there is a language aspect, in that the words "free agreement" are more easily understood by the public—they are a clearer, more common expression in the English language. Secondly, as the Lord Advocate indicated, it goes a bit further, in that there are nuances of meaning in the expression. However, I challenge your last point. If we redefine consent, will we not, almost by definition, be throwing out previous definitions of consent?
That is one argument. However, the other argument would be that in redefining consent, we would be widening the definition, rather than restricting it. We would be adding a dimension to it—it has to be free agreement, not just agreement. There would still be a kernel of consent, which would be the same as it always was—simply, the agreement part of it. How we view it will change, depending on the circumstances of the case and the authorities that we rely on in future.
The circumstances in which conduct takes place without free agreement have given the committee a bit of trouble in a variety of ways. Section 10 and all the different situations that it lists sound terribly complicated. In general, will section 10 make it easier for you, as prosecutors, to convince a jury that what took place was done without consent—without free agreement—or do you anticipate any practical problems?
With all new law, particularly a radical change such as the bill, we anticipate challenges in court. Challenges are inevitable, and they are why, if one were risk-averse, one would never change the law: one would just take the safe course of action and stick with what one has. The nature of litigation is that if something is new, it may be worth testing in court. It is not a bad thing if, early on, we have interpretation from the courts of a statutory definition. As we all know, what legislators want and what they achieve can be quite different. The courts must interpret the law that they get, and not what the parliamentarians hoped they would get.
Should other circumstances be added to the list in section 10?
Circumstances could be added—that is the nature of the issue.
I appreciate that a general provision applies.
Yes.
Are you happy with the phraseology? As you know, some witnesses have expressed reservations about the extent to which situations of historic abuse will be covered. Would the words "threats of violence made then or at some previous occasion", or another elaboration, do the trick? As a prosecutor, are you happy that the phraseology is adequate to cover such situations?
The committee must look carefully at the drafting. Further consideration would be helpful. A causal nexus would have to exist between the previous incident and the event. Something might have happened 30 years ago, but everything might have been a honeymoon since then, so the problem might not have recurred. We would have to show in evidence how the previous incident affected consent on the relevant occasion, which would be extremely difficult to do. The wider the gap between the incident and the threats or violence, the more difficult it will be for the court to infer an absence of free agreement and the awareness of the accused. Part of the mens rea is that the accused was aware that the woman did not agree in the circumstances.
The concept of prior consent in section 10(2)(b) has caused some difficulty. First, it sounds a bit odd—it suggests somebody signing a form to agree to sex later, after they have fallen asleep. Some people have suggested removing the phrase
The issue is difficult. At the moment, if a woman is sleeping or is unconscious from alcohol and someone has intercourse with her, the Crown proves its case on the basis of the circumstances and the absence of consent. However, we would still have to take into account any evidence that, 10 minutes before, she had said, "I'm very happy to have sex with you under any condition whatever. Just have your wicked way with me", giving the man carte-blanche.
Making prior consent an explicit part of the defence would shift the burden of establishing such consent on to the accused and would have the same practical effect as the approach that exists in the current operation of prosecutions.
I appreciate that a lot of this comes down to practical circumstances. What about circumstances involving, say, a husband and wife or long-term partners who routinely sleep together? A lot of alcohol might have been consumed and if one party fell asleep the other might touch them in a sexual way—as, indeed, they have done before with consent. If these matters are not tightly defined, there might be a lot of potential for all sorts of criminal difficulties to arise from intrusion into personal circumstances. If, as you have indicated, these are criminal offences of a capital nature—
They are not of a capital nature.
Well, they are serious offences that are prosecuted in the High Court. Does the bill do the trick in excluding more ambiguous situations—if I can describe them that way—from criminal liability?
That is the aim that the bill seeks to achieve, and I believe that it achieves it. However, it might be beneficial and worth while to consider before stage 2 whether the notion of prior consent should be refined to ensure that it does not have some meaning that the legislation did not intend to convey. It would certainly not be the intention of the prosecution to prosecute, for example, a husband who might wake up his wife by kissing her on the stomach or by any other action that might be expected in a perfectly happy, consensual sexual relationship. The provision is intended to protect women and their autonomy from people who might take advantage of them when they are at their most vulnerable, such as when they are in a state of utter intoxication, are unconscious or are asleep. Many serious rapes of that nature have taken place and have been prosecuted.
On a slightly different point, the Faculty of Advocates, in particular, has suggested that, under section 10, a man who induces a woman to have sexual intercourse by deceiving her about his age is committing rape. I have to say that I did not read the section in that way, but is that a possible interpretation of the provision?
The intention behind section 10 is to address deception in relation to purpose. For example, doctors have been prosecuted for rape or sexual assault when the nature or purpose of a medical examination or other activity that they were undertaking turned out to be very different in quality. At a de minimis level, it would all depend on how important the factor of age was in the circumstances. The same might apply if, for example, a person pretended to be a man or unmarried to have sex with a woman, although technically some of those cases might be prosecuted as fraud rather than as rape. The prosecution would have to consider the material nature and purpose of the deception and whether, as a result, the victim did not give true free agreement to the activity.
So in broad terms it is unlikely that section 10(2)(e) would cover the circumstances that the Faculty of Advocates highlighted.
The point is that the provision would cover all such situations. However, as the Lord Advocate says, it would become a matter of materiality and discretion as to whether the factor was sufficiently important to merit prosecution. Prosecutions on such grounds are the very cases on which we need the courts to make decisions and establish a line of authority. The aspect that you mention could conceivably be covered.
As long as I am Lord Advocate, the prosecution of a person on the basis that they deceived someone about their age will not materialise. We prosecute serious sexual offences, rather than indicting someone for what may be a trivial deception or something that is not of particular significance. My own gender is often guilty of not telling the whole truth about age in social encounters.
I have a question on the objective nature of the consent that is implied in section 12, and how it applies to the position that is set out in section 10. Is there any danger that we are creating an offence of strict liability in relation to any of the situations that are listed in section 10? We are talking about an allegation of a serious crime against a person.
No, because there must be mens rea—intention or recklessness. Mens rea is part of the process—the offence involves not only the actus reus of a person having sex with a woman who is unconscious or asleep, but that person's knowledge that the woman is unconscious or asleep and their intention to have sex with them in circumstances in which they have no reasonable belief that the woman consents. That is not strict liability.
In section 10(2)(a)—the alcohol provision—the issue is that consent is defined as being absent. However, the only indication of expression of consent is that the conduct occurred when the person was drunk. Does that not come very near to creating an offence of strict liability?
No, because it must be shown that the individual intended to have sex with the woman and that they were aware, or had a reasonable belief, that the woman was incapable. It will be for the courts to determine incapacity in those circumstances. We know that there are degrees of sobriety and that people manifest insobriety in a variety of ways—some very floridly, by falling across the pavement, and others by sitting quietly in a semi-fugue state in the corner. Much will depend on the facts and the circumstances, and I think that the court will apply the law fairly in circumstances in which it was patent to all who were present that the individual was intoxicated and not in a state to make a free agreement.
