Abusive Behaviour and Sexual Harm (Scotland) Bill: Stage 3

– in the Scottish Parliament on 22nd March 2016.

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Photo of John Scott John Scott Conservative

The next item of business is stage 3 proceedings on the Abusive Behaviour and Sexual Harm (Scotland) Bill. In dealing with the amendments, members should have the bill as amended at stage 2, the marshalled list and the groupings. The division bell will sound and proceedings will be suspended for five minutes for the first division this afternoon. The period of voting for the first division will be 30 seconds. Thereafter, I will allow a voting period of one minute for the first division after a debate. Members who wish to speak in the debate on any group of amendments should press their request-to-speak buttons as soon as possible after I call the group.

Section 2—Disclosing, or threatening to disclose, an intimate photograph or film

The Deputy Presiding Officer:

Amendment 3, in the name of Margaret McDougall, is grouped with amendments 4 to 14.

Photo of Margaret McDougall Margaret McDougall Labour

Currently, the bill covers only the sharing of photographic images and film. Amendments 3 to 14, in my name, which are supported by Scottish Women’s Aid and others, seek to broaden the definition to include photographic images or film of an intimate situation; sound recordings containing intimate content; and any intimate written communication.

The purpose of amendment 5 is to tackle a loophole in the bill with regard to sharing screenshots of intimate text-based conversations, or the sharing of intimate audio or text conversations on social media, the internet or by any other means.

Scottish Women’s Aid stated in written evidence that specifying photographs and films

“specifically excludes the sharing of private and intimate written and audio communications”.

The exposure or the threat of sharing those has the same outcome: it is designed to humiliate and control the victim. Sometimes, text and images can be sent at the same time. Would we criminalise the image but not the abusive and threatening text?

That view was supported by Police Scotland in its submission, which said that the offence

“should take cognisance of all forms of communication and distribution”.

The sharing of an intimate image on Facebook without consent would be a prosecutable offence under the bill. However, if someone were to share an intimate conversation, a screenshot of an intimate conversation or an intimate audio conversation, those would not be covered, even if a non-intimate picture of the victim that could identify them was attached.

The sharing of such content could have the same effect as sharing intimate images without consent; it could cause just as much fear, alarm or distress to the victim and would be designed to do so. Looking online, I found numerous examples of such behaviour, especially in abusive relationships where the threat of sharing that kind of content was used to control the victim.

Amendment 3 is a technical amendment that would update the bill to reflect the expansion of the definition in amendment 5. Amendments 4 and 6 to 11 are all technical amendments that would replace references to “photograph or film” throughout the bill with “item”; what we mean by the word “item” is defined in amendment 5.

Amendments 12 and 13 are further technical amendments, which would add a reference to the new subsection (1A)(a) that would be created by amendment 5.

Finally, amendment 14 clarifies what we mean by “intimate” in the context of conversation, messages or communications. That needs to include references to an act that is considered sexual or content that, when taken as a whole, is considered to be of a sexual nature. Further, the content must not have been expected to be distributed or there must have been an understanding that it would be kept private.

My amendments 3 to 14 would ensure that we criminalise the process when the intent is clear that the action of sharing photographs, film, or written and oral communication is designed to cause harm or be malicious.

I move amendment 3.

Photo of John Finnie John Finnie Independent

I support the amendments in the name of my colleague Margaret McDougall. There is a gap in the bill that needs to be plugged.

Margaret McDougall narrated the position of Scottish Women’s Aid and the importance of what has been excluded, namely letters, text messages, emails and voice recordings. I agree with Scottish Women’s Aid, and I do not accept the position that is laid out in the policy memorandum that it would be difficult to define and interpret the

“definition of an intimate written or recorded communication” and, bizarrely, that there would be a risk of

“unintended consequences in terms of interference with freedom of speech”.

At stage 2, Margaret McDougall’s opponents made many references to the Communications Act 2003; my colleague Roderick Campbell highlighted that the 2003 act provides a punishment, so he did not accept the amendments. Similarly, the cabinet secretary has made much reference to that legislation, but offences under it are tried under the summary procedure rather than the solemn procedure, so there are limits on the disposals. There is also a specific time limit for bringing a prosecution under section 127 of the 2003 act, which would not apply if Margaret McDougall’s amendments were to be agreed to.

