The next item of business is a debate on motion S4M-15441, in the name of Michael Matheson, on the Abusive Behaviour and Sexual Harm (Scotland) Bill. I invite members who wish to speak in the debate to press their request-to-speak buttons, but I notify the chamber that the debate is now very tight for time.
15:35
I thank the Justice Committee, the clerks to the committee and the people who gave evidence during stage 1 scrutiny of the Abusive Behaviour and Sexual Harm (Scotland) Bill. I also welcome the support for the general principles of the bill that is given in the committee’s stage 1 report.
Abusive behaviour in our communities should not be tolerated. Such behaviour can rob people of their dignity and cause lasting scars on their lives and the lives of their families. Tackling it requires a bold response, so a strong and well-targeted police presence, effective prosecution and a court system that is equipped to deal with it are crucial. However, our laws must also recognise that aspects of abusive behaviour can evolve as technology advances and our understanding of the different elements of abusive behaviour improves.
The bill will ensure that the many dedicated people who work in our criminal justice agencies are better able to deal with abusive behaviour and sexual harm so as to improve the opportunities for access to justice for victims, enhance a justice system that puts victims at the centre while maintaining the appropriate balance for the rights of the accused, and increase public confidence in the justice system.
The Justice Committee focused much of its stage 1 scrutiny on two key aspects of the bill: statutory jury directions and the intimate images offence. We are pleased that the committee—unanimously in relation to the new offence and by majority in relation to the jury directions—supports those two sets of provisions.
The Scottish Government included in the bill the provisions on jury directions to deal with the unfortunate fact that some members of a jury will take with them into the jury room preconceived ideas and ill-founded attitudes about how sexual offences are likely to be committed and how someone subject to a sexual offence will likely react.
Some members of the public continue to think that someone who carries out a sexual offence will almost always require to use physical force, that the person subject to the sexual offence will almost always offer physical resistance and that a report to the police by the victim about the sexual offence will almost always be made immediately. It is unfortunate that people who hold such unenlightened views can allow them to cloud how they assess the evidence in a case. There is comprehensive research that shows that people react in many different ways when a sexual offence is taking place and in the aftermath of an offence. That body of research shows that it is a perfectly normal reaction for a person not to offer physical resistance or report the offence for a period of time.
It is critical that, when jurors make decisions about the guilt of an accused, they consider only the evidence that they have heard in the case. The intent behind jury directions is simple: we want to ensure as much as possible that the jury’s focus is only on the evidence that is laid before it and that any preconceived ideas and ill-founded attitudes do not play a part in the jury’s decision.
Will the cabinet secretary confirm whether the research to which he refers includes actual jurors?
The member may have misheard the point that I made. It was about research into how people react during a sexual offence or after such an offence has been committed. It did not relate to the issue that the member raised.
There is discretion for the judge as to whether a jury direction is needed. If, say, no issues are raised at trial relating to a delay in the reporting of a sexual offence, the jury direction is not required. Even where an issue relating to delay may have been heard in evidence, the judge does not have to give the direction if they consider that no reasonable jury would think that the issue of delay was material to whether the offence had been committed. The bill also provides for judicial discretion and flexibility to ensure that jury directions are required only where they are relevant to the case.
The new intimate images offence is designed to respond to concerns that, with advances in technology, the sharing of private intimate images without consent has become far more widespread in recent years. Such behaviour is unacceptable. Although we know that a number of existing laws can—in certain circumstances—be used to hold perpetrators to account, we consider that reform of the criminal law is needed. A specific offence is justified, and this offence will ensure that victims and perpetrators alike understand that this behaviour is criminal; that it is easier for law enforcement agencies to take action; and that, in future, it will be clearer that someone has committed such behaviour because a conviction for the specific intimate images offence will be recorded on their criminal record, rather than a more general offence. We agree with the views that have been expressed indicating that raised awareness and education about the dangers of inappropriate use of new technologies is important, especially among young people.
The introduction of a specific domestic abuse aggravator will ensure that, when sentencing, courts always give consideration to the fact that an offence is associated with domestic abuse. It will also improve the recording of such offences. The changes allowing for Scottish courts to hear certain child sexual offence cases that took place elsewhere in the United Kingdom will ensure that there is no hiding place for perpetrators.
We note that the stage 1 report indicates that the committee was not convinced of the benefits of the non-harassment order provisions. We consider that the small but important change in the bill to how criminal non-harassment orders operate will make it easier for protection to be put in place for victims of harassment. It will do so by allowing for a speedy response from the police to protect victims.
The final area of the bill relates to the use of civil orders to protect communities from sexual harm. The bill introduces sexual harm prevention orders and sexual risk orders. The primary purpose of those orders is the prevention of sexual harm. The reforms to the existing civil order regime will provide increased protection for adults and children from those who may commit sexual offences. Police Scotland is supportive of the reforms. Its clear view is that it would rather prevent a sexual crime than investigate and convict someone for that crime. We absolutely agree that these reforms will help with that aim.
It is appropriate that, as with the current system, there should be safeguards in place. Those safeguards include a measure stating that the independent court has to be satisfied that the civil orders are proportionate and necessary, and that an individual can appeal against the making or varying of an order. In addition, the Scottish Government’s policy intent is that the individual should be able to make oral representations to the court before an order is imposed. We are considering whether a small change at stage 2 is required to put that matter beyond doubt.
The committee would very much welcome that change, as it was one of the committee’s recommendations. I think that there would have been issues with the European convention on human rights over the right to make representations and the right to have a say. Rather than just having the right to appeal, the right to be heard in advance is very significant.
The intention was always that the individual would have the right to make representations. To put the matter beyond any doubt, we are considering whether there is a measure that we can take at stage 2 that would offer further reassurance and clarification in that area.
Both males and females can be victims of domestic abuse and sexual violence. However, we know that women and girls are disproportionately victims of those crimes. Therefore, the bill should be seen as being firmly within the wider context of an extensive range of Scottish Government activity to address violence against women and girls. That activity includes new funding of £20 million—committed from the 2015-16 and 2017-18 justice budgets—for measures to tackle violence against women and girls. That funding is already making a difference, with the handling of domestic abuse court cases being speeded up and Rape Crisis Scotland expanding the support that it is able to offer to sexual violence victims.
Cabinet secretary, will you draw to a close?
I welcome the committee’s support in its stage 1 report for the general principles of the bill.
I move,
That the Parliament agrees to the general principles of the Abusive Behaviour and Sexual Harm (Scotland) Bill.
Many thanks. I reiterate to members that there is no spare time in the debate.
I call on Christine Grahame to speak on behalf of the Justice Committee. You have a maximum of seven minutes.
15:45
I am pleased to speak on behalf of the Justice Committee, which has scrutinised the Abusive Behaviour and Sexual Harm (Scotland) Bill. I thank our witnesses and those who replied to our call for evidence. In all, the committee received submissions from 34 bodies or individuals, discussed the bill at four meetings and heard from 16 witnesses from the legal and law enforcement professions, academia, groups that work with the victims of crime, the Children and Young People’s Commissioner Scotland and the Scottish Human Rights Commission. While I am at it, I want to thank the very hard-working Justice Committee.
