Section 37 — Penalties

Sexual Offences (Scotland) Bill: Stage 3 – in the Scottish Parliament at 3:30 pm on 10th June 2009.

Alert me about debates like this

Photo of Trish Godman Trish Godman Labour 3:30 pm, 10th June 2009

Group 5 is on offences by non-natural persons. Amendment 13, in the name of the minister, is grouped with amendments 14 and 19.

Photo of Kenny MacAskill Kenny MacAskill Scottish National Party

Amendments 13, 14 and 19 deal with offences by non-natural persons, that is, companies. Although the nature of the offences in the bill are such that they cannot normally be committed by a non-natural person as the principal actor, a non-natural person could be found guilty of aiding and abetting or indeed conspiring to commit the offences that are contained in the bill. For example, as sexual offences against children are extra-territorial in extent, a company that is involved in the arrangement or facilitation of child sex tourism might be art and part guilty of offences in the bill. The amendments will ensure that we are fully compliant with our international obligations to establish the liability of persons, including non-natural persons, who are guilty of certain behaviour concerning the exploitation and abuse of children.

It is not possible to imprison or impose a community penalty on a non-natural person. Amendments 13 and 14 will ensure that it will be possible to impose a fine on a non-natural person, such as a corporate body or partnership, that is convicted of an offence for which a fine cannot be the sole penalty that is imposed on an individual. Amendment 19 provides that, if any offence in the bill is committed by a non-natural person with the consent or connivance of—or because of neglect on the part of—any director, manager, secretary, partner in a partnership, trustee of a trust, member of an unincorporated association or other similar non-natural person, including any person who purports to act in that capacity, that individual, as well as the non-natural person, commits the offence and may be liable to be prosecuted and punished accordingly.

I move amendment 13.

Amendment 13 agreed to.

Photo of Trish Godman Trish Godman Labour

We come to group 6, which is on penalties. Amendment 121, in the name of Robert Brown, is grouped with amendments 122, 124 and 125.

Photo of Robert Brown Robert Brown Liberal Democrat

These amendments are intended to deal with a loophole that was inadvertently created at stage 2 and identified in the SPICe briefing on the matter. At stage 2, the Justice Committee rightly took the view that the penalty on conviction of a rape or serious sexual assault could not conceivably include the option of a fine by itself. Accordingly, the option of a fine was removed for rape, sexual assault with an implement and sexual assault, following conviction on indictment. A fine still remains possible for a more minor summary conviction for sexual assault in the sheriff court, which is entirely right, because sexual assault covers a wide range of situations from extremely serious and harrowing attacks to more trivial matters.

Photo of Paul Martin Paul Martin Labour

Will Robert Brown confirm what he means by "trivial matters" in relation to sexual assault?

Photo of Robert Brown Robert Brown Liberal Democrat

I will deal with that in a second.

Another situation might occasionally occur. Someone who is indicted before a jury on a serious sexual assault charge, or charges, which if proved, would justify a prison sentence might be acquitted of the serious aspects of the charge, or the serious charges, and convicted only of a relatively minor matter. In that event, a fine might indeed be an appropriate disposal. If we fail to give the court that option, the judge or sheriff might in practice be left in the invidious position of either imposing a prison sentence, which is clearly inappropriate for the offence, or admonishing the individual.

I will provide an example to answer Paul Martin's question. Suppose that a 21-year-old man is indicted before a jury for a significant sexual assault on an 18-year-old girl at a party. In the event that the evidence does not stand up fully and he is convicted only of kissing the girl against her will to her considerable upset, a fine might be manifestly the proper penalty. I am sure that no one in the chamber—I hope not even Paul Martin—believes that that should lead to a prison sentence. Equally, however, I do not think that anyone in the chamber would think that such a person should get off scot-free.

Similar considerations could apply to a 17-year-old convicted in similar circumstances of an offence against a 15-year-old, which is why the same principle would be applied, by amendment 122, to the offence of sexual assault on a child.