It is important to note who supports the amendments—Scottish Women’s Aid, Victim Support Scotland and Police Scotland. We will have to return to the issue at a future date. I do not believe that the legislation is future proof. The activities that the amendments would address are about humiliation and control, and I urge members to support them.

Photo of Alison McInnes Alison McInnes Liberal Democrat

I do not support Margaret McDougall’s amendments; I did not support them at stage 2 and I do not believe that she has made her case. There is a danger of drawing the offence too widely and we need to take a cautious approach in this new legislation.

Photo of Roderick Campbell Roderick Campbell Scottish National Party

As far as future proofing is concerned, I like to think that the impact of the legislation will be kept under review and, if necessary, consideration will be given to extending it. However, for the moment, I agree with my colleague Alison McInnes that we need to take a cautious view.

Photo of Michael Matheson Michael Matheson Scottish National Party

Amendments 3 to 14 would expand the scope of the intimate images offence at section 2 to cover intimate sound recordings and intimate written communications.

As I set out in the Scottish Government’s response to the Justice Committee’s stage 1 report, and as I explained when the stage 2 amendments were debated, we decided to focus the offence on the sharing of intimate images as almost all the cases that we are aware of have involved the sharing of images. Unfortunately, we are all too aware that there are websites that have been set up specifically to enable people to post intimate photographs or films of their partners or ex-partners. I am not aware of similar websites where people can post voice messages or emails written by or to their partner or ex-partner.

The sharing of images that could enable a complete stranger to identify the victim is a betrayal of trust, and breach of privacy, that is especially likely to cause distress. That is part of the justification for the new offence. It is worth remembering that prosecutors will still be able to use existing laws on the sharing of written or recorded material by using, for example, the Communications Act 2003 offence or the offence of threatening or abusive behaviour, in appropriate cases.

The committee’s stage 1 report noted that a majority of the committee supported restricting the scope of the offence to photographs and films and that the committee was mindful of the risk of unintended consequences if the bill took too wide an approach in this area. On unintended consequences, we note that the amendments would apply not only to intimate recordings that had been written or spoken by the victim, but to those that were directed to or left for the victim. As I explained at stage 2, one perverse effect would be that

“a person could face criminal liability for publishing or disclosing a communication that they themselves had written, or a voicemail message that they had left.”—[Official Report, Justice Committee, 1 March 2016; c 33-34.]

It might be helpful if I gave a practical example of the unintended consequences that could result from the amendments, which could criminalise behaviour in the following circumstances. Two 13-year-olds exchange text messages about a celebrity. During the exchange, one of the teenagers indicates that they fancy the celebrity and would like to have sexual relations with them. The other teenager decides to share that text message with other people in their class.

In that situation, a communication has taken place that a reasonable person could consider to be sexual in nature and that a reasonable person would expect to be kept private. The teenager who shared the text has committed a criminal offence if it can be shown that they were reckless about whether sharing the message would cause the other person fear, alarm or distress. Although it would probably be embarrassing and potentially distressing for the person whose message has been shared, our view is that the teenager who has shared the message should not be considered to be committing an offence in those circumstances.

Photo of John Finnie John Finnie Independent

The cabinet secretary must have more faith in the Crown Office and Procurator Fiscal Service and, indeed, in the reporter system. It is a question of proportionality.

Photo of Michael Matheson Michael Matheson Scottish National Party

That is precisely the point that I am making and that is the danger with the amendments in the group and how they could be interpreted. That is why we do not believe that Margaret McDougall’s amendments are appropriate, because they would criminalise such behaviour.

More generally, although it is hard to envisage circumstances in which someone would have a legitimate reason to share intimate photographs or films of their partner or ex-partner with a third party without their partner’s or ex-partner’s consent, it is easier to imagine circumstances in which they might wish to share a written message or voice message with a friend. A person may, for example, be confused or even fearful as a result of what they might consider to be the disturbing sexual content of a message that has been sent to them by a friend and wish to seek advice about what to do about it. They could be criminally liable if Margaret McDougall’s amendments were agreed to.

As I said to the Justice Committee at stage 2, we are happy to monitor the issue as the provision is implemented to assess whether there is a need to reconsider the scope of the offence in the future. However, we consider that the focus of the offence contained in the bill should be on images and photographs only and therefore we oppose amendments 3 to 14 in the name of Margaret McDougall.

Photo of Margaret McDougall Margaret McDougall Labour

I thank John Finnie for his support for my amendments.

