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It perhaps goes against my image as a hanger and flogger to lodge an amendment such as amendment 10, but I have no hesitation in doing so. I believe intensely in the fairness of the justice system. That extends not only to a fair trial, but to fairness across the board. I make no apologies for wanting to see a justice system that puts the
Rape, sexual abuse and abuse of children are the most heinous of crimes. The justice system recognises that to be a factor by giving anonymity to complainers before the trial, during the trial and, in many circumstances, after the trial. I want the conviction of criminals to go unhampered by technical transgressions and procedures that, at times, prevent justice from being served. When guilt is proved, I ask no favours for the convicted. In fact, the penalties that I seek in many cases go beyond those for which most members would wish.
However, because of the seriousness of the charge of rape or child abuse, there is a need to give anonymity to those who are complained against but whose guilt has not been proven. The stigma attached to the crime does not stick only to the individual; it spreads to their families and associates. The accused's friendships, social standing and, at times, job are affected. Stains on a reputation last a lifetime, even when guilt is not finally proven. There is a wide range of examples.
Does Phil Gallie agree that the proper place to debate anonymity for the accused in relation to particular crimes is in a debate about the rights of the accused in relation to a series of crimes? Phil Gallie is in danger of equating the rights of the accuser and of the accused for a specific crime such as rape. The danger of Phil Gallie's line is the suggestion that the situation of a complainer in a sexual offence case is different from that of other victims of crime. I would be concerned if Phil Gallie suggested that. I accept that there is a legitimate debate about the anonymity of the accused in some cases, but that must be seen in the context of the debate about the rights of the accused, not in the context of sexual offence cases. To discuss the issue in that context implies that there is something different about the complainer in such cases.
I am concerned about those who feel that they are the victims of rape, but the guilt of the accused must be proved in court. In rape cases, those who make the accusation have the benefits of anonymity. Like Johann Lamont, I recognise the seriousness of the charge of rape and its effect on people, which is why I ask that anonymity be extended. Rape charges have a gross aspect.
I bring members' attention to the experiences of one of my constituents—John McLaughlin of Ayr—who took his own life. A few months after that, the person who accused him admitted that the accusation that she had made was false. She was convicted in court and given 100 hours of community service for wasting police time. She
As Phil Gallie knows, the Justice 1 Committee considered the matter of anonymity when it received a petition on the subject. To justify amendment 10, Mr Gallie must show why the anonymity provision should apply only to the offences that are listed in the bill. He must show why the provision should not apply to other offences with which a person might be charged, such as murder.
The answer is the seriousness of the crime and, above all, the fact that the accuser enjoys anonymity from the start. That is a telling factor in cases of rape. I realise that amendment 10 would cut across standard practice, but the bill is concerned with rape and sexual abuse, which are the most horrendous of crimes.
I will give way shortly. I recognise Maureen Macmillan's input to the bill.
I want to refer to other cases in which members might take an interest. Two policemen from Edinburgh were falsely accused and, according to Lord Prosser, were seriously damaged. The way in which the information came out probably ruined their careers.
Elaine Wyper from Kilmarnock was acknowledged to have falsely accused James Crawford and she eventually received 180 hours of community service. James Crawford received £500 from Elaine Wyper, but she had claimed £11,000 from the state for criminal injury. I have every sympathy with those who are abused—I believe that they should receive such support—but there is a disparity in that example.
Mr Gallie seems to be arguing that the accused should be allowed anonymity because rape is a serious crime. What about murderers? Should someone who is
No. Women who have been affected by the crime of rape deserve anonymity. They should not have their names plastered across the press. Anonymity is not offered to anyone in cases of any other crime that I can think of that comes before a court. Rape is a special instance, which is why I emphasise the point.
I ask members to read the story of Andrew Bond in the Daily Mail of 23 February. At times, when the police get involved in a case, they see the interests of the victim as those of the woman against whom the crime has been perpetrated—as they feel to be the case—and they are a little bit slow in looking at all the aspects. That was certainly the situation in the case of Andrew Bond. The police had evidence before their eyes that proved his innocence from the start, but he lost his university career and had his life turned upside down although he was totally innocent from beginning to end. Those are the kinds of cases that we must examine.
