Section 8B — Disclosure of accused's previous convictions where court allows questioning or evidence under section 275 of 1995 Act

Sexual Offences (Procedure and Evidence) (Scotland) Bill: Stage 3 – in the Scottish Parliament at 3:30 pm on 6th March 2002.

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Photo of Pauline McNeill Pauline McNeill Labour

I support the inclusion of section 8B on previous convictions. It is consistent with the current position whereby if the defence were to attack the victim's bad character, the prosecution could then refer automatically to the accused's previous convictions. The perception is that that is not well used. The evidence that the Justice 2 Committee heard at stage 2 is that prosecutors assume that it is the role of the judge and the judge assumes that it is the role of the prosecutor. It is important to ensure that it fits into the legislation.

The Justice 2 Committee heard evidence from Professor Gane, who is a leading academic in criminal law, and from the Law Society of Scotland. They voiced concerns about the effect of the provisions in section 8B. Professor Gane claimed that the bill does not bring out the important distinction between the evidence of previous convictions that goes towards proving what lawyers would call sufficiency—that which proves that the accused committed the crime and evidence that attacks the credibility of the accused. In his evidence Professor Gane suggests that some previous convictions are likely to have a significant impact on the jury's perception.

That might assist the Executive's overall intention, given that it wants to ensure that there is proper weighing up of the evidence. However, I also note that the Executive's intent is to ensure a deterrent effect—if the defence attacks what it believes to be the complainer's bad character, any relevant previous convictions of a sexual nature are likely to be revealed in court. That is a good principle, which I support. For too long, victims have been attacked by defence agents who have used evidence of their sexual history or bad character. I want to ensure that there is clarification and that the purpose of disclosing the accused's previous convictions is not to establish sufficiency of evidence but to determine the credibility of the accused's evidence.

A further point of clarification is required, although amendment 14 does not address it. There is a principle of weighing the evidence of both the victim and the accused and there is a test that establishes the probative value of evidence of the victim's bad character or sexual history. However, there does not seem to be a corresponding test for determining whether evidence of the accused's previous convictions can be used.

I felt that I should lodge an amendment in order to ask the Executive to clarify that point, given that members of the Justice 2 Committee heard evidence on it only last week. When judges determine in advance of the trial what evidence to allow—as they will do under the bill's provisions—it is important that they are clear about the intentions behind the legislation. It is also important that, when judges direct the jury, they are clear that their direction means that the jury can use evidence of the accused's previous convictions to establish the credibility but not the sufficiency of the evidence.

I want to ensure that, in redressing the balance, we get the balancing act absolutely right, so that the interests of the accused and of the victim are treated evenly. I am interested in the comments that the Executive is prepared to put on the record on that point.

I move amendment 14.

Photo of Duncan Hamilton Duncan Hamilton Scottish National Party 3:45 pm, 6th March 2002

I will make a brief contribution in support of amendment 14, although my reasons are slightly different from those of Pauline McNeill. I support all that she said, but I recognise that two specific points were made in the evidence that the Justice 2 Committee heard last week. I ask the Executive for clarification on those points, as such clarification could be useful.

First, the deputy convener, Mr Aitken, suggested that the use of previous convictions could be extended and could amount to corroboration. Of course, that would be a further extension of the Moorov principle, which has already caused some debate. I would be interested to hear from the Executive that that is explicitly not the intention and that previous convictions could never be used in that way. It would be useful if the Deputy First Minister—I believe that he is responding to the debate on amendment 14—would put on the record the Executive's views on that point.

Secondly, I bring to the attention of the Deputy First Minister the words of Gerry Brown, who is from the Law Society of Scotland. Gerry Brown related subsection (2) of new section 275A of the 1995 act to subsection (4) of that section—the only exemptions to subsection (2) are outlined in subsection (4). Under paragraph (b) of subsection (4), a legitimate objection to the disclosure of the accused's previous convictions would be when such disclosure would be

"contrary to the interests of justice".

Gerry Brown said:

"The words 'interests of justice' are used but there is no guidance as to what is meant by them. Other legislation and regulations refer to interests of justice, but include guidance as to how a judge is to interpret that. That must be clarified in the bill.—[Official Report, Justice 2 Committee, 27 February 2002; c 1065.]

I ask the Deputy First Minister to clarify why that guidance was not given in the bill. Given that that evidence was received only last week, will he take the opportunity—either today or in the near future—to clarify precisely what the phrase "interests of justice" means?

Photo of Bill Aitken Bill Aitken Conservative

It is fair to say that the Executive amendment that inserted section 8B at stage 2 has caused the Justice 2 Committee real problems. Once again, we are back to the question of balance. It is open to any accused—in a rape trial, for example—to attack the character of the witness. When he does so, it is in the certain knowledge that, on the basis of that attack on a Crown witness, the prosecutor can introduce evidence that relates to his character. At that stage, it seems to me that the position is in kilter and is balanced, fair and reasonable.