I know that the sending of abusive messages is a criminal offence, but the same does not always apply to the sharing of intimate material. My amendments would ensure that the sharing of all types of intimate material without permission would be covered under one bill. As I said during stage 2, the current offence in section 127 of the 2003 act is not an appropriate offence for dealing with that type of behaviour, as it sets a very high threshold because the content of the message or other matter must be

“grossly offensive or of an indecent, obscene or menacing character”.

Furthermore, as John Finnie pointed out, the offence can be tried only under summary procedure rather than solemn procedure and, as such, offers less protection to victims who have had intimate audio or text conversation shared about them, if they can even get a conviction.

With advances in technology making it easier to distribute information, with or without consent, it is vital that the law keeps up, to ensure that those who wish to cause harm are dealt with appropriately and consistently by the justice system. I am not looking to criminalise the process of sexting, nor do I wish under-16s who may have shared content of a sexual nature accidentally, or without thinking through the consequences, to be criminalised. In such cases, common sense should be applied. Of course, we should be educating under-16s regarding the dangers of using private communications without consent. I believe that cases that relate to under-16s would be dealt with by the children’s panel. Tam Baillie, the Children and Young People’s Commissioner in Scotland, said in evidence that children should not be exempt, but he also said that there should be a robust education programme for the legislation.

At stage 2 and again today, the cabinet secretary used the example of two teenagers fantasising about having sex with a celebrity. That is not what my amendments are about—they are about the situation in which a relationship has broken down and one of the partners threatens to distribute or distributes intimate photographs, film or audio communication to cause harm to their ex-partner.

The Deputy Presiding Officer:

The question is, that amendment 3 be agreed to. Are we agreed?

Members: No.

There will be a division. This is the first division of the afternoon, so there will be a five-minute suspension.

14:30 Meeting suspended.

14:35 On resuming—

The question is, that amendment 3 be agreed to. Are we agreed?

Members: No.

There will be a division.

Division number 2 Abusive Behaviour and Sexual Harm (Scotland) Bill: Stage 3

Aye: 34 MSPs

No: 71 MSPs

Nos: A-Z by last name

The Deputy Presiding Officer:

The result of the division is: For 34, Against 71, Abstentions 0.

Amendment 3 disagreed to.

Amendment 4 moved—[Margaret McDougall].

The question is, that amendment 4 be agreed to. Are we agreed?

Members: No.

There will be a division.

Division number 3 Abusive Behaviour and Sexual Harm (Scotland) Bill: Stage 3

Aye: 34 MSPs

No: 68 MSPs

Nos: A-Z by last name

The Deputy Presiding Officer:

The result of the division is: For 34, Against 68, Abstentions 0.

Amendment 4 disagreed to.

Amendment 5 moved—[Margaret McDougall].

The question is, that amendment 5 be agreed to. Are we agreed?

Members: No.

There will be a division.

Division number 4 Abusive Behaviour and Sexual Harm (Scotland) Bill: Stage 3

Aye: 34 MSPs

No: 69 MSPs

Nos: A-Z by last name

The Deputy Presiding Officer:

The result of the division is: For 34, Against 69, Abstentions 0.

Amendment 5 disagreed to.

Amendments 6 to 12 not moved.

That takes us to group 2. Amendment 29, in the name of Dr Elaine Murray, is the only amendment in the group.

Photo of Elaine Murray Elaine Murray Labour

Amendment 29 is similar to my stage 2 amendment 4, which I lodged but did not press after agreement to discuss its intention further with the Cabinet Secretary for Justice and his officials. I am grateful for their assistance in drafting this improved version and for their investigation into some of the wider issues that cannot be addressed in the bill but will, I hope, be pursued in the next session of Parliament.

Professor Erika Rackley of the University of Birmingham and Professor Clare McGlynn of Durham University submitted written evidence to the committee. They welcomed the creation of a new offence that will criminalise disclosure of an intimate film or photograph without the consent of the subject. They were concerned, however, about disclosure of sexual images that are taken without consent in a public place, such as those that are obtained through the objectionable practices of upskirting and downblousing.

Upskirting—the taking of photographs of genitals, buttocks or underwear in a public place without the consent of the individual—is covered by section 9(4B) of the Sexual Offences (Scotland) Act 2009—indeed, such a case was brought to Dumfries sheriff court only a couple of weeks ago. However there is no legislation that covers the distribution of such images, and unfortunately such images appear on websites that are created for that purpose. In May 2015, one such site was exposed by the Mail on Sunday; it was estimated to be receiving 70,000 views a day and to be valued at £130 million.

