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The next agenda item is the Sexual Offences (Procedure and Evidence) (Scotland) Bill. We will hear additional evidence on an amendment—amendment 16—that the Executive lodged fairly late in the day. The amendment proposes that an accused person's previous convictions may be referred to during a sexual offences trial. Members have before them a list of questions that were suggested by the clerks as a basis for our questioning.
I do not think that it is necessary for me to add to what I have already said. I am sure that it would be better for the committee if we were to move straight to questions.
I agree. Do members have any questions to put to Professor Gane? I see that Mr Stevenson is looking uncharacteristically hesitant.
I am sorry, but the Land Reform (Scotland) Bill has hypnotised me to the extent that I am less prepared than usual.
In that case, I will start off the questioning. Your paper was extremely useful and most interesting, Professor Gane. Is the Executive's assessment of the present position realistic? From your experience, if the legislation had been in force, in how many cases would the question of previous convictions have been relevant?
On the second question, I am unable to give a figure to the number of cases in which previous convictions would have been relevant. I am not aware that such figures are gathered.
You referred to the nature of the conviction. Are you saying that you would have no objection to analogous convictions being placed before the court, but that you would have an objection to the Crown having carte blanche to introduce convictions for a wide range of offences? If so, would you exclude convictions for offences such as motoring offences and breaches of the peace, as opposed to offences that have a sexual connotation?
There is no justification for introducing completely irrelevant previous convictions. It is extremely difficult to see what relevance a previous conviction for a non-analogous offence would have to the procedure.
How should the court handle a situation in which the previous conviction relates either to perjury or to an attempt to pervert the course of justice?
The bill does not bring out the important distinction between evidence of previous convictions that goes towards proving what lawyers would call sufficiency—it proves that the accused committed the crime—and evidence that attacks the credibility of the accused. In rape cases, it can be argued that a prior conviction for offences such as perjury or an attempt to pervert the course of justice is relevant to attacking the credibility of a witness—whoever it might be—but I am not sure that such evidence is relevant to whether the accused is likely to have acted in a sexually aggressive manner towards the complainer.
The Executive argues, and I think that everyone agrees, that the bill is about achieving a balance. Differences of opinion arise over the point at which balance has been reached. Without amendment 16, would the bill be balanced and fair to everyone?
A case can be made that the bill is balanced without amendment 16. An amendment of that type would improve the bill, but amendment 16 is not good because it fails to tackle the factual relevance of previous offending behaviour. That behaviour is relevant; studies show that certain patterns of behaviour emerge in some sexual offenders. If such a pattern emerges in a case, it is not unreasonable to suggest that it is more likely than not that the accused is guilty.
When we considered juries' behaviour, we were told that no studies had been done. Will you refer us to the studies that you mentioned?
Yes. The Home Office commissioned a study by Sally Lloyd-Bostock in 1995. She reported its general findings on page 734 of the Criminal Law Review for 2000. Lord Justice Auld referred to the study in the official report of his substantial inquiry into the criminal justice system in England and Wales. There have been studies in New Zealand to which, I think, Lord Hope referred in a recent case before the Privy Council. There is a substantial amount of information about the potential impact of previous convictions on jury perceptions.
Should it always be proper to disclose an offence that caused a guilty person to be put on the sex offenders register? Is that a test?
Again, the difficulty is that a wide variety of circumstances lead to offenders being put on the sex offenders register. I can imagine situations in which there is a kind of sexual offending that fully merits registration but that is not in any sense related to or similar to the offence with which the person has been charged. Members may recall a recent example—I think that the High Court reversed the decision—of a man being placed on the sex offenders register because he had allowed shamelessly indecent behaviour in a pub that he ran in Elgin, I think. He had foolishly allowed a girl who was under 16 to strip off for free drinks. That is significantly different from a man being charged with raping a woman. I am not saying that such behaviour should be excluded, but the question of the relevance to a case of a person's previous offending behaviour needs to be addressed. Perhaps the fact that an offence is one of the scheduled category of offences is not sufficient.
You seemed to imply that there should be a category of spent sexual convictions and that, if an offence was committed far enough back, it should cease to be relevant. What tests might reasonably apply to reach a view on that?