So in short, the phrase "incapable" is a substantial challenge to the prosecution?
Yes—the court will interpret that subsequently.
I appreciate the opportunity to ask a question—I will be brief, so as not to take away time from committee members who have a significant number of questions.
Before the Lord Advocate answers, I confirm that we have received correspondence from the Equal Opportunities Committee that, to an extent, deals with the circumstances that Johann Lamont has raised.
Obviously, the Cabinet Secretary for Justice is also considering those matters in relation to stage 2.
It will be difficult for the Crown to establish that a history of domestic abuse, without immediate threats of violence, is sufficient to come under one of the circumstances listed in section 10. If we are ever able to do that, it will be through section 10(2)(c). It is important to recognise that section 10(2)(c) is not restricted by time. It relates to threats that were made at any time—not just threats of violence, but threats in the wider sense. In situations of domestic abuse, threats are not restricted to violence. The accused can threaten to kill himself, to make disclosures about his intimate relationship with the victim or to humiliate them in some other way. If we accept that the provision has wide latitude in time and is not restricted to threats of violence, it could be used to establish lack of consent in cases of domestic abuse.
We move on to the question of reasonable belief. You will have noted that last week we heard evidence that section 12 is not as effective as it might be because it does not provide for the accused to be compelled to give evidence. Do you see that as a problem?
There is no difference from the current situation. The only alteration that the bill will make is that we will move from an entirely subjective test—the accused's honestly held belief, however unreasonable it may be—to a test based on reasonable belief, which is more objective. That should make matters easier because what is reasonable in the circumstances will be inferred from the facts and circumstances that are put before the court in proof. Individuals may speak to the conduct of the accused and the victim at the time of the alleged offence. They may describe how the accused and the victim were behaving—at a party, for example—and how the victim appeared to them. Was she happy? Did she look safe and content in the accused's company? Those factors, as well as anything that the accused said to his friends, when he was being interviewed under caution by the police or—more rarely—during judicial examination, may be derived from the evidence.
Has conservative use of the power that you describe been governed by the fact that more frequent use could cause difficulties under the European convention on human rights?
There is no absolute right to silence under ECHR—there is a presumption of innocence, which does not require the accused to indicate his position in all circumstances. However, European jurisprudence views some degree of proactivity on the part of the accused as acceptable in a criminal trial. In solemn proceedings, an accused cannot plead an alibi or self-defence without giving prior notice. The notice does not establish the defence—the accused must find a basis for the alibi or defence of self-defence in the Crown case, or must lead evidence that raises reasonable doubt about the Crown case and establishes the defence. There is no expectation of utter passivity from the accused in the trial process. Cases such as we are discussing will be no different.
I accept that an accused cannot argue a special defence unless he gives evidence in support of it. However, we are talking about a slightly different situation, in which the accused stays completely quiet throughout proceedings. Would that put the Crown behind the 8-ball?
At the moment, we must prove mens rea: we must show that the accused intended to do wrong, or acted recklessly, which, incidentally, shows that he had no reasonable belief as to consent or knowledge. When we investigate cases as prosecutors, we do not do so with a view to obtaining a conviction at all costs. Our role is to ensure that the evidence is fair and balanced to the victim and to the accused, not to skew the case or exclude evidence that may support our case but be inconvenient to the proposition that the prosecution is putting before the court. That is an important part of the prosecutor's function as an officer of the court.
Last week it was stated to us in evidence that the Scottish Law Commission intended that the provisions relating to consent and reasonable belief should apply to attempts to commit rape and sexual assault. How that will be achieved?
I do not see a distinction between the complete offence and an attempt to commit that offence. The latter is also a crime, and the same provisions would apply. However, evidence must be available to support that, therefore much depends on what prevented the crime from becoming complete. It is particularly challenging to provide such evidence in rape cases.
I cannot see, in the bill, any provisions that deal with attempts.
If the offence is available for the completed crime, it has to be available for an attempt. It is the same with theft. A defence in the case of theft is that the person is the owner of the property or had no intention to steal—that applies equally to an attempt to steal. We can consider the matter further if the committee would feel more comfortable if it was specified in the bill. However, the difficulty is that there are also conspiracies to commit crimes. It might be necessary to list all the inchoate offences, not just the attempts. The offence would also need to be made available in cases of conspiracy to rape.
We will consider that in due course.
The offences against young children that are set out in sections 14 to 19 are designed to protect young children, but can also be committed by young children. Is it correct, as a matter of principle, that offences that are designed to protect young children can also be committed by members of that protected group?
Whether that is right is a matter for Parliament. I am the prosecutor and I implement the law that Parliament and the Executive determine. As for what is right, if you are asking for the personal view of the Lord Advocate, I suppose that it is a matter of indifference to the world what my view is. My job is to implement the law and to interpret the public interest when that law is in place.
I ask you to consider examples in which both the alleged perpetrator and the victim are under 13. If a 12-year-old girl invites a 12-year-old boy to touch her in a sexual manner, will both be guilty of an offence?
The provisions in the bill suggest that there should be equality in relation to gender. In contrast with the law that we had in the past, when we consider how to legislate, we now have to ensure that the law complies with article 14 of the European convention on human rights and is non-discriminatory. We can justify a departure from that only where there are good reasons to discriminate between the genders.
Yes. That is for another day.
It is a much wider issue that needs substantial consideration by Parliament, and not just in the context of one bill. However, my policy is clear: I do not prosecute children when it can be avoided, because the children's hearing system is more appropriate. I will take children into court only when I consider it necessary and in the public interest. That was the policy of my predecessors: I am continuing it.
You have given us comprehensive answers. You spoke about the circumstances in which you would consider prosecution. Will you say more about the circumstances in which you would consider prosecution when both children—the alleged perpetrator and victim—were under the age of 13?
It would be exceptionally difficult to give such hypothetical circumstances. The scenario would be extremely serious. I suppose one example would be the Jamie Bulger case, in which a young child was abducted and tortured. If the scenario involved two 12-year-olds, it would have to involve behaviour such as serious torture or a serious rape in order to bring the case to court. In such circumstances, the court would have to be modified considerably, for example to allow the court to instruct counsel. Ultimately, the court would refer the matter to the children's panel for advice. Knowing that, and that the consequences might not be dissimilar to what the children's panel could do, I would have considerable pause before taking such a case to court. However, that decision would be balanced in the light of the circumstances and information from, for example, psychologists and psychiatrists on the likely path of the individual's behaviour. Unfortunately, research tends to suggest that, if a person is behaving in an extreme manner at the age of 12, the prospects for their future conduct are not great. For sexual offending, past behaviour tends to inform intelligently what happens in the future.
