Sexual Crimes Trials
The final item of business today is a members' business debate on motion S1M-380, in the name of Johann Lamont, on cross-examination during sexual crimes trials. This debate will be concluded without any question being put after 30 minutes. It would be helpful if those members who would like to speak in the debate would press their request-to-speak buttons now, and if those leaving would do so quietly.
Motion debated,
That the Parliament recognises the huge distress that can be caused to the victims of rape and other sexual crimes if accused persons are allowed to conduct their own defence and can cross-examine victims, and urges the Scottish Executive to bring forward legislation as a matter of urgency which will bring the rights of victims in such cases into line with the new rights of victims in England and Wales.
I am proud to have the opportunity to introduce this debate on the cross-examination of the victims of sexual crimes.
I am aware that there is considerable interest in this debate. I believe that that interest reflects a general concern that some have about our legal process—about women in the judicial system and about the broader issue of the rights of victims in the judicial process. It also reflects the anxiety that some of us have about a curious dislocation between what the legal system decrees to be fair and what society would define as just and fair treatment.
I start from some basic premises about justice. We all have the right to a fair trial. We all have the right to be presumed innocent until proven guilty. As victims of crime, we have the right to a fair hearing. There should be legislation that ensures that victims of sexual assault are not cross-examined by the person accused of the crime, which is currently the system in England and Wales. That should be a blanket rule for certain categories of crime. Such a general rule would not prejudge or reflect on the individual accused. It is simply an obscenity if, in even one case, in the name of justice and fairness to the accused, the legal process sanctions the further abuse and intimidation of a women who has been raped. The rights of the accused must be protected, but no one has been able to explain to me how a person's innocence is attacked if the cross-examination of the victim is carried out by a third party. Rape is the ultimate in the exercise of power and control over another human being. We cannot allow our formal processes to be subverted to allow the further exercise of that power.
There is a problem around the debate on rape and sexual assault that we must acknowledge. We know that below the surface—more visible at some times than at others—there is a residual unease and anxiety about, perhaps even a little hostility to, women who report rape. There may even be an instinctive disbelief in their claims. It can be seen as legitimate to be as tough as possible on the woman making an accusation, because if she breaks, she is a liar. She may simply be broken by the system. It seems that the presumption of innocence does not always extend to a woman who reports that she has been raped.
That is not to deny that there has been movement in society's attitude to rape. It is now acknowledged that there can be rape within marriage. There is a broader awareness of the extent of domestic abuse and violence against women. We know, for example, that police procedures, particularly in cases involving sexual assault, have improved immeasurably. However, it is important to acknowledge that that movement has been brought about not by the judicial system renewing itself, reflecting and changing, but by the work of women's groups and women's organisations, which have identified the problem, named the crime and developed solutions, often in the teeth of official resistance.
I want to recognise all those women affected, who have often been talked of as victims and placed in the same category as vulnerable children. We should see them as survivors who have had the courage to speak out about their experience to save others from the same. If anyone is to get credit for the changes that we are going to introduce, let it be those women.
Any observer would acknowledge that the case for change has been pressed in the recent period, and that there has been a huge backlash—especially from figures in the legal profession and the judiciary—that has been horrific and mesmerising in its belligerence. Accusations have included the suggestion that rape cases go to trial without the same test of evidence as other cases, when we know that rape is often under-reported. We are accused of seeking tabloid headlines, pursuing a women's agenda or attacking human rights. There has been a desire to characterise this debate as being the emotional versus the rational mind; the lynch mob versus the due legal process. I refute such divisions. The debate is simply a plea for a civilised approach and for equality under the law. I congratulate the Executive on its announcement that it will legislate on the issue. I am disappointed that we waste energy debating whether that decision is a U-turn or a defeat, or for whom it is a victory. It is a welcome advance. We are not now talking about whether; we are talking about how.
I also acknowledge—perhaps unusually—the role of the media. They have recently played their part in highlighting the injustices that the Executive is now moving to address.
I recognise that there is much to be done, but I trust that those who seek to delay, and to drag their feet, will not be allowed to do so. They must not be allowed to determine the pace of change. I also seek assurances that the way in which we shift will be developed in partnership with the women's organisations that brought this debate to the fore in the first place.
