 I welcome everyone to the 32nd meeting of the Justice Committee of 2015. Can I ask everyone to switch off mobile phones and other electronic devices? No apologies, I'm received item one. It's consideration of one affirmative instrument, the draft international obligations, immunities and privileges Scotland amendment order 2015. We'll ask to kevidence to the Cabinet Secretary of Justice on this instrument on 27 October. The motion to approve the instrument was not moved at that meeting to allow time for the Government to provide more information on it. The Parliament subsequently agreed to suspend standing order rules on deadlines for scrutiny of affirmative instruments to allow the committee to complete consideration of this instrument. I welcome to the meeting Michael Matheson, Cabinet Secretary for Justice and Scottish Government officials Nicola Wistel, Civil Law and Legal Systems Division and Alistair Smith, director for legal services. I remind everyone present at officials that they can't take part in the settlement, not in the formal debate that follows. I thank the Cabinet Secretary for the Further Information Provided in advance of this session. Members should also have received a submission on the instrument from an external organisation, which the clerks forwarded on Friday. I invite you to make an opening statement. Although the draft order is quite short, I appreciate that members have a number of queries about its purpose. As the committee and the Parliament have not seen a similar order of this nature for some time, it might be helpful if I begin with a few words about the purpose and effect of this order and the international organisation that it concerns. The order would confer various legal immunities and privileges on or in connection with a new international organisation, the Asian Infrastructure Investment Bank. The Asian Infrastructure Investment Bank is a multilateral development bank. Multilateral development banks are institutions that are established by international agreement. Their goal is to provide finance and advice for the purposes of development. They finance projects by providing loans and grants to borrower countries using funds from or raised in donor countries. The World Bank is a well-known example of that. The purpose of this organisation is to address the gap in investment in infrastructure in Asia. The UK Government has signed up to be a prospective founding member. Prospective members have concluded an international agreement setting the structure and functions of the organisation. The agreement also sets out the organisation's status in international law. To enable the independent exercise of the AIIB's functions as an international organisation, certain privileges and immunities are to be afforded to it. Those privileges and immunities will apply in all of the states, which become members of the organisation. As the organisation is international, no individual country should derive a new fiscal advantage from it. The conferral of those immunities and privileges is effectively a condition of membership of the organisation. However, the AIIB and its officials would be expected to comply with UK law and Scots law. Some privileges and immunities relate to reserved matters and have been conferred by legislation at Westminster. Since the committee last considered this order, its equivalent has been approved by both houses of Parliament without opposition. The Privy Council approved the order on 11 November. However, some of the privileges and immunities relate to devolved matters. That is why this order is before this committee and is subject to affirmative resolution of the Scottish Parliament. The purpose of this order is to add the Asian Infrastructure Investment Bank to a list of organisations that have granted similar privileges and immunities in Scotland. Some multilateral institutions have privileges and immunities that predate devolution. Those include the European Bank of Restructuring and Development and the International American Development Bank. Other organisations have been afforded privileges and immunities since devolution. Those include the International Maritime Organization and the European Police College. The order would add the Asian Infrastructure Investment Bank to the post devolution list. That is to the list in the schedule in the international organisation Immunities and Privileges Scotland Order 2009. The nature and scope of the immunities and privileges for the Asian Infrastructure Bank are set out in the schedule of the draft order before the committee. Those reflect the equivalent Westminster order, the equivalent Westminster order and the terms of the founding agreement. The purpose of this order is therefore to help the UK to fulfil, with respect to Scotland, the international obligation that will become effective on the entry into force of the agreement establishing the Asian Infrastructure Investment Bank. Those international obligations are entered into by the UK Government with the intention that they take effect throughout the UK. In entering into those obligations, there is considerable opportunity for those working in the financial and professional services sector in Scotland. Those sectors employ almost 100,000 people directly and around the same again indirectly. Scottish companies already have a strong background in those fields. Members of the committee will be aware of the success of