My first question is on section 19. Having read through the bill a few times and listened to what has been said today, I would like clarification on what would happen in a situation involving two children under 13, in which a boy sent to a girl a joke of a sexual nature via a text message or link in an e-mail. Could an unintended consequence be that the boy had committed an offence under the bill?
Yes. If it is competent to prosecute people from the age of eight, in theory it would be competent to prosecute such a case in law. However, it would depend on whether the message satisfied the definitions and purposes as currently described, and whether mens rea was present. Whether or not such a case would be prosecuted is another matter altogether.
The Scottish Law Commission proposed that consensual sexual relations between older children should not attract criminal sanctions. The bill does not adopt that approach in relation to various penetrative sexual activities. However, Professor Gerry Maher stated in evidence that
They are prosecuted very rarely. From our research, I think that there have been eight prosecutions in the past three years.
Under what circumstances are such prosecutions brought?
That depends on the circumstances, which can be very varied. We would consider the circumstances of both the victim and the accused. Some cases will relate to aggressive conduct on the part of the boy in the relationship—in the past, only boys could commit the offence. There might often be allegations of non-consensual intercourse for which we do not have the corroboration that would allow us to prove that. That is an important factor. In many cases, we have insufficient evidence to prove rape.
I do not want us to get ourselves into difficulty.
Discretion is exercised in a full range of circumstances. We would have to treat both people equally. If a girl had behaved in such a way towards a boy, it should be remembered that women can be sexually aggressive sex offenders.
The important point is that we would not be able to prosecute the female in those circumstances, because section 5(3) protects only females. That is an anomalous situation. However, on what is to be proposed, either could be prosecuted.
Either or both?
Yes. Either or both.
It is difficult to envisage circumstances in which there would be sufficient evidence relating to both, unless they had done something in the middle of the park with all their friends around them, for example—although that happens.
Unfortunately, it does happen, as you say. Therefore, we are left with a welfare or protective offence, and the question has to arise whether it is legally competent to prosecute a member of the protected or defended class with the offence of having had sex with someone under the age of 16.
Parliament must make that choice and determine where to draw the line. I think that the Cabinet Secretary for Justice's view is that there are circumstances in which what has been proposed can benefit public health. I accept that there are valid considerations to do with the fact that suggesting that such things have happened might subject a person to the possibility of prosecution, which might deter young girls from seeking medical support or psychological counselling, or from disclosing to an adult. That factor must be taken into account.
I entirely understand the motivation behind what you say, but do you have any concerns about prosecuting for a more general crime, for which other people are not prosecuted in circumstances in which you cannot prove the things that you are concerned about?
Yes. However, I suppose that the answer would be to remove the requirement for corroboration, which is another test. I am not suggesting that, but that is the reality. In other circumstances in other jurisdictions, one would be able to prove such things. We can work only with the evidence that we are able to get; if evidence does not exist, we cannot make more of what we have. As the committee knows, people often accuse others of rape and all that we can prove in law in such circumstances is that assault with intent to rape had occurred or that there had been lewd and libidinous practices. That is unsatisfactory for the victim, but it is all that we can achieve within the law, which determines the parameters within which we behave. We use the law where doing so is appropriate and in the public interest. It is therefore timely that Parliament is able to consider whether it wishes to maintain in that way that aspect of criminality for people aged between 13 and 16.
My question may pre-empt what Stuart McMillan wants to say. Is there a risk that we are generating trials by the Lord Advocate rather than trials by court? In other words, you and your colleagues will decide what should be prosecuted. Forgive me—as you will appreciate, my question is not intended to be personal in any way, and I do not intend to attack the office that you hold.
That situation applies across the board in Scotland. Of course the prosecutor in Scotland determines what cases will go to court—we are the gateway to the court. We do not apply the principle of legality in Scotland. We imbue, and have imbued, the Lord Advocate and her representatives, the procurators fiscal and Crown counsel, with the discretion to interpret the public interest. That autonomy is not exercised in isolation from the community and the people who provide information to us. We base our decisions on information that is provided by the police about the level of crime in the environment. For example, in Scotland we have a problem with knife crime, and we can adjust policies to take account of the seriousness of the problem. Such flexibility is a core part of our justice system.
Thank you for putting that on the record.
Would a welfare intervention in relation to consensual sexual relations between older children give rise to issues under article 8 of the European convention on human rights?
Article 8 is about the right to privacy.
Article 8 protects privacy and the rights of the family, but Strasbourg gives a margin of appreciation to states. There might be different cultural phenomena in different societies in Europe. In some states, the age of consent for sexual intercourse is as low as 12—I think that it is 12 or 11 in Spain. The situation varies considerably in Europe from one jurisdiction to another. Strasbourg has not put in place a high threshold for interference; there is a low common denominator on the extent to which the state can interfere with private lives, family choices or individuals' sexual lives.
Schedule 1 to the bill sets out penalties. The maximum penalty for rape of a young child would be
The bill replicates the current law, which is that a fine is available on conviction for rape. I am subject to correction on this, but I think that the last time that a fine was imposed for a rape was in 1999—I cannot remember the name of the case, but it is somewhere in the back cells of the brain. No fine has been imposed for rape in the past decade. I suspect that if there had been such a case I would have immediately considered it in the context of unduly lenient sentences. I find extraordinary the prospect of only a fine being imposed.
Should the implications of the move from common law to statutory law—where different minimum and maximum sentences apply—have been considered in that context?
I am not sure what the Scottish Law Commission recommended in that regard.
Lord Advocate, I understand the current position, and I appreciate and thank you for that point, but does the bill not offer an opportunity to refresh the legislation to ensure that the opportunity to impose a fine—
Yes. You might want to consider amending the wording at stage 2 if it is considered that it is ambiguous and would not achieve the intention of imposing a cumulative penalty. However, I do not believe for a second that it is intended that a fine would be an appropriate penalty on its own.
But your reading of the wording is that there is a possibility of the sentence being a fine only.
Yes. The wording at the moment says "or a fine". That would have to be changed.
Perhaps you can satisfy my personal curiosity by letting us know in which case in 1999 it was felt appropriate to impose a monetary penalty for rape.
I may be wrong. With the passage of time, my memory is not what it was. However, I think that 1999 was the last year in which a fine was imposed.
Well, that comes within the discretion of the courts, and is subject to your appeal.
Absolutely.
At present, the criminal law does not extend to a girl who is aged under 16 who engages in consensual sex. However, the bill will extend the criminal law and the girl will be committing a criminal offence. Over recent weeks, we have heard evidence of concerns about that. We have also heard that a pregnant girl who is at risk of being prosecuted might suggest that she was raped. How might your office deal with such cases?