At the heart of the Executive's decision to move is a clear and important understanding that advice on policy making in justice comes in many voices, not just in the accents of our legal and judicial betters, but in the voices of women survivors, women's organisations, victims and their families. There are alternative sources of wisdom in our society. It bodes well for the prospects of the Parliament if that understanding reflects a shift in the balance of political gravity in our society so that we now listen to more than one voice in our community.
The importance of process in rape cases is crucial. When we talk about crime, we hear a great deal about deterrence. We must examine how we deter potential rapists. We must consider challenging society's attitude to women and to our sentencing policy. We must also confront the way in which our current processes can deter women from reporting the crime in the first place. When crimes go undetected, unreported and unpunished, as a society we are diminished.
This is only one part of the important work of ensuring justice and equal access to the process of the law for all our citizens. I am happy to have this debate and I look forward to hearing the other speeches.
Eight members would like to speak before the minister replies. That will not be possible unless everyone sticks to about two minutes.
I will take as short a time as I can.
It is evident that support for changes to the law on rape cases cuts across all the parties. The pressure within Parliament, and outside, is pushing the Executive along quite nicely.
I pay tribute to the minister; not only is Angus MacKay listening to us, but he is interested in and sympathetic to the clear message that direct cross-examination of the alleged victim by the accused should be outlawed. If Angus has anything to do with it, I think that that practice will cease.
Many other issues are involved when it comes to rape trials; this is not just about a single issue. Cross-examination on sexual history is a closely related issue. As I understand it, the Executive is saying that it is talking about one step. I will take this opportunity to give a message to the Executive. The message is that, if the accused requests that sexual history is brought to the court, the sexual history of the accused should also be brought to court. That sexual history could include the times when they have been accused and the times when they have been charged, but frankly I do not think that that provides the right balance. If the accused brings the sexual history of an alleged victim—one who has been charged with no crime—into the court, the quid pro quo should be that the unfettered sexual history of the accused should also be brought to the court.
Balance is required in many areas of the judicial system and I am pleased about the messages that the Executive is sending and about the good will and the encouragement that have been given. I pay tribute to Johann Lamont for bringing this debate to the chamber. The debate comes at a good time. A little bit of extra pressure is required because, as Johann said, if change is needed, it is needed soon. I hope that it comes.
I, too, anticipated that there would be considerable interest in the debate. Out of courtesy I will keep my remarks brief. I congratulate Johann Lamont on securing the debate and on bringing a topic so recently in the headlines sharply into focus in Parliament.
It would be wrong to say that every rape trial results in a victim's being cross-examined over a number of hours by the alleged attacker. The circumstances of the recent case were unusual, but the fact that such a situation should happen at all is the crux of our discussion this evening. That the fear of such an interrogation should cause a wee girl to attempt to take her life fills me with anger, loathing and revulsion.
In my student days, I was involved in a discussion with friends about a brutal rape in Dundee. One of my chums said that, if the victim had been his girlfriend, the rapist would have had to pray that the police found him before he did, as he would kill him. I have a 14-year-old daughter—who says that she will disown me if I do not acknowledge male rape today—and I daresay that if she were the victim, my thought process would be similar to that of my student friend. That is the depth of feeling that people have—"Hinging's too good for them"; "He'd no dae it again if I got a haud of him"; "I'd castrate him." Those are typical responses of people repulsed by violent sexual attack. However, what repulses us more is the treatment of victims during rape trials. Our adversarial system of court procedure is such that we lose sight of the victim's plight. The victim becomes merely a witness. Witnesses in cases involving a two cop BOP, or breach of the peace—which was my stock in trade when I sat in a district court—found the experience traumatic. For a rape victim who is the main prosecution witness in a trial, the distress and stomach-churning fear must be immense. For some, it is more than they can bear; hence the attempted suicide.
The successful prosecution rate is abysmally low, which affects the inclination to report a rape. The truth is that we do not know how many rapes there are in a year. How rape victims are treated by the police and by the courts impacts on the willingness to report. The attitude of the police is improving, as are some of the facilities, but not every police station has a rape suite. The main issue, however, is how cases are prosecuted. When vulnerable women have their lifestyles, actions and particulars of an intimate and personal nature examined in minute detail, we feel anger at a system that allows that to happen. When that examination is carried out by the person who is alleged to have carried out the attack, we feel enraged. It is little wonder that we hear calls to change the system.