I am grateful to the cabinet secretary’s officials for the work that they have done between stages 2 and 3—which included seeking the views of the Lord Advocate—to investigate whether distribution could be included in the scope of the bill, but unfortunately there has not been time in the current session to draft robust amendments to that effect.

I think that the cabinet secretary agrees that the issue should be revisited in the next session of Parliament when, I hope, further legislation on coercive control and sexual exploitation will be considered. However, it has been possible to address circumstances in which intimate photographs are taken in a public place of someone who has been subjected to an act by another individual. If amendment 29 is agreed to, the defence will not apply when “B was” the subject of an intimate film or photograph

“as a result of a deliberate act of another person to which B did not agree”.

Victims will be protected from a perpetrator’s sharing of such images because the “public place” defence will not be available.

The person who takes such images will be committing an offence if they share them, although the provision does not cover further distribution of such images by others beyond the taker of the photograph. Someone who took a photograph of a victim who had been stripped or was being sexually assaulted, for example, would commit an offence if that photograph was distributed, but someone who took a photo of a streaker or a naked rambler and shared that photograph would be able to use the “public place” defence.

I am not a lawyer, but I think that amendment 29 would also apply to people taking upskirting images and subsequently distributing them. An upskirting image would be an offence under the Sexual Offences (Scotland) Act 2009, but distribution of the image would become an offence under the bill as it will be amended by amendment 29. I think that we are going some way towards where we want to be in achieving that policy intention, and I am grateful to the minister and his officials for their assistance in drafting the amendment.

I move amendment 29.

Photo of Margaret Mitchell Margaret Mitchell Conservative

I have some sympathy with the intention behind amendment 29, but I have real concerns about the definition of “public place”, and about how distribution, without consent, of a consensual image that is taken behind the bike sheds, for example, would be covered by that definition. I do not think that Elaine Murray intends that such situations should be covered. Perhaps I have misunderstood her, but it would gravely concern me if that was a consequence of amendment 29.

Photo of Michael Matheson Michael Matheson Scottish National Party

Amendment 29, in the name of Elaine Murray, seeks to close a potential loophole in the operation of one of the defences to the intimate images offence. We are happy to support the amendment.

The defence at section 2(5) of the bill currently operates such that, where the image or film that has been shared was taken in a public place where

“members of the public were present”,

there is a defence that means that the accused will not be convicted. That is to avoid a situation in which someone shares without consent a film or image of a person streaking at a sporting event, for example, and a criminal complaint is made to the police. In that situation, we do not think that a criminal offence should have been committed by the sharing of such an image or photo.

The effect of amendment 29 will be that the “public place” defence is not available where a person was in an

“intimate situation as a result of a deliberate act of another person to which” they “did not agree”. The “public place” defence will not be available where a person has distributed an image showing, for example, the subject of a photograph or film who has been stripped against their will or sexually assaulted in a public place.

Amendment 29 will close the loophole that arose from the way in which the defence was previously crafted. I thank Elaine Murray for lodging amendment 29, and I urge the Parliament to support it.

Photo of Elaine Murray Elaine Murray Labour

To answer Margaret Mitchell’s point, the cabinet secretary made it clear that a public place is where

“members of the public were present”.

Unless it was a very strange sexual practice that was going on—I know that there are some of that nature—it is unlikely that somebody round the back of the bike sheds would have

“members of the public ... present”; therefore, such a scenario would not really be covered by amendment 29.

The Deputy Presiding Officer:

The question is, that amendment 29 be agreed to. Are we all agreed?

Members: No.

There will be a division.

Division number 5 Abusive Behaviour and Sexual Harm (Scotland) Bill: Stage 3

Aye: 96 MSPs

Abstained: 12 MSPs

Ayes: A-Z by last name

Abstaineds: A-Z by last name

The Deputy Presiding Officer:

The result of the division is: For 96, Against 0, Abstentions 12.

Amendment 29 agreed to.

Amendments 13 and 14 not moved.

After section 6

We come to group 3. Amendment 30, in the name of Margaret Mitchell, is the only amendment in the group.

Photo of Margaret Mitchell Margaret Mitchell Conservative

As members know, this is the third bill in which I have sought to address the issue of medical records, including psychiatric and psychological records, being released in sexual offence cases where the complainer, if they had the ability to employ legal representation, would object to their inappropriate release.