We also heard from representatives of the judiciary and, in passing, I would like to congratulate Lord Carloway on his recent appointment as Lord President and Lord Justice General, which was announced shortly after he gave evidence to the committee. I do not think that we sabotaged his appointment, but I do not think that we had anything to do with his elevation either.
The bill is in three parts and part 2 has six chapters, so we cannot really talk about it in the round. I will try to deal with the some of the elements separately. I do not have a lot of time, so I will miss out quite a few of them, but I hope that committee members will pick those up.
As the minister said, there are two main elements. The first is the new offence of the non-consensual sharing of intimate images. The media sometimes calls that “revenge porn”, but the committee is aware that not everyone believes that we should use that terminology.
With advances in technology and increasing use of social media, it has become all too easy to use the internet to humiliate other people. When that involves sharing intimate photographs or videos of another person that were never meant to be shared with a wider audience and are perhaps sent out on the internet following an acrimonious break-up, it can be particularly poisonous and harmful. In our report, we support a new offence in the area, and that received some coverage in the media. The press reporting was along the lines that the committee had given the “green light” to making “revenge porn” an offence.
On the same day, the Scottish media carried the story of a young man from Paisley who had been convicted of putting intimate photographs of his ex-partner online. Under common law, he was sentenced to six months in what the press called a “revenge porn” conviction. However, evidence made it clear that it is not always easy to apply the current criminal law in this area. There are grey areas that may allow truly hurtful behaviour to escape criminal censure and, even when a conviction is successful, the courts may lack the sentencing options that the crime merits. Under the bill, the maximum sentence is five years.
The drafting of a new law provides an opportunity to make it clear that sharing intimate images of another person without their consent and with intention or recklessness as to whether it causes hurt or humiliation is a crime. The committee believes that the bill is on the right track, but we have made some observations on the drafting of the offence and we would like the Scottish Government to reflect on them. I suspect that other committee members will pick up on the issues, but an example is the definition of a public place. That is always difficult to define.
In changing the law, there is also an opportunity to make it clear that such behaviour is socially unacceptable. We can have preventive legislation. Most people will know that, but there are some—particularly the young, perhaps—who may lack the insight or maturity to realise just how much harm it can cause.
The committee heard concerns that the bill might lead to the criminalisation of behaviour that some young people might—rightly or wrongly—consider to be okay, normal or everyday, but the majority of the evidence, including the evidence from the Children and Young People’s Commissioner Scotland, was that that is not a good reason to exclude young people from the ambit of the offence, not least because the victims of such behaviour are usually young people and they, too, deserve the protection of the law. Images on the internet can live for ever. The committee agrees with that, although we do so in the expectation that the vast majority of cases involving children and young people will not go before the courts or even the children’s panel and that there will be some discretion as to what happens with young people.
The second main element of the bill is jury directions relating to sexual offences. The bill proposes that, for the first time, we set out in statute what directions judges must give to juries in certain cases. To put the matter broadly, if evidence is led about an apparent delay in reporting or telling anyone about an alleged sexual assault, the judge must direct the jury that there may be good reasons for the delay. In addition, if evidence is led about an apparent absence of physical resistance to an alleged sexual assault, the judge must direct the jury that there may be good reasons why a person may not have physically resisted such an assault.
The Government’s view, as we have heard, is that it is necessary to make that intervention because misconceptions about how people respond to sexual trauma may lurk in the minds of some jurors. There was some agreement in evidence that the Scottish Government was probably right. Juries are, after all, composed of ordinary people, some of whom may well bring their misconceptions into the jury room.
Beyond that point of general agreement, the provision very much split our witnesses; it also split the committee. There was evidence from the Law Society of Scotland, the Faculty of Advocates, legal academics and the judiciary to the effect that the proposals would at best achieve little and at worst risk doing harm. Those witnesses said that the provision would in effect force judges to give guidance about apparent matters of fact that, in the view of the judge, were not relevant to the trial that the jury had just sat through.
Evidence from victims groups, the police, the Crown Office and some other legal academics was equally strong in support of the proposals. The directions were seen as uncontroversial statements of fact that could only be of assistance to a jury in coming to a more informed view. That view prevailed in the Justice Committee’s report, with what the report described as “a clear majority” agreeing that the directions may, in relevant cases, help to ensure that justice is done. The majority also took the view that setting out the requirement to give the directions in statute will ensure a more consistent approach in courts. Those of us in the minority would have preferred to wait at least for the conclusion of a forthcoming Scottish Government-sponsored piece of research on decision making by juries before taking any decision in this area.
I knew that I would not have time to address non-harassment orders, the domestic abuse aggravator, new civil orders and sexual acts elsewhere in the UK, which are all important and serious parts of the bill. Because I have not been able to cover all those areas, I hope that other members will take the opportunity to develop those points.
The committee supports the bill’s general principles, subject to our recommendations, some of which I know the cabinet secretary is chewing over, if that is not too colloquial a phrase.
15:52
I thank the clerks, as well as the witnesses who gave written and oral evidence at stage 1.
Two parts of the bill were more contentious than the rest: judicial directions and whether the provisions about the distribution of intimate photographs without consent ought to be extended to other forms of communication.
Section 1, which introduces a statutory aggravation where an offence consists of the abuse of a partner or ex-partner, was generally welcomed by witnesses. The aggravation also applies where an offence is committed against a third party with the intent of causing distress to the partner or ex-partner, such as actions taken or threatened to be taken against a person’s child, and where the offender has been reckless about whether they caused the victim to suffer physical or psychological harm; the intent to cause harm does not need to be proved for the aggravation to apply.
Some witnesses would have liked a specific offence of domestic abuse to be introduced. The bill does not do that, although I understand that the Government is consulting on that possibility. The aggravation in the bill also applies only to partners, ex-partners and people who are or have been in an intimate personal relationship. Therefore, it does not apply to the physical or psychological abuse of children or elderly relatives, for example. I hope that were a specific offence to be introduced in the next Parliament, coercive control of a wider range of victims would be included.
Section 2 introduces an offence relating to so-called and inappropriately termed “revenge porn”: disclosing or threatening to disclose intimate photographs or films without the person’s consent. Again, the offence covers both the intention to cause fear, alarm or distress and recklessness about whether fear, alarm or distress is caused. In the case of both the aggravation and the new offence, not meaning to cause harm to the victim will not be able to be used as a defence.
Witnesses were strongly supportive of that proposal, believing that it will send out an unequivocal message about the unacceptability of such behaviour, which, as Professors McGlynn and Rackley stated in evidence, contributes to the
“normalization of non-consensual sexual activity and creating a climate in which women’s sexual expression is not respected.”
Some witnesses, such as those from Scottish Women’s Aid and Abused Men in Scotland, argued that the offence was too narrow and should include sound files or texts relating to an intimate situation. Some of us on the committee had considerable sympathy with that viewpoint, but a majority agreed with the cabinet secretary that drawing it too widely could have unintended consequences. I know that my colleague Margaret McDougall, who pursued the matter at committee, will be speaking on it this afternoon.