I know that some people hold the view that the alleged rapist should not be afforded the right to cross-examine a witness in their own defence, particularly when there appears to be some twisted, perverted gratification for the questioner. I fully understand the thinking behind the calls for that evil to be stopped. However, I know that those calls will be fiercely opposed by legal practitioners claiming that the right of the accused to a fair trial would be jeopardised, it being an inalienable right to face one's accuser. Some hold the view that, when an accused conducts his own defence, a third party might put the questions of the alleged rapist to the victim witness on behalf of the accused. While that might be a comfort to the witness, it would provide ready grounds for an appeal and there is no way that I want to give a rapist an opportunity to be set free on appeal so that they can attack another defenceless woman. The question of appeal seems to be the reason why those who hear rape trial cases are slow to intervene when questioning a victim witness becomes a sadistic pleasure for the accused. A technicality is the most offensive reason for the guilty to be set free.
I am in favour of considering any measures that would allow the proper conduct of a defence while maintaining the rights of the victim witness. Let us not pussy-foot around definitions; rape victims—irrespective of their age—are vulnerable witnesses and should be treated as such. We have videoconferencing technology; let us use it to protect women from the grotesque humiliation that a rape trial can become.
I salute Johann Lamont for bringing the debate to the Parliament today, and ask her to number me among the supporters of the cause.
I add my congratulations to Johann Lamont on securing the debate. I am pleased to pledge my personal support, and the support of the Liberal Democrats, for ending the practice of allowing cross-examination of a witness by the accused in sexual crime cases.
Mercifully, there have not been many cases of that kind in the recent past, but the publicity that such cases have gained might encourage more people to use that tactic in future. There might be difficulties with the European convention on human rights, but if we are careful and frame the legislation with due attention, we can ensure that the accused's rights are upheld by use of professional representatives. That would be a fair and proper way in which to proceed.
The Liberal Democrats hope that, when the reforms are complete, more women will come forward to testify, as they will have more confidence in the system delivering justice. Women need greater protection from the law in Scotland. We have made a useful start, and I look forward to participating in bringing about a fairer and better system that will engender greater confidence.
I thank Johann Lamont for bringing this debate to the Parliament. She has been consistent in her approach, not only in the Parliament but outwith it.
In the past 15 years, sporadic attention has been paid to issues of gender and the criminal justice system. It is apparent to the Justice and Home Affairs Committee that women who are victims of sexual crimes feel let down by court procedures, and specifically by the criminal justice system. I shall address two points. The first is the issue that Lyndsay McIntosh touched on, concerning cross-examination. The second follows on from what Gil Paterson said about sexual history.
I came to this debate early on, thinking that perhaps we had to be careful about article 6 of the European convention on human rights and about removing the accused's right directly to cross-examine the witness. However, I now support the position of Women's Aid, which is not in favour of video linking and third-party cross-examination. We should remove the option of direct cross-examination. It does not take a lawyer to interpret article 6 of the convention, which clearly states that the accused has the right to "have examined"—that phrase suggests that we can remove the option of direct cross-examination with good reason.
I next want to expand on Gil Paterson's point. Although I welcome the radical approach that the Executive is taking to the issue, we cannot stop at legislating only on that point. We know that there is a low conviction rate for crimes of rape. The shields legislation of 1986 was designed to limit the use as evidence of victims' previous sexual history. It is a sad fact that applications to mention the victims' sexual history are made in more than half the rape trials that are recorded. The ordeal of women in the witness box must be further addressed in cases of sexual crimes. Sadly, on many occasions judges have allowed the rules to be broken although there is clear legislation preventing a victim's sexual history from being mentioned.
On many occasions, defence solicitors have abused the process. The Brown report in 1992 said that although the legislation had been effective, there were three main weaknesses. First, the rules were not followed in all cases—we have seen that in many recent cases. Secondly, the legislation failed to address the innuendo and inference that defence lawyers were allowed to use in court, which was a way of manipulating the legislation. That has to stop. Finally, the subtlety of the attacks on the credibility of the complainer was cause for concern. Although the report did not make any comment on verdicts, it is clear from the acquittal rate that there must be a flaw in the process.
We have made a radical start to addressing women's concerns about the criminal justice system. I welcome the Executive's proposals.
I thank Johann Lamont for securing this important debate. I am sure that all of us would like a ban on cross-examination of victims to extend not just to rape but to sexual crimes generally. It is important to note that some sexual crimes can result in worse damage than that caused by what is technically rape.