the Green Development Bank, which is based in Edinburgh. If Scottish businesses are to be able to take advantage of the potential work that membership of the Asian Infrastructure Investment Bank might generate, then this order is necessary. I hope that that is helpful, but I am more than happy to take any questions from committee members. John Lillian Good morning, cabinet secretary. I thank you very much for the clarification. I welcome all the clarification, particularly the list of organisations that you listed, which is very helpful for us to understand exactly what we are agreeing to. I welcome the order and I will be happy to support the Government on that. John Lillian I thank you for the additional information. I am personally not convinced that it takes us terribly much further forward, but if I can, I will be full-up in some of the points that you are raising on that. For instance, in your letter, you say, and I quote, it is countries as shareholders who will be involved, not ordinary individuals. Yet the opening introduction talks about legal privileges and communities being conferred on persons associated with the bank, so it is very clearly linked to individuals. Would you accept that? John Lillian The ownership of the bank is owned by 57 member states who are either regional or non-regional members, but the immunities and privileges are for the purposes of those who are obviously employed with the bank and the functions of the bank. John Lillian So it is conferred on individuals? John Lillian For the purposes that are related to the function of the bank, yes. John Lillian I am an internationalist and I want international co-operation. I want us to be good global citizens and help the rest of the world. I also want us to clamp down on money laundering, fraud and all the worst practices of the banking industry. The introduction talks about this being required for the bank to operate effectively. How would the effectiveness of the bank be affected in Scotland where we are not to say that you are immune to criminal prosecution and all the other privileges that are listed? John Lillian I suspect that one of the things that would happen is that it would place a challenge for the UK Government by being a founding member of the AIB because it has not been able to meet all the obligations that were set out in the international agreement for its establishment in the first place. I would imagine that the AIB would be reluctant to engage with the financial and professional services sector in Scotland because it does not have those privileges and immunities in the same way that it would have in other countries. How that would then play out in the bank's behaviour in itself would be a matter for the bank direct to themselves, but I would imagine that it would be reluctant to engage with Scottish institutions who may be wishing to offer them financial and professional services because they do not have the same protections that they have in other countries? John Lillian There is a difference between protections and immunity. We are all protected by the law, but we are not immune from prosecution if we err in law. Is it not the case that the public would expect the Cabinet Secretary for Justice of Scotland to be coming extolling people to adhere to the law rather than extolling people to be granted immunity from adherence to the law in Scotland? John Lillian I think that it is to keep in mind that this is for the functions relating to the bank. John Lillian I am not bothered by what it is connected with. The law is the law. John Lillian In relation to the functions of the bank itself, however, it is also worth keeping in mind that, even where immunities and privileges are provided, it is that under the normal diplomatic matters individuals are expected to adhere to the laws of that given country. Host countries can ask individuals to give up those immunities and privileges for the purposes of pursuing legal matters with them. However, it is part of the international agreement that the UK Government has entered into, and part of that condition for all 57 member countries is that they provide those immunities and privileges to the organisation. John Lillian Are you able to tell me, Cabinet Secretary, what immunity from judgment means, as if that is in the effect of the order? That is one of the effects of the order. John Lillian That would be, I presume, judgments from a court on matters. John Lillian And what the bank's premises are unviable, what would that mean in practical terms? John Lillian You can't interfere with their premises. John Lillian As regards impact assessment, there was no equality impact assessment completed, as there's no effect in the people other than those to whom the UK Government has afforded privileges and immunities. Of course, the Scottish Government is asking us to afford those privileges and immunities. That's in the covering paper. John Lillian In so far as? John Lillian Well, the UK Government may well ask, but we still have a situation when it's the Cabinet Secretary for Justice in Scotland that's coming to a request that this committee agree it. John Lillian Yes. John Lillian I wonder, Cabinet Secretary, whether your view on the statement that when asked about what would the effect of this not being passed a sentence that simply says, this is a matter for the UK Government, is respectful of Scott's law or indeed this committee. John Lillian