Other witnesses argued that the offence as drafted was already too broad. Michael Meehan of the Faculty of Advocates cited the example of a person taking a photo of their flatmate asleep on a couch in their underwear and sharing it with another person and that being within the scope of the offence, as the term “intimate image” also includes non-sexual images. I have to say, though, that I would not have much sympathy for the person who shares the image in that situation if it is shared without the consent of the other person.
Concerns were also expressed about whether the offence would criminalise young people involved in sexting. The Children and Young People’s Commissioner Scotland argued that the Crown would have discretion and that offences involving children would be referred to the children’s hearings system rather than the criminal court. He also argued strongly for an education and information programme to advise children and young people of the dangers of some of these activities.
The bill provides for a defence of sharing an image that was taken in a public place, which means that images of people on a public beach, for example, would not be covered. However, other witnesses drew our attention to the disgusting practice of upskirting, in which photographs of body parts are taken without a woman’s consent and distributed. Although such activity is in itself illegal, the distribution of such photographs is not caught by the bill.
The other more controversial issue in the bill is jury direction. The bill amends the Criminal Procedure (Scotland) Act 1995 to ensure that when in a sexual offences trial evidence is led that the victim—or perhaps more accurately complainer—did not tell or delayed telling people about the offence, or did not report or delayed reporting the offence to the police, the judge must advise the jury that there might be good reasons why victims of sexual offences sometimes do not immediately report the offence to another person or the police. Similarly, if evidence is led regarding a lack of physical resistance by the complainer or if the line of questioning elicits such information, the judge must also advise the jury that there can be good reasons why victims of sexual offences do not necessarily physically resist their attackers.
Members of the judiciary such as Lord Carloway and Sheriff Liddle were opposed to such directions, arguing that making such judicial directions mandatory in cases where such evidence has been led or elicited would introduce a precedent and there would be pressure for similar treatment of other offences. They also argued that advice on these matters could be included in the jury manual. The Law Society and the Faculty of Advocates, as well as some committee members, were also unconvinced.
However, Labour members of the committee agree with the Scottish Government on this matter. When the abolition of the requirement for corroboration was introduced in the first draft of the Criminal Justice (Scotland) Bill, we thought long and hard before deciding that we could not support it. We felt that although more sexual offence and domestic abuse cases might come to trial, the prosecution would, without corroboration, be more likely to fail. We were also concerned about the prosecution of other offences on the basis of the evidence of one person.
However, the circumstances that we are talking about here are very different. Juries are made up of ordinary people, and we do not need to undertake a lot of jury research to know that the general public hold misconceptions about sexual offences. Unfortunately, a lot of people still think that a woman’s behaviour can contribute to the offence committed against her, and such perceptions can be compounded if the victim has delayed reporting the offence or has not physically resisted her attacker. If evidence on those matters forms part of the trial, the judge should remind the jury that such factors do not constitute consent.
The bill also extends the court’s ability to award a non-harassment order for a domestic abuse offence in circumstances where the alleged offender has not been fit to stand trial and the evidence suggests that the person is guilty. Although the committee did not oppose such a measure, members were not clear about how useful it would be in practice, particularly if the person in question was not fit to stand trial in the first place. The bill also extends Scottish courts’ jurisdiction to prosecute offences committed against children elsewhere in the United Kingdom—I think that the provision, although welcome, needs to be amended slightly—and it replaces sexual offences prevention orders, foreign travel orders and risk of sexual harm orders with the sexual harm prevention orders and sexual risk orders that can be found in the rest of the UK.
We look forward to having further discussions on the bill at stage 2, but I will be happy to support it tonight at stage 1.
15:59
The Abusive Behaviour and Sexual Harm (Scotland) Bill is an important piece of proposed legislation, which seeks to address hugely vexing, emotive and, in some cases, complex issues.
I am grateful for the constructive views and evidence on the bill’s key provisions from the many witnesses who appeared before the committee during the stage 1 scrutiny process. I also thank the committee’s clerks for compiling such a comprehensive stage 1 report.
The bill covers six distinct provisions, namely: a domestic abuse aggravator; the non-consensual sharing of images; jury directions in relation to sexual offences; non-harassment orders; sexual acts elsewhere in the UK; and sexual harm prevention orders.
The committee agreed the bill’s general principles, and there was general consensus on the findings on the provisions, with the exception of those on jury directions in relation to sexual offences, which was the most contentious provision. Here, the convener and I both considered that, at the very least, more research must be carried out before such a dramatic provision is enforced. I consider that it could set a dangerous and unwelcome precedent by eroding the judiciary’s discretion and the separation of powers.
The raison d’être for the provision was to address potential and recognised misconceptions among juries in sexual offence cases about the absence of physical resistance or a time delay in reporting by victims. However, those are both issues that can be dealt with adequately through the use of expert witnesses. The only barrier to that is the cost implications, which have been acknowledged by both Catherine Dyer, chief executive of the Crown Office and Procurator Fiscal Service, and Lord Carloway, the then Lord Justice Clerk. However, cost should not be an issue here.
It is worth stressing that if the aim of the provision is to address issues that are known to make a successful conviction more difficult in sexual offence cases, there is an opportunity at stage 2 to look again at the provision of legal aid to oppose the inappropriate requisitioning of medical records, which are frequently used to discredit complainers. Whereas the complainer or third party has a locus to object to the release of their medical records at the hearing to determine an application for their recovery, in most cases they cannot afford legal representation to object, as currently they are not granted legal aid. That situation could easily be rectified; all that is required is the political will.
I turn now to the domestic abuse aggravator provision, which would result in tougher sentences for perpetrators of domestic abuse committed against a partner or ex-partner. That would now also be extended to a third party such as a child or close friend. The cabinet secretary has confirmed that the measure will apply to a first offence. In such circumstances, the aggravation clearly needs to be applied proportionately and with common sense. Sheriff Derek Pyle has urged caution on that point. He commented that the judiciary has to
“identify the cases where there is concerted and serious abuse as opposed to those which are little more than domestic arguments to be expected of any couple”,
as he terms it.
Meanwhile, the Law Society has expressed concern that the inclusion of third parties would make the aggravation “difficult to prove”, due to the requirement to establish intention or recklessness.
The introduction of the new statutory non-consensual sharing of intimate images provision was widely supported. It aims to create greater clarity in relation to what is a distressing and humiliating practice for victims, who are often vulnerable adolescents or young adults. However, there were differing views among witnesses on whether that had been achieved, and there was also concern about the practical implications of the consent defence.
The provisions to allow the Scottish courts to cover sexual offences against children within the UK were intended to be practical provisions but, again, they have raised concerns about jurisdiction implications and the definition of Scottish residency.
Although the committee was sympathetic to the intent behind the introduction of non-harassment orders, it questioned the practical implications.
Similarly, although the provisions on reforms to the system of civil orders are well intentioned, they were introduced without full consultation, and serious issues and concerns that have been raised in evidence will have to be addressed. I welcome the Government’s commitment to do that at stage 2.
Although the Scottish Conservatives support the general principles of the bill, there is clearly a lot of work to be done at stage 2 to ensure that it is fit for purpose.
We now move to the open debate. I ask for four-minute speeches, as we are tight for time.
16:04
I rise to speak to one of the most significant sections of the bill: that relating to statutory jury directions in relation to sexual offences.