As I have said, very few cases of that nature are prosecuted and the evidence is likely to show patently what took place. The current trend is to suggest that, when someone young suggests that intercourse has taken place, they do so only because they were late and their parents were going to give them a row. There are trends and fashions regarding the defence that is put to the victim, but it is likely that that suggestion might be put to victims in the future when cases are prosecuted. Nevertheless, I expect such cases to be relatively rare, and I hope that even if that suggestion is put, it will not be borne out by the evidence that is available to the court.
Is there justification for extending the criminal law to girls who are under 16?
It is not a question of justification; it is about compliance with the European convention on human rights. Article 14 of the convention states that, when a right or obligation is created on the part of citizens, it should be applied without discrimination to particular groups. However, application can be varied if there is objective justification for doing so. The issue is whether there is justification for not applying rights or obligations to a particular gender.
Sticking with the group of older children for the moment, will there be any practical difficulties in prosecuting or dealing with under-16 consensual sex, since both parties could be guilty of an offence?
We will have to decide whether to use one of the parties as a witness, which currently happens in many cases where we have an insufficiency. For example, with some of our serious crimes, such as a murder where there are two people in a room with a dead person and there is absolutely no evidence other than uncorroborated forensic evidence, we know that two people were involved and we have to decide who was the principal actor and how we can prove that in the public interest. In those circumstances, we sometimes have to use accused persons as witnesses. So the decision that you are talking about is not different from the decisions that prosecutors have to make every day on the full spectrum of offending.
You will be aware of the evidence that we have heard that there is a strong body of opinion that under-16 consensual sex should be treated as a welfare issue, not as a criminal offence. That leads us to looking at past decisions of the European Court of Human Rights, which has held that a state cannot claim that the retention of criminal sanctions is necessary while at the same time indicating that ordinarily there will be no intention of applying them. However, you said that you use your judgment about whether to apply the criminal law, and the Government's policy documents in support of the bill indicate that there is no real intention to use the particular provisions in the bill. How do we balance the situation?
That does not quite state the position. The Strasbourg jurisprudence relates to a blanket disapplication of the law, but I am saying that we will look for facts and circumstances that are consistent with the criteria that I have pointed out where there is absence of corroboration.
That is the way out of that one.
I will move on. Section 27(7) says:
It is not necessary. It states what my powers are already. I think that it is in the bill to acknowledge explicitly the Lord Advocate's powers when Parliament passes provisions that create a new offence for girls between the ages of 13 and 16. On summary justice reform, for example, there has been some debate about the use of the discretionary power, and whether the power was intended to be used for such crimes.
Arguably, it is redundant.
That is a matter for the Parliament to determine; the Parliament might not consider that that is the position. Whatever view—whether majority or unanimous—the Parliament comes to on that, I as Lord Advocate will take cognisance of it.
Last week, I heard you talking on the radio about guidance that you had issued. I do not want you to go into details, but does that guidance include the older children age group?
That guidance includes instructions on the investigation of crimes against children, but it does not relate to the prosecution of children. It is about how the police investigate serious sexual crimes that involve adults and children. It is not a determination of prosecution policy or an instruction to the police about how to report crimes; it is about how they set about their investigations. It is quite different from the guidance that I will issue to the police following the enactment of the bill.
Finally, we turn to the abuse of a position of trust.
You may have heard that on 11 November, Enable Scotland set out that, in the case of mentally disordered persons, criminalising sexual abuse of trust
I have not seen Enable Scotland's written submission; I can speak only from my experience as a prosecutor over some 25 years. People in institutions or care homes who suffer from mental disorder or disability—I include children as well as the elderly—are among the most vulnerable individuals in our community. When I was a young prosecutor, there was a culture, even among the police, of wishing to deal with domestic abuse privately, outwith the courts. The exploitation of mentally disordered people's vulnerability must be dealt with in the most draconian way and should include a deterrence element. I consider the physical, sexual or mental abuse of any such person to be a matter of the most serious nature. When such conduct amounts to a crime, it can be dealt with properly only by the criminal courts.
So you do not accept Enable Scotland's point that, given the low level of reporting of such cases and the low success rate of prosecutions, another approach should be considered.
Over the years, there have been many reports of the abuse of people with mental disabilities, including the elderly and children, by people in positions of trust. I dispute that it is not possible to prosecute in such cases. It is extremely challenging to do so, but we have been successful in a significant number of cases. The fact that the process is challenging should not dissuade us from treating the issue with the greatest seriousness.
I note what the Lord Advocate says about the seriousness of breach of trust by people who, because of their employment, have power over vulnerable people. Enable Scotland has asked about scenarios in which the client—for want of a better word—has a mental disorder but would normally have the capacity to consent to sexual activity. What are your views on the criminal law in such scenarios?
I do not see a difference. In those circumstances, one person would be in a position of care, and exploiting that position in a sexual way or allowing a romance to develop would be a failure of duty. If the person in the position of care sees that a relationship may be about to occur, they must desist. There are means by which they can get themselves out of the situation, so that they are no longer in a position of care or trust, and so that they are able to pursue a lawful relationship. A relationship should not happen while the person is in a position of care or trust. If it did, it would be exploitative, irrespective of how we characterise it.
Lord Advocate, that concludes this evidence session. I thank you, and I also thank Ms Holligan, who has sat quietly all morning—they also serve who only sit and wait—and Mr McIntyre. I am sorry that the session has taken so long, but you will appreciate the importance of these matters. We needed maximum input from you. Thank you very much.
Meeting suspended.
On resuming—
Our second evidence session is with the Cabinet Secretary for Justice, Kenny MacAskill; Gery McLaughlin, the bill team leader with the Scottish Government; Patrick Down, who is from the bill team; and Caroline Lyon, from the Scottish Government's legal directorate.
Significant public concern has been expressed by politicians of all parties and beyond in civic Scotland. There is a problem with ensuring that those who commit such heinous offences are dealt with properly. Our law has been built up over many years, so the bill is not an all-singing, all-dancing solution that will sort everything, but it is meant to ease a particular problem with the definition of consent and to deal with legal matters that came up in legal challenges. It also seeks to continue our country on its journey in trying to deal with sexual offending in a better way. Some measures have been taken internally, such as the changes in Crown procedure. The bill's aim is to improve matters. On its own, it will not resolve everything, but it is part of a general strategy by Government, Crown and police to deal with the issues better and to seek to assist when there are interpretation difficulties in judicial matters.
The policy memorandum that accompanies the bill draws attention to the "wider context" of the bill, particularly the need to address matters of evidence and procedure in relation to the criminal law more generally. Why does the Scottish Government think it appropriate to introduce this bill before the work on the wider context has been completed?
The bill is one aspect of our approach to addressing those significant issues. The Lord Advocate commented on how we deal with evidence and corroboration and the Moorov doctrine. Those are on-going issues. Rather than waiting until we get all the ducks in place, we are doing what we can, but at a reasonable rate to ensure that we get it right. We are pressing on with appropriate measures while other processes take place in parallel. Depending on what the Scottish Law Commission comes back with on, for example, the law of evidence, more measures may be taken at a future date.