So what the UK Government would do if the Parliament would be held? John Lillian Your final sentence in the paper centre when asked about what the UK Government would do with the... John Lillian Final sentence in what? John Lillian In the annex to your letter, okay, dated 12 November, John Lillian Can I read it? Members of the committee ask what the UK Government will do if the order is not passed in Scotland and the official reply is that this is a matter for the UK Government. I find that dismissive. John Lillian No, it's a matter of fact, it would be a matter for the UK Government because they've entered into an international agreement. John Lillian Cabinet Secretary, do you understand any of the concerns about a presentation that asks for political immunity and exemption from the normal rule of law? Would that not raise suspicions to you? As an individual, if someone said, I'll transact business for you if you can't be that way, would that not immediately raise suspicions? And if the answer is, would I done it that way, well then it's time to change. John Lillian Well that may be your view. John Lillian Of course it is, but that may be your view. But you asked me specifically about the issue about the final sentence within the annex to it. It's a matter of fact, that would be a matter for the UK Government. They have entered into an international agreement. John Lillian Thank you very much. John Lillian Thank you. John Lillian Elaine, please. Elaine McLean Thank you, convener. Elaine McLean We have a supplementary letter which I don't know whether the Cabinet Secretary has seen which indicates that developing countries in Asia would require some eight trillion dollars for infrastructure over the next 10 years and I have no desire to do anything which would prevent those countries from being able to get that sort of investment, which they require. I thank you for the additional information, but I'm still uncertain about some aspects of it, for example, why the bank should have relief from non-domestic rates on the premises of the bank. I mean, it's a bank handling billions of dollars of investment surely, it can pay its non-domestic rates. It seems a little bit peculiar to give that type of immunity. It says that no devolved and local taxes shall be levied on or in respect of emoluments paid by the bank to a person connected with the bank. Again, it looks like there's some degree of tax avoidance if somebody works from the bank. I can see the purpose of the bank in terms of its investment and the opportunities for developing countries to get that sort of investment by them. I'm just not quite sure why, in order to have a level playing field, the bank doesn't pay its rates. That's been part of the international agreement on these privileges and immunities that have to be provided to it by all member countries who are joining the bank or want to be members of the bank. They have to be given that protection from local taxation and from local rates, et cetera, for building that they may hold as well. The other part, as you mentioned yourself, is to give them a level playing field with other international development banks, which have been afforded similar rights in order to allow them to undertake their work in a similar way. However, that flows from the international agreement that the UK Government entered into, and that's why we've been asked to provide the provisions that have been set out in international agreement. It does seem a little bit odd for institutions that handle enormous amounts of money to be exempt from the taxation that other businesses do. I'm not trying to say that the Scottish Government's arranged this. I appreciate that this is in some sort of international agreement, but does it not reveal something slightly dubious about many of the very large and wealthy organisations that need to be enticed to have a presence here because they don't pay taxes? Hold on. It's worth keeping in mind the structure of this bank. It's a bank that's a non-profit making organisation. It's an organisation that's owned by the countries that are members of it by raising capital in their own country for the purpose of investment in Asia. It's not like a large corporate bank in the same way that is a profit making institution that has been afforded the protection for having to pay local taxes for their property. It's different in that sense. However, on your wider point about international agreements and whether organisations of that type should be provided with the types of immunities and protections, that's a much wider debate that would have to take place on an international basis because international treaties have obviously been drafted in such a way to provide those types of immunities and protections. If that was to be unpicked, it would have to be taken forward by the UK Government in this area. I'm not aware of them intending to do so or an appetite internationally for that to happen, either. Back to my earlier point, it's not a non-profit making organisation. The money that it generates goes back into the investment processes that it's been set up for by the member states who have ownership of it. I think that that's a helpful clarification. Is there any likelihood that the bank will be based in Scotland? Well, I think that its principal base is going to be in Asia and that's why the UK Government is keen to be members of this particular development bank and