I declare an interest as a former board member of Rape Crisis Scotland. I do not speak on behalf of any organisation—Rape Crisis Scotland or otherwise—but I am fairly certain that women’s organisations in general will agree with most of what I have to say. It is common currency—and a belief that has been held for decades—in the organisations that take care of women and children in circumstances where rape has taken place that the deck is stacked against someone who complains of rape: they know that juries have preconceived ideas before they enter court. That view is commonly held in all the different women’s groups.
In a rape trial, juries expect victims to have a particular demeanour: they expect the person to be somewhat excited, traumatised in some regards and to show stress and emotion, including loss of control. When it comes to physical force, juries also expect clinicians to be able to produce evidence that force was used.
There are many reasons why people might delay reporting rape. It is fairly simple: it is common knowledge that in rape cases people feel that they will not be believed; and a common source of trauma is that people do not understand themselves what has taken place. Many rapes are carried out by someone who is known to the person who has been raped, and the victim fears the consequences not just for themselves but for their extended family, including children who might be in the same room.
Juries expect to see stress and emotion. I have had 40 years’ experience in the motor industry, and in my business—now run by my son—we deal with people who have had an accident with their car. Some people can get very emotional, even about a tiny scratch. People, including men, have been known to cry when their car has been damaged. It will be happening today—someone will be very stressed about something that it is very small. They also often say, “Don’t tell my husband,” “Don’t tell my wife,” or “Don’t tell my boss,” and ask to pay for the repair themselves. They do that for a whole range of reasons.
It is the same when it comes to rape trials. Different people act in different ways. Some people can be very concise in what they do because—
Please draw to a close, Mr Paterson.
I have been asked to wind up, so I will just say that we need to educate jurors. Juries must have an open mind and judges giving jury directions will help to educate them and will be good for justice in general.
16:08
I welcome the bill. I will take each of its six main proposals in turn.
I support the introduction of a domestic abuse aggravator, which will allow the relevant offence to be placed in the context of domestic abuse and will ensure that that is taken into account in sentencing. Of course, that should not be a substitute for a new specific offence of domestic abuse. Neither the aggravator nor the new offence should be broadened out to include wider family members because the whole bill must be seen within the wider context of the Government’s work on violence against women, as the cabinet secretary reminded us.
We were expecting a specific offence of domestic abuse in the bill to capture coercive and controlling behaviour. However, I accept the reasons that were given for further consultation on that. We look forward to legislation on that in the next session.
There could be an addition to section 1(2)(a) to make it clear that the offence occurs regardless of whether it is committed directly against the partner or ex-partner—it is the physical or psychological harm that matters. Perhaps that aspect needs to be made absolutely explicit through amendment at stage 2.
Moving on to the second new element in the bill, I support the new offence of non-consensual sharing of intimate images. As various witnesses pointed out, we may need a clearer definition of consent, perhaps one that is based on the concept of free agreement as outlined in the Sexual Offences (Scotland) Act 2009. I believe that the offence should be extended, because, as Police Scotland reminded us,
“the impact of the written word and sound files of an intimate nature cannot be understated”.
An extension should certainly be seriously considered.
It is right that the offence should cover children and young people, and I support Scottish Women’s Aid’s proposal that the Government should run a campaign of education and information for children and young people on the criminal legal effect of the new offence and its impact on victims.
Moving on to non-harassment orders, I disagree with the committee on that aspect. A loophole in the law was highlighted a year ago by a prominent figure, and I picked that up in questions and debates in Parliament last year. It is not reasonable to expect the victim to instigate a civil non-harassment order in the circumstances that the legislation deals with. Those who say that an order will not have a practical effect should consider the very real practical effect that it will have in making it easier for the police to intervene quickly to protect a victim of harassment. That is precisely the issue that arose last year in a well-publicised situation that was highlighted in The Herald.
Moving on to jury directions, the provisions will ensure that jurors’ decision making is not marred by erroneous preconceptions. It is clear that there are problems with jurors’ views on delays in reporting and the lack of physical resistance in cases of sexual violence, and those two issues are dealt with explicitly in sections of the bill. Other issues are dealt with too, but it is good that those specific points are spelled out in the bill.
Research by Professor Louise Ellison of the University of Leeds and Professor Vanessa Munro of the University of Leicester found that the introduction of judicial directions of the nature of those that are outlined in the bill would be likely to increase the prospects for justice. Given how difficult it has proved to be to secure convictions for rape, in particular, and other sexual crimes, we must do everything that we can to make that more possible.
The member must draw to a close, please.
Time is running out. There is a great deal in the bill about the civil orders, and a little bit less about sexual offences committed elsewhere in the UK, but I do not think that the provisions on either of those will prove to be controversial.
16:12
A person knows what sexual and domestic abuse are if they have been a victim of either, but refining a specific set of criminal offences that can bring about successful convictions requires hard work, dedication and comprehension of the Scottish legal system. I welcome the on-going consultation on a definition, and I look forward to the results.
The nature of legislating in this area is convoluted, and it must be precision led. We must discuss and debate, as we are doing today, so that all the potential loopholes are tightened up while we ensure at the same time that there is sufficient flexibility to address different situations. We have heard about many different situations in the debate today.
The Scottish Government must be commended and, I believe, the Justice Committee specifically must also be commended for its thoughtful, caring and compassionate approach in taking evidence. The members took time to listen when witnesses gave evidence in committee, and they raised a range of themes that we can continue to discuss at stage 2.
Under the law as it stands in Scotland, there is a crossover between terms such as “grievous bodily harm” and “domestic abuse”. That is central to the need to produce effective legislation that meets the specific needs of victims. As the Scottish Women’s Convention pointed out in its submission,
“The overarching objective of the Bill is to improve how the justice system responds to abusive behaviour, including domestic abuse and sexual harm. It also aims to help improve public safety by ensuring that perpetrators are appropriately held to account for their conduct.”
I will take a moment to remind members of some of the statistics on domestic abuse in Scotland. In 2014-15 there were 59,882 incidents of domestic abuse recorded by the police, which represented an increase of 2.5 per cent. I hope that the increase has more to do with women feeling more confident about reporting such incidents, but we should not view it only in that context. Of the incidents that were recorded last year, 54 per cent resulted in at least one crime or offence being committed. The victims were mainly women—79 per cent—and the domestic abuse was most likely to take place at the weekends and to happen to people aged 26 to 30.
The big problem remains, however: women are not getting justice in the current system. The bill seeks to redress that situation. Many members will be aware of the successful drive to have Clare’s law rolled out in Scotland, which I have greatly supported, and of the work that I have done in increasing awareness of revenge porn—I look forward to that becoming a specific criminal offence. I pay tribute at this point to all the organisations that have informed and helped me on those issues and I look forward to seeing their success result in decent legislation.
There have been good developments that are improving access to justice, but the civil protections that are offered are still not enough of an incentive for more women to seek the assistance of the law. There are too many aspects that discourage women from reporting incidents to the police, and we need to change that. That is why the bill will include the introduction of a statutory aggravator. As the Scottish Women’s Convention said:
“Such a measure in relation to domestic abuse sends the message that those who perpetrate such crimes will be adequately punished.”
