Group 8 is on restrictions on evidence relating to the provision of therapy to children. Amendment 49, in the name of Patrick Harvie, is grouped with amendment 68.

Attentive members will remember that I used the example of a witness with a broken leg when I spoke to an earlier group of amendments. Truly observant members will have noticed that that image should have been included in my speaking notes for amendments 49 and 68, so I ask members to recall it now. The example relates, of course, to the comparison between the provision of medical treatment, which we would never deny to someone who had a broken leg or other physical injury and who had to go to court as a witness, and the provision of therapy, such as counselling, to address emotional or mental stress or trauma. Amendment 49 would ensure that such therapy could be made available.

I refer briefly to a statement that Cathy Jamieson made at a conference in November, just a few months ago. The minister said that the provision of therapy to child witnesses is

"a very complex area. Counselling may be beneficial and it is the responsibility of the child's carers to decide upon."

We are all aware of the need for therapists to avoid the risk of contaminating evidence and that brings us to the central issue. I believe, as does the justice for children group, to which I have referred, that the fear, distress and emotional trauma that child witnesses suffer risks contaminating evidence and endangering justice. Therapy such as counselling is intended to ensure that a child witness is treated compassionately, to enable them to participate fully in the legal process.

I am aware that ministers have been considering the issue further since November and have met interested organisations with a view to issuing further guidance. I hope that ministers will regard amendments 49 and 68 as a helpful prompt and will agree that they offer a constructive way forward. The amendments would ensure that children genuinely had a right to access the therapy that ministers have acknowledged as being important and that such therapy would not taint their evidence.

Further delays on the issue would have a negative impact on the many children who are currently in our courts system. If ministers cannot agree to the amendments, I hope that they will give us a concrete commitment to progress the issue at an early opportunity.

I move amendment 49.

I take the opportunity to ask the minister to endorse what he said in a letter to me about adults who receive therapy or are supported by organisations such as Rape Crisis Scotland or Scottish Women's Aid before they go to court. There is concern that the very fact that witnesses have been supported and helped by such organisations somehow contaminates their evidence. I would like the minister to put on the record what he said in his letter, which reassured me that the matter is being considered and that the victims and witnesses unit will give guidance on the matter in due course.

Like everything else in the bill, the matter is a question of balance. Although I have some sympathy with some of the views that Mr Harvie expressed, I am unhappy about the portent of amendment 49. As I understand it, he is attempting to ensure that when a child has undergone therapy after a fairly traumatic experience, evidence that the child underwent that therapy can be introduced during the trial. There is a real danger that such evidence could be contaminated. In many instances, for example in cases of sexual assault, the issue for the court to determine is whether or not the accused person—the person in the dock on that charge—carried out the assault. The question of whether the child has undergone therapy would certainly not be relevant to the identification of the accused. There are real dangers in that respect.

On a general point; when the minister addresses the matter, will he confirm that the expert evidence of psychologists or psychoanalysts in relation to an offence would attempt to inform the court about the normal or abnormal reactions of witnesses who experience such crimes? Would there be an indication of whether the complainer's reaction is the normal reaction expected when a person of that age and vulnerability has undergone such an experience, or is an exaggerated reaction?

I understand the sentiments behind Patrick Harvie's amendments and I know that a number of organisations have raised concerns that therapy is often discouraged before a child witness gives evidence. I realise that it is sometimes felt that inconsistent advice is given on whether therapy should be put on hold until after the child has given evidence. One of the main aims of the bill is to ensure that child witnesses get the help and support that they need to give their best evidence. It is equally important that they should get any help that they need before the trial. I assure Patrick Harvie that the Executive takes the matter very seriously.

