21 November 2001

S1M-2459 Sexual Offences (Procedure and Evidence) (Scotland) Bill: Stage 1

Scottish Parliament

Wednesday 21 November 2001

[THE PRESIDING OFFICER opened the meeting at 14:30]

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Sexual Offences (Procedure and Evidence) (Scotland) Bill: Stage 1

The Presiding Officer (Sir David Steel): The main business today is a stage 1 debate on motion S1M-2459, in the name of Jim Wallace, on the general principles of the Sexual Offences (Procedure and Evidence) (Scotland) Bill.


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Stewart Stevenson (Banff and Buchan) (SNP): I start by thanking the convener of the Justice 2 Committee for her welcome when I joined the committee. I was not just joining her committee; I was joining a committee for the first time. She has been a model and I have followed her example on every possible occasion—

Members: Sook.

Christine Grahame (South of Scotland) (SNP): Sit down now.

Stewart Stevenson:—so all my faults are Pauline McNeill's as well.

I want to talk about the climate of fear among potential complainers—those who have been victims of rape. Bill Aitken gently suggested that the perception in society is not really part of the problem that should be solved by legislation. However, he later acknowledged that there is a perception that the legal system lets down complainers. That point is entirely valid.

We heard in evidence that there appeared to be ambiguities about whether judges or prosecutors should protect the way in which vulnerable witnesses are dealt with. Those ambiguities remain unresolved, but they give adequate justification for changing not only the law but the implementation of the law.

We heard evidence of improper cross-examination. In one example, a forensic witness was asked to hold up the garment that the complainer had been wearing so that forensic evidence could be seen in the court. The nature of the garment was thus shown to the jury and the cross-examiner sought to imply that the wearer was not a reliable witness.

Roseanna Cunningham laid out some of the difficulties for the legal profession of court-appointed solicitors. No injustice is inflicted on an accused who is denied the right to represent himself. Bill Aitken put it aptly: an accused who is his own solicitor has a fool for a solicitor. Familiarity with court procedure and language means that a professional can represent the accused better than anyone else can. The fact that John Anderson had success in court in representing himself does not exclude the fact that he may well have been better off with a professional solicitor.

Much has been made of the situation in which an accused refuses to co-operate with a solicitor. However, we should acknowledge that a failure of that kind is the accused's choice. If he is disadvantaged, it is because he has chosen to be disadvantaged. If he is disadvantaged by being incompatible with the solicitor who has been allocated to his case, again, that is his choice—he has chosen not to select a solicitor with whom he would be compatible. We are not removing the right of the accused to be defended; we are allowing him to make choices about his defence. One of those choices is that he can allow the court to appoint his solicitor.

Would an amicus curiae be an alternative, as George Lyon thinks? If that person is simply present to intervene when a complainer is examined in court, will that not change the way in which juries view the evidence of that complainer? Will it not give credence to the idea that the complainer has a justified complaint?

George Lyon: May I clarify what I said? I did not state that an amicus curiae was an alternative. I suggested that, before introducing any more measures, the minister might look into how the idea might work.

Stewart Stevenson: I thank George Lyon for that clarification, which I am prepared to accept. I was merely making the point that he would leave the option open, whereas I would close it now.

Let me give an example. If we protect only the complainer, the defendant could cross-examine a young daughter—perhaps of 16—of that complainer. That would be a surrogate for interviewing and impressing power on the complainer.

The existence of an amicus curiae changes the nature of the trial. It gives support to the complaint. We do not know in what way a jury is influenced, because no research has considered that. However, we can, I think, conclude that the jury's view of the evidence would be changed by the amicus curiae. We should not pursue the idea.


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