The presumption of innocence is a basic and important principle of Scots law. Everyone is entitled to a fair trial and the fact that an individual has previous convictions, which may be either analogous or quite distinct, is not relevant to the judicial process. We are quite firmly of that view. It is not good enough for the Executive effectively to attempt to do a Moorov in that respect. We fully accept that there are significant difficulties with corroboration in rape cases. Apart from the occasional bizarre circumstance, there are only two witnesses to acts of that type—the complainer and the accused.

During the period of our Administration, we introduced changes to the rules of evidence that enabled corroboration to become much easier, through the demonstration of distress or personal injury. However, it strikes us that the provisions in section 8B go too far. What is the purpose of introducing previous convictions? Is it to corroborate the evidence of the complainer by means of those convictions? If that is the case, there is a serious risk that we will prejudice the basic principle of Scots law that we all cherish—the entitlement to a fair trial and the entitlement for the case to be considered in isolation. The disclosure of previous convictions raises significant difficulties.

The bill is not of major portent. Although Conservative members feel that there is some value in a number of the matters that have been raised, we genuinely feel that judges do a reasonably good job and, for example, would protect the complainer against a cross-examination of a type that would be distasteful. At the same time, we feel that we should stand by the basic principle of the presumption of innocence.

Photo of Pauline McNeill Pauline McNeill Labour

If we could resolve what the Executive's intention is with the provisions that it has introduced, and if the Executive were to say that previous convictions will not amount to a primary or a secondary source of evidence, would the Conservative party support the principle of the inclusion of previous convictions? It seems to me to be only fair that if the defence can attack the character or the sexual history of the victim, the defence should think about the disclosure of the history of the accused. That seems to be a balanced position. What concerns me most is what the disclosure of convictions is then used for. It would be wrong to use that for corroboration.

Photo of Bill Aitken Bill Aitken Conservative

That was a useful and constructive intervention. I understand where Pauline McNeill is coming from. However, we still do not know where such evidence is going. As I have said, the protection exists whereby if the character of the complainer is attacked, the prosecutor can respond. That must have an inhibiting effect on those who are likely to attack the character of a complainer. Someone with a series or a schedule of convictions for rape or sexual assault is hardly likely to attack the sexual character of the witness for fear of those convictions emerging in evidence. That is the existing position.

We must ask what the purpose is of extending the existing provisions. The only conclusion that I can come to is that the Executive seeks to use the narration of such convictions as corroboration of the offence concerned and to extend the Moorov principle beyond a stage that most members would regard as being acceptable. I will listen very carefully to what the Minister for Justice has to say in response. I must flag up the fact that we are extremely uneasy about the proposals in question.

Photo of Roseanna Cunningham Roseanna Cunningham Scottish National Party

I wonder how many people who are present understand what "doing a Moorov" means. I know that a few members do, but I suspect that many do not. We are entering discussions that are quite complicated for those who do not have legal backgrounds.

I would be interested to hear the Executive's view on amendment 14. It seems that a serious debate has taken place in the Justice 2 Committee on the disclosure of previous convictions. There is a real debate about the way in which evidence of PCs will be used. Will it be used as corroboration, which most people understand, or will its use go further, to provide a sufficiency of evidence? Although that is a slightly different matter, it is related. Will such evidence be used primarily, or even solely, in relation to the credibility of the accused?

A fine balance is involved, which Bill Aitken talked about. Pauline McNeill's amendment 14 is useful, because it makes it explicit that we are talking about credibility and that it is not expected that evidence of PCs should be used in a corroborative manner. I would be surprised if the Minister for Justice argued that PCs ought to be used in a corroborative manner, and I look forward to hearing what he says.

I am bound to echo concerns that once PCs are in evidence, the point becomes moot. The famous phrase concerning an elephant in the jury room describes the situation. Matters can become difficult to disentangle, but courts must deal with the impact on a jury all the time. I was interested in the brief discussion of jury studies in the Justice 2 Committee's meeting last week. We ought to return to how juries handle such evidence. That is a more difficult matter to handle and the bill cannot do that. At present, I am much disposed towards supporting Pauline McNeill's amendment. I am interested in hearing what the minister says.

Photo of Jim Wallace Jim Wallace Liberal Democrat

I thank Pauline McNeill for lodging amendment 14, which has given us a worthwhile and useful opportunity to discuss an important aspect of the bill that exercised the minds and the time of the Justice 2 Committee and has generated considerable interest and useful discussion.

I will make clear the Executive's position on the use of previous convictions, as I believe that Pauline McNeill invited me to. Sections 266 and 270 of the Criminal Procedure (Scotland) Act 1995 allow the disclosure of previous convictions in some circumstances. That is not quite the novelty that some of Bill Aitken's comments suggested that it was. It is significant that the sections do not spell out the use that can be made of such evidence.

Those sections are not often used. I do not think that it has ever been argued that previous convictions that were admitted under those sections might be used to provide corroboration. Textbooks contain statements to the contrary. Previous convictions that are admitted under those sections go not towards proof of the offence that is charged, but towards the credibility of the accused. In other words, the sheriff or jury can take them into account in deciding what they make of the accused and whether they believe him.

Nothing in new section 275A of the 1995 act would alter the position, which the Executive has never intended to alter. Previous convictions cannot supply corroboration. If the Crown does not have a legally sufficient case, previous convictions will not take it over that hurdle. I hope that I have described the situation explicitly.

