Amendment 7, in the name of Bill Aitken, stands in a group of its own.

The purpose of amendment 7 is to obtain clarification of what, under section 1 of the bill, constitutes the type of offence that the Executive seeks to define as a sexual offence.

It is fair to say that section 1 provided members of the Justice 2 Committee with some difficulty. It is clear that it is undesirable for a woman who has alleged that she has been raped to find herself confronted in the witness box by the person whom she has accused of the offence. The committee accepted that such a situation could be distressing and harrowing.

However, we draw to the attention of the Parliament that that has happened on only two indictable occasions over the past 20 years and, coincidentally, in cases that involved the same accused and the same judge—Lord Bonomy, who is well known as a robust defender of the rights of victims. In those cases, Lord Bonomy made it clear that, if the complainer had been subject to examination by counsel, she could have been submitted to a more rigorous cross-examination. He also highlighted that the complainer in both cases did not appear to be unduly distressed.

The Justice 2 Committee spent a lot of time considering the matter. The considerations were constructive and produced a lot of free-flowing thought. We concluded that potential complainers are of the view that there is a real risk of being confronted by their assailant. Although it is clear that the facts do not bear that out, members of the Justice 2 Committee agreed that, on balance, it is undesirable to allow cross-examination and the personal conduct of defence in cases of this type. We are prepared to agree to the terms of section 1, subject to the amendment that I have lodged.

We seek to clarify the term "substantial sexual element". Under the provisions of proposed new section 288C(4) of the Criminal Procedure (Scotland) Act 1995, the court is required to make an order applying those procedures to offences that are not listed in the appropriate subsection. Nothing in any legislation or any ministerial explanation has defined correctly or appropriately the term "substantial sexual element".

I fully appreciate that such cases are few and far between. It has been well documented that any man who acts as his own lawyer has a fool for a client. Given that such cases have happened only twice in the past 20 years, it is not probable that there will be all that many cases. Nevertheless, it is important to have an agreed definition. We are disappointed that there has been neither a verbal explanation of the term nor an Executive amendment to tighten up the wording.

I hope that, even at this late stage, the Minister for Justice might review the situation and strengthen the bill. Amendment 7 represents a constructive attempt to bolster section 1. Without its provisions, there could be all sorts of difficulties with interpretation and the appeal court might be called in to make determinations. Such a situation might not be in the best interests of justice.

I move amendment 7.

As no member has requested to speak to amendment 7, I will go straight to the minister.

Amendment 7 is misconceived and unnecessary. New section 288C(4) of the Criminal Procedure (Scotland) Act 1995, as proposed in section 1 of the bill, is perfectly adequate to cover the process by which the court can decide whether to treat an offence as sexual and therefore to prevent the accused from personally questioning the complainer.

As Bill Aitken has mentioned, the bill's intention is to ensure that an accused charged with any offence with a "substantial sexual element" will be prohibited from conducting his defence in person. The prohibition does not depend on whether there is a relationship between the accused and the complainer or whether the quality of the complainer's evidence would be affected by the fact that the accused was doing the questioning. The Executive believes that, as a matter of principle, complainers in all sexual offences should not have to contemplate the possibility of being personally questioned by the accused. Complainers in all such offences should also have the benefit of the restrictions on the use of evidence about their sexual history or character. In deciding whether to treat the offence as a sexual one, the court needs only to determine whether the offence is to all intents and purposes a sexual one—that is, whether it has a "substantial sexual element".

Amendment 7 would introduce to the process criteria that are irrelevant to the question whether the offence is a sexual one. Furthermore, they are not relevant to the question whether the bill's provisions apply to the sexual offences included in the main list in proposed new section 288C(2) of the Criminal Procedure (Scotland) Act 1995. As a result, they should not be applied to any other offence, which is basically a sexual offence.

Amendment 7 would also greatly complicate what should be a relatively simple process. The prosecution will be aware of the circumstances of the alleged offence and will simply draw to the court's attention the factors that show that the offence has a sexual element. It will then be up to the court to decide whether that element is substantial enough for the offence to be treated as a sexual one. There is no need for a complicated set of criteria to be set out in statute. Accordingly, I ask Bill Aitken to withdraw the amendment.

I do not accept the minister's assurances. Although I do not want us to enter into an exhaustive process of defining the minutiae of what is meant by "substantial", some general criteria should be available. Although numerous offences might be highly offensive and would certainly constitute an assault, they might not be sexual in motive or content. Although courts would certainly have the ability to make such determinations based on the facts of each case, they will take different interpretations on different occasions, as is their wont. That is how the system operates, and it will ever be thus. However, we must recognise that guidelines should be introduced. As amendment 7 seeks to strengthen the bill and tighten things up, it is justified in all respects, and I will press it.

Will the member give way?

Sorry.

Just too late, Ms Cunningham.

The question is, that amendment 7 be agreed to. Are we agreed?

Members:

No.

There will be a division.

Division number 1

For: Aitken, Bill, Douglas-Hamilton, Lord James, Fergusson, Alex, Gallie, Phil, Harding, Mr Keith, Johnstone, Alex, McIntosh, Mrs Lyndsay, Scanlon, Mary
Against: Adam, Brian, Alexander, Ms Wendy, Baillie, Jackie, Brankin, Rhona, Butler, Bill, Chisholm, Malcolm, Craigie, Cathie, Crawford, Bruce, Cunningham, Roseanna, Curran, Ms Margaret, Deacon, Susan, Elder, Dorothy-Grace, Ewing, Dr Winnie, Ewing, Mrs Margaret, Ferguson, Patricia, Finnie, Ross, Fitzpatrick, Brian, Godman, Trish, Gorrie, Donald, Grant, Rhoda, Gray, Iain, Hamilton, Mr Duncan, Harper, Robin, Henry, Hugh, Home Robertson, Mr John, Hughes, Janis, Hyslop, Fiona, Ingram, Mr Adam, Jackson, Dr Sylvia, Jamieson, Cathy, Jamieson, Margaret, Jenkins, Ian, Kerr, Mr Andy, Lamont, Johann, Lyon, George, Macdonald, Lewis, Macintosh, Mr Kenneth, MacKay, Angus, Maclean, Kate, Macmillan, Maureen, Martin, Paul, Marwick, Tricia, Matheson, Michael, McAllion, Mr John, McAveety, Mr Frank, McCabe, Mr Tom, McConnell, Mr Jack, McLeish, Henry, McLeod, Fiona, McMahon, Mr Michael, McNeil, Mr Duncan, McNeill, Pauline, McNulty, Des, Morgan, Alasdair, Morrison, Mr Alasdair, Muldoon, Bristow, Mulligan, Mrs Mary, Munro, John Farquhar, Murray, Dr Elaine, Neil, Alex, Peacock, Peter, Peattie, Cathy, Rumbles, Mr Mike, Simpson, Dr Richard, Smith, Elaine, Smith, Iain, Smith, Mrs Margaret, Sturgeon, Nicola, Swinney, Mr John, Thomson, Elaine, Wallace, Mr Jim, Watson, Mike, White, Ms Sandra, Whitefield, Karen, Wilson, Andrew

The result of the division is: For 8, Against 75, Abstentions 0.

Amendment 7 disagreed to.