Will the bill result in an increased rate of conviction for rape and sexual assault?
We hope that it will help in a variety of ways. On its own, it simply tries to provide consolidation and clarification, as well as assistance for juries in reaching decisions—whatever the Faculty of Advocates may say—and indeed for the judiciary. That is the intention and we hope that it does so. We do not expect the bill to be the sole, simple solution. If there were such a solution, it would have been found a long time ago. We must also change attitudes because of how individuals in Scotland, including, sometimes, those who sit on juries, perceive matters. The bill is meant to improve what we accept is a lamentable situation in Scotland. The bill will not be the only solution, but we hope that it will be part of a broader effort to tackle a dreadful situation.
Many witnesses to the committee have broadly welcomed the extension of the definition of rape in section 1. However, can you explain why the crime of rape has been confined to penetration with the penis?
We accepted the Law Commission for Scotland's proposals in that regard, but made two particular changes. We made one because of representations on sadomasochism and the difficulties that that might imply. The other change was to address the problem of underage consensual sex. We acknowledge the view of the Crown and others on penetration with objects, and we accept that these matters are finely balanced.
Are you confident, cabinet secretary, that the bill's definition of rape is consistent with current public understanding of the term? The Faculty of Advocates was concerned that juries might have difficulty with the bill's definition.
Debates about nomenclature are always difficult. However, the bill's criterion of free agreement is standard for such matters in many countries throughout the world, and certainly in Europe. There is no simple definition that will suit 100 per cent of the population. However, the bill's proposal gets us close to making it as clear as possible to a jury of our peers what is required. The criterion of free agreement is the best one that we can see at the moment. If there are other, whizz-bang suggestions, we will be more than happy to consider them. However, we have taken it on board that the current position is unacceptable, that there is a problem and that there must be change. Whatever my learned friends in the Faculty of Advocates may say, juries have had difficulty with the definition, so we must improve it. Is the bill's definition word perfect? Well, we hope so. Our view is that the bill gets it as clear as is possible. Our understanding of various groups' evidence to the committee is that they accept that we are on the right track.
Perhaps we can explore that a little bit further. You have obviously appraised what the Faculty of Advocates said at last week's committee meeting. Have you any views on extending the definition of rape to include oral sex and so on?
We have taken the bill on board, but we are more than happy to look at the wise counsel that the committee and others will come back with. We accept that some changes need to be made, so we will propose amendments at stage 2. We will be more than happy to take the view of the committee and the wider public on the question of oral sex. However, it appears to us that there are problems around how it would be detected and how a law on it would be enforced, and whether it would be better dealt with through a sexual health and education strategy. As I said, we will be more than happy to take the question on board, but it seems to us that we are addressing most of the matters that we need to. We accept that certain proposals must be amended at stage 2, and we will deal with that. We will take on board others' views on the question of oral sex, but we think at the moment that the bill's definition of rape is satisfactory.
We go to Stuart McMillan, although to some extent you have anticipated his questions, cabinet secretary.
Yes, that was regarding rape with an object.
From discussions, both private and with the Lord Advocate, you will know that in other jurisdictions rape is simply described as a sexual assault. However, rape is within the public understanding. There is a clear requirement to define it, which is what the bill is about, and the circumstances in which it occurs, which is why we require to clarify consent. I tend to think that the serious nature of the offence should be marked and differentiated from a wider offence of sexual assault.
We now turn to questions on consent and reasonable belief, with Robert Brown.
Cabinet secretary, you may have heard the evidence on free agreement and consent, whether there is a difference in meaning between the expressions, and whether "free agreement" should be used throughout the bill. Do you have anything to add to the Lord Advocate's helpful comments?
No. I did not listen to the whole of the committee's evidence session with the Lord Advocate, but I heard most of it, and we are more than happy to accept the wise counsel of my learned friend.
There are some areas of difficulty in section 10. Section 10(2)(a) deals with people being under the influence of alcohol or other substances, and you might have heard the evidence about that. Do you think that the provision does the trick in giving sufficient guidance to the court and juries on when a person is incapable of consenting? We are dealing with a common human position.
The provision is supposed to provide a non-exhaustive list of factual circumstances. The details may change, although it might take the wisdom of Solomon to define them at any specific juncture, as society and matters change. Our view is that the current list in the bill is adequate, but we will happily take on board any additional circumstances that people feel it would be appropriate to specify. We have the flexibility to make changes if we discover that we have not addressed all the matters or if circumstances change.
We are dealing with serious criminal cases in which there has to be a high standard of proof. Is there any risk that section 10(2) introduces a strict liability version that provides that there is nothing more to be said in certain circumstances when, in the real world, situations are perhaps more complicated?
No, I do not think that the provision could be perceived as introducing strict liability. The provisions are meant to be indicative, but ultimately the Crown must still prove its case and a jury must still be satisfied beyond reasonable doubt. As Robert Brown and I both know from practising in our adversarial system, there are checks and balances. There was a clear perception, which I agree with, that the scales of justice were not weighted appropriately. We are seeking in the bill to redress the situation, but we still maintain the presumption of innocence and require cases to be proven beyond reasonable doubt.
We have received a lot of evidence about section 10(2)(b), which refers to prior consent. On the one hand, it has a slightly artificial look about it—with the idea of someone signing a form in advance of the situation—but on the other hand there is perhaps the risk of the defence making spurious claims of advance consent. Do you have any thoughts about that? For example, we have received representations about removing that reference and leaving courts to deal with the situation more generally.
You are correct: section 10 rules out consent but does not exclude a reasonable belief in consent. That may be difficult to establish in the circumstances as set out.
We are defining the criminal law, so it is important that we do not end up with positions that criminalise or place an artificial interpretation on ordinary, consensual conduct. Is there not a risk that section 10(2)(b) could create artificial situations, because of the issue of what constitutes prior consent? Would it not be better to leave out that provision?
If we leave it out, we will undermine the ability to prosecute in some instances. It is about striking a balance. We should not interfere with legitimate behaviour that is not criminal or that is intended to be perfectly innocent in a relationship between individuals—even if it is not behaviour in which some would indulge. We think that the bill strikes a reasonable balance but, if others, including the committee, think that that is not the case, we will be happy to review the position.
Section 10(2)(c) relates to conduct that is agreed or submitted to because of violence or threats of violence. We received evidence—you may have seen it—that that provision may not deal adequately with situations involving past abuse or on-going relationships in which an implied threat is lurking in the background. Do you have any thought about the provision, in light of the evidence that we have heard?
That is a good question. The issue causes considerable concern to those who deal with domestic abuse issues. Domestic abuse has a history and leaves a legacy. We believe that the current provision is adequate, because it covers instances of domestic abuse that have happened in the past. I accept that it is difficult for the Crown to prove such cases, but the law allows past abuse to be used as evidence that consent was given because of threats and coercion. The problem is more with persuading juries of that than with the law, which allows past instances of violence or threats—not simply those that have happened within 24 hours or a similarly short period of time—to be taken into account.