Pauline McNeill's amendment has a slight danger. As I said, sections 266 and 270 of the 1995 act are not qualified. If amendment 14 were passed, it would raise questions about those sections and could create the possibility of using them to provide corroboration, because that would not have been ruled out expressly. I hope that the Parliament will welcome the reassurance that I have given.

New section 275A will apply only when the accused has applied successfully to bring in material about the character or past behaviour of the complainer. In that situation, disclosure in evidence of any previous convictions of the accused for sexual offences will automatically be considered by the court. Pauline McNeill was right to say that, at present, there is a stand-off or uncertainty about whether the question belongs to a judge or a prosecutor. The presumption will be in favour of disclosure, but the accused will be able to overturn that if he satisfies the court that it would not be in the interests of justice in the circumstances of a case to do so. I will deal with the interests of justice in a moment.

Given the existence of tests for the character or past behaviour of the complainer, one of the questions that Pauline McNeill asked was about the absence of a similar test with regard to the admission of previous convictions. One of the fundamental reasons for that is that, once such a test has been triggered by the admission of evidence as to the past character or behaviour of the complainer, there is a presumption that the test is not about whether previous convictions should be admitted. That is because of the presumption that such evidence should be admitted, which puts the onus on to the accused to give cause to the court, sheriff or judge as to why the convictions should not be admitted.

Gerry Brown of the Law Society raised the question of the interests of justice in his evidence to the Justice 2 Committee. Duncan Hamilton quite properly asked him what was understood by the phrase. As I indicated earlier, it is that the accused can overturn the presumption by satisfying the court that it would be contrary to the interests of justice in that case.

The breadth of the phrase "interests of justice" will benefit the accused. It will allow the accused to present a reasonable argument against disclosure. Given those circumstances, there is always a risk in some future case that we may find that the circumstances that are presented against disclosure are found reasonable by a judge. However, if the definition did not fit the test, the judge would have to proceed with disclosure. That could make the new provision more complicated.

Previous sexual offence convictions will be disclosed automatically unless the accused objects. Although the interests of justice test is a broad one, the reality is that a court will be considering the specific grounds for objection as advanced by the accused in that particular case. It will be for the court to determine whether in all the circumstances the grounds weigh up sufficiently to prohibit disclosure.

Photo of Bill Aitken Bill Aitken Conservative 4:00 pm, 6th March 2002

Does the minister accept that the matter may not have been handled very well? If members had known much of what he has just said at an earlier stage, the degree of concern that has been expressed over the past couple of weeks would not have been expressed. Had we received the minister's assurances at the time, and had that wording been included in the bill that was considered at an earlier stage, we would have been suitably reassured.

I ask the minister to underline the commitment that he has given that there is no change in the existing position, which is that previous convictions could in any event have been brought into a court of evidence. I ask the minister to confirm that he seeks to make that compulsory, as opposed to leaving it to the discretion of the prosecutors.

Photo of Jim Wallace Jim Wallace Liberal Democrat

I support presumption rather than compulsion. It is also fair to say that when the matter was dealt with at the time that an amendment was first lodged at stage 2, I accept and apologise for the fact that we did not include the provision in the original bill. It is clear that the issue is complicated. We were anxious that the drafting of the wording was correct. For a number of reasons, not least of which was a wish to make progress, we did not want to hold back other parts of the bill.

When Richard Simpson dealt with the matter at stage 2, the specific question of corroboration was not raised. It has now been raised and I repeat that it has never been the intention of the Executive, nor is it the Executive's intention, to use the provision to provide corroboration. Previous convictions cannot supply corroboration.

The Justice 2 Committee asked Professor Gane about compatibility with human rights legislation. He said:

"I think that the bill is ECHR compliant. As it is drafted, I cannot see what the ECHR objections would be."—[Official Report, Justice 2 Committee, 27 February 2002; c 1061.]

That has always been a consideration for the Parliament and it is helpful to have the views of Professor Gane on the matter.

I hope that I have provided the assurance that is sought by Pauline McNeill and other members who spoke in the debate. Given those circumstances, I hope that Pauline McNeill will not press amendment 14.

Photo of George Reid George Reid Scottish National Party

I call Pauline McNeill and ask her to be brief, as I have two further amendments to fit in before 4.15 pm.

Photo of Pauline McNeill Pauline McNeill Labour

I am more or less satisfied with what the minister has said this afternoon. He cleared up the two points that were raised—first, the question of what evidence can be used for and, secondly, the question of what is contrary to the interests of justice.

I was slightly unhappy with the wording of new section 275A(2) of the Criminal Procedure (Scotland) Act 1995, which says:

"Any conviction placed with a judge ... shall, unless the accused objects".

It is not clear that that is an automatic presumption. However, the minister has clarified on the record that there will be an automatic presumption that, if the tests are successful—including those relating to the victim's sexual character and history—previous convictions will be taken into account unless the accused can demonstrate that that would be contrary to the interests of justice. As a result, I will not press amendment 14.

Amendment 14, by agreement, withdrawn.