Sexual Offences (Procedure and Evidence) (Scotland) Bill
The next item of business is a debate on motion S1M-2829, in the name of Jim Wallace, which seeks agreement that the Sexual Offences (Procedure and Evidence) (Scotland) Bill be passed. Members who want to contribute to the debate should press their request-to-speak buttons now.
The Parliament will be pleased that, after some useful debate this afternoon, we have reached the final stage of the bill. I remind the Parliament that the pre-legislative consultation document that led to the bill was issued in November 2000. That we have reached stage 3 in less than 18 months is a tribute to the commitment of everyone concerned to improve as speedily as possible the treatment in court of victims of sexual offences. We know from what we have heard of victims' experiences of the system that too many people still feel that they are failed by the system and that the law needs to be reformed.
I thank members of the Justice 2 Committee for all the hard work that they have put into the bill. The principles underlying the bill are straightforward and were supported by a cross-section of the whole Parliament at stage 1 without the need for a vote. However, some procedural aspects of the bill are complex and the committee members are to be congratulated on having carefully picked their way through a substantial amount of technical detail in a relatively short time. I also add my personal thanks to my deputy, Richard Simpson, who took the bill through stage 2, and to the officials who have been involved in preparing the bill. It is quite obvious from the amount of detailed information that we have discussed that they have put in a lot of hard work.
The bill will ban alleged sex offenders from conducting their own defence at trial and prevent them from cross-examining complainers in person. The bill implements a commitment given in the Executive's programme for government. It also requires there to be advance notification of any defence of consent or belief in consent. The bill greatly strengthens the existing restrictions on the use of character and sexual history evidence about the complainer. Following an Executive amendment at stage 2, which we have discussed again this afternoon, the bill also provides for a presumption in favour of disclosure of the accused's previous convictions for sexual offences, where he has brought in material about the complainer's past. As I indicated when we dealt with the matter at stage 3, the bill was thus amended at stage 2 because we thought it important to strike the right balance between the accused and the complainer. We became convinced that there were difficulties with the original version of the new section and felt the need to examine it afresh to get it right.
Situations in which the accused seeks to conduct the trial himself and to harass the complainer do not often arise. Nevertheless, when they do, they undoubtedly cause harassment to those who have already gone through considerable pain and anxiety. Although there may be few occasions on which it will apply, the bill ought to right a wrong that, sadly, a number of women have experienced in recent times. It is fair to say that reports of such incidents can have a detrimental effect and can deter women who have been the victims of abuse or rape from reporting crimes.
It can be seen from the bill that, although the principles that we are seeking to establish are relatively straightforward, procedures are not as simple. They have required detailed discussion and the Parliament can take pride in work that is the product of much deliberation.
The bill is an important step in improving the rights of victims of crime. It is one link in a chain that is gradually becoming longer and stronger. I would be the first to accept that more has still to be done. In piloting victim impact statements and consulting on measures to protect vulnerable witnesses in general, we recognise some items on the agenda to improve the lot of victims of crime. In dealing with a particular issue that has manifested itself and occasioned considerable grief to people, the bill has taken an important step. I commend the bill to the Parliament
I move,
That the Parliament agrees that the Sexual Offences (Procedure and Evidence) (Scotland) Bill be passed.
A number of members who have advised of their wish to speak have not pressed their request-to-speak buttons. The remaining speakers should keep to three minutes.
It is relevant that we are debating the Sexual Offences (Procedure and Evidence) (Scotland) Bill on international women's day. Another debate will follow, but this is the kind of debate that before the Parliament was established we hoped that we would have. I would like to think that such a debate would have taken place even if the Parliament did not have a relatively high number of women, but I am not 100 per cent certain that it would have.
Matters relating to criminal justice are always controversial. A fine balancing act must be performed between the right of the accused to a fair trial and the right of the victim to be treated with dignity. Our discussions this afternoon show how fine that balancing act can be. That is never more true than in respect of sexual offence cases. Frequently, victims are made to feel that they are on trial. The problem is compounded in the—admittedly few—cases in which the accused chooses for one reason or another to carry out their own defence, which can often include extended cross-examination of the alleged victim.
I have no doubt that the scales of justice have been out of kilter and have needed readjustment in sexual offence cases. It does not take a genius to work out that there is something far wrong with how rape and sexual assault cases are prosecuted. Only a tiny percentage of crimes that are committed result in convictions. That undermines the confidence that women—the overwhelming majority of victims of such crimes are women—have in the judicial system. The result is that fewer women will even report a crime, let alone put themselves through the undoubtedly traumatic process of a trial.
If we are to build women's confidence in the system's ability to prosecute rape and sexual assault, we need to make changes. My profound hope is that the bill will go some way to doing that.