I am sorry if I gave the impression that time is a critical factor—I should correct that. I am not sure that time is a critical factor, although time, the circumstances and the nature of an offence are all relevant considerations. Under the bill, such considerations can be dealt with only by the judge being asked whether a decision is in the interests of justice. I am not sure whether that test is particularly helpful and I am not sure how things will be done in practice in the courts without further guidance.
I apologise for being late. I am interested in the balance of evidence, which is what we and the Executive are trying to achieve through the bill. We found difficulty in obtaining evidence to support our suspicions about the tactics that defence agents use against complainers in the witness box. Defence agents try every trick in the book to get complainers' sexual histories out to try to tarnish their reputation with juries, as you said. The bill is about trying to achieve a balance. If the defence is going to put the case to the sheriff or judge that they should be able to disclose a woman's sexual character or history, a provision for the automatic revelation of previous convictions will make them think before they act. Surely that would be one way of balancing the interests in the evidence.
Yes, I understand that argument. However, it is a kind of in terrorem argument and I am rather uncomfortable with it. The logic of all this is somewhat different from what the bill has produced. This is a development of what I said earlier, which I have been thinking about. It seems to me that the question is essentially whether the accused's previous convictions should be used in evidence in a sexual offence case in any circumstances. The bill suggests that previous convictions should be used if he decides—it will generally be a "he"—to attack the character of the complainer and if certain conditions are satisfied. However, if we genuinely believe that the previous convictions of the accused are relevant considerations, that should be established from the beginning without the in terrorem argument. That argument is not offensive, but it is not a good principle to threaten to introduce evidence simply to constrain the way in which a defence might be presented. I am not sure that I like that idea.
Is that not a lower test? You are saying that, even if the defence does not ask for the complainer's history to be revealed, the judge should consider whether it should be disclosed.
The logic of the argument is that that should be possible in any event.
The Executive states categorically in its evidence that the bill complies with the European convention on human rights. However, you are saying that it does not.
No, I think that the bill is ECHR compliant. As it is drafted, I cannot see what the ECHR objections would be. The convention does not say much at all about rules of evidence. Rules of evidence are diverse across Council of Europe member states. I take issue with what the Deputy Minister for Justice said about the way in which previous convictions are used in other European countries. I consulted a colleague who is a senior member of the academic profession in Belgium—a seriously regarded lawyer—who said categorically that, if a French or Belgian judge took a previous conviction into account and used it as the basis for convicting, that would be regarded as an error of law. The Executive's interpretation of practice in other European countries is therefore wrong.
Are there other reasons why disclosing previous convictions in court might be a problem? Would that cross over issues of rehabilitation of offenders, for example?
I cannot answer that off the top of my head.
I am interested in the question that you posed about relevance. Does the bill require more to guide judges on what is relevant, or should that be left mainly undefined?
The provisions that apply to the grounds on which it is permissible and acceptable to cross-examine a complainer about her antecedents could appropriately be adapted to the question whether evidence of previous convictions should be introduced. For example, a judge could be explicitly asked to address whether the probative value of the evidence of previous convictions is significant and likely to outweigh any risk of prejudice. That formulation is not dissimilar to the way in which English courts now deal with previous convictions.
Scots law has precedent for references to previous convictions, such as when the accused is charged in a special capacity—the most obvious examples are cases of prostitution or those in which the accused is a known thief. Does the provision depart greatly from that principle?
The provision extends that principle a long way. You are right: there is no blanket prohibition. The legal system has just been generally unwilling to accept the idea, because we have failed to address the general question of the relevance of a previous conviction. Sometimes, previous convictions can be relevant.
In the cases that we are discussing, there are always problems with corroboration, because apart from the odd bizarre case, which does not concern us, normally only the accused and the complainer are present at the crime. The Moorov principle allows corroboration on the evidence of a series of individual complainers. Could the Moorov principle be extended?
If previous convictions were introduced as corroboration, that would be an extension of Moorov, but that relates to a problem in the bill. One infers from what the Deputy Minister for Justice said and from the Executive's evidence that the evidence of previous convictions goes beyond corroboration and on to the question whether evidence is sufficient. One should ask whether the evidence of the complainer and of an analogous previous conviction would be sufficient to convict.
That is the question.