Marking out revenge porn is vital for the victims and for the right to due process, and getting the right convictions will send out the clear message that it is unacceptable and that there will be a zero-tolerance approach to those who do it. Social media give us so many ways in which to express ourselves and our opinions, however bizarre or unpopular they are in some cases, but they give no one the right to post pictures of ex-partners without either their knowledge or their consent. Social media do not provide a licence to abuse.
Personal use of technology in its many forms is very difficult to police. It is so easy to press a button and post a picture, but the sad and tragic tales of the people who have been exposed to revenge porn tell us how utterly devastating the effect can be.
I support the bill in its entirety and I look forward to stage 2. I hope that through the bill process we will create legislation that will mean that perpetrators will pay a hefty price.
16:16
I am pleased to speak after Christina McKelvie, as I know that she has campaigned long and hard on the issue, as I have.
I thank the Government for introducing the bill. In doing so, it has recognised the need to keep battling the damage that is done by abusive behaviour and sexual harm. The bill falls short of providing for a new criminal offence of domestic abuse, and I know that campaigners have been concerned by that. However, I consider that the Government is right to have chosen to consult separately on that, which it is doing principally to get the definition right. It is worth taking time to do that. I look forward to a commitment from all parties in Parliament, whatever the outcome of the election, to introduce a bill on a new criminal offence early in the new parliamentary session.
The bill introduces a domestic abuse aggravator, which is to be welcomed. In the little time that I have for my speech, I will focus on two provisions in the bill, the first of which is on the offence of non-consensual sharing of images. That addresses a gap in legislation that has allowed what is known as revenge porn to gain a foothold in Scotland, just as it has elsewhere. The insidious malicious sharing of intimate images can cause victims huge harm and destroy lives, so we need to ensure that perpetrators can be held to account for their actions. The creation of a new criminal offence will be an important step in the right direction.
I believe that there is significant underreporting of revenge porn. It is important that victims do not suffer in silence and that they know that they have done nothing wrong. Specific legislation to tackle those despicable and cowardly acts will give victims the confidence to believe that such violations of their privacy are unacceptable and illegal. In addition to empowering more people to seek justice, the creation of a specific criminal offence will help to overcome any archaic attitudes to that cruel weapon, which is used to cause distress and to embarrass, manipulate or humiliate. Some witnesses urged us to go further and to address written text and voice recordings, as well. However, I agree with the Government’s response, which is that it does not wish to dilute the offence or to cause confusion. I agree that we should keep the offence very focused.
Alongside the legislation, though, we should have a national strategy—as recommended by Her Majesty's inspectorate of constabulary in Scotland in November last year—to ensure that young people in particular understand the risks of what is known as sexting. The HMICS report warned that sexting—defined as
“the posting of self-generated intimate images on social media networks”—
is now considered a way of life by some young people, and that it could increase the vulnerability of young people who are at risk of exploitation. I would welcome an assurance from the Cabinet Secretary for Justice that the Scottish Government intends to act on the report’s recommendation to develop a strategy to address those risks.
The second provision that I want to mention is that on jury direction. I acknowledge that that particular provision has proved to be controversial. If truth be told, at the beginning of the process, I was not entirely convinced that it is necessary, but having considered the evidence at stage 1, I am persuaded not only by the well-articulated case that was made by organisations including Rape Crisis Scotland and Scottish Women’s Aid and the research that was carried out with mock juries, but by some of the outdated and frankly astonishing comments of some judges over the years. Members might be aware of a recent appeal court ruling that overturned a lenient sentence which described the sentencing judge’s comments as “controversial”. Comments such as “essentially non-violent relationship rapes” and
“condoning or acquiescing in rapes”
certainly are “controversial”.
Responding to questioning in committee, Lord Carloway told us in relation to sexual offences:
“the law is progressing. It is moving from a certain position, where it was 20, 30 or 40 years ago, into the modern era.”—[Official Report, Justice Committee, 8 December 2015; c 44.]
The movement is glacial, and it is time for change.
You should draw to a close, please.
There are worryingly prevalent views, and if that is the picture across Scotland, it will be in jurors’ minds in the courtroom as they hear evidence and will go with them into the jury room as they deliberate.
Jury direction is a sensible safeguard to introduce. The Liberal Democrats will support the bill this evening.
16:20
I add my thanks to the Justice Committee team—the clerks and members of the committee—for putting together the stage 1 report, and I thank the Scottish Government for its response. We are all going in the same direction when it comes to tackling revenge porn.
I said “revenge porn” because “abusive behaviour and sexual harm” will not do. Revenge porn is really what it is all about.
We heard a lot of evidence on cases of revenge porn, which we are calling abusive behaviour and sexual harm. We took some of that evidence in private. It was heart-rending and very difficult to take. The cabinet secretary used some of the words that were used in his opening remarks.
The bill’s policy memorandum says:
“Concern has been expressed that certain ill-founded preconceptions held by members of the public, who make up juries, about the nature of sexual violence make understanding victims’ responses to such crimes more difficult.”
However, to me and many others that is where the problem is. Members of the public—us—have ill-founded preconceptions about the nature of sexual violence. We need to admit that. We do not understand how a victim can feel after such an attack; we do not get it unless we have been a victim, as Christina McKelvie said.
That is why I agree with the majority of the committee on supporting jury direction. We received plenty of evidence on it and how it should be set out in the bill. It should be regarded as part of judicial knowledge.
On 24 November last year, the legal officer for the Scottish Human Rights Commission, Eleanor Deeming, said:
“Article 6 of the ECHR ... protects the right to a fair trial. Article 6.1 sets out a number of general aspects for a fair trial and articles 6.2 and 6.3 set out the minimum rights to be afforded to a person accused of a criminal offence.
The commission understands that the proposal is being introduced to address a particular issue.”—[Official Report, Justice Committee, 24 November 2015; c 26.]
We know that the perception is that people hold misconceptions about the conduct of victims of sexual offences. I agree with the Scottish Human Rights Commission. Jury direction, as the bill proposes, will not prejudice an accused person’s article 6 rights as long as directions are essentially factual and uncontroversial statements. That is very important. They need to be exactly that.
I was very much concerned about the impact that the bill could have on young people, but I did not need to be, as the convener of the committee stated. The Children and Young People’s Commissioner Scotland, Tam Baillie, put my mind at rest when he gave evidence. He agreed that we do not need to have concern about judicial direction being given. He also agreed that calling expert witnesses to give context is not the most efficient way to proceed.
I want to emphasise one particular point. As the Children and Young People’s Commissioner Scotland put it:
“In the fullness of time, as a result of public education and greater awareness, judicial direction may not be needed.”—[Official Report, Justice Committee, 24 November 2015; c 28.]
That is a very important point to repeat.
I am short of time, so I will not be able to develop what I wanted to say about another part of the bill.
One in four women will experience domestic abuse in her lifetime. One in 10 women in Scotland has been raped. Some 21 per cent of girls and 11 per cent of boys in the UK have experienced child sexual abuse. That is why Parliament needs to back the stage 1 report and to agree with the majority of the committee that jury direction is an important part of the bill. Attitudes need to change before we can consider dealing with that.