Let me be absolutely clear that I am not suggesting—I am not imposing this on anybody—that a fine should be the outcome for one of the situations that I have described. I am saying that there should be a judicial option of a fine in a situation in which a fine would have been available if the individual had been charged summarily in the first place. It should be exactly the same when a person is convicted of a more minor offence. Such situations will not occur often, but they will occur and the court has to have the appropriate tools to deal with them if justice is to be done.

I reiterate that, if the option of a fine was not put back into the bill, the judge could possibly have only the option of a prison sentence or an admonition and absolute discharge. I am sure that that was not the intention of the member who moved the stage 2 amendment.

Photo of Paul Martin Paul Martin Labour

During stage 2, I said that I thought that the Government had got it right by lodging amendments to ensure that a fine may not be imposed as the sole penalty when an accused is convicted of rape, sexual assault or sexual assault by penetration or rape of a young child. I do not say this often, but the Government got it right on that occasion, and we were satisfied with its approach during stage 2.

Robert Brown's attempt to reverse that, which the Government supports, is wrong. In effect, those who have been charged on indictment with sexually assaulting a child could get a fine, which is beyond belief.

Photo of Robert Brown Robert Brown Liberal Democrat

Paul Martin asked me for an example and I gave him the example of a 17-year-old girl being forcibly kissed by a man at a party. In that case, the conviction would be for sexual assault of a child. Does he believe that there ought to be a mandatory prison sentence as a consequence of such a conviction?

Photo of Paul Martin Paul Martin Labour

I think that that is a serious offence. It is sexual assault and it demeans the girl. Robert Brown provides a minor example of something that can be a serious sexual assault, for which the possibility of a sentence and a fine is required. I do not think that Robert Brown has provided a very clear example. We believe that we should proceed on the basis of the amendments that were agreed to at stage 2.

Photo of Trish Godman Trish Godman Labour

I must again exercise my power under rule 9.8.4A (a) and (c) of standing orders to extend the next time limit, to allow this group to be debated and to allow members who are entitled to speak on the next group to do so.

Photo of Bill Aitken Bill Aitken Conservative

After the bill is passed at 5 o'clock, as I am certain it will be, the Crown's attitude will be more and more to prosecute offences under the new act. Much of the relevant common law will no longer apply. Under existing common law, the full gamut of court disposals is available for such offences, including a fine. The fact is that—sadly—we got it wrong at stage 2. I confess that I should perhaps have been clearer about the unintended consequence, which is precisely as described by Robert Brown.

Photo of Bill Aitken Bill Aitken Conservative

Unfortunately, I do not have time to take an intervention.

In the vast majority of cases that are indicted for such offences, a lengthy prison sentence will be the only appropriate disposal. However, when the judge or the jury shreds the indictment so that only a minuscule part of it is left, the ability to impose a monetary penalty will be important. The amendments will allow that disposal to be available, which is appropriate.

Photo of Trish Godman Trish Godman Labour

I prevented Mr Baker from speaking, so he can have one second for an intervention, to which Mr Aitken can respond.

Photo of Richard Baker Richard Baker Labour

The key point for us is that, whatever the intention behind the amendments, they would have the effect that conviction for a sexual assault or a sexual assault on a child that was prosecuted on indictment could result in the imposition of a fine. We feel strongly that that would be unsatisfactory.

Photo of Bill Aitken Bill Aitken Conservative

The answer is straightforward. When an indictment is served, it could concern a serious matter for which only imprisonment would be appropriate. The issue is what would happen when only a minor part of the indictment was left. At that stage, a fine would be appropriate.

Photo of Kenny MacAskill Kenny MacAskill Scottish National Party

I thank Robert Brown for explaining his purpose in lodging amendments 121, 122, 124 and 125, and the Justice Committee's convener for his lucid explanation. I am sure that every member agrees with the committee's stage 1 report that a fine is not an appropriate sole penalty for a person who is convicted of a serious sexual offence. That is why we lodged stage 2 amendments to ensure that a fine cannot be imposed as a sole penalty when a person who is tried on indictment is convicted of rape, rape of a young child, sexual assault by penetration, sexual assault on a young child by penetration, sexual assault or sexual assault on a young child.