As part of producing the child witness consultation document in 2002, we have already consulted on a draft code of practice on the provision of therapy to child witnesses in criminal trials and children's hearings court proceedings. As a result of that consultation, we have established a multi-agency steering group on the provision of therapy to child witnesses. The purpose of the group is to revise and finalise guidance on pre-trial therapy for all those involved with children and the law. It is intended that the guidance will clarify that therapy should not be discouraged and will establish guidelines on how therapy can be provided while avoiding the risk of contaminating evidence. I hope that that addresses some of Bill Aitken's points.

Yes.

The group has already had its first meeting, so progress is already being made on this important matter. The valuable work of the group should meet the concerns that lie behind amendment 49. It is far preferable that this issue be addressed in that way rather than in legislation.

In response to Maureen Macmillan's concerns, I am happy to put on record the commitment that was given to her in my letter of 7 January 2004. With Maureen Macmillan's permission, I am happy for the letter to be made a public document and to be made available to anyone who wishes to scrutinise it. I hope that she will accept that doing that will confirm our commitment on the points that she raised.

Based on my assurances, I hope that Patrick Harvie will feel able to withdraw amendment 49.

I am grateful to the minister for some of the detail that he has given of the on-going work. However, we currently allow witnesses to give evidence in a state of fear, distress and trauma. That in itself contaminates evidence, and that issue has not been addressed. Therefore, I press amendment 49.

The question is, that amendment 49 be agreed to. Are we agreed?

Members:

No.

There will be a division.

Division number 3

For: Adam, Brian, Baird, Shiona, Ballance, Chris, Byrne, Ms Rosemary, Canavan, Dennis, Crawford, Bruce, Curran, Frances, Ewing, Mrs Margaret, Fox, Colin, Gibson, Rob, Grahame, Christine, Harvie, Patrick, Ingram, Mr Adam, MacAskill, Mr Kenny, Martin, Campbell, Marwick, Tricia, Mather, Jim, Maxwell, Mr Stewart, McFee, Mr Bruce, Morgan, Alasdair, Ruskell, Mr Mark, Scott, Eleanor, Sheridan, Tommy, Stevenson, Stewart, Sturgeon, Nicola, Welsh, Mr Andrew
Against: Aitken, Bill, Alexander, Ms Wendy, Baillie, Jackie, Baker, Richard, Barrie, Scott, Boyack, Sarah, Brankin, Rhona, Chisholm, Malcolm, Craigie, Cathie, Curran, Ms Margaret, Davidson, Mr David, Deacon, Susan, Eadie, Helen, Ferguson, Patricia, Fraser, Murdo, Gallie, Phil, Gillon, Karen, Glen, Marlyn, Goldie, Miss Annabel, Henry, Hugh, Home Robertson, Mr John, Hughes, Janis, Jackson, Dr Sylvia, Jamieson, Cathy, Jamieson, Margaret, Johnstone, Alex, Kerr, Mr Andy, Lamont, Johann, Livingstone, Marilyn, Lochhead, Richard, Lyon, George, Macintosh, Mr Kenneth, Maclean, Kate, Macmillan, Maureen, Martin, Paul, May, Christine, McAveety, Mr Frank, McCabe, Mr Tom, McMahon, Michael, McNeil, Mr Duncan, McNeill, Pauline, McNulty, Des, Milne, Mrs Nanette, Monteith, Mr Brian, Morrison, Mr Alasdair, Muldoon, Bristow, Mulligan, Mrs Mary, Mundell, David, Munro, John Farquhar, Murray, Dr Elaine, Oldfather, Irene, Peacock, Peter, Peattie, Cathy, Pringle, Mike, Purvis, Jeremy, Radcliffe, Nora, Raffan, Mr Keith, Robson, Euan, Rumbles, Mike, Scanlon, Mary, Scott, Tavish, Smith, Elaine, Smith, Iain, Smith, Margaret, Stephen, Nicol, Wallace, Mr Jim, Watson, Mike, Whitefield, Karen, Wilson, Allan

The result of the division is: For 26, Against 69, Abstentions 0.

Amendment 49 disagreed to.