Abusive Behaviour and Sexual Harm (Scotland) Bill

Part of the debate – in the Scottish Parliament on 22nd March 2016.

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Photo of Christine Grahame Christine Grahame Scottish National Party

It has been my privilege to convene the Justice Committee for five years. I thank all the committee members for their hard work and, not least, for their tolerance of my idiosyncrasies in the chair—they should put it down to age.

The bill has two main elements. The first is the new offence of the non-consensual sharing of intimate images colloquially labelled “revenge porn”. That is not the most pleasant of terms, but it is well understood by the public so I will use it.

With advances in technology and increasing use of social media, it has become all too easy to use the internet as a weapon to humiliate, bully and intimidate other people. When that involves the sharing of intimate photographs or videos of another person that were never meant to be shared with a wider audience and are perhaps sent out on the internet following an acrimonious break-up, it can be particularly poisonous and harmful.

The new law will provide an opportunity to make it clear that sharing intimate images of another person without their consent and with the intention of or—and this must be stressed—with recklessness about whether it causes hurt or humiliation, is a crime. Images on the internet can live for ever.

The new offence is to be welcomed, and I hope that it will lead not so much to prosecutions as to a change in society’s behaviour. Let us call it preventative legislation rather than punitive, although if someone does breach the legislation, they might, at the end of the day, end up with a criminal record.

There are some—particularly the young, perhaps—who may lack the insight or maturity to realise just how much harm such an act can cause, and it is usually young people who are the victims, as well as the perpetrators. There is an expectation that the vast majority of cases involving children and young people will not go before the courts or even before the children’s panel and that there will be some discretion as to what happens with young people.

The second main element of the bill is jury directions relating to sexual offences, which my colleague Margaret Mitchell referred to. The bill proposes that, for the first time, we set out in statute what directions judges must give to juries in certain cases. If evidence is led about an apparent delay in reporting or telling anyone about an alleged sexual assault, the judge must direct the jury that there may be good reasons for the delay. In addition, if evidence is led about an apparent absence of physical resistance to an alleged sexual assault, the judge must direct the jury that there may be good reasons why a person may not have physically resisted such an assault.

I hear what the cabinet secretary says about case law but case law is made by the courts, not by Parliament. In my view, this is a case of Parliament interfering too deeply in the courts’ discretion. I understand that the intention behind this element of the bill was to tackle alleged prejudices or misconceptions in the minds of some jurors but juries are, at their very heart, comprised of ordinary people, some of whom may very well bring their misconceptions into the jury room—in fact, I would be astonished if they did not.

Also, as the Government has instructed research to be carried out into juries’ behaviour, I do not understand why we are leaping to setting out that requirement for jury directions before we have the results and the evidence from that jury research. That is where I fall out with the Government—not for the first time and, if I am re-elected, probably not for the last time.

Like my colleague Margaret Mitchell, I am very disappointed that her amendment to delete that requirement, which I supported, was not selected for debate. It led to substantial debate at stage 2 and the cabinet secretary devoted quite a chunk of his speech to addressing the issue. However, what do we have in the chamber now? If it had been in the amendment process, we would have had a full chamber listening to the arguments. Now the chamber is sparsely populated with a few hardy people, most of whom are contributing to the debate.

To me, that is not democratic, and I regret that I have to support my colleague Margaret Mitchell again in being extremely disappointed by the Presiding Officer’s decision because, to quote the Lord President’s written evidence,

“what is proposed is that the judge should essentially take on the mantle of the prosecution in making statements of fact dressed up as law.”

The Lord President went on to say in oral evidence:

“I return to what I have said already: we the judges direct the jury on the law that is to be applied to the case. That is our primary purpose. We tell juries at the beginning that the facts are for them and that it is for them to assess the witnesses and make up their minds, applying their collective common sense. That is the jury’s function. If a judge is seen to dictate, or attempt to dictate, to a jury on what facts should or should not be found, that would be in the realms of counterproductive.”

Finally, he said:

“Yes, it sets a precedent. If Parliament dictates what should be said to juries by a judge in this area, other people will no doubt seek to extend that to other areas and will wish other directions to be given, and that is where we get into the constitutional divide.”—[Official Report, Justice Committee, 8 December 2015; c 42, 50.]

Those are not light words and they are not from a lightweight; they are from the Lord President of the Court of Session, a man who—just as much as we do—wants to see justice done in his courts. If he has those substantial concerns about crossing the constitutional divide, I think that it is an issue that Parliament should have debated more fully.

Of course it is right to say that if we vote for the bill tonight, the judges will obey. Of course they will obey; they obey the statutes that we put down for them. However, the question is: should we be doing it?