Homicide Law

– in the Scottish Parliament on 1st June 2021.

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Photo of Jamie Greene Jamie Greene Conservative

To ask the Scottish Government for its response to the Scottish Law Commission’s “Discussion Paper on the Mental Element in Homicide” and the wider implications it has in ending the so-called rough sex defence.

Photo of Keith Brown Keith Brown Scottish National Party

I thank Jamie Greene for his question. I also welcome him to the role of justice spokesperson for the Scottish Conservatives and thank him for the constructive discussion that we had once he had been appointed to his post.

We are pleased that the Scottish Law Commission has published its extensive discussion paper on reforms to homicide law. The Scottish Government asked the commission to undertake that project in light of various court judgments that recommended a fundamental study into homicide law, and the progress that the commission has made is positive.

In line with the normal process for Scottish Law Commission reports, we are awaiting the commission’s final report, which will be developed from, and informed by, the responses to its initial discussion paper. I do not want to pre-empt the commission’s final recommendations, but I welcome its inclusion of certain aspects of homicide law for consideration for reform, including consideration of whether Scots law needs to be made clearer with regard to the so-called rough sex defence; whether new defences are needed in respect of those who experience domestic abuse; and consideration of reforming the defence of provocation in that area of law. It is right that Parliament will have the opportunity to consider the commission’s final recommendations on those matters when it reports.

Photo of Jamie Greene Jamie Greene Conservative

I thank the cabinet secretary for his response and welcome him to his new role in these most challenging times.

This much-needed discussion paper effectively opens the door for potential changes to the law about the most serious of crimes—murder and culpable homicide. The chair of the Scottish Law Commission, the Rt Hon Lady Paton, said that she hopes that the paper will ascertain whether current Scots law is truly “fit for purpose” in the modern era—an era that has shone a spotlight on violence against women and coercive behaviour, and is redefining how those who have suffered from abuse make a case for defence.

The cabinet secretary’s predecessor, who sits a few feet away from him, previously said that there was only

“a perception ... that the ‘rough sex’ defence exists”—[Written Answers, 12 March 2021; S5W-35741.]

in Scots law. If responses to the paper make it clear that it is the law itself—not the perceptions of it—that is deficient, will the Government commit to legislative change in this area?

Photo of Keith Brown Keith Brown Scottish National Party

The purpose of the report is for us to be able to look at what comes back from the Scottish Law Commission not just in its interim report but in its final one, after it has had submissions and consultation responses, including from anybody in the Parliament who wants to respond.

There is an acknowledgement that some of the defences for homicide and murder need to be updated—there is no doubt about that. I take into account, understand and accept some of the points that Jamie Greene makes about gender-based violence and about some of the language and notions that are used in the law in relation to it.

Some confusion exists about whether the rough sex defence is a defence that relates to a crime that has been committed or whether it can be used not in mitigation but to reduce the charge—by ensuring that a murder charge is not made out, if you like. It can also be used subsequent to a finding of guilt to inform sentencing.

It is important that we have clarity on that point, which is one of the things that the report is seeking. I hope that that will be welcomed not only by Jamie Greene but by everybody else who is interested.

Photo of Jamie Greene Jamie Greene Conservative

I agree with the cabinet secretary in the sense that there can never be any defence to gender-based sexual violence—that is something to which members in the chamber would commit to agreeing.

Ahead of the election, the Scottish National Party manifesto promised—indeed, committed to—a reformed justice system. The problem is that we have an enormous backlog of nearly 38,000 cases in our courts right now, and the current forecast is that we will not clear it for at least four years. The effects and trauma of such lengthy waiting times are clear to the victims and their families. What urgent action is being taken by the Government right now to clear that backlog, and will the reformed justice system finally put the needs and rights of victims at its heart?

Photo of Keith Brown Keith Brown Scottish National Party

Jamie Greene will know about a number of the actions that have already been taken by my predecessor in the Scottish Government, such as the £50 million of funding to help to deal with the backlog, and the unusual citing of additional cases that are being taken through the system just now.