The trial that brought the issue firmly into the spotlight took place in my constituency. People will remember the trial of John Anderson. That gentleman was finally acquitted and it subsequently emerged that he had previously been on trial for rape and had used the same tactic in his defence.
The bill tackles only one aspect of the problem of lack of confidence in how the system deals with sexual offences. A great deal more needs to be done. I make no apologies for again stressing that we need specialist fiscals who are trained in dealing with rape and sexual assault cases so that we emulate the successes in the Californian system.
I think that we were first promised a review more than three years ago, following the high-profile Jacqueline Radin case. The debate on leading evidence in court on the complainer's sexual history and character has continued for much longer. The bill has been a long time coming and is only a small step along the road.
We cannot be complacent. The bill deals with two specific aspects of court procedure in sexual offences trials, one of which—self-representation by the accused—occurs in only a handful of cases, albeit high-profile cases. Addressing the two problems is important, but should not blind us to the fact that much more needs to be done in respect of the crime of rape.
The subject matter of the debate is extremely sensitive. There have always been difficulties in striking the best balance between protecting the complainer and likely victim of an extremely serious crime on the one hand and the rights of the accused on the other. It is about striking a balance between securing the ends of justice and fairness to the accused. It is our job to make certain that we get the balance right.
The Justice 2 Committee is to be warmly congratulated on dealing with the bill with great care and giving it careful attention. My colleague Bill Aitken has played a key role in that task. At stage 1, several witnesses in the legal profession told the Justice 2 Committee that they thought that the current legislation was adequate. We know that judges have a duty to ensure that correct procedures are adhered to and that complainers are properly protected during trials and are not subjected to unnecessary distress, which I regret to say has happened at times in the past. On 26 September 2001, Alistair Duff of the Law Society of Scotland stated to the Justice 2 Committee:
"the current legislation is perfectly adequate to deal with the concerns that it is said that the public and politicians have. The question may be whether the rules have been properly applied. That is an issue of training and education."—[Official Report, Justice 2 Committee, 26 September 2001; c 426]
Arguments such as those have come in considerable abundance from the legal profession, but now those same professionals will be charged with a duty of carrying out those changes in legislation. We have heard an enormous number of searing and harrowing accounts of women who have been through horrendous experiences. However, we will want to know how successful the bill is in leading to a higher rate of convictions. The disturbing reality for all of us is that the conviction rate in rape cases stands at little more than 20 per cent.
We believe the bill to be a sensitive and important, if relatively small, piece of legislation. The court process must be made easier and more acceptable for victims. Rape is an appalling crime and we do not want victims to suffer unnecessarily after the crime. The bill may appear to be a relatively minor measure, but the principle is important: appropriate protection should be given to the rights, liberties and privileges of not just the victim but all parties who are involved in court proceedings. We believe that we have got the balance as near to right as it is possible to get. We are glad to support the bill at stage 3.
It is a happy coincidence that today is international women's day. In the Sexual Offences (Procedure and Evidence) (Scotland) Bill, we have a chance to redress the balance, because it has the potential to give women better justice in our system. We know that the statistics on conviction for the crime of rape are bleak. The bill is one small step that has the potential to protect women from intrusive and irrelevant lines of questioning that can be a major factor in determining whether they proceed with a trial. The bill represents a bold step, for which the Executive should be commended.
The current law does not prohibit all evidence of bad character, but does so only in relation to sexual matters, so there is an omission in the law that will be remedied by the bill. Dr Michele Burman and Dr Lynn Jamieson, who gave evidence to the Justice 2 Committee, stated in their research that having a tattoo, swearing or being a single mother were used as a battery of suggestions of general bad character. Why should a woman's character necessarily test her truthfulness as a witness and her likelihood to consent to sexual intercourse?
The proposed procedure, which requires written submissions and written determinations on the use, relevance and admissibility of such evidence, will be very important in helping to establish the repudiation of an indiscriminate link between bad character and honesty and between bad character and consent.
The prohibition on personal cross-examination, as it is a form of secondary victimisation, may not necessarily free victims from such treatment as we know that defence counsels are just as likely to behave in such a manner. We know that we must take other steps to protect victims.
Women's Aid has highlighted the need for training of prosecutors, judges and others within the criminal justice system. The need to understand the nature of sexual offences is also important. I am pleased to say that at stage 2 the Executive equality proofed the bill, following evidence from the Equality Network, to ensure that it did not discriminate against gay men.
According to the Scottish Rape Crisis Network, the bill has the potential to improve women's confidence in and their experience of the justice system. The feedback that the Scottish Rape Crisis Network receives from women who do not report rapes is that they have a fear of not being believed and of being ripped to shreds.