The stumbling block for victims of rape and other sexual assaults has been the lack of legal aid to pay for representation at a pre-trial hearing when the release of medical records and medical history information is sought merely in an attempt to discredit the victim in court. I am therefore delighted that in the recent judicial review petition of WF v the Scottish ministers, for which Rape Crisis Scotland was the intervener, Lord Glennie found that denying a complainer—in that case, a domestic abuse victim—legal aid to oppose the release of her medical records was contrary to the duty imposed on the Scottish ministers under the Victims and Witnesses (Scotland) Act 2014. Section 1 of the 2014 act states that

“a victim or witness should be able to participate effectively in the investigation and proceedings.”

In his encouraging response to Lord Glennie’s verdict, the cabinet secretary stated at stage 2:

The Scottish Government will not appeal the decision. It is an important judgment and clarifies a number of issues that will lead to significant changes in procedure in cases where an application is made to recover sensitive information.”

He went on to say:

“Changes to the legal aid system require to be made for cases of this nature, and plans are being developed to deliver the necessary changes. Meantime, I have put in place interim arrangements that will allow the Scottish Legal Aid Board to provide legal aid in future similar cases. Importantly, a means test will not be applied in this interim arrangement. Legal aid, in the form of assistance by way of representation, will be available in appropriate circumstances for individuals whose sensitive records are being sought.”

He also stated:

“we think that the inherent flexibility of rules of court in comparison with primary legislation is what is required.”—[Official Report, Justice Committee, 1 March 2016; c 59, 54.]

However, to ensure that the Scottish Parliament does not lose sight of the issue following dissolution and the election in May and, importantly, to ensure that the ruling is fully effective, complainers need to be aware, first, of their right to object to the release of those records, and, secondly—and crucially—that legal aid will be available for them so that they can have legal representation.

Therefore, amendment 30 seeks to place a duty on the Scottish Government to raise public awareness, as it considers appropriate and as a result of Lord Glennie’s judgment, in relation to the rights of complainers in rape and sexual assault cases. In the hope that the amendment will gain cross-party support today, I deliberately did not specify timings or nature of the campaign that the Government should undertake.

I thank Alison McInnes for her support both for the amendment and in relation to the whole issue of the release of medical and other records.

I move amendment 30.

Photo of Elaine Murray Elaine Murray Labour

I rise to support the amendment in Margaret Mitchell’s name, and to congratulate her on her tenacity in bringing the issue forward—in the form of a number of amendments to a number of different bills—to try and address the issue of complainers whose sensitive records are sought by defence counsel.

This is an appropriate bill in which to place such a provision. Some of the issues around legal representation in court have been tackled; the amendment simply asks Scottish ministers to ensure that complainers are aware of their rights and to implement the recent court decision. Therefore, we will support the amendment.

Photo of Alison McInnes Alison McInnes Liberal Democrat

I, too, pay tribute to Margaret Mitchell’s persistence in this matter—she has been rewarded at last.

The recent judicial review vindicated the position that Margaret Mitchell and I took on the issue of representation at the stage of recovery of documents. I am pleased that the cabinet secretary set out clearly—at the committee and in written answers to me—the Government’s acceptance that it had been wrong in law by refusing legal aid in such circumstances. An injustice has been addressed.

Margaret Mitchell’s amendment 30 rightly addresses the need to raise awareness of the change of approach. It is a very modest amendment: its provisions are not onerous on the Government but could make a dramatic difference to the protection of victims of sexual offences. Sadly, we know that, too often, attempts by the defence to discredit witnesses by accessing their medical records have devastating results. I hope that the cabinet secretary will be able to support the amendment.

Photo of Michael Matheson Michael Matheson Scottish National Party

Amendment 30 raises an important issue. I want to explain clearly the Scottish Government’s position in the wider context within which amendment 30 sits.

At stage 2, I made it clear that the Scottish Government welcomes Lord Glennie’s recent judgment in the WF case. It was an important judgment that clarified a number of issues that will lead to significant changes to procedure in cases in which an application is made to recover sensitive information in criminal cases. The judgment is wide ranging, in that it relates to all sensitive information that may be disclosed in any criminal proceedings; it is not restricted to sexual offences, and it is not restricted to medical records. Nor is it restricted to complainers. Lord Glennie confirmed that, when someone’s sensitive records are considered for disclosure in criminal proceedings—including, but not limited to, the complainer’s records—important rights exist to help safeguard the privacy of any person whose records may be disclosed. Lord Glennie made it clear that those rights exist. They are: the right to be intimated that disclosure of sensitive records is being considered; the right to heard in proceedings to consider whether disclosure is appropriate, including a right to be represented at those proceedings; and the right to legal aid, taking account of the individual’s circumstances, when that is necessary to give effect to those rights.