I have concentrated on the crime of rape. I was tempted to speak about the sexual abuse of children, but if the message were to be put out that anonymity would be granted in rape cases, perhaps judges in our courts would take account of that. I point to the case in Ayrshire, last July. The case collapsed in the Court of Session and left individuals without the opportunity to prove their innocence. They have been left stained. That is wrong. I feel sure that many members have a lot of sympathy with the Cairns family and others who were caught up in that case. Had a level of anonymity been offered to them and maintained throughout the trial, a lot of damage would not have been done.
I move amendment 10.
I wondered how long Mr Gallie was going to get to speak. I will not take up as much time: my points are quite simple.
I am suspicious and concerned that Phil Gallie has lodged amendment 10 at stage 3. I agree with some, but not all, of what he says, but it is wrong in principle for Parliament to debate at stage 3 a principle that has never been scrutinised or debated in committee, and I am opposed to that. I questioned whether the amendment should have been admitted, but I am told that it is admissible.
The Sexual Offences (Procedure and Evidence) (Scotland) Bill is about protecting victims from unnecessary criticism and from facing their accuser in court. That is at the heart of the bill, which is where it should be. Phil Gallie is getting some of his cases mixed up. Feeling in the Parliament is strong. We await the decision for
The members who intervened on Mr Gallie are correct. There may be merit in debating the anonymity of accused persons, but that anonymity should be debated in relation to every crime, not just sexual offences. The fact that that principle is in amendment 10 makes me suspicious of Mr Gallie's motives. He is saying that this is the bill that we should use to protect male persons who are accused, but let us debate the matter in its proper context—let us not confuse it with the principle of the bill that we agreed at stage 1, which is that the victim should be protected, by the appointment of a court solicitor, from having to face their accuser in court directly.
I sympathise with some of Pauline McNeill's comments. I do not want to go too far down the procedures road, but we know that sometimes members do not lodge amendments at stage 2 because they feel that, if those amendments are debated but not accepted, they will not be able to lodge similar amendments at stage 3. Perhaps we should consider that issue, because it means that amendments that deal with serious issues, such as amendment 10, are lodged at stage 3 with little forewarning, with no evidence to back them up and with little time in which to be debated—only 10 or 15 minutes in a stage 3 debate such as this.
SNP members will not vote for amendment 10, but not because Phil Gallie has no good, supporting arguments. We should debate restricting the reporting of an accused's identity in a rape case. It is important to recognise that issue; we should not pretend that we can simply run away from it. I gently suggest to Phil Gallie, however, that the way in which he presented his argument did his cause no favours and probably made members shut their minds to what is a serious issue. Another concern is that the amendment was introduced so late in the bill's passage. That is one of the main reasons why we will not vote for it.
Amendment 10 represents a valid argument, but it could open the door to granting anonymity for accused across the board. It is difficult to justify anonymity for the accused in one case but not another. Members should consider that issue.
However, the amendment could also lend anonymity to a victim. There must be many cases in which openly identifying the accused also reveals the victim's identity, particularly in smaller communities.
Members are shaking their heads. For people who live in cities such as Glasgow, anonymity might be protected, but for those who live in much smaller communities, it is extremely difficult to maintain anonymity, even when the court has imposed anonymity. We must accept that as a fact of life.
There should be a debate on the issue, but it is too late in the passage of the bill to have one now. Phil Gallie did himself no favours by the way in which he presented his arguments. The SNP will not support amendment 10.
I am pleased to support amendment 10, as it deals with the question of balance, which is an important component of justice. It is entirely appropriate that Phil Gallie lodged the amendment for debate at stage 3; I see nothing wrong in his doing that. The argument that he should have lodged the amendment at an earlier stage is simply a procedural smokescreen.
Rape is undoubtedly a serious crime. No member has argued differently and I do not expect any member to do so. It is regrettable that rape conviction rates are low. However, the prime reason for that is the lack of witnesses or corroborating evidence. Having a low conviction rate—as sad as that is—is no excuse for punishing the accused, who remain innocent until proven guilty. Phil Gallie outlined some of the many cases in which men have been unjustly accused of rape and have had their lives deeply affected by those false accusations. Some of those men took their lives.
Because rape is a heinous crime that involves sex, it is widely reported. Moreover, because a rape case often involves one person's word against another, even a finding of not guilty can leave doubts in people's minds. That can cause immense damage to reputations and lives.