In short, as the Cabinet Secretary for Justice, you are satisfied that the phraseology of section 10(2)(c) allows that to be done in a sensible and reasonable manner.
As I said at the outset, the Scottish Law Commission drafted the phraseology of the section. If the committee or others think that it is inadequate, we will be more than happy to consider that. At the moment, it appears to us that the problem is not that the law does not allow us to take into account past incidents but that we need to persuade juries to do that. If it is felt that the phraseology can be tightened in any way, I will be more than happy to do that.
Section 1 makes it clear that a belief in consent will not exclude responsibility for rape or any other offence set out in parts 1 and 3 of the bill if it is not a reasonable belief. Does that mean that rape can now be committed negligently? For example, A may intentionally commit a sexual act against B in the belief that B is consenting, but where that belief has been carelessly formed.
No. At the end of the day, under mens rea and other principles that have always existed, for an act to be a crime, it must be committed with the intention to do wrong. I find it hard to think of circumstances in which someone could negligently commit the crime of rape. It comes back to the issues of how we deal with free agreement and reasonable belief. Some of it comes down to commonsense interpretation.
That was a clear answer, cabinet secretary.
These are difficult issues—not only for those who draft the legislation but for those who interpret it and those who prosecute using it. I think that the balance in the bill is right, but we will be more than happy to make amendments if they will improve the bill.
You have answered the question that I was about to ask, which was on the idea of a jury drawing an inference.
I would certainly be happy to consider it—but it would run contrary to the idea that, in Scotland, people are not required to state their defence and are entitled to hide behind a denial. We have to challenge such ideas, although society has usually been reluctant to change them. However, I think that the balance at the moment is correct. A case can be founded on a line of questioning by the police: during the prosecutors' line of questioning, they can ask why particular issues were not mentioned earlier. Then, if those issues are still not mentioned when the opportunity is given, prosecutors can ask the jury to draw the appropriate inference. That will doubtless be commented on by the judge.
Part 4 of the bill deals with children.
On 4 November, the committee heard evidence from the Commissioner for Children and Young People. She said that children under the age of 13 should never be held criminally responsible. What are your views on that?
That is a separate and wider issue. There are specific and general issues. Some issues have been raised by the United Nations and other issues have been raised about the age of criminal responsibility in this country. The issue that Mr Martin raises has been considered in years past, and it is under review by the Government.
Sections 14 to 19 have been designed for the protection of children. However, those crimes can also be committed by children.
As I have suggested, there are two separate issues, one of which is the age of criminal responsibility in this country. If you want to argue for a change in that, we could have a debate at an appropriate time. The issues are under consideration. There have been comments from the UN, but those are separate issues.
Is treating children who are under 13 as not being mature enough to make decisions about sexual conduct inconsistent with holding them criminally responsible for engaging in that conduct, especially when no evidence of coercion or exploitation exists?
I return to what I said. We are dealing with two issues, one of which is the age of criminal responsibility. If people want to revisit that, that can be done, but that is what applies at present. The bill is intended to make the law better and more fit for purpose and to protect our children.
I appreciate that you have said that the issue is not a matter for the bill, but the children's commissioner said in her evidence that children who are under 13 should not be criminally responsible. All that I am asking is whether you support that suggestion—yes or no?
That is a matter for another day.
I appreciate that, but we have received that evidence from the commissioner in response to the bill.
I as an individual and the Government are considering and reflecting on the matter.
So you have no response to that evidence that we have received.
We are considering it. We have had representations from the United Nations. I am more than happy to take on board your view, if you are willing to give it.
I am asking the questions.
I have given you the answer.
You are not giving me an answer—
We are not getting terribly far.
I understand that a slightly more subtle aspect is that a legal doctrine links offences that relate to the protection of victims to situations in which it is not normally regarded as appropriate to prosecute people who are in that category of victim. If we forget about the underlying general ability to prosecute children who are over 8, does a major inconsistency remain not just in practice, but in legal principle, in the idea of prosecuting children who are under 13 for conduct from which they are supposed to be protected?
The short answer is yes. As I told Mr Martin, such matters must be examined. The Government, the Parliament and the country have received representations from the United Nations and others, which must be considered. If members have views, they should let us know them and the Government will reflect on them.
Would the issue be squared off by an understanding that, in the circumstances under the bill, perpetrators who were under 13 would not be prosecuted but would routinely be referred to a children's panel?
The intention is that such matters will routinely go to a panel. We must consider the facts and circumstances and trust the Lord Advocate and her successors to act in the public interest.
The Scottish Government has departed from the Scottish Law Commission's approach to decriminalisation of sexual conduct between older children.
We understand the Scottish Law Commission's general intention, but a great deal of public concern was felt that the message that would be sent and the inference that the public at large—not necessarily legally qualified people—would draw would be that consensual sexual relations between 13 to 16-year-olds were being legalised. That would be a retrograde step. We have problems with sexually transmitted diseases, teenage pregnancies and all the difficulties in which children become involved. It would be inappropriate to allow the inference to be drawn that the bill legitimised and decriminalised underage sex for kids who were aged between 13 and 16.
I have a couple of examples of cases in which such issues could arise. First, why should it be a crime for a 15-year-old boy to have consensual sexual intercourse with his 15-year-old girlfriend, but not a crime if a 15-year-old boy has oral sex with a 13-year-old boy?
The short answer to your final question is no, it could not be.
What is the justification for extending the criminal law to girls under 16, who currently do not risk prosecution for engaging in consensual sexual conduct?
That relates to the ECHR's requirement for gender neutrality. I do not want to be flippant, but it could be argued that perhaps many of those girls should be referred to the children's panel so that we can look after their care and welfare, because teenage pregnancy is a considerable problem for our society and it causes great difficulty and distress for the girls and their families.
Paragraph 174 of the policy memorandum states:
Our view is that they are children and that children are covered by the ECHR in the same way as adults. Those matters relate to how we interpret the convention and the broader views that we take as a society on children's rights. We think that we have struck the appropriate balance. That is why we differentiate between children who are aged under 13 and older children. It could be argued that those things relate to the maturity of individual children—a younger child may be very mature and an older child may be immature—but, as a society, we have to set down some provisions that trigger messages and lay down the rules and parameters within which we operate. We believe that we have got the correct age balance. We do not believe that under-13s are capable of providing appropriate consent.
If intervention can be made through the children's hearings system to deal with underage sex, why is it necessary to resort to the criminal law to deal with the issue?
