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 Michael Matheson Michael Matheson Scottish National Party

I recognise that they raised some concerns regarding the provisions, but I do not recall them saying that they would not take them forward if Parliament was minded to include them in the bill. If I recall correctly, in their evidence they said that if Parliament was minded to do that, they would have to consider how the provisions would be taken forward.

In Scotland, judges are already required by case law to give jury directions on relevant law and on certain evidential matters, for example on dealing with expert evidence or identification evidence. This common law on jury directions has developed incrementally by way of appeal cases challenging trial judges’ directions or the lack of relevant directions. The reason why we have included in the bill statutory jury directions is that we have taken the view that the courts have not been sufficiently innovative in this area and it is necessary for statute law to intervene to deal with such an important matter.

There are many precedents for Parliament moving into areas of law that have, until then, been entirely based on the common law. For example, the Sexual Offences (Scotland) Act 2009 restated and codified the common law on sexual offences. Similarly, the law of evidence is largely common law, but it is supplemented by statutory provisions in the Criminal Procedure (Scotland) Act 1995.

Let us remember that the provisions in the bill do not attempt to prescribe the form that such a direction must take, and they give the judge the freedom to tailor any direction to fit the facts and circumstances of the particular case. The bill also provides that where such a direction is clearly inappropriate—for example, in a case where the alleged victim could not have reported the offence at the time it happened because they were in a coma, or because the alleged victim was a very young child—there is no requirement for the direction to be given. Nothing in the bill affects the ability of expert evidence to be led in a given case, and the Crown Office indicated during stage 1 scrutiny of the bill that it will continue to use expert evidence as it considers it appropriate in relevant cases.

We are pleased that at stage 2 the Justice Committee supported the retention in the bill of the jury direction provisions, as we consider that they will help to make a real difference in ensuring that jurors consider the evidence laid before them in sexual offence cases without allowing any pre-conceived or ill-founded views to cloud their judgement.

We are pleased with the broad support for the intimate images offence, which will help to ensure that perpetrators and victims understand what is against the law and will improve how victims can access justice. We have heard arguments for extending the offence to cover the non-consensual disclosure of intimate written and recorded sound communications, such as texts, emails, letters and voice mail messages. It has also been suggested that the offence should be extended to cover the distribution of voyeuristic images taken in public places. We have some sympathy with the intent behind those suggestions. We know that there are a myriad of ways in which a person can seek to abuse or control someone—especially a partner or ex-partner. However, the offence was developed to deal with the problem of people—usually partners or ex-partners—sharing images that are likely to have been taken with consent, either with the intention of causing that person fear, alarm or distress, or else with recklessness as to whether that would have that effect. As I outlined earlier, extending the offence to cover written communications or voyeuristic photographs taken in public could risk unintended consequences.

We consider that it would be difficult to amend the offence to cover written and sound communications and to put in place appropriate defences without inadvertently providing a loophole for people who distribute intimate images. As with all legislation, there might be issues that the Parliament will wish to revisit in due course, and the scope of the offence might be one such issue. However, we believe that the offence that is set out in the bill strikes the appropriate balance at this time and that it will help our justice system to deal with such behaviour.

The bill also introduces a new domestic abuse aggravator, which will help to improve the recording of such crimes and will ensure that courts take the domestic abuse circumstances of an offence into account when they decide on an appropriate sentence.

The bill strengthens protections for victims of harassment in cases in which the person who harasses them is unfit to stand trial or lacked capacity to commit an offence because of a mental disorder, and it gives our courts new powers to hold perpetrators of child sexual abuse to account for offences committed elsewhere in the United Kingdom by extending extraterritorial jurisdiction to apply to England, Wales and Northern Ireland, just as it already does to the rest of the world.

The bill modernises and reforms the powers of our courts in relation to the orders that are available to help to protect our communities from those who pose a risk of sexual offending. Those reforms will streamline the operation of the powers that our courts already have in that area and will expand their ability to impose orders to protect our communities.

The bill makes a number of important reforms to address specific issues to improve the way in which our justice system responds to abusive behaviour and sexual crime.

I move,

That the Parliament agrees that the Abusive Behaviour and Sexual Harm (Scotland) Bill be passed.