Some people say that the bill will make no difference, but I believe that it will make a difference. We must ensure that the bill achieves its objectives and that we do not just stop with the bill. Other aspects of the law must be changed. I await the outcome of the Lord Advocate's reference on the law on rape and most of us hope for a positive decision. I support the bill.
I will be brief. I rise with some trepidation to discuss a bill that is in essence legalistic. As members know, I am the only Ewing in parliamentary life—I include Westminster—who is not legally trained. Nonetheless, I should speak because I was briefly a member of the Justice 2 Committee when it dealt with the bill. I was impressed with the work that was being done and with what the committee was trying to achieve. I thank Pauline McNeill for her skilful convenership of the committee and I thank the deputy convener and the clerks and other officials.
Today's debate has shown the complexities and nuances that arise when we deal with legislation connected to sexual offences, especially when we deal at the same time with the rights of complainers and the rights of the accused. In dealing with various amendments, the Minister for Justice and his deputy have said that there are complexities in the legislation. The indications are that the bill will not be the end of the story and that we will return to deal with sexual offences in the Parliament.
The principles of the bill are sound and have broad support in the Parliament. They also have public support. Rape and sexual assault are heinous crimes and all decent people should abhor them. It is a blot on our society that such crimes occur. As Lord James Douglas-Hamilton mentioned, the conviction rate for rape is only 20 per cent, which is very sad.
The bill goes some way to ensuring that more women will come forward and will feel that they have greater protection from our legal system and the appropriate assistance in court. If that is a result of the bill, it is to be welcomed. I am sure that women in Scotland will welcome the bill as part of our tribute to international women's day.
I turn to the word "balance" for the last time this afternoon. The balance is that the bill should be passed. The Minister for Justice caused me great palpitations in connection with the introduction of convictions, but now that he has reassured me on that, I believe that the bill is beneficial and should be passed. The Conservatives will support it.
It is significant that during the consultation on the bill, there was a real disparity among those consulted about whether legislation was desirable. In all the bills with which I have been involved, I have never seen such a disparate set of replies to a consultation process. Some of the replies were relaxed about the way in which the system operates, but others, particularly those from women's groups, were concerned that the system was not operating fairly.
For my part, I think that, on balance, the system operates well. Although at one time our judges were remote and aloof, they now live in the real world and operate in a professional and realistic manner. They would not allow cross-examination and the introduction of red herrings of the type that were mentioned in some of the evidence.
At the committee stages, I was convinced and persuaded that it is not desirable to allow party defenders in rape cases. I was convinced of that after hearing persuasive arguments from a succession of witnesses.
The forthcoming result of the Lord Advocate's reference on the law on rape and Lord Abernethy's recent judgment at the High Court in Aberdeen have been mentioned. The resolution of that matter will be extremely interesting, but it may pose more questions than it answers. The Parliament or one of the justice committees may have to revisit the entire question of the law on rape. However, that is for another day. For today, we are content to allow the bill to be passed.
I thank everyone who has worked with us on the bill, including the many voluntary organisations whose members gave generously of their time to make written submissions and to give evidence in committee. I thank the Justice 2 Committee, its clerks and all the parliamentary staff who have assisted in the passage of the bill. I also join Jim Wallace in thanking the bill team, who have worked hard to meet a tight deadline for the bill's introduction.
The stage 3 debate has addressed several important issues. Having the debate on the public record concerning such issues as the disclosure of previous convictions has been helpful to the legislative process. We have achieved a balance—Bill Aitken said that he would be the last to mention balance, but I have that honour—and I am glad that Conservative members feel that they can now support the bill. As Roseanna Cunningham said, we have to recognise that it is a finite and specific bill, addressing some definite issues; nevertheless, as Lord James Douglas-Hamilton said, it sends an important message of intent that we are addressing and will continue to address the important issue of rape. As many members have said, it is appropriate that we have had this debate on international women's day.
I fully understand the desire of many people to have the bill's provisions implemented as soon as possible. That will require some technical input, such as new legal aid regulations, the designing of forms and the updating of information technology systems. There will also need to be further consultation on the procedural aspects. However, we intend to achieve full implementation of the bill before the end of the year, or sooner, if feasible. Following the implementation of the bill, we will need to monitor the effects of the new provisions. We intend to start collecting raw statistics on the operation of the bill as soon as it is fully implemented.
Nonetheless, a bedding-in period will be needed to ensure that the qualitative research on the impact of the new provisions is not distorted by teething difficulties. We believe, therefore, that 18 months is a reasonable interval and we intend to commission qualitative research to begin in 2004. We know that a major problem with the old restrictions on sexual history evidence has been an enforcement gap and we are alive to the need to watch the new situation closely.
That is the road ahead. I hope that today will mark the start of a fairer deal for victims of sexual offences in our criminal law and procedure. I ask members to join me in voting for the bill to be passed.
Meeting closed at 16:39.