to also founding members of it with a view to helping to assist both the professional and the financial sector in the UK and in Scotland, in particular, to be able to participate in it and to offer services to it, which could then have financial benefit to the UK overall. It may not actually have a physical presence, but it provides the opportunity for, particularly given that we have a significant and large financial sector in Scotland that has experience of multilateral investment processes to be able to engage in that and to be able to offer services to them, and that would involve not just those directly involved in investment themselves, but it could be pension funds, insurance companies, et cetera, based here, who may actually wish to work in partnership with the bank in some of the infrastructure projects that they're looking to fund in Asia. So some of the provisions in the order may not actually have any effect in reality, because... There may not be a building in Scotland, but what it will do is it will allow the organisation to operate with financial institutions and professional institutions in Scotland. I'm just a couple of quick points. Whatever the benefits of this bank are, one has to assume, do we not, Cabinet Secretary, that if we fail to pass this instrument, it will be nothing other than damaging to the Scottish economy? I think that it's very clear from the letter that you've received from Scottish Financial Enterprise that they believe that that potentially could be the case. It would potentially result in the bank being reluctant to engage with the Scottish financial and professional services sector, who may be able to offer expertise to this particular bank and also to the infrastructure developments that it's going to be investing in. So it potentially could have a negative impact on the Scottish economy. And secondly, amongst the 57 countries participating in it, I'm right in assuming that France and Germany feature amongst the shareholders. There are two classifications of members. There are regional members and there are non-regional members. France and Germany, Iceland, Netherlands, Norway, Sweden, Spain—to name a few—are some of the members, Switzerland and the UK. What's class is non-regional members? There are then regional members that go from Australia through to Vietnam alphabetically. When this instrument first came in front of us, it was something that I hadn't seen before, and I welcomed the opportunity to have a pause in consideration to gather some more information because I think that it would have been wrong if Parliament had prevented, through some sort of misunderstanding, the UK as a founding partner being able to fulfil its obligations. I wouldn't like anyone to think that we were suggesting that AIIB is somewhat not of the same standing as the other international organisations that the cabinet secretary has mentioned such as the Caribbean Development Bank, the Asian Development Bank and the Inter-American Development Bank. I'm reassured by what I've since found out about the process, and I would want to offer the same level of playing field to this organisation as to all the others. Thank you very much. That ends the evidence session. I move on to item 2, which is the formal debate on motion to approve the instrument. Consider another previous item. I invite the cabinet secretary to move motion S4M-14396 at the Justice Committee recommends that the draft international organisations Immunities and Privileges Scotland amendment order 2015 be approved. Thank you. Do any members wish to speak in the debate on the motion? I think that we've had pretty well had the debate and the evidence to take it. No-one wishes to speak. Cabinet secretary, I take it that you don't want to wind up, as I think that you wind up on. The question is, on the motion S4M-14396, we agreed to, are we all agreed? Those in favour, please show. Those against, please show. That's eight in favour, one against, that motion is agreed to. As members are aware, we require a report on all the formative instruments. Are you content to delegate authority for me to sign off this report? Thank you very much. I'll suspend briefly for the next item. Thank you very much, cabinet secretary. Thank you very much. I move on to item 3, Abuser, behaviour and sexual harm Scotland Bill. This is our first evidence session at stage 1. I welcome our first panel of witnesses in the bill. Michael Meehan from Faculty of Advocates, Gratia Robertson, member of the Criminal Law Committee of the Law Society. Scotland, Detective Chief Superintendent Leslie Boll of Police Scotland, the Crown Office and Procurator of Fiscal Service, Catherine Dyer, who is a Crown agent, and Lisa McLeod from Policy Division. I understand that the relevant member of staff in the Crown Office was unavailable, and therefore, just to explain that, that's why I've got two witnesses. I'm not giving them special favours at the Crown Office. Before I go further, can I say that if you indicate that you want to answer, just catch my eye, and I'll call you when your light comes on automatically, okay? And I will call you in order. Roddy, you've got a declaration. Thank you, convener. Can I refer to my register of interests as a member of the Faculty of Advocates? Thank you very much. I will go straight to questions from members, please. Margaret, please. Good morning, panel. I wonder if we could start with the