I would be happier with that conclusion if I were satisfied that a previous conviction was really similar or relevant. I would be unhappy with evidence that, for example, a person who was charged with indecent assault had a scheduled or listed conviction that had no particular similarity to the present offence or that did not suggest that the person was likely to do that kind of thing or had done it before. I would be unhappy about that being a sufficient ground for convicting for what is, after all, quite a serious offence.
If there are no further questions for Professor Gane, I thank him for a clear exposition of the situation. We are much obliged. I now hand over to the convener.
I thank the deputy convener for taking charge in my absence.
I start by thanking the committee for inviting us to give evidence on this matter. It is clearly an important issue. The Law Society agrees with the statement that the Deputy First Minister made when he discussed the issue. We agree that complainers in sexual offence trials should not be subjected to unduly one-sided criticism of their character or behaviour. We hope that the newly drafted section 275 of the Criminal Procedure (Scotland) Act 1995, as contained in the bill, in conjunction with the existing provisions of sections 266 and 270 of the 1995 act, will ensure that a balance is struck between the interests of the complainer, the accused and society as a whole.
So you think that it would be helpful if the function of the provision were made clearer in the bill, so that judges could ascertain what Parliament intended.
Absolutely. The intention has to be clear. The thrust of the legislation is that we want a better system for victims. We do not want retrials because a judge has misunderstood or misinterpreted the function of the legislation and has misdirected a jury. The aim behind the legislation must be clear.
Is Mr Brown—a long established Glasgow solicitor, now a solicitor advocate—happy with a departure from a basic principle of Scots law by allowing the introduction of information about previous convictions?
As Mr Aitken said earlier, there are already provisions within Scots law for previous convictions being relevant, for example, in cases of driving while disqualified. As many witnesses have indicated, a balance must be struck. Without amendment 16, the bill strikes that balance. What concerns me about amendment 16 is that it would put the balance out of kilter. If certain changes were made, I would be comfortable with a previous conviction being revealed in advance of the determination of a case. Those changes have been touched on by Professor Gane and Anne Keenan.
Proponents of the bill have real concerns, which we all share, about the low percentage of rape convictions. The discussion is about achieving the appropriate balance. In summary, does the bill as its stands, without amendment 16, restore a reasonable and equitable balance?
If the previous provisions had been properly implemented and used as regularly as intended, the bill would not have been necessary. Having considered all the evidence, I take the view that the bill is now necessary, excluding amendment 16, which must be considered very carefully.
Taking a jury trial specifically, do you think that the point at which previous convictions are disclosed will matter to the way in which the jury considers the evidence? It could be disclosed right at the beginning before any evidence is heard, immediately before or after the accused gives evidence or perhaps only in the summing-up. Do you think that there will be different effects on outcomes depending on when and how evidence of previous convictions is disclosed?
We have provision for the determination of previous convictions being disclosed at an earlier stage, possibly 14 days beforehand, if an application is successful. In any event, if a previous conviction is being disclosed, it will have to be disclosed before the jury is directed by the judge. My opinion is that the timing of that will be of no major significance to a jury's determination of the verdict.
The important thing will be what directions the judge gives the jury about the effect that the information can have on the determination of the verdict. That goes back to the first point, about what the function of the amendment is and what the judge can tell the jury that it can take from it.
So the key role that the judge has with the jury is at the core of whether the provision will work.
The judge will assist in the clarity and the smooth operation of the provision. We must have a clear determination in the bill about the purpose of the provision, so that the judge can discharge his or her function properly.
The judge has to address the jury on the law. The judge has to know whether the conviction, if revealed, would—as Professor Gane stated—corroborate the complainer's evidence. However, if the conviction reflects on the credibility or the reliability of the accused and whether the accused is telling the truth, and is part of another body of evidence—such as the evidence of two or three witnesses plus admissions—the judge will have to say that it is the jury's job to weigh that up. Finally, the third position is that the information may simply be what is called an adminicle of evidence—another element of the evidence that the jury has to consider. On the amendment, we are unclear—we lawyers are often unclear—what we would tell the jury if we were in that position.
Obviously, it is for the jury to listen to the evidence and give due weight to whatever it thinks is appropriate. Is there any difference between the weight that the jury would attach to revelations of the complainer's sexual history and that which it would attach to the accused's previous convictions?