Lord Glennie was clear that courts already have the ability to self-regulate their own procedures and must ensure that those important rights are protected. For the future, Lord Glennie recommended that rules of court be developed to cover procedures in the area.

Following the judgment, I acted swiftly to put in place, separate from the rules of court, interim arrangements to allow the Scottish Legal Aid Board to provide legal aid in the future when those rights are engaged. Importantly, a means test will not be applied in those interim arrangements. Legal aid, in the form of assistance by way of representation, will be available in appropriate circumstances for individuals whose sensitive records are being sought.

Amendment 30 would require the Scottish ministers to raise awareness of the rights that Lord Glennie has confirmed exist, but for only a limited number of cases, and for only certain types of sensitive records, rather than for all cases in which sensitive records are considered for disclosure. Therefore, amendment 30 does not cover the whole gamut of cases and people in relation to which those rights exist. Indeed, it does not even cover the type of case that WF was involved in, which was a domestic abuse case.

There are also some drafting issues with amendment 30, including the placement of such a provision in section 301A of the Criminal Procedure (Scotland) Act 1995, which has a different purpose from what the amendment seeks to do. That in itself could create confusion.

Notwithstanding those technical issues, we are certainly happy to accept the spirit behind amendment 30. It is important for people whose privacy rights may be breached to know what rights they have in that situation. Lord Glennie’s judgment has already received considerable publicity, and parliamentary debates such as this can only help to raise awareness further. In addition, the Scottish Government will contact key third sector stakeholders, which do such valuable work with sexual offence victims and domestic abuse victims, to ensure that they are aware of those rights so that they can raise awareness with the people whom they are helping. We will also update relevant Scottish Government webpages and social media to ensure a wide dissemination of the details of the judgment and the rights that Lord Glennie has confirmed exist.

At stage 2, a similar amendment was lodged relating to publicity for the intimate images offence. Members were content not to accept that amendment for two main reasons: first, because of the commitment that I gave that publicity efforts would be undertaken; and, secondly, because legislation is not necessary for the Scottish Government to raise awareness about matters within its remit. In fact, the statute book would become very crowded and cluttered if we had a provision about awareness raising in relation to every policy or set of rights that exists in law. As I have indicated, the Scottish Government is happy to undertake work to ensure that awareness of Lord Glennie’s judgment is raised.

For the reasons that I have provided, the Scottish Government will oppose amendment 30 and asks members also to do so.

Photo of Margaret Mitchell Margaret Mitchell Conservative

The terms of amendment 30 were left deliberately vague to give the Scottish Government maximum flexibility to formulate any campaign that it wanted to cover the issue of awareness raising. Therefore, although it is disappointing that the Government has been unable to agree to the amendment, I am gratified and heartened that the cabinet secretary has said that he will try to publicise the fact that legal aid is now available and will contact groups that deal with individuals who would benefit from that provision.

I hope that lodging the amendment will in itself help to raise awareness that legal aid is available to those vulnerable individuals so that they can oppose the inappropriate release of their medical records, including psychological, psychiatric and physiological records, when those are sought as a way of discrediting them in court. I also hope that the press will pick up on the issue and inform victims about their rights.

For all those reasons, I press my amendment.

The Deputy Presiding Officer:

The question is, that amendment 30 be agreed to. Are we agreed?

Members: No.

There will be a division.

Division number 6 Abusive Behaviour and Sexual Harm (Scotland) Bill: Stage 3

Aye: 49 MSPs

No: 58 MSPs

Ayes: A-Z by last name

Nos: A-Z by last name

The Deputy Presiding Officer:

The result of the division is: For 49, Against 58, Abstentions 0.

Amendment 30 disagreed to.

Section 17—Application of notification requirements where order made

We move to group 4. Amendment 15, in the name of the cabinet secretary, is grouped with amendments 16 to 27.