Jamie Greene is right that there is a significant court backlog, as there is in every developed country in the world. However, to go back to the point that he first raised about the Scottish Law Commission’s report, he is right to say that there is a need to reform different areas together—the Scottish Law Commission has taken a number of different aspects of the justice system and put them together—because if we uproot just one part of it, we could cause unintended consequences elsewhere. Therefore, it was important that the commission did a comprehensive review. The review is now subject to consultation, and it is important that everybody who is interested has the chance to make their views heard. Of course, we want to carry out the consultation in such a way that, as we make progress with the backlog, we do so in as fair a way as possible, taking into account the much better appreciation that there is in the justice system these days of gender-based violence against women and girls.

Photo of Alison Johnstone Alison Johnstone Green

There are a number of supplementary questions. I ask members who wish to ask a supplementary question to press their request-to-speak button.

Photo of Pauline McNeill Pauline McNeill Labour

Does the cabinet secretary agree that consent to sex can never be a defence to murder or serious sexual assault? The We Can’t Consent to This campaign notes that there were 60 cases across the United Kingdom in which the so-called rough sex defence was used, and that 40 per cent of women under 40 have reported being violently assaulted during sex.

Does the cabinet secretary agree that it is time to remove the partial defence of provocation by sexual infidelity from our law books, to show that our law seeks to keep women safe?

Photo of Keith Brown Keith Brown Scottish National Party

I agree with the general principles of what Pauline McNeill says. She mentioned different issues, including consent and provocation, which can be applied in different ways. She is absolutely right that consent to sex cannot be used as a defence. If somebody has harmed another person in that way, citing the person’s consent, using the old principle of volenti—that they volunteered to have such harm done to them—is no defence. We have to ensure that the reforms that we make to the legal process reflect that.

There is no question but that such a defence has been used by some people in the past, but the courts have exercised fairness when using their powers to decide whether that is acceptable. I hope, and expect, that the thrust of the report, not only in relation to the area that we are discussing, but throughout, will lead to an updating of the legal process in many important respects. I hope that that will be supported by the Labour Party.

Photo of Emma Roddick Emma Roddick Scottish National Party

The cabinet secretary will be aware that a person who kills in a jealous rage brought on by the belief that they have been cheated on can escape a murder conviction under the law as it stands. Does the cabinet secretary believe that, regardless of the ultimate conclusions on the more technical aspects contained in the discussion paper, the partial defence of provocation by sexual infidelity has no place in modern Scots criminal law?

Photo of Keith Brown Keith Brown Scottish National Party

I thank Emma Roddick for her question. I am not sure whether this is the first time that she has spoken in the chamber, but I welcome her to her place here.

The issue that Emma Roddick raises is similar to the one raised by Pauline McNeill. It is an important issue, but I hope that members understand that the Scottish Law Commission will prepare the final report with recommendations and deliver it to ministers; therefore, I do not want to pre-empt the consideration that ministers will give the final report once it is provided. However, I think that there is a compelling case for giving serious consideration to that specific area of reform, and I look forward to hearing what people have to say in response to the discussion paper. It is likely that many people will express the view that has been expressed by Emma Roddick before the commission makes its recommendations for reform.

Photo of Russell Findlay Russell Findlay Conservative

The so-called rough sex defence is not the only issue in our justice system to impact women who have been the victims of sexual violence. I am, of course, talking about the not proven verdict, which was returned in 20 per cent of all acquittal verdicts in Scotland in 2019-20, but in 44 per cent of rape and attempted rape cases. Behind those numbers are people who suffered additional trauma from a verdict that serves no useful purpose. For the sake of future victims, the not proven verdict must be scrapped without further delay.