That is a difficult question. There has been some research, to which Professor Gane referred, on the weight that juries place on previous convictions. I do not know whether there have been any comparative studies of the weight that juries attach to the complainer's sexual history and that which they attach to the accused's previous convictions. However, the fact that we do not know about that is all the more reason to apply a test to ensure that the same degree of fairness is applied in each case, so that the jury only hears about a complainer's previous character if the probative value is such that it will not have an undue weight on the jury's determination of the verdict. If we are going down that route in connection with sufficiency, the fact that we do not know the comparative effects would be all the more reason to apply the same test to the disclosure of a previous conviction.
So you would want the same test to be applied to the previous conviction that is applied to the disclosure of the complainer's history and you would wish it to be clear what direction the judge gives to a jury in relation to that provision.
If it is a question of sufficiency, and therefore the previous conviction could be a corroborating element in the case—as it would appear to be, judging by the tenor of the evidence that we have heard from the Executive—we should say, "We have considered this issue in relation to section 275. What is appropriate for the complainer? When is it appropriate that this be disclosed?" The whole weighing process, the probative value and the relevance all come into play when considering that. For the protection of the accused, sufficiency would also have to be considered.
On the proper administration of justice, are you saying that, until there is further clarification of whether the information goes to sufficiency, corroboration and so on, any impact on the jury cannot be evaluated by the judge?
No. I am saying that we do not know. I am not aware of any comparative studies of the effect of such disclosure on the jury.
But in the absence of that evidence, what would you take from this?
It would be fair to apply the same test in both cases before the evidence reaches the jury to ensure that the same weighing process is carried out and that the probative value and so on are taken into account.
Witnesses this morning have said that the bill's use of the phrase
There must be criteria. As Anne Keenan has already pointed out, if the onus is on the Crown to make the application and there is no reverse presumption, we need the test that applies to the admission of previous sexual history. I will not read it out, but new section 275A(4) of the Criminal Procedure (Scotland) Act 1995, as proposed in the bill, lists four grounds on which an objection can be made. How is the judge to decide on that basis? Paragraph (c) says that an objection can be made if
In the absence of the clarification that you seek, is that an impossible role for a judge?
In the absence of such clarification, the judge would be wondering about the criteria for deciding what is in the interests of justice.
Another question is the mechanism that the judge can use to establish what is in the interests of justice. For example, would they hear parole evidence? Presumably the accused would make some representations to try to establish that a conviction was not in the interests of justice. However, how far does one go behind the extract of the conviction? A judge has only the bare narrative of the charge. Would the accused then be able to outline the circumstances of the case, which are not disclosed in the extract of the conviction, and to argue that they were not relevant and should be excluded in the interests of justice?
Is it fair to say that what you have described also happens when the complainer's sexual history is asked to be revealed? The judge has to examine the circumstances behind the incident. We have already discussed with you and Gerry Brown pre-trial issues, and the particular dangers of having a trial within a trial and the ordeal that the complainer would have to go through. We have taken all that on board. However, I do not see the difference in this respect. Although I note your comments about the tests that should be applied, the judge will have to examine the matter in relation to the complainer. As a result, the principle would be the same for the complainer and the accused.
The difference is that, when a judge considers a case from the complainer's perspective, he is dealing with an instant case and therefore with all the facts and circumstances as they will emerge during the trial. As we have heard, the judge could call the complainer to give evidence and use the trial-within-the-trial procedure. That means there is some way of testing that information. What is not clear is how any dispute between the Crown and the defence over the facts is to be resolved if, in consideration of a previous conviction, the defence leads evidence of what happened on a previous occasion. That is the real issue.
There is a slight practical worry about going down that road without establishing criteria. If a previous conviction were allowed to be admitted, would the judge not be required to make a decision before the court—based on whatever criteria or interests of justice—on an agreed narrative, regarding what the previous conviction was about? In such cases, in making a finding in the knowledge that it may be used again, a judge or sheriff may be obliged to have a full report of the evidence prepared, which would have to be agreed by both parties.
You raise an interesting point. One also wonders how current court records might be. Let us consider a situation that could arise. One of your clients, Mr Brown, who offends fairly frequently and is not able to—
I do not have clients like that.
Unfortunately, I have dealt with a few of them, as you know.
I do not deal with such people personally.