Dickens described the law as a beast that feeds on human misery. He meant the law everywhere, including Scotland, so we cannot regard ourselves as superior. Unfortunately, in relation to women and children, that beast has not changed much in the past century.
The changes that there have been in the courts, such as the use of videos and screens, have been a mere feather-dusting. A week or so ago, the cross-party group on male violence heard just how ineffectual that could be. One Women's Aid worker had to find the screens herself, as nobody else bothered. We know that sometimes those aids are not available for the cowering and terrified woman or child. That is not good enough.
Meanwhile, the police have changed their attitudes and have improved greatly in dealing with those cases. I pay special tribute to John Orr of Strathclyde police, who took a strong line against violence in any form against women and children. However, the court system remains brutal and barbaric. I do not think that any Scot should take pride in the Scottish court system in this regard. It would be vain and atavistic to think that Scots law is always right. We must drag it out of the caves and liberate these women and children from an ordeal that can be as bad mentally as the crime itself.
I have met too many of the victims. I have seen a child of just under three carried into a court where the accused was sitting. That child was too terrified to say anything, hard as it would be to do so at that age. Of course, that was yet another case that collapsed.
Why do so few victims come forward? Who would if they knew that they would face the bullying tactics that women and children encounter from paid advocates? It is even worse if they have to face the accused man.
Let us get right into the 21st century and end this shame on Scottish justice. Go for it, minister: get rid of it.
I commend Johann Lamont for securing the debate, and I commend the Scottish Executive for being prepared to introduce legislation as soon as possible.
Obviously, that will not happen overnight, so I would like an indication from the minister of whether the Scottish Executive is examining ways of ensuring that the current guidelines on the manner and relevance of the examination of a woman's sexual history are being applied to the letter and in the spirit of the law. The current guidelines are not being consistently and whole-heartedly applied. Measures should be taken now to ensure that the current guidelines are used properly in the meantime.
I call Malcolm Chisholm, who has one minute.
I welcome the Executive's commitment to act on the matter. Clearly, it is only one piece—although a very important one—in a jigsaw of measures that are required to secure justice and support for rape victims. I hope that that will be carried forward by the other measures in "Towards a Just Conclusion" and through other more radical provisions, such as the use of special prosecutors in rape cases.
I wanted to talk about the European convention on human rights, because that has interested me throughout the debate. However, I have time to refer to only one judgment; I have read it in full because it is very interesting. It is not simply the interpretation of the principles in articles 3 and 6 to which Pauline McNeill referred that makes it clear that the proposals are not against the European convention. The case of Croissant v Germany in 1992 makes it absolutely clear that not only can a state require a defendant to act through a lawyer, but, according to the judgment, the court can even appoint the lawyer. There has been no doubt about that throughout the debate, and I should be interested to know what legal advice the Scottish Executive has received on the matter during the past year.
I have been involved in prosecuting rape cases and in defending one such case. The great worries that they raised were threefold. First, the time taken in such cases is a cause for concern. In one English case, the accused confronted the victim in court for six days. That is outrageous. Secondly, there is the issue of confrontation, which is extremely painful and traumatic. I have seen a girl reduced to a huddle in the bottom of the witness box—an ordeal that was extremely disagreeable and unpleasant to watch. In that case, the trial had to be adjourned and restarted. That is almost as bad as reliving the rape all over again. Thirdly, there is the issue of sexual history, which is often explored well beyond the circumstances of the crime. Sexual histories are sometimes brought out in prolonged cross-examinations, and that should be subject to restriction.
Only a few days ago, Mr Jim Wallace, the acting First Minister, said:
"I want to make crystal clear that the Executive is committed to preventing the accused in sex offence cases from cross-examining the victim in person."
There are great worries about confrontation; video links might help, but the minister may want to go further than that. I look forward to what the Deputy Minister for Justice has to say on the matter.
Jim Wallace also said that
"we intend to strengthen the current restrictions on cross-examination on sexual history and character."
I hope that the minister will introduce a package of measures to protect the rights of the accused at the same time as ensuring that the victim does not have to go through the traumatic experience that many victims have had to undergo in the past—that approach is outdated, degrading and, as has been said, barbaric.
I thank members for their co-operation in keeping their speeches short. I have left the minister very short of time, but I will turn a blind eye to the clock.
Thank you, Presiding Officer. Unusually, I will not take any interventions, because of the shortness of time. I have several points to make and I will try to rattle through them as quickly as possible.