However, as Mr Brown and the committee's convener explained, a person who is tried on indictment for a serious sexual assault might be cleared of most allegations and convicted only of a relatively minor sexual assault that would not normally be tried on indictment. In those circumstances, it would be inappropriate to provide that the court could impose only a sentence of imprisonment or, indeed, an admonition. The full range of sentencing options should be available to the court in dealing with people who are convicted of sexual assault or sexual assault on a young child.

I make it clear that the bill will give the High Court the power to jail for life anyone whom a jury convicts of rape or sexual assault. We would expect any conviction for a serious sexual assault to result in a tough sentence and not just in a fine. It is simply the case that no substantive evidence suggests that that will not happen.

Photo of Paul Martin Paul Martin Labour

I will raise a technical point. If Robert Brown's amendments were agreed to, would it be possible for a sexual assault on a child to result in only a fine?

Photo of Kenny MacAskill Kenny MacAskill Scottish National Party

The position is clear. For the avoidance of doubt, I will run through again the list that I gave earlier—it relates to convictions of persons tried on indictment for rape, rape of a young child, sexual assault by penetration, sexual assault on a young child by penetration, sexual assault and sexual assault on a young child.

We seek to address the situation, which Mr Brown dealt with lucidly. The intention is to make sentencing options available to the court, as under the current common law. The bill will consolidate and improve the law on sexual offences and will deal with the matter that Margaret Curran raised. We do not want the law of unintended consequences, which was raised in relation to Margaret Curran's amendment 1.

If the amendments in the group were not agreed to, we would allow the unintended consequence of not making the option of a fine available, as elucidated by Mr Aitken and Mr Brown. Jail will be available and should be the option in most instances for those who are tried on indictment. However, when the offence is reduced and when the wisdom of hindsight shows that it should have been dealt with in summary proceedings, the court should be in the position that currently applies.

Photo of Trish Godman Trish Godman Labour 3:45 pm, 10th June 2009

In winding up the debate, Robert Brown should state whether he will press or withdraw amendment 121.

Photo of Robert Brown Robert Brown Liberal Democrat

Let me say immediately that amendment 121 deals not with an issue that I have invented at the back of my mind but with a loophole that was identified—and rightly so—by parliamentary researchers. Across the parties in the chamber—apart from, amazingly, the Labour Party—there is broad acceptance that the amendment is necessary. Let me also say that the amendment would make no change to the position that was agreed to at stage 2 regarding rape or sexual assault with an implement. For such offences, the option of a fine alone will continue not to be available.

I thought that I had given a clear example, which even the smallest mind could understand, of the sort of offence that should not result in a prison sentence. I gave that example to illustrate why it is important that the option of a fine should be available to our judges. Amendment 121 would not require judges to impose such a sentence. In the limited circumstances in which the conviction before the High Court or the sheriff court with a jury—

Photo of Bill Aitken Bill Aitken Conservative

Does Robert Brown agree that, in the circumstances that pertain today, the common law under which such offences are indicted provides for the facility of a fine? Does he agree, therefore, that the amendment would in effect result in no change?

Photo of Robert Brown Robert Brown Liberal Democrat

I agree absolutely, although I point out that it will not now be possible to impose a fine alone for rape or sexual assault with an implement.

All members accept that sexual assault can range from extremely serious offences, for which long prison sentences are manifestly appropriate, to relatively much more trivial and insubstantial offences, which are nevertheless criminal and so must be marked by a penalty, for which a fine should be one option that is available to the court. I am not sure whether Paul Martin understands that the options that will be available to the court—

Photo of Robert Brown Robert Brown Liberal Democrat

Let me finish the point, if I may.

If amendment 121 is not agreed to, the options available to the court will be limited to prison, probation, community penalties, or admonition and absolute discharge. The court will be able to admonish an accused. Amendment 121 will add to those options the much more relevant option of imposing a fine.

As I said before, few people would consider a custodial sentence appropriate for minor offences such as a boy kissing a girl against her will at a party. Under the bill as it stands, the only option would be to send such an offender to prison or to let him off scot-free. There will be cases in which those found guilty of such minor sexual assaults deserve more than a slap on the wrist, but prison might not be the right punishment. People who commit minor sexual assaults can develop into those who commit more serious sex crimes later in life, so it must be clear to offenders that sex crime will be punished. That should act as a deterrent. That is why we are pushing for fines to be available as a separate penalty.