You must close, please.
I remind members that organisations such as Zero Tolerance, Rape Crisis Scotland, the Women’s Support Project, Scottish Women’s Aid, White Ribbon Scotland, Engender and many more want Parliament to reconsider removing the absolute requirement for corroboration in Scots law.
16:25
The Abusive Behaviour and Sexual Harm (Scotland) Bill is vital legislation that has been introduced to improve how the justice system responds to abusive behaviour, including domestic abuse and sexual harm, following the publication of the “Equally Safe” report.
The bill has six parts and in the very short time that I have been allocated to speak I will concentrate on the part that deals with the non-consensual sharing of private consensual images, which is often referred to as revenge porn. As it stands, that aspect of the bill covers only disclosing or threatening to disclose without prior consent a photograph or film that shows or appears to show another person in an intimate situation. I support the creation of the new offence, as the law desperately needs to be updated to provide for the new digital age. However, it is far too narrow.
These days, everyone who owns a smartphone, tablet, or even a computer knows how to take a screenshot, and that presents a glaring loophole in the legislation, which is the sharing of text. Louise Johnson of Scottish Women’s Aid stated in evidence that specifying photographs and films
“excludes the sharing of private and intimate written and audio communications”.
The exposure or threat of sharing such communications has the same outcome: it is designed to humiliate and control the victim. Sometimes text and images are sent at the same time. Would we criminalise the image but not the abusive and threatening text? Those views were supported by many others, including Police Scotland, which believed that the offence
“should take cognisance of all forms of communication and distribution”.
I acknowledge that it was pointed out in evidence that the sending of abusive or threatening messages is already against the law. However, the sharing of intimate text is not. For example, the sharing of an intimate image on Facebook without consent would, under the bill, be a prosecutable offence. However, if someone shared an intimate conversation or a screenshot of an intimate conversation it would not be covered.
I argue that sharing that type of communication could have the same effect as sharing intimate images without consent. It could cause just as much fear, alarm or distress to the victim and, arguably, that would be the intention. To be clear, I am not advocating that we make the process of sexting between consenting adults illegal, nor am I suggesting that we criminalise those who are 16 or under who have engaged in the process consensually. In fact, in evidence the children’s commissioner Tam Baillie stated:
“I am not looking for any exemption for children or young people.”—[Official Report, Justice Committee, 24 November 2015; c 21.]
He emphasised the importance of education and said that it would be more effective in changing behaviours than criminalisation in non-malicious cases. He also said that the financial memorandum makes no provision for what could be a substantial education programme.
I am proposing that the sharing of sexts or any intimate communications non-consensually should be included in the definition of the offence in the bill, which would extend its present narrow definition. The bill does not go far enough to tackle the issue and I raised concerns about that during stage 1. I am considering submitting amendments at stage 2, so I would appreciate it if, when closing, the minister indicated his views on the points that I have raised.
16:29
I refer members to my entry in the register of interests, which says that I am a member of the Faculty of Advocates.
The bill contains six distinct elements. On revenge porn, it is worth stressing that, as members have mentioned, it is currently possible to bring criminal proceedings for offences broadly of that nature, as recent newspaper reports have indicated. I share the Government’s view, however, that for the purposes of clarity and to discourage the offence generally, the creation of a new offence has clear merit.
I was interested in the legal debate on the nature of the offence in section 2(1)(b), in particular. Although I think that the concerns of Mr Meehan of the Faculty of Advocates about what might be described as the flatmate-in-boxer-shorts situation are overstated, I am sympathetic to the view of Catherine Dyer, from the Crown Office, who said that the focus of the offence should be on the impact on the victim, and I am heartened by Professor Chalmers’s comment that the offence goes somewhat further than the equivalent offence in England and Wales, by incorporating a situation in which
“A is reckless as to whether B will be caused fear, alarm or distress”.
Professor Chalmers thinks that the Government’s extension is a reasonable one, and he has changed his opinion on that.
However, I agree with people who have concerns about any extension beyond photographs to include texts, for example. That would open up the matter too far, and the approach would be particularly difficult for children and young people to understand and accept. If we are to have the education campaign that the committee recommended and which is referred to briefly in the Government’s response to the committee’s report, the campaign must have clear and simple messages. I cannot but think that a reference to text messages would make that more problematic.
On the public place defence, I share the caution of the Scottish Human Rights Commission that what is determinative is not the place where the photograph is taken but whether the photograph infringes a person’s private sphere.
On incorporating the definition of “consent” in the Sexual Offences (Scotland) Act 2009, to which some submissions referred, I note the Government’s comments, but we need to be as clear as we can be about what constitutes consent.
There is clearly a divergence of opinion on jury direction. I recognise that the bill breaks new ground in that regard and that the proposal does not have the whole-hearted support of the legal establishment, but I take comfort from Lord Carloway’s comment that such directions have been introduced in other Commonwealth jurisdictions and could be introduced here—although to be fair to Lord Carloway I should say that his view is that such an approach is not the best one.
Let us remember that such directions have been discussed for some while. They were in the Scottish National Party manifesto for the 2011 election and were subject to consultation in the Government’s “Equally Safe” consultation. I agree that they set a precedent, but that is in the context of widespread agreement that many juries have preconceptions about what a delay in reporting an offence of rape and sexual assault means and about what the absence of physical resistance implies.
It is true that to date there has been no jury research in Scotland, but that is for the obvious reason that such research would require amendment to the Contempt of Court Act 1981. We are entitled to draw comfort from the research of professors Ellison and Munro. Let us remember what Catherine Dyer, from the Crown Office, said in evidence:
“directions would be given only if questioning from the Crown or the defence elicited information that there had been a delay.”—[Official Report, Justice Committee, 17 November 2015; c 22.]
Only if such matters—another example would be an issue about the absence of physical resistance—are an issue in a particular case will directions need to be given.
On sexual acts elsewhere in the United Kingdom, I think that some of Professor Chalmers’s comments might be described as academic, but I am glad that the Government has noted them.
On the statutory aggravation, there was consensus, with the notable exception of the Law Society, that it is a good idea. The Law Society evidence seemed to highlight the acknowledged prominence that courts give to domestic abuse and suggested that the aggravation is not necessary. I agree with the society about the current position in the courts, but I am not persuaded that that somehow means that a statutory aggravation is not necessary. As a society we are becoming well used to the concept and I have no doubt that it will be used effectively.
I am glad that the Government will seek to put beyond doubt the question of oral representation in relation to sexual harm prevention orders and sexual risk orders.
I commend the bill.
16:33
It is with interest that I speak about the Abusive Behaviour and Sexual Harm (Scotland) Bill, which aims to bring Scottish law up to date with changes in society’s view of domestic abuse and with technological changes, to reflect our improved understanding of the issues.
Members talked about non-consensual sharing of images. I add my voice to the calls for the bill to cover the sharing of intimate images that are not necessarily sexual. Images can be shared in an instant, and a great deal of damage can be caused by the reckless sharing of images. That should be provided for in legislation.
I do not think that young people should be exempt from being charged under the proposed new laws. Dealing with offenders would provide support for victims, who would often themselves be young people. I am sure that the court would take the person’s age into consideration.