There was a considerable view that if we did not do that and simply adopted the Scottish Law Commission's initial view, the Parliament and the Government would pass a law that would trigger the message that we were decriminalising consensual sex between 13 and 16-year-olds, which seemed to be a retrograde step. We want such matters to be dealt with sympathetically in most instances, given the clear need to consider a young person's care and welfare, but we must also trigger a message on the issue to the public, young and old, and there must be a caveat in relation to the—thankfully—few instances in which there might be doubt or a requirement to prosecute.
Further to your response to Stuart McMillan, where do you place your reliance on the bill's compliance with article 8.2 of the ECHR?
We place our reliance on the advice of our legal team and consultation with the Lord Advocate. It would be incompetent of the Government to ask the Parliament to pass a bill that was not ECHR compliant. The best advice that we have is that it is ECHR compliant.
I am sure that you have followed the evidence that the committee has received in recent weeks. There is overwhelming evidence from the majority of witnesses who work with young people that the age of consent should not be lower than 16. However, people are concerned that the bill will criminalise young people who might be better served by welfare intervention. People still think that to enshrine in legislation provision for referral to the children's reporter would be a better way of dealing with the problems that you described, such as STDs and teenage pregnancy. I think that we all agree that it is not good for young people under 16 to be sexually active. Would it be better to engage with the public and discuss using the children's hearings system to try to resolve something that has been a problem for a good number of years?
We are open to the committee's suggestions. Our view is that the approach that we are taking provides for what you describe. We are making it clear that we think that it is wrong for young people under 16 to engage in sexual intercourse; we are giving the Lord Advocate flexibility to ensure that children's care and welfare are considered; and we are making provision for the fiscal to address the issue in the odd instance in which there is good reason to do so. We are leaving it to the Lord Advocate to provide guidance and we are satisfied with that approach, but if the committee wants us to enshrine matters in the bill we will consider doing so.
Let us see whether you can convince Mrs Craigie that your approach is sufficient.
The approach that is proposed in the bill is already being taken. Cases are referred to the Lord Advocate for decisions. However, while we consider the bill the problem is growing and we are not able to deal with it. Sexual activity carries risks for the future wellbeing of the young person. For those reasons, do you not think that the bill provides the opportunity to consider something slightly different that would ensure that young people who are engaging in sexual activities would be referred on to the children's reporter and would be provided with the necessary welfare responses, education and support through a difficult time in their life?
I agree fully with your intention and share your sympathies. However, we are dealing with specific legislation on the criminal law on sexual offences. The matters to which you refer would be dealt with appropriately by other agencies, by colleagues in other Government departments, or by local government and voluntary organisations. As you correctly said, we believe that, to some extent, the bill simply seeks to maintain the status quo in the law as it pertains to sexual intercourse between people under the age of 16. There is merit in the maxim, "If it ain't broke, don't fix it." We do not need to change that law; we can tackle sexual acts between those who are under the age of 16, but there are other problems and we have to consolidate the legislation. Your points about how we deal with the other aspects of the issue are valid and I share your sympathies. However, they would be best dealt not with by legislation but by health and education.
We would all agree that, "If it ain't broke, don't fix it"; however, it is broke. More and more young people are presenting with sexually transmitted diseases and we do not seem to be able to tackle the problems of teenage pregnancy, which can have a huge effect on a young woman's future prospects.
When I say, "If it ain't broke, don't fix it" I refer specifically to the law on underage consensual sex between children aged 13 to 16. If you wish to suggest further changes by referring to oral sex, for example, I am more than happy to look at them.
One of my colleagues will probably raise this point later, but I am pleased that you are talking about the health and education departments being involved. We might be able to discuss that issue later, but I do not want to steal a colleague's thunder.
It is an important issue.
I want to approach the same issue from the other side. The Lord Advocate said that only a small number—between 10 and 12 a year—of section 27-type cases of sex between older children are prosecuted. She said that there were often situations in which coercive elements, for example, could not be proved. Is that a rather unsatisfactory, narrow base on which to build a more general law that applies to people across the board?
It is unsatisfactory, but I cannot think of anything else that can be done. Either we do not proceed against people when there is clearly a reason to believe that something untoward and illegal has happened, or we do the best that we can. The situation is not ideal, but we should try to ensure that something is done, with at least some caveat. That is the position that we find ourselves in. To some extent, the Crown deals with such matters reluctantly, on the basis that other options that are open to it would be incapable of being proven.
The vast bulk of children under 16 will end up at a children's hearing anyway, even if the prosecution route is gone down. Would it not be more sensible to put things to a children's hearing in the first place?
No. In some instances, if the Crown has been unable to prove that a more serious sexual assault has taken place, we should, at the minimum, seek to record matters. There is good reason why that option should be available to authorities. Such matters would not be best dealt with simply by leaving them to a children's panel.
Good afternoon, cabinet secretary. You will be aware of the substance of section 27(7), which states:
I do not think so. I must accept the best advice of people who are professionally qualified in such matters. It seems to me appropriate to include the subsection, and I do not see why it should set a precedent. There is no clear evidence that it will undermine previous legislation in any way. If it is appropriate for the bill, we should do what is right.
On a completely separate issue, Scotland's Commissioner for Children and Young People, among others, suggested to the committee that we should have consulted the young people who will be affected by section 27. Not many 15-year-olds have been consulted about a law that will affect them. What is your perspective on that, please?
We have spoken to various organisations and people, including Scotland's Commissioner for Children and Young People, Barnardo's and Children 1st. We went out of our way to ensure that we consulted 13 and 14-year-olds, if not specifically and directly. We consulted organisations that articulate and advocate for them and represent them.
But is it fair that they represented those young people? I am not disparaging the organisations and person you referred to, but if you want to talk to 14 and 15-year-olds, should you not do so?
Obviously, Governments seek discussions with stakeholders and interest groups as a matter of course, and we have done that. We will get into difficulties if we ensure that in considering any legislation we must speak to X or Y percentage of people or people who are this, that or the next thing. We took a broad range of views. As I have said from the outset, we are still listening, and we are happy to discuss matters, but we have acted appropriately and obtained the appropriate information. The caveat is that we are still happy to listen and make changes if need be.
You say that you are happy to listen and make changes. In the evidence that we have heard, children's organisations and church organisations strongly expressed the view that we should be consulting young people. This is perhaps the last chance we will get for a good number of years to consider and legislate in the area, so it is right that young people should be consulted. If the committee's report suggests that the Government should extend the period between stage 1 and stage 3 to allow a consultation exercise to be undertaken, will it consider doing so?
That would cause a great deal of difficulty. I would have to speak to parliamentary business managers. If the committee wishes to extend its evidence-gathering sessions, I am more than happy for the Government to facilitate that. If you want to ensure that groups of children are brought in to give evidence, that is fine. The Government will help you with that. I cannot commit the Parliamentary Bureau or the business managers beyond that, but if that is what you want to do, because you feel that we have not done it appropriately, we will happily help you to do it.