Photo of Paul Martin Paul Martin Labour

Robert Brown raises a genuine challenge in highlighting the issue of the forcible kiss that he referred to, but we should also look at the other end of the spectrum. If amendment 121 is agreed to, it will be technically possible for the sexual assault of a child to result in a fine. Surely we should deal with that loophole, which would clearly exist.

Photo of Robert Brown Robert Brown Liberal Democrat

It is also technically possible for someone who is charged on indictment with a serious assault—sexual or otherwise—to end up with an admonition. That is the point that is being made.

It is very important that our judges are provided with the appropriate penalties and are not unduly restricted in the sentencing options for those who are found guilty of sexual assault. Amendment 121 will deal with a loophole that needs to be closed.

I have some difficulty in understanding where the Labour Party is coming from on the issue. I know that Labour members have been briefing the press all through the night about the issue, on which they seem to be very exercised for some reason. The reality is that amendment 121 is a reasonable, technical, sensible amendment that will put a conviction on indictment in those limited circumstances in the same position as a conviction on summary charge for the offence of sexual assault or sexual assault on a child. Having given some good examples, I think that members can now make up their own minds about the matter.

I insist on amendment 121.

Photo of Trish Godman Trish Godman Labour

The question is, that amendment 121 be agreed to. Are we agreed?

Members:

No.

Photo of Trish Godman Trish Godman Labour

There will be a division. As this is the first division, there will be a five-minute suspension.

Meeting suspended.

On resuming—

Division number 1

For: Adam, Brian, Aitken, Bill, Allan, Alasdair, Brocklebank, Ted, Brown, Gavin, Brown, Keith, Brown, Robert, Brownlee, Derek, Campbell, Aileen, Carlaw, Jackson, Coffey, Willie, Constance, Angela, Crawford, Bruce, Cunningham, Roseanna, Don, Nigel, Doris, Bob, Ewing, Fergus, Fabiani, Linda, Finnie, Ross, FitzPatrick, Joe, Fraser, Murdo, Gibson, Kenneth, Gibson, Rob, Goldie, Annabel, Grahame, Christine, Harper, Robin, Harvie, Christopher, Harvie, Patrick, Hepburn, Jamie, Hume, Jim, Hyslop, Fiona, Ingram, Adam, Johnstone, Alex, Kidd, Bill, Lamont, John, Lochhead, Richard, MacAskill, Kenny, MacDonald, Margo, Marwick, Tricia, Mather, Jim, Matheson, Michael, Maxwell, Stewart, McGrigor, Jamie, McInnes, Alison, McKee, Ian, McKelvie, Christina, McLaughlin, Anne, McLetchie, David, McMillan, Stuart, Milne, Nanette, Mitchell, Margaret, Neil, Alex, O'Donnell, Hugh, Paterson, Gil, Pringle, Mike, Purvis, Jeremy, Robison, Shona, Rumbles, Mike, Russell, Michael, Scanlon, Mary, Scott, John, Scott, Tavish, Smith, Elizabeth, Smith, Iain, Smith, Margaret, Somerville, Shirley-Anne, Stevenson, Stewart, Stone, Jamie, Sturgeon, Nicola, Swinney, John, Thompson, Dave, Tolson, Jim, Watt, Maureen, Welsh, Andrew, White, Sandra, Wilson, Bill, Wilson, John
Against: Alexander, Ms Wendy, Baillie, Jackie, Baker, Claire, Baker, Richard, Boyack, Sarah, Brankin, Rhona, Butler, Bill, Chisholm, Malcolm, Craigie, Cathie, Curran, Margaret, Eadie, Helen, Ferguson, Patricia, Foulkes, George, Gillon, Karen, Glen, Marlyn, Gordon, Charlie, Grant, Rhoda, Gray, Iain, Henry, Hugh, Jamieson, Cathy, Kelly, James, Kerr, Andy, Lamont, Johann, Livingstone, Marilyn, Macdonald, Lewis, Macintosh, Ken, Martin, Paul, McAveety, Mr Frank, McCabe, Tom, McConnell, Jack, McMahon, Michael, McNeil, Duncan, McNeill, Pauline, McNulty, Des, Mulligan, Mary, Murray, Elaine, Oldfather, Irene, Park, John, Peacock, Peter, Peattie, Cathy, Simpson, Dr Richard, Smith, Elaine, Stewart, David, Whitefield, Karen

Photo of Trish Godman Trish Godman Labour

The result of the division is: For 77, Against 45, Abstentions 0.