Photo of Keith Brown Keith Brown Scottish National Party

I am not sure that that was a question; rather, it was a statement on an issue that, in the SNP’s manifesto, we committed to look at. It is linked to other potential reforms of the justice system, some of which Russell Findlay might well support, and it is important that it be taken forward in a considered way, and that time is taken to get it right. I understand entirely and do not disagree with Russell Findlay’s point that women, in particular, have been badly served by the not proven verdict.

As I said, it is important that the matter is taken forward in a considered way. To that end, I repeat my invitation to all members—whether that is the justice spokesperson for the Scottish Conservatives, Russell Findlay or any other member who wants to contribute to the process. I am more than willing to listen to their points.

Photo of Emma Harper Emma Harper Scottish National Party

I want to protect everybody from sexual violence. In Scots law, there is no so-called rough sex defence. The doctrine of volenti—the square go defence—was excluded by the celebrated case of Smart v HMA 1975, meaning that, in Scotland, claiming that a victim consented to an act that resulted in their injury or death is not a defence to charges of assault to injury, culpable homicide or murder. Does the cabinet secretary agree that, although there is more to be done to protect people from sexual violence, Scots law does not allow for the so-called rough sex defence?

Photo of Keith Brown Keith Brown Scottish National Party

It is the first time that I have heard reference to the square go defence, but that is an important point, which is similar to the one that Pauline McNeill and Emma Roddick raised. An accused person cannot claim that a person consented to the harm that was caused to them, so it is right to say that there is no legitimate rough sex defence. However, it is also true that an accused person may seek to portray events in such a way to reduce the charge from murder to culpable homicide, as I mentioned. That is for the court to determine in any given case.

I am pleased that the Scottish Law Commission is looking to see whether steps are needed to make the law clearer in this regard. I will carefully consider its recommendations.

I agree with Emma Harper that it is important to be clear about what we are saying when discussing the rough sex defence.

Photo of Claire Baker Claire Baker Labour

I have previously asked the Scottish Government about the recording of data on cases that involve violence during what began as consensual sexual activity. The then justice secretary confirmed that the police and the court do not provide information on such cases and that discussions would take place with stakeholders on how such data could be extracted. Will the cabinet secretary provide an update on related discussions and on any work that will take place to ensure that data on such cases is recorded, so that we can better understand the extent of the issue?

Photo of Keith Brown Keith Brown Scottish National Party

I am more than happy to provide an update in writing to Claire Baker. Given the discussion that we have just had, the proposed reforms and the Scottish Law Commission’s report, this area will be subject to substantially more scrutiny. It is important that that be based on relevant and up-to-date data, so I am happy to respond on the question of where we are now with the collection of such data and to give an indication of where we intend to go with it.

Photo of James Dornan James Dornan Scottish National Party

I have long campaigned for the elimination of violence against women and girls, and the cabinet secretary will be aware of the campaigns led by my incredibly brave, determined and focused constituent, Fiona Drouet. It is vital that we do, and are seen to do, all we can to ensure that justice is done for all victims of domestic abuse. Will the Scottish Government commit to undertaking research on whether the changes that have been made in England have had any effect in practice?

Photo of Keith Brown Keith Brown Scottish National Party

I thank James Dornan for his question and, like him, commend his constituent, Fiona Drouet, for the #EmilyTest campaign and the work that she has tirelessly undertaken to support effective gender-based violence interventions in colleges and universities. I commend Fiona for all her efforts and, in particular, those that were focused on improving students’ wellbeing and ensuring that victims of abuse do not blame themselves for crimes that are committed against them. As I said, I am aware of the work that Fiona has done in further and higher education institutions.

The effect of the changes to the law in England and Wales is that it is now a matter of statute that a person cannot claim a so-called rough sex defence, whereas it was previously a matter of common law.

The United Kingdom Government has acknowledged that it was not a new law but that it involved the position being made clear in statute for the first time, as I have said. For that reason, the new statute is not yet in force; it was passed only recently. However, I commit to answering the member’s question through engaging directly with the UK Government to understand what plans it might have to monitor and evaluate the effect of the new law.