provision for the first time in Scotland to have statutory, jury directions. There have been mixed views, but I think that the overwhelming amount of evidence that we've received in this has been to express some concern. Who wants to take that one on? Please do, please do, Ms Robertson. Please do, Ms Robertson. The statutory, mandatory, jury directions is something that's very different to the existing procedure. The existing situation is that the judge has a very distinct role in the law, and the jury has a very distinct role in considering the evidence. This would be a very marked departure. We appreciate in the Law Society that sometimes there are great departures from existing practice, and there is good reason for that. Our position here is that it hasn't been made out that there is a good reason to have such a departure, and particularly to single out one particular type of offence as being worthy of having statutory jury directions. We feel that there is no evidence to support what seems to be simply a suggestion that jurors might be thinking in a particular way without any empirical evidence as to how they are thinking. We feel that it would be a bit presumptuous to rush to produce those directions when we are making assumptions as to what jurors may or may not be thinking. I appreciate that there is a body that are very much in favour of that, but the issue with regard to the late recording of an incident or the lack of injuries that those two directions are seeking to look at, the Crown at the moment can lead evidence from an expert witness, and he can give evidence to the jury in general terms about such matters. It is then for the jury to consider that evidence the way that they consider every other piece of evidence and to form a view. Our position is that that is a much better way to approach what might be a possible bias in a juror's mind, but we do not actually know whether it exists or not. Is there a concern that it takes away the discretion from the judiciary? I think that that point has been made by the Sheriff's Association. It very much doesn't, it's not to say that that shouldn't ever be done, but it could only be done in very serious circumstances where it was very warranted. In this instance, I don't think that it's warranted and I don't think that it would serve a good purpose. I think that the position is that judges explain a lot to juries. That is something that I suppose in terms of acknowledgement of what we now know in society generally about the impact of sexual offending on witnesses, who then can appear—and there has been some research to indicate that jury members really don't necessarily know all of this. I think that there are safeguards in terms of that. It's a modern approach to saying that a judge has to be able to explain to people what it is that they should be looking for. It's certainly not to say that they wouldn't examine the circumstances in each case in terms of why there had been the delay and if it was because of that, then it's better that the judge is able to advise a jury. Judges all the time give explanations to juries and it's just that in particular in sexual cases there are a number of times where it's obvious that there has been a delay in reporting. There are a number of times where it's obvious that the traditional idea of rape that you have to be resisting and have injuries is something that people expect to hear and it's for that purpose that the bill is trying to say that the judges are in a position now to give that kind of instruction to juries to say that that is not in actual fact the case. I understand why it's been done, but to pick up Ms Robertson's point isn't incumbent on the Crown and Procurator Fiscal to make sure that they lead evidence from an expert witness to cover that and allow the jury therefore to make up their own language. I think that the position is that we're past the stage necessarily of having to have this as now something that is within now contained judicial knowledge that in cases of this type that is not an infrequent occurrence now. There's lots of examples that judges give to juries in terms of telling them what to compare in their own life with something and it's at the moment restricted to things like assaults that are not sexual. This is a specific indicator around sexual assaults that occurs quite frequently with the victims and our contention would really be that it's now something that is so well known that it's appropriate that juries are warned about it that they have to take that into account. But wouldn't an expert witness explain why there could be a delay or even no evidence of perhaps physical resistance and that allows the jury to make up their own mind without the judge being seen to unduly influence or place more of an emphasis on certain facts? I don't think there would be any question of judges appearing to unduly influence in the moment. It's just the same. It's saying they have to weigh up in the balance at the moment about what they find credible and reliable. They still have to be the credibility of the witness and the reliability of the witness, but it's actually just that it's now within a wide range of expert knowledge that this is a particular feature of cases of that type. I think that the issue raises at least two points. First of all, there's the issue of mandatory directions at all where the discretion of the trial judge is being hampered. The judge