Amendment 121 agreed to.

Photo of Trish Godman Trish Godman Labour

I invite a motion without notice to extend the time limit for the next debate by 15 minutes, to allow proceedings on amendments to be concluded and to allow discussion on this important bill.

Motion moved,

That, under Rule 9.8.5A, the debate on Groups 6 to 9 be extended by 15 minutes.—[Bruce Crawford.]

Motion agreed to.

Amendment 122 moved—[Robert Brown].

Photo of Trish Godman Trish Godman Labour

The question is, that amendment 122 be agreed to. Are we agreed?

Members:

No.

Division number 2

For: Adam, Brian, Aitken, Bill, Allan, Alasdair, Brocklebank, Ted, Brown, Gavin, Brown, Keith, Brown, Robert, Brownlee, Derek, Campbell, Aileen, Carlaw, Jackson, Coffey, Willie, Constance, Angela, Crawford, Bruce, Cunningham, Roseanna, Don, Nigel, Doris, Bob, Ewing, Fergus, Fabiani, Linda, Finnie, Ross, FitzPatrick, Joe, Fraser, Murdo, Gibson, Kenneth, Gibson, Rob, Goldie, Annabel, Grahame, Christine, Harper, Robin, Harvie, Christopher, Harvie, Patrick, Hepburn, Jamie, Hume, Jim, Hyslop, Fiona, Ingram, Adam, Johnstone, Alex, Kidd, Bill, Lamont, John, Lochhead, Richard, MacAskill, Kenny, MacDonald, Margo, Marwick, Tricia, Mather, Jim, Matheson, Michael, Maxwell, Stewart, McInnes, Alison, McKee, Ian, McKelvie, Christina, McLaughlin, Anne, McLetchie, David, McMillan, Stuart, Milne, Nanette, Mitchell, Margaret, Neil, Alex, O'Donnell, Hugh, Paterson, Gil, Pringle, Mike, Purvis, Jeremy, Robison, Shona, Rumbles, Mike, Russell, Michael, Scanlon, Mary, Scott, John, Scott, Tavish, Smith, Elizabeth, Smith, Iain, Smith, Margaret, Somerville, Shirley-Anne, Stephen, Nicol, Stevenson, Stewart, Stone, Jamie, Sturgeon, Nicola, Swinney, John, Thompson, Dave, Tolson, Jim, Watt, Maureen, Welsh, Andrew, White, Sandra, Wilson, Bill, Wilson, John
Against: Alexander, Ms Wendy, Baillie, Jackie, Baker, Claire, Baker, Richard, Boyack, Sarah, Brankin, Rhona, Butler, Bill, Craigie, Cathie, Curran, Margaret, Eadie, Helen, Ferguson, Patricia, Foulkes, George, Gillon, Karen, Glen, Marlyn, Gordon, Charlie, Grant, Rhoda, Gray, Iain, Henry, Hugh, Jamieson, Cathy, Kelly, James, Kerr, Andy, Lamont, Johann, Livingstone, Marilyn, Macdonald, Lewis, Macintosh, Ken, Martin, Paul, McAveety, Mr Frank, McCabe, Tom, McConnell, Jack, McGrigor, Jamie, McMahon, Michael, McNeill, Pauline, McNulty, Des, Mulligan, Mary, Murray, Elaine, Oldfather, Irene, Park, John, Peacock, Peter, Peattie, Cathy, Simpson, Dr Richard, Smith, Elaine, Stewart, David, Whitefield, Karen, Whitton, David

Photo of Trish Godman Trish Godman Labour

The result of the division is: For 77, Against 44, Abstentions 0.

Amendment 122 agreed to.

Amendment 14 moved—[Kenny MacAskill]—and agreed to.