Let us suppose that a client has offended regularly but not seriously, over a period, and is unable to avail himself of his rights under the Rehabilitation of Offenders Act 1974. Let us suppose that he has a conviction for indecent exposure, dated 1981. As you may recall, prior to the introduction of the Civic Government (Scotland) Act 1982, if someone in Glasgow was charged with indecent exposure, there might have been no sexual aspect to that offence. The fact was that, in dealing with cases of urinating in a public place, the fiscals had to rely on some ancient legislation that imposed a maximum fine of £2. Therefore, someone who urinated in a public place was charged with indecent exposure. That would go down on that guy's record as an act of indecency. Most people would think that such an offence would have a sexual connotation, but it could be simply that, after a night at the pub, he had been caught short on the way home.
Yes, that is absolutely right. That is why I highlight the issue. The historical records may not be clear cut. However, if the bill becomes an act and aspects of amendment 16 are in law, it may be incumbent on sheriffs, judges, magistrates and bailies to compile a report in such cases so that, if there is a further allegation and the evidence is likely to be used, all the information will be available.
Equally, to balance the argument, a previous breach of the peace could have had a sexual content but the record would just say, "Breach of the peace, Glasgow sheriff court, £300 fine." As far as anyone would know, that could have been a football-related breach or a bad breach in the street.
Correct. It could have been a housebreaking. Housebreaking often contains elements of some concern.
I want to pick up on something that was said earlier, which I may not have understood properly, concerning amendment 16 and proposed section 275B. In a sense, I am asking you to speak for the Executive, which is rather unfair. Subsection (2) says that applications that are made at a later stage have to be considered
Yes. The application—
Is this in reference to when the convener asked about the difference between the weight that the jury would attach to revelations of the complainer's sexual history and that which it would attach to the accused's previous convictions?
Yes.
The distinction that I was drawing at that stage was that we were considering when you would admit evidence of the sexual history or behaviour of a complainer. Provision is made under section 275 of the bill that, in determining whether it would be proper to admit that evidence, the court can take evidence to determine the issue. That would be within the usual context of a trial within a trial or at a pre-hearing diet to which they may call the complainer. The defence would put the questions that they were seeking to ask and the Crown would do so. The judge could make a decision at that stage about whether the questions should be asked in the trial. It is like a procedure outwith the trial. That would only be relevant in relation to the complainer's situation.
If I understand you correctly—I am hanging on by my fingernails—parts of the court's consideration as to relevancy would take place in the absence of both the complainer and the accused.
No. The accused would be present.
I beg your pardon. But the complainer would be absent.
You would make an application, which might be heard by way of ex parte statements from the Crown and the defence. The judge might say, "I cannot decide this on ex parte statements, because I have to know exactly what the complainer is saying about a certain situation." The application would then be delayed until the complainer gives evidence, probably the same day, and the judge would then make a determination on the facts that were relevant to the law.
I think that I am still hanging on.
So am I.
We discussed that point at a previous meeting—it seems a long time ago. A new set of amendments now allows the issue to be determined before the trial; previously that was not absolutely clear. Provision is also made for a trial within the trial, which is probably not the preferred option.
I echo the convener's remarks. Notwithstanding that, I remain four-square behind the bill's intention. The motivation is ensuring that the bill achieves that intention. I suspect that the committee can do nothing between now and Friday, although we are probably better equipped individually to go away and consider whether we want to take advice about amendments to the amendments. That is pretty unsatisfactory. Amendment 16 was substantial and complex, and today's evidence has probably left us with more questions than we had before we heard it. It is unsatisfactory and disappointing that we should be in that position at stage 3 of a bill that appeared to be relatively straightforward.
The position in which we have been left is to be deprecated in the strongest terms. It is intolerable that, 48 hours before the final amendments must be lodged, we cannot obtain answers from the Executive on several pertinent points that were raised this morning. The introduction of evidence of previous convictions of the accused will be a fundamental change in Scots law. The provision has a serious aspect and has not been happily handled.
That was a bit strong.
That is fair.
Yes.
It might be useful to have answers on those issues.
Could we ask that answers are provided urgently, so that we can consider any amendments that we may wish to make? If the Executive finds, after thinking about today's evidence, that it can produce amendments, I encourage it to do so, because it has greater resources in legal advice.
We will see whether answers can be obtained speedily.
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