can't give directions that he or she may feel is appropriate to the case, but the second aspect is using the judge's directions to introduce evidence that has not been led as part of the case. From what Catherine has been saying, although it may be widely known by judges, if it is not widely known by members of the public, then that is a classic example of the role of expert evidence. The advantage of leading expert evidence—and I've prosecuted in the High Court where I've used experts, sometimes not used experts, because if the complainer himself or herself can give an explanation as to why they did not go, that can often be more convincing than hearing from an expert speaking about a generality. However, if evidence is led in the trial, then it's before the jury at a far earlier stage in the case. A concern may be that, because the judge will give a direction, the Crown might think, let's not bother with the expert evidence when it would be useful to lead at an early stage. Another matter that could be considered is that it's always open to the prosecution when they serve the indictment to serve what's called a statement of uncontroversial evidence. From what the Crown agent is saying, this type of material might fall into that category, so a statement could be served to say that it is often the case that people delay disclosing what has happened to them. It is often the case that people do not fully disclose, it's only as the process goes on that they feel more able to talk about what has happened. In most cases, I would think that that would not be challenged by the defence, and that would mean that there would be no need to further be expert witnesses, and it would be before the jury at the very start of the case. If it was challenged, then in that situation the Crown could decide whether or not to call expert witnesses. Can I ask, just as a matter of interest, if the Crown does bring in expert witnesses, is there a cost implication? That's quite significant, I think. I think that just to reiterate the Crown's position, from a Police Scotland's perspective, the impact of trauma on victims of rape in Police Scotland has meant that we have trained sexual offences liason officers and senior investigation officers, so they have an understanding of rape trauma and delayed reporting as one. Also, as you are quite well aware, the experience of police, prosecutors, health and support services is that there is no typical rape victim or, indeed, a response to rape. Despite that, there are common societal misconceptions and stereotypes that still prevail. Given the degree of attention that the key component parts of the criminal justice system have put in place to have a better understanding of that, it is our position that arguably the most critical element of the criminal justice process, namely the body, ultimately charged with delivering justice, maybe isn't provided that same enlightenment. Whilst acknowledging that any direction to a jury requires to be balanced and ensuring fairness and the independence of a trial judge must be maintained, Police Scotland's opinion is that such direction would be beneficial in terms of the, unfortunately, still many societal misconceptions of what a stereotypical rape victim does or reacts to. Evidence from the expert witness secretly or, if not better, serve that objective? I think that our opinion is that it would be good to have that sort of general understanding and reasoning of why victims of sexual crime may delay reporting or how they may react at the start of a trial, maybe, as described by the Law Society. Can I therefore bring the other side of the coin? Has it been considered that if those directions were to be given, the issue of forensic disadvantage would have also to be looked at? If I may answer that, I think that there would be a real possibility that in anticipation of the judge saying something, the defence would lead expert evidence in a situation in which it might not have. That would be one way to counter the forensic disadvantage because the defence would be pre-warned that that is a matter of which the judge would address. One of the things that the defence could perhaps say with some force is to say that after I have spoken to you, the judge will give you directions about delay in the general sense, but, of course, ladies and gentlemen, you have heard nothing in this trial as to why this particular complainer delayed either going to the police or this particular complainer gave partial disclosure and then later on. If it is a feature where expert evidence is required, then if a tailored approach is not taken, then the defence may criticise that in the speech to the jury or lead expert evidence in anticipation of that coming along. I have one more question. It was just a little one, the Lord Bonymy's review. He suggested looking at the judge's manual instead of going as far as having judicial direction. I think that there would still be a danger in that, although that would remove it from being mandatory to being a suggested direction, there would still be a direction on which no evidence has been laid in the case. I think that none of you picked up on the point being by Ms Robertson about that, if it were to go ahead, why pick one particular category of offence when the judge has mantraed directions? Do you like to perhaps comment on that? Because there may be other criminal prosecutions and offences where