I want to add to the debate the view that it is important to consider the various aspects of domestic abuse and not focus only on partner abuse or abuse of a physical nature. In order to get gender equality, we should consider the practicalities of placing in the bill a broader definition of abuse that includes emotional abuse, control of money and control of movement. In addition, people in some minority communities live in extended families. Therefore, the abuse might be carried out by someone other than a partner. Sadly, I have observed cases in which several family members were involved in exerting extreme levels of control over another family member.
Another development in our understanding concerns the fact that domestic abuse need not always involve men abusing women. There can be abusive same-sex relationships, for example, and I heard a story about a mother-in-law beating her new daughter-in-law for burning a roti, which is a chapatti in English. There is also violence towards and coercion of male family members. For example, around 20 per cent of people asking for help from the forced marriage unit are male.
I support the principles of the bill, but we need to widen the definition of abuse in the bill, particularly with regard to domestic abuse. We need to ensure that we are talking about not only partners and photography, but families and how family members can be affected by each other.
16:37
I, too, thank the witnesses for their thought-provoking written and oral evidence. I hope that they are reassured by the stage 1 report that their comments were taken on board. I also thank the officials for their compilation of the report and the Scottish Government for its response.
Like others, I want to talk about jury directions. I have changed my mind on the issue. Initially, I was persuaded that the availability of expert evidence that could be put forward by the prosecution or the defence was an even-handed way of addressing the issues of delay in reporting and resistance, but I have changed my position and will explain why.
The committee has agreed that the proposed statutory directions would provide relevant factual information for juries—I do not think that that is in dispute—and would lead to directions being delivered more consistently than is currently the case.
Partly, I have been persuaded to change my position by headlines such as “Campaigners’ fury as appeal judges clear bottom groper of sex attack in nightclub”. That story involves a gentleman who was initially found guilty of sexual assault and placed on the sex offenders register—properly, in my opinion—and who appealed the sentence. In his judgment, the judge who heard the appeal said that it seemed that the sheriff who passed the original sentence
“has not given sufficient attention to the fact that the appellant had consumed a considerable amount of drink beforehand, with the result that the assault can be regarded as drink-fuelled rather than overtly sexual.”
That is deeply damaging to a lot of work that has gone on.
Alison McInnes referred to another case, which is one that prompted me to lodge a parliamentary motion. It involved repeated rapes of an adult and the sexual abuse of children. The trial judge referred to the matter as minor, criticised the adult victim for a delay in reporting the assaults, claimed that the victim was “condoning” or “acquiescing” in being raped, pointed out that the person continued to live with the accused and talked about the parties’ “benefit-grubbing existence”.
My motion welcomed
“both the Appeal Court’s comments that the trial judge ‘had no basis for his theories’ and the increased sentence that it handed down”.
However, my motion talked about the damage that the case has done to
“the good and difficult work carried out by the police, prosecuting authorities, statutory and third-sector organisations to build victims’ confidence in coming forward to report sexual crime”
and called on
“the judicial authorities to examine selection procedures and training, including offering remedial training if required”—
a need that I felt that case graphically illustrated.
Lord Carloway addressed the matter head on when he attended the committee. He said:
“It is important that a judge should feel free to state exactly why he has selected a particular sentence and be given free rein to explain his reasoning. If in the course of that reasoning he says something that the appeal court determines is wrong, we will say that, as we did in that particular case, and we will expect the judge to take into account the appeal court’s view and to act accordingly.”—[Official Report, Justice Committee, 8 December 2015; c 44.]
That is one reason for the bill. Christian Allard also touched on the compelling evidence that we have received from the Scottish Human Rights Commission. It is about striking a balance between rights and, in terms of jury directions, I believe that we have got the balance right.
Beyond that, there are other issues that we need to deal with, such as judicial training. The cabinet secretary talked about unenlightened views, and it is apparent that they exist not just among the public. If, as someone whose views I admire says, the judiciary have had their chance and it is time to legislate, and if this is appropriate and balanced legislation, the Green/Independent group will support it.
16:41
I welcome today’s stage 1 debate on the Abusive Behaviour and Sexual Harm (Scotland) Bill and echo the thanks that have already been expressed to the Justice Committee, for a substantial and thorough report, and to the witnesses and stakeholders who assiduously helped to inform its findings.
From the tenor of the speeches in the debate, it seems that there is a consensus that the bill will have a positive impact, not least because it adjusts the criminal justice system to the challenges that have been created by modern communications technology. During the debate, there has also emerged recognition of the need for some reflection on and refinement of the bill at stage 2.
Members have already covered many areas of the bill but, in the time that is available, I will focus my remarks on the new statutory aggravator and the controversial introduction of jury directions in sexual offence cases, which I know has exercised the judiciary and legal practitioners alike.
The new domestic abuse aggravator is a welcome acknowledgement that the justice system should treat cases of partner abuse with the seriousness that they demand. I have little doubt that the Crown Office and Procurator Fiscal Service and the courts are already robust in their handling of such cases and that special measures are in place to prosecute them expeditiously and with sensitivity. Nevertheless, the tougher sentencing that is intended to result from the aggravation will provide reassurance to victims that the disposal fully reflects the reality of repeated psychological and physical abuse perpetrated by someone in a position of trust.
However, I note the concern that the flexibility for the aggravation to be used in relation to first-time offences may have unintended consequences, including the possibility that it will be applied in isolated domestic dispute cases. I therefore urge the Scottish Government to look again at that aspect at stage 2 to ensure that the provision does not inadvertently dilute the seriousness of sustained partner abuse and that it is applied proportionately.
Section 6 introduces two jury directions in sexual offence cases in the context of, first, a delay in the complainer telling someone about the offence or reporting the offence to an investigating agency and, secondly, evidence being given to suggest that sexual activity took place without physical resistance by the complainer. I am sympathetic to the intention behind section 6, which seeks to dispel the public’s preconceptions surrounding some key aspects of sexual violence. However, I strongly believe that statutory jury directions are not the way to achieve that desired outcome, and I urge caution. Stakeholders were clear that such measures would erode the judiciary’s discretion and that there is no empirical evidence that the jury directions are required. Worse than that, such directions could have the unintended consequence of the defence leading expert evidence that it might not otherwise have proposed simply to mitigate a possible anticipated forensic disadvantage.
Lord Carloway, for example, suggested that a better way to do it would be to declare that the measures are within judicial knowledge—I am slightly paraphrasing him. Sheriff Liddle argued that
“the place for such suggestions would be the jury manual”.—[Official Report, Justice Committee, 8 December 2015; c 37.]
Those are authoritative views and, to me, they are persuasive. As Christina McKelvie observed, the last thing that we want to do is to make conviction more difficult simply because there might be confusion in the judge’s charge to the jury.
That said, and subject to those comments, the bill is a welcome and positive piece of proposed legislation. I look forward to the Government’s response at stage 2, but my party will support the bill at decision time.