Let us compare rape cases with less heinous but nonetheless serious cases that involve crimes such as burglary and car theft. In those other cases, the public knowledge of a verdict of innocence is not generally damaging to the person who was accused. Even being found guilty in such cases and serving a conviction can be less damaging for the accused than when an accused is found innocent in a high-profile rape case.
I wonder whether Mr Monteith is not in imminent danger of suggesting that we ought not to take rape cases to trial at all because the accusation of rape is so damaging to someone. Everyone is aware of that fact. Does he agree that part of the reasoning behind the position that we are discussing is a belief that it is more likely that a woman will lie about rape than
I have never heard anything so preposterous. The reason why we grant anonymity to the alleged victim is to ensure that they feel comfortable about coming forward. Phil Gallie's proposal relates to the crime of rape and not to murder or other crimes because anonymity exists for the alleged victim of rape. Like Phil Gallie and many others, I do not believe that the granting of anonymity to people who have been accused of rape will open any floodgates. We do not see people battering down the doors of Parliament requesting anonymity for victims of other crimes. Likewise, I do not expect that people will say that there should be anonymity for people who are accused of other crimes. Rape is a special and particularly nasty crime that we have decided to treat differently because of the difficulty of bringing the prosecution. However, because of the often damaging outcome for those who have been found innocent, it is worth providing anonymity for the accused.
My experience of serving on committees does not convince me that stage 2 offers the opportunity for great scrutiny. Stage 2 is whipped and is often quick. I suggest that stage 3, which takes place in a meeting of the whole Parliament, provides for better debate than stage 2 in committee. I have no difficulty with members of any party lodging amendments—serious or not—at any time. Members are allowed to do that and I applaud Phil Gallie for lodging amendment 10. I cannot say why it was not lodged earlier, but it is wrong to suggest that it should have been lodged earlier. Many of us have lodged amendments that have been disagreed to by a small number in committee even though we know that the amendment would have had more support at stage 3.
Surely the point of stage 1 and stage 2 is to bring forward evidence and find out what the various bodies who would be affected by the legislation think about the amendments. That is the point of the exercise, not the decision that is made at stage 2. Members have the opportunity to bring the subject of the amendment back to the chamber in another amendment at stage 3.
Mr Lyon should be aware that stage 1 and stage 2 are quite different processes. Stage 1 is undoubtedly about evidence gathering; stage 2 is about debating amendments. It is often difficult to ensure that subjects that were dealt with in amendments that were disagreed to at stage 2 are considered at stage 3. The selection of amendments is, quite properly, for the Presiding Officers, but that is why members sometimes choose to raise subjects only at stage 3 or to word amendments quite differently at that stage.
As I said, I do not believe that amendment 10 will open up the floodgates. The amendment makes the serious points that false accusations of rape are being made across the UK; that people's lives are harmed by that, even when the accusations are proved to be false; and that that harm lasts beyond the immediate exposure. If we are to ensure balanced justice, we should support Phil Gallie's amendment.
Every false accusation of rape betrays every genuine rape victim. Phil Gallie's amendment helps the cause of exposing genuine rapes. The people who have questioned his motives should plainly state what they think his motives are. No one has dared to say that they are anything other than a desire to bring balance and justice to our criminal procedures. I support Phil Gallie and will be pleased to do so in the vote.
I will comment on the question of stage 2 amendments that Roseanna Cunningham, George Lyon and others raised. Members most certainly should not hold back on amendments at stage 2 on the assumption that having them considered at stage 2 will lead to their not being considered at stage 3. That is not how the selection process works. Many amendments that are considered and disagreed to at stage 2 are, after due consideration by the Presiding Officers, selected for consideration again at stage 3.
My starting point is the fact that the reporting of rape is abysmally low and the conviction rate is even lower. I make it clear that I speak on my own behalf and on no one else's—including my party's.
The fact that an alleged accused is named has an impact on a victim. Roseanna Cunningham mentioned the fact that, in a small community, it is perfectly possible—in fact, it is likely—that, if an accused is named, the victim is named at the same time through the gossip-mongering that takes place. That is because most rapists are
However, I say to Phil Gallie that stage 3 is an awfully late point at which to lodge such a controversial amendment. I would like to hear a lot of evidence and solicit a lot of advice from people who know much more than I ever will about the matter. For that reason, I advise members to vote against amendment 10.
