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 John Finnie John Finnie Independent

A lot of work takes place before we get to this point in any piece of legislation, and I thank all the contributors that got us here.

I will allude to information that the Cabinet Secretary for Justice provided to the Justice Committee on 1 December 2015, when he outlined in a letter the latest figures on domestic abuse. The letter said:

“just under 60,000 incidents of domestic abuse were reported” to the police, which was “an increase of 2.5%”. We might view that people were more willing to come forward as a positive. The letter continued:

“In 79% of the incidents, where the gender was known, the perpetrator was male and the victim was female.”

That is important to say. It is also important to say that the Justice Committee took a lot of evidence both in written form and privately and confidentially with male and female victims. We learned a lot from that. The letter carried on:

“we also know that the police only become aware of around one in five (12%) of the incidents of partner abuse each year.”

It is for those reasons that I am certainly very happy to support the abuse aggravator. It will bring about a situation in which victims will have more confidence that regard will be had to an offence in the context of an abusive relationship when sentencing takes place. The abuse aggravator is not a new concept; existing legislation covers offences aggravated by prejudice. The consultation showed that that was well understood and, most important, the Crown Office and Procurator Fiscal Service said that that

“would be a useful tool for prosecutors”.

I know that Scottish Women’s Aid supports that specific offence and that it was aware of the consultation that has taken place. It is timely to remind the chamber that it described domestic abuse as

“a cause and consequence of women’s inequality and occurs within the context of ongoing control and repeated abuse.”

It is right that we address that.

The cabinet secretary’s letter outlined the latest stats on sexual offences. I will not go through them all, other than to say there was

“a 13% increase in convictions for rape and attempted rape”.

However, depressingly, the

“overall conviction rates remain lower than for other ... crime.”

In addition, as other members have alluded to, the latest figures

“indicate that 36% of rapes reported to Police Scotland were historic i.e. took place at least 12 months prior to being reported.”

In more than a third of cases, reporting was delayed. We must have a situation where that is explained to jurors.

I am disappointed that there was not an amendment included that meant that we could discuss directions to juries. I must tell the chamber that I have changed my position on the issue. Initially, I was minded that the situation of expert evidence being led—and it still can be led by both sides—was sufficient. We have heard from Roderick Campbell that joint minutes can be used. During the stage 1 debate, however, I alluded to two cases that significantly changed my view. I will very briefly go through them. One case resulted in an individual being placed on the sex offenders register. He appealed, and the appeal was upheld on the basis that the sheriff who passed the original sentence had not

“given sufficient attention to the fact that the appellant had consumed a considerable amount of drink beforehand, with the result that the assault can be regarded as drink-fuelled rather than overtly sexual.”

That was a deeply damaging statement to make after years of trying to correct misunderstandings about pernicious sexual offences.

That was swiftly followed by a case that Alison McInnes—I pay tribute to all her work—and I questioned. It involved the repeated rape of an adult and the sexual abuse of children. The trial judge referred to the crimes as “minor”, criticised the adult victim for a delay in reporting the assaults, claimed that the adult victim was “condoning” or “acquiescing” in being raped, pointed out that the person continued to live with the accused, and talked about the parties’ “benefit-grubbing existence”.

That was deeply offensive language. I should say that the appeal court said that the trial judge

“had no basis for his theories”,

but the case shows that education is required that goes way beyond the public and prosecutors. Judicial training will be required. For those reasons, it is appropriate that we should have jury directions.

I often look to other sources for an opinion, and the Scottish Human Rights Commission often weighs up people’s conflicting positions. On jury directions, the SHRC said:

The Commission’s position is that the jury directions of the type set out in section 6 of the Bill amount to uncontroversial statements which may indeed serve to address misconceptions held by some members of the public around the behaviour of victims of sexual assault. The Commission does not consider that these statements, if delivered appropriately, would prejudice an accused’s Article 6 rights.”

That is important information, which I welcome.

I am disappointed that the amendments in Margaret McDougall’s name, which were well presented, were not accepted, but I respect the vote and the decision that was taken, and I respect the fact that the whole area will be subject to on-going review, as many members have said. I hope that a future justice committee will have sufficient time to do post-legislative scrutiny.

There are many important issues in the bill, such as the provisions on non-harassment orders and the reinforcement of the appeal process. Margaret Mitchell’s work is worthy of commendation in that regard; I am pleased that she got the result that she did.

This is about education, judicial training and post-legislative scrutiny. Most of all, it is about supporting this good bill.