Convener, I do not want to do that; it is the responsibility of the promoter of a bill—in this case the Government—to consult properly on the legislation that they propose. It is not the committee or the Parliament that should do the consultation. Witnesses have identified a serious flaw in the process that the Government undertook to produce the bill. If we want to take seriously the people who come along to engage with the Parliament—and, through the Parliament, the Government—by giving evidence to committees, surely we should listen to them.
Absolutely. Legislation is about checks and balances, though. That is why we have a committee structure in the Parliament.
That is a disappointing answer and I am sure that other members of the committee will be equally disappointed by it.
Yes.
Okay.
The minister will be aware of the broad thrust of the UN Convention on the Rights of the Child, the Children (Scotland) Act 1995 and the like, under which previous Governments have taken the view that proper consultation with children and young people on matters that affect them is part of the process. Such consultation is an obligation that falls on a Government, is it not? Has the cabinet secretary taken guidance from the Cabinet Secretary for Education and Lifelong Learning about the process that she would advise should be gone through?
I think I have already answered that, convener. We are more than satisfied that we have gone through matters. If we have been remiss, Parliament has been set up with checks and balances. The same offer applies to Mr Brown as applies to Ms Craigie. The Government will support them in whatever ways we can if they wish to investigate matters, but having spoken to a broad variety of organisations we are satisfied that we have done what is appropriate.
Does the cabinet secretary accept that there is an obligation on the Government to take on board the spirit of the UN convention—in respect of which, incidentally, a report was made recently about certain deficiencies in UK and Scots practice? Does the cabinet secretary realise that that is an obligation on the Government?
Well, these obligations fall upon our Government just as they fell upon previous Governments. Our position is that we believe we have consulted appropriately. If individuals or the committee believe we have not, they have the opportunity to sweep that up as part of the checks and balances that we have in a democratic society.
We will move on to questions about the abuse of a position of trust.
A few weeks ago, the committee heard evidence from Enable Scotland, which claimed that criminalising sexual breach of trust in the case of mentally disordered persons
We heard that, but we are not persuaded. Enable gave evidence that was contrary to its initial position. The legislation that we are introducing has been discussed with organisations including Enable and the Mental Welfare Commission for Scotland. We feel that some protection is necessary. These issues are a matter of balance. We have to ensure that we do not cast the net too widely and interfere with organisations and individuals who are acting legitimately and thereby jeopardise a variety of aspects of the care and wellbeing of individuals, but we have to protect those who have mental disabilities. We believe that we have struck the correct balance. That said, we will reflect on what the committee concludes at the end of its evidence-gathering sessions on whether provisions should be extended to youngsters.
Finally, we have a question on penalties from Paul Martin.
I would like you to clarify whether I am misreading schedule 1, which relates to penalties. I understand that, for the rape of a young child, the maximum penalty on conviction is life imprisonment, or a fine, or both. Is it possible that a court's disposal for the rape of a young child could be a fine?
I think I heard the Lord Advocate answer that question earlier. I can only repeat that we view rape as a heinous offence, which is why we are taking action in the bill. There have been problems in Scottish society that we are seeking to address. We expect those who perpetrate rape to be dealt with severely. Gerry Maher and the Lord Advocate indicated that the general intention was that the fine should be an add-on rather than an alternative. Having checked, I can confirm that in the past 10 years nobody has been given a fine for rape. I assure you that we will check the drafting to ensure that if there is a drafting error, it will be addressed.
I just want to clarify what you said. Are you disappointed with the current drafting of the bill, which results in the possibility of a fine being imposed?
No. I said that if there is a problem or ambiguity, we will address it. The current circumstances are the circumstances that have always existed. If what you are concerned about is that previous Administrations have not addressed matters appropriately, you can rest assured that we will seek to do so. I am giving you an assurance that nobody has been fined, instead of being imprisoned, for rape since 1999. It is our intention to ensure that people who commit that offence are dealt with severely. It is our understanding that the fine was to be cumulative; it was not meant to be an alternative. There was a great deal of merit in what the Lord Advocate had to say about that, particularly in relation to compensation orders. We will ensure that there is no ambiguity about these matters.
You referred to previous Administrations, but the issue is too serious for us to try to score political points.
Perish the thought.
The point I am making is that the current law is common law. We have an opportunity in the bill to introduce minimum standards in relation to sentencing options. What I am trying to extract from you is humility about the fact that the current position in the draft bill is unacceptable and an assurance that you will lodge an amendment to it.
I thank you for that selfless, non-partisan interpretation. I reiterate that the Government will ensure that our people are protected, that the victims of rape are treated with dignity and respect and that the perpetrators are appropriately punished. As I said, if there is a drafting flaw—I am not qualified to comment on drafting—it will be addressed, so you can sleep easy.
I want to do a bit of sweeping up on sections 40 and 41. Is it the Government's intention to do away with only the common law offences that are defined in those sections?
Yes, that is the case as per those sections.
Will the common law offences that are mentioned there as being taken off the statute book be used only in historical cases?
Yes, that is our intention.
Can you enlighten us as to which situations are potentially envisaged under section 41?
I think that they will probably be matters of an historical nature—clearly, it is more for the Crown to comment on what circumstances are envisaged—that come to light once the bill has been enacted. We all know that many matters that are—thankfully—successfully prosecuted may be of an historical nature. The fact that matters occurred many years ago does not mean that the perpetrators should be able to avoid punishment.
Basically, the bill takes a belt-and-braces approach?
Yes.
I thank Mr MacAskill—
Convener, if I may, I would like to catch up with the minister on a couple of equalities issues.
Mr Brown, both you and I are legally qualified, so we are very conscious that legal draftsmanship is a technical matter. I am more than happy to leave such matters to those who are better qualified, but I am also happy to seek the views of the Scottish Government's legal department. If the committee is persuaded that the nomenclature that is used south of the border is better, I will not have a difficulty with that unless those advising me say that there is some technical problem in Scots law.
That is very helpful.
I am happy to consider that. I tend to think that the purpose of the bill is to build on the views of the Scottish Law Commission, which addressed the specific problem of sexual offences in relation to ensuring that we improve on current circumstances, in which far too many people who perpetrate rape are not brought to justice.
Have you finished, Mr Brown?
Yes. I am sorry about that.
I have a final question about consultation in general. The Government launched its consultation on the bill following the publication of the Scottish Law Commission's report on rape and other sexual offences. It is not clear from the documents that accompany the bill who was consulted on the bill. Can you advise the committee on that? It appears that there was consultation on the Scottish Law Commission's report, but I am unsure who was consulted on the bill.
I do not have a list of the consultees, but I am more than happy to write to the committee with a full list of everybody we consulted.
That is covered in paragraphs 26 and 27 of the policy memorandum.
Thank you.
I am doing your work for you, Mr MacAskill—not for the first time, I may say. I thank you and your officials for your attendance and for the prior notification of some of your intentions at stage 2. That is particularly helpful.
Meeting continued in private until 13:49.
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