Some interesting points have come out of the discussion. We should go back to what the Minister for Justice said at stage 1, when he stated that the bill is all about balance and fairness. No one would disagree with that.
We must therefore examine amendment 10 and see how it will impact on fairness. Let us be clear: rape is a despicable act. However, that does not mean that we should jump to the automatic conclusion that those who are convicted of rape are always guilty. Similarly, I stress that I am not naive enough to think that some 80 per cent of those who are acquitted of rape charges are innocent. One must consider the question with balance.
Phil Gallie has ably articulated the arguments for extending anonymity to accused persons, as proposed in amendment 10.
Clearly, I must have misled myself. I meant to say that I am not satisfied that many of those who are acquitted are innocent. I think that most people who listened to the content of my remarks would have made that assumption, but I am grateful to Trish Godman for allowing me the opportunity to clarify what I said.
The fact remains that those who find themselves charged and are subsequently acquitted carry with them a degree of odium that can impact profoundly on their lives. That is a real argument for extending anonymity to the accused in such cases.
Roseanna Cunningham's argument has considerable merit, although I know that she was coming from a different direction. In small communities, when we name the accused, by
The other side of the argument, which was well articulated by Johann Lamont and Maureen Macmillan, is that fear must not be inculcated into victims under any circumstances. That must always be taken into consideration. Victims may feel that, if the accused is not named, there is not the same disincentive against people committing such offences. I accept the argument that has been made about that.
There are many different ways of looking at the issue, but I defend Phil Gallie resolutely on his lodging amendments 10 and 17 at stage 3—he has the right to do so. I accept the other side of the argument, as expressed by Gil Paterson, that such a matter should perhaps be subject to more detailed examination and that stage 2 might be more appropriate for that. However, Phil Gallie is perfectly within his rights and is abiding by the democratic standards of the Parliament in raising the matter at this stage.
There are arguments on both sides of the fence. Conservative members will vote on the amendments as individuals, because we recognise that there are differences on the issue. We feel firmly, however, that, irrespective of the results of the votes, the matter should, in time, be revisited. When that is done, a more detailed examination of the principles that Phil Gallie has ably espoused today may well result in a change to the legal system.
Bill Aitken has just said that Phil Gallie had the right to lodge amendment 10 at stage 3. No one is questioning Phil Gallie's right to do that; we are questioning the appropriateness of his choosing to raise the issue at this stage.
Phil Gallie highlighted some instances where there have been false accusations and where there is a real issue of anonymity. I sympathise with that point, but I will vote against amendment 10, because of the process that has been applied. Members from all parts of the chamber are genuinely sympathetic to the anonymity issue. However, the issue is big and needs to be examined thoroughly.
Committees can call evidence at stage 1. I would like to see the Justice 2 Committee's evidence on the subject of anonymity. Such evidence could even have been called at stage 2. I do not accept the points that Brian Monteith made. Although votes on amendments are taken at stage 2, it is possible to call for further evidence at that stage if the committee so desires.
There is no doubt about it: if individual MSPs
We have had a useful debate on this subject, but, like other members, I am slightly concerned. The committee process is vital in a unicameral legislature and issues of this magnitude should be addressed at stage 2, which allows for the appropriate amount of consideration. I will return later to some of the arguments that Roseanna Cunningham put forward, which I found interesting.
Amendment 10 would give the accused in rape cases a presumptive right to anonymity and amendment 17 would adjust the long title accordingly. In our view, it would not be right to grant anonymity to the accused in those cases, because the reasons that underpin the anonymity of complainers do not apply to the accused.
Complainers are allowed to remain anonymous because of the humiliating nature of the evidence that they have to give. A victim of a sexual attack has to be taken through the detail of what was done so that the Crown can establish that the crime was committed in the manner libelled. There is also the prospect of evidence about the victim's sexual history being led. We hope that the bill will make that less common, although it will still happen in some cases. If victims have to face the prospect that the nature of what happened to them and the detail of their private lives could become public knowledge, sexual offences would become even more under-reported than they are today.