I welcome the opportunity to hear again the strong and sincerely held views expressed by members in the debate and to restate the commitment that the Executive has already given to introducing legislative proposals to deal with the issues that we have discussed.
First, let me put it on record that the Executive fully supports the sentiments expressed in Johann Lamont's motion. Johann is a long-time campaigner on justice for women, both in her Pollok constituency and across the country. She is a powerful advocate for victims, and the fact that she lodged the motion reminds us of the seriousness of the issue, touching as it does on the impact of sexual offences and the subsequent court processes on victims and their families.
The Executive recognises the great distress that can be caused to the victims of rape and other sexual crimes when giving evidence at the trial of the person accused of attacking them, particularly if that individual elects to conduct their own defence and to cross-examine the victim personally. We also recognise that, as Johann Lamont said, it is essential properly to balance the rights of an accused person to examine or have examined on their behalf witnesses at their trial, with the rights of their victim. We intend to strike the appropriate balance.
That is why we announced our commitment to introduce measures to prevent an accused person charged with rape or with another sexual offence from cross-examining a victim personally. We also recognise the great distress that can result from a victim being asked irrelevant and intrusive questions about their sexual history or character. We are determined to tighten up the existing measures in that area.
Beyond that, the Executive is fully committed to supporting the victims of crime and to a criminal justice system in which the voice of the victim is heard. Work on our measures has been instructed, and is already under way; it will continue during the summer. That will enable us to develop legislative proposals that achieve our objectives and that make sense in the context of our system of criminal justice.
As part of that process, my officials will meet interested parties—including representatives from women's groups and victim support groups, from the professions and from the academic world—and other people with views to contribute. The legislative proposals, which we will publish after the recess, will have to be workable within the Scottish criminal justice system.
The basic principles of the criminal justice system must be upheld, and we are confident that they can be. They include the presumption that an accused person is innocent until proven guilty; the requirement for the case against the accused to be proved beyond reasonable doubt; and the need for corroboration and for the defence to have the opportunity adequately to test the evidence against the accused. None of that should be compromised.
That is not to say that the law and the procedures based on it cannot be updated and modernised. We believe that that is possible and we intend to do that.
As we work, we will also focus on fundamental principles regarding the rights of victims and witnesses. All victims and witnesses have the right to be treated with respect and dignity, to be protected from harassment and intimidation before, during and after trial, and to be given whatever support and protection are necessary to enable them to give their evidence fully, with confidence and to the best of their ability.
Victims and witnesses should also be actively and closely involved in decisions about how they might be helped to do so. For example, under Scots law at present, the views of witnesses who may give evidence through the use of a closed-circuit television link or of screens should always be considered when the decisions on their use are being taken.
The public interest in the proper and effective administration of justice and in the protection and support of victims and witnesses is best safeguarded by ensuring that fair trials take place: fair to the legitimate rights of the accused and fair to the legitimate rights of victims and witnesses.
As members know, all legislation enacted by the Parliament must be compatible with our obligations under the ECHR and with fundamental freedoms. The proposals that we make to change the law will be such that convictions are not likely to be overturned on appeal, either because a change in the law compromised our basic principles of justice, or because that change might be struck down as incompatible with our obligations under the convention.
We are well on the way to formulating detailed legislative proposals. We have identified a range of options for change, in relation both to the issue of cross-examination carried out personally by an accused and to the nature of the questioning that is allowed.
We are also considering extending the current provisions that allow certain witnesses to have the use of what are known as special measures when they give evidence in court. The possible options for change in that area will be discussed with interested parties over the summer. We will look favourably at any measures that best allow crime victims to be supported during proceedings.
Every citizen involved in court proceedings—crime victims and accused persons—is entitled to have their rights protected. We do not accept that securing fair trials necessarily means excluding proper protections—we believe that those can go hand in hand.
I will conclude by restating the Executive's unambiguous commitment on the issue. We believe that current practice is unreasonable, unnecessary and offensive. Members should be in no doubt about the Executive's commitment to support victims of crime, to be tough on crime and the causes of crime, to deal fairly but firmly with criminals and to protect the most vulnerable members of society.
We are already working on legislative proposals to fulfil the commitments that we have made on the issues discussed in the debate, and I very much look forward to bringing that legislation before the Parliament.
Meeting closed at 17:34.