16:45
On behalf of Scottish Labour, I support the general principles of the bill. I have found the debate to be most edifying and educational. Much has been said about what the bill seeks to achieve. It is fair to say that, in many minds, there is confusion about exactly what we are trying to deal with. The prejudices that are brought to this environment often confuse the notion of love and sexual intent. In fact, the bill seeks to deal with human beings who seek to control others, who exhibit anger in the way that they demonstrate that control and who are happy to use violence and/or threats, either actual or implied, to obtain their own outcomes. In that context, I welcome the bill’s aim of preventing abuse, harassment or sexual harm, using either criminal or civil law.
The domestic abuse aggravator is to be welcomed and is well worthy of further development. I ask the cabinet secretary to bear in mind an issue that was raised with me only this week at the conclusion of a trial that resulted in a conviction. The victim in that case is now left with a duty to return to the civil courts to seek an interdict in connection with future harassment. There might well be a gap in how we deal with long-term domestic abuse and the impacts on victims.
The bill introduces a specific offence of non-consensual sharing of private and intimate images. That issue demands a response in legislation. I believe that further analysis of the impact of sharing texts and sound files is important. We should consider the foreseeable impact on an individual of the sharing of such files with the general public. Sound files and texts can probably do as much damage to a vulnerable individual as images when shared in the public domain.
There is a provision allowing courts to directly protect victims when the court is satisfied that a person has harassed another person but a conviction does not take place. As was alluded to earlier, that is another important aspect. Some victims feel abandoned by the system when the full process of law is unable or unwilling to deliver.
I am persuaded that the requirement for specific directions from the court is necessary. Christine Grahame, I think, commented on the prejudices that ordinary members of the public bring to the process and John Finnie gave a great deal of evidence that that prejudice extends beyond ordinary members of the public. We should be able to rely on a judge setting the context with a comment to the jury about how evidence might be weighed in its decisions.
I am concerned about the comment that the judge should tell the jury how it weighs the evidence, because that is a matter for the jury alone.
I misspoke or Christine Grahame misheard. I do not imagine that a judge would tell the jury how to weigh the evidence but that they would at least explain the context so that the jurors could make that appraisal for themselves.
It is to be welcomed that sexual offences that are committed in England will be able to be prosecuted in Scotland. That removes the legislative barriers in relation to that.
I also welcome the reform of the system of civil orders that are available to protect communities from people who may commit sexual offences. I look forward to the committee examining the implications that arise from that.
The Scottish Government consultation “Equally Safe: Reforming the criminal law to address domestic abuse and sexual offences” said much about the levels of support for each of the elements that are proposed in the bill. Although I am not a great one for supporting an “X Factor” approach to percentage support for various proposals, there is no doubt that there is a general acceptance among the public that legislation is necessary and should have an impact.
Over the years that I was a police officer, nothing was more soul destroying than seeing families suffer from domestic abuse and the impacts of sexual assault. I am glad that the Government is taking the approach in the bill.
16:51
I thank members for their thoughtful speeches in what has been a considered debate. That reflects the Justice Committee’s stage 1 report, which gives due consideration to various areas.
I confirm that the convener is correct that I am “chewing over”—as she put it—the recommendations and the points that the committee made in its report. I have tried to provide as helpful as possible a response to the report in the limited time between receiving it and this debate and to set out the Government’s views on a number of matters.
In their speeches, members took views on a range of different proposals in the bill. I will pick up on a few of those in the time that is available to me.
Some members of the committee had an issue with the provision on mandatory jury directions. In saying that, I am referring to two members of the committee; a clear majority of committee members support the provision for the reasons that the Government and a range of stakeholders have set out. On that point, I correct Ms Goldie, who said that stakeholders have raised concerns: some stakeholders have raised concerns, but a range of other stakeholders are supportive of the provision.
I also take up the point that was made by Margaret Mitchell and echoed by Christine Grahame, who said that they would prefer to wait for research to be conducted into jury directions before we agree to the provision. As I set out in my opening speech, the reason for introducing the provision on jury directions is that we already have evidence on the ill-conceived ideas that jury members may have, which can have a bearing on their judgment of evidence that is led in a trial. Evidence has been gathered on that and there has been some research into it in England, so we already have a body of research on it. However, the jury research that we are undertaking in Scotland is about the measures that will be required post the abolition of the requirement for corroboration and is specific to the Scottish system.
The Criminal Justice (Scotland) Bill is the last piece of legislation that I dealt with in the chamber. Margaret Mitchell lodged an amendment to that bill to introduce a new provision to deal with medical evidence being led in particular trials and the right to legal representation. At the time, I set out that we did not support the amendment because we were researching the matter to identify how effectively the provisions in sections 274 and 275 of the Criminal Procedure (Scotland) Act 1995 were operating. She has chosen to ignore that point, although the provision on jury directions is supported by the very organisations that she said we should have been listening to on the Criminal Justice (Scotland) Bill. Organisations such as Rape Crisis Scotland are very supportive of it. There is an issue with the consistency of the Conservative Party’s approach to some of these matters.
I am very grateful for the broad support that has been provided by others on the provision on jury directions, the purpose of which is to tackle preconceived and ill-founded attitudes to sexual offences and how victims should react, which can cloud a jury’s consideration of such issues.
I turn to the sharing of intimate images, or revenge porn, as some members have referred to it. I have no doubt that, with the advances in technology that all members are aware of, the issue is one that is increasingly finding its way into our criminal justice system. By providing for a very specific offence, the bill will help to support the police, our law enforcement agencies and victims by making sure that the issue can be effectively addressed.
Some stakeholders have expressed the view that we should consider extending the proposed offence to include the sharing of audio files and the written word. Margaret McDougall raised that issue, as did Malcolm Chisholm. However, as I set out in my evidence to the committee, there would be some challenges if the proposed offence were extended too far. In particular, there could be a lack of clarity that would affect our prosecutors’ ability to bring such matters to court, as Alison McInnes identified. As I said to the committee, I will consider whether there is a way in which the highly specific offence that the bill creates could be extended without compromising the intention behind it or the clarity that is necessary to deliver it.
A number of members discussed the potential unintended consequences—especially for young people—of extending the provision to cover sexting. Doing so could end up criminalising many young people, bringing them into our criminal justice system in a way that the bill did not intend. That is why the provision of education and information on the matter is something that we will give further consideration to. Guidance has already been issued to local authorities to provide direction to schools and education authorities on how they should educate young people on the risks associated with such behaviour. We will of course give further consideration to those matters as we move forward with the bill.
A number of points were made about the use of non-harassment orders. I thought that Malcolm Chisholm made a very well-articulated argument regarding some specific cases in which there has been a lack of protection for victims from harassment by certain individuals because of the present deficiency in our criminal justice system. The specific intention behind the provisions that we have put in the bill is to address the situation that he set out clearly. I understand the concerns that members of the committee have about the practicality of the provisions’ application, but I am in absolutely no doubt that the additional measures on non-harassment orders will provide greater clarity to the police in particular on when they should intervene and in which cases they have the authority to intervene, and that that clarity on the police’s ability to intervene will reassure victims.
I am very grateful to members for all their contributions to the debate, and I am grateful for the support that the committee and the other parties have offered at stage 1 of the bill’s consideration. I will of course seek to work constructively with all members in considering what further improvements can be made to the bill between now and stage 2.
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