Photo of Michael Matheson Michael Matheson Scottish National Party

Chapters 3 to 6 of part 2 of the bill replace the existing suite of orders that are used to protect our communities from those who pose a risk of sexual offending. The bill establishes two new forms of orders—sexual harm prevention orders and sexual risk orders—and makes provision about the enforcement of older orders and equivalent orders made elsewhere in the United Kingdom. The amendments in the group all make minor amendments to those provisions.

Amendment 15 deals with what happens to existing sexual offender notification requirements under the Sexual Offences Act 2003 when a sexual harm prevention order is made. The making of such an order will keep alive any notification requirements that would otherwise expire. In the bill as introduced, it was not clear for how long the notification requirements would continue to be in place. Amendment 15 clarifies that that will be until the order expires.

Amendment 27 deals with a similar issue—what happens to existing sexual offender notification requirements under the 2003 act when a person breaches an order granted in another part of the UK that is equivalent to a sexual risk order or interim sexual risk order. Breaches of any of those orders will keep alive any notification requirements that would otherwise expire. In the bill as introduced, it was not clear for how long the notification requirements would continue to be in place. Amendment 27 clarifies that that will be until the order expires.

Amendments 16 to 18 adjust the provisions that relate to the requirement to hold a hearing or invite written representations on applications for variation, renewal and discharge of sexual harm prevention orders to take account of the fact that the High Court of Justiciary and not just the sheriff may vary, renew or discharge an order. The amendments are needed because sections 19(7) and 19(8) are currently too narrowly drafted, as they refer only to the sheriff.

Amendments 20, 21 and 23 adjust provisions that deal with the appeals processes in relation to sexual harm prevention orders and sexual risk orders to provide that, when an appeal results in an order being granted by the appeal court, any subsequent variation, renewal or discharge of that order should be considered by the sheriff court. That could be an issue if, for example, a condition in the order needs to reflect a change in the person’s accommodation, family life or employment. Amendments 20, 21 and 23 will ensure that applications for variation, renewal and discharge of orders, whether granted at first instance or on appeal, are considered by the first-instance court.

Section 31A requires the clerk of court to serve a copy of a sexual risk order on the subject of the order. Amendments 24 to 26 make minor changes to the provisions by replacing the term “sheriff” with the wider term “court” to take account of the fact that, in appeal cases, orders may be granted by courts other than the sheriff court.

Amendments 19 and 22 relate to interim sexual harm prevention orders and interim sexual risk orders respectively. Currently, sections 20(7)(b) and 30(7)(b) anticipate that an application for an interim order

“may be made by separate application”— that is, the application may be separate from an application for a full sexual harm prevention order or a full sexual risk order. On reflection, we consider that that approach is unduly restrictive. We consider it more appropriate for the Criminal Courts Rules Council and the Scottish Civil Justice Council to frame the necessary rules surrounding how applications for an interim sexual harm prevention order and an interim sexual risk order should be made when an application for a full order of either type has already been made.

I move amendment 15.

Amendment 15 agreed to.

Section 19—Variation, renewal and discharge

Amendments 16 to 18 moved—[Michael Matheson]—and agreed to.

Section 20—Interim orders

Amendment 19 moved—[Michael Matheson]—and agreed to.

Section 21—Appeals

Amendments 20 and 21 moved—[Michael Matheson]—and agreed to.

Section 30—Interim orders

Amendment 22 moved—[Michael Matheson]—and agreed to.

Section 31—Appeals

Amendment 23 moved—[Michael Matheson]—and agreed to.

Section 31A—Requirement for clerk of court to serve order

Amendments 24 to 26 moved—[Michael Matheson]—and agreed to.

Section 36—Breach of certain equivalent orders: application of notification requirements

Amendment 27 moved—[Michael Matheson]—and agreed to.

Schedule 1—Section 2: Special provision in relation to providers of information society services

The Deputy Presiding Officer:

We move to group 5. Amendment 28, in the name of the cabinet secretary, is the only amendment in the group.

Photo of Michael Matheson Michael Matheson Scottish National Party

Schedule 1 makes special provision in relation to the application of the intimate images offence to providers of information society services. Amendment 28 is a technical amendment to remove the definitions of certain terms from paragraph 4 of schedule 1. As a result of amendments at stage 2 to paragraph 3 of schedule 1, amendment 28 is necessary to reflect the fact that the terms are no longer used in that schedule.

I move amendment 28.

Amendment 28 agreed to.

The Deputy Presiding Officer:

That ends consideration of amendments for today and indeed for this parliamentary session.