The accused is not in the same position as the complainer and can choose whether to give evidence. His consensual private life is generally regarded as irrelevant. If the accused were given anonymity in rape cases, it could be difficult to resist granting anonymity to those who have been charged with other offences that the public regard as serious. Our system of open justice could be undermined.
More important, amendment 10 would create some anomalies. For example, it is not clear why anonymity should be given to those who are accused of rape but not to those who are accused of the sexual abuse of children. At present, complainers have no automatic right to anonymity. My understanding is that anonymity is granted to
Roseanna Cunningham made a similar point. If naming the accused were automatically to lead to the revelation of the name of the victim, there might be a need for anonymity of the accused. It is regrettable that we were unable to have that interesting debate at stage 2 because the amendments were not lodged for debate at that stage. The amendments would give the accused a clearer right to anonymity than the complainer.
I draw members' attention to the list of offences under proposed new section 288C(2) of the 1995 act. Why has rape been singled out as opposed to sodomy or clandestine injury to women? Singling out rape does not create the balance that Bill Aitken referred to.
On all those grounds, I ask members to reject the amendments.
Let me take members through the history of the bill. Before the Justice and Home Affairs Committee was split into two committees, it discussed Maureen Macmillan's proposal for a sexual abuse bill. At that time, I raised the issue that amendment 10 highlights. If members read the stage 1 debate on the Sexual Offences (Procedure and Evidence) (Scotland) (Bill), they will find that I raised the same issue. I did not lodge the amendment at stage 2 because I felt that others had heard evidence and were considering the bill.
More than anything else, what changed my mind was a story in the Daily Mail on 23 February. I felt that it would be wrong for the Parliament to ignore such an omission in the law, which needed to be addressed. That is why I have lodged amendment 10 at this stage. As far as I am concerned, the amendment has been lodged precisely according to the rules of the Parliament.
I give my thanks to the several members who have said that they recognise the need for the change that amendment 10 would make. If the amendment is voted down, perhaps it will induce an examination of the situation, which might be dealt with in another bill in the not-too-distant future.
The minister mentioned the fact that the amendment would not apply to those who are accused of the sexual abuse of children or other crimes. I considered that issue, but felt that, at this late stage, I should take a simple approach. That
I thank the Presiding Officer for giving me the opportunity to respond. I hope that members who are sympathetic to the amendment will vote with their consciences. If the amendment is unsuccessful, I will look forward to a future debate.
Division number 3
For: Aitken, Bill, Douglas-Hamilton, Lord James, Fraser, Murdo, Gallie, Phil, Harding, Mr Keith, Johnstone, Alex, McIntosh, Mrs Lyndsay, McLetchie, David, Monteith, Mr Brian, Young, John
Against: Adam, Brian, Alexander, Ms Wendy, Baillie, Jackie, Barrie, Scott, Brankin, Rhona, Brown, Robert, Butler, Bill, Chisholm, Malcolm, Craigie, Cathie, Cunningham, Roseanna, Curran, Ms Margaret, Deacon, Susan, Elder, Dorothy-Grace, Ewing, Dr Winnie, Ewing, Mrs Margaret, Ferguson, Patricia, Finnie, Ross, Fitzpatrick, Brian, Gibson, Mr Kenneth, Godman, Trish, Gorrie, Donald, Grant, Rhoda, Gray, Iain, Hamilton, Mr Duncan, Harper, Robin, Home Robertson, Mr John, Hughes, Janis, Hyslop, Fiona, Ingram, Mr Adam, Jackson, Dr Sylvia, Jackson, Gordon, Jamieson, Cathy, Jamieson, Margaret, Kerr, Mr Andy, Lamont, Johann, Lyon, George, MacAskill, Mr Kenny, 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, 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, Paterson, Mr Gil, Peacock, Peter, Peattie, Cathy, Quinan, Mr Lloyd, Robson, Euan, Rumbles, Mr Mike, Simpson, Dr Richard, Smith, Elaine, Smith, Iain, Smith, Mrs Margaret, Stephen, Nicol, Sturgeon, Nicola, Thomson, Elaine, Wallace, Mr Jim, Watson, Mike, Welsh, Mr Andrew, White, Ms Sandra, Whitefield, Karen, Wilson, Andrew
Abstentions: Fergusson, Alex, Scanlon, Mary