it might be appropriate to give some kind of judicial direction. It should be just not to do it period because it would be wrong in any event to select one particular category, apart from all the other arguments that are placed before us. If I may say so, I think that there is a risk in whether it is a categorisation of types of evidence or types of offence. For example, Lord Bonymy in his safeguard review raised the issue about there being directions on the risks of identification evidence. If one starts to consider there being mandatory directions on one aspect, the debate will become far wider with regard to whether, for example, there is an assault charge that perhaps is a slight sexual element, but if that is removed, should there be mandatory directions? If mandatory directions are to be given in one matter, inevitably there would be wider requests for it to be considered across the board. Of course, the difficulty is, in the absence of jury research, one does not really know whether the jury would find that helpful or not. Juries are drawn from the general populace. We do know, as Police Scotland were saying, that there are these misconceptions. It is important to say that, in the legislation, the proposition is that that would only be if there was questioning from either the Crown or Defence that had elicited information about that there had been a delay. If that kind of question is asked or a statement is made with a view to eliciting or drawing attention to evidence of that nature, then it is saying that, when the judge comes to the summing up, they have to say something about that. It is not in every single case, regardless of the position that it is about what the bill is saying, so there are safeguards within that. It is not saying that it would be in every single case. Sorry, I have to say very quickly that I want to move on. No, no, no, this is important. There is an unintended consequence that there is a potential for here. If we believe that jurors have preconceptions, have misconceptions, have prejudices, that we are not entirely aware of what we suggest might be there, if a judge is saying, I will not comment on the evidence that is for you to consider, then makes a direction about not putting any weight on the delay spoken to by that witness, is there a suggestion that jurors may think that the judge endorsing that witness's evidence is the judge supporting that witness in some way in saying, disregard that, that is a potential as well. If we are talking in what we suspect jurors might be thinking, perhaps jurors would think that, if directions were brought in, so we might just be trying to cure a fault that some of his perceivers there by introducing something just as bad. Ms Darrych, you did not pick up on Mr Meehan's point that it might have been an assault with perhaps a sexual element. What happens in those circumstances? Is everything not black and white as we know? No, it is not. The bill obviously is restricting it to the specific in terms of that there has been a delay in that kind of offence where it is relating to sexual offences. The position really is that we have to also trust the position that judges are well used to giving directions to jurors. That is the point of the judge's part in the process, and so I think that they would be well able to cope with that. It is merely trying to say that it is a recognised phenomena that we have, that there is wide misconception of this. Those are very serious cases, and it is something that, if it is raised in the trial, the bill is suggesting that the judge should be required to direct in that, not just leave it without any sort of reference to it. I will move on. Other members can come in. Rodi, you are next, followed by Lain, followed by Gil. Can I come in on that point? Well, I am on this point, too. I am just on the question of sexual directions. The second statutory direction would relate to the question of the inference to be drawn from the absence of physical resistance and force. Mr Meehan, you question the necessity of that, because of the provisions of sexual offences that Scotland had in 2009. If you could elaborate on that, I do notice that the policy member and him refers to the fact that the Scottish Government is not aware of any jurisdiction that is legislated to provide for statutory jury directions concerning what weight to place on the fact that there was a lack of physical resistance on the part of the complainer, but they draw some attention to some guidance that is available to judges in England and Wales in the following paragraph. In the light of your earlier comments about jury manuals, I just wondered if you could expand quite considerably on that specific area. With regard to the offence of rape, the focus is on consent. In a case where that has been the issue, then the jury would be directed on the law with regard to consent. I am not aware of there being a concern of misdirections when the issue is one-off consent. If I can say from experience of being involved in prosecuting and defending rape cases, there may be general preconceptions before people come to serve on a jury, but one of the things that, for example, one is dealing with a case of prejudicial publicity, it is generally accepted that jurors, when they are involved in the trial process, focus on the evidence in the trial, the lines that are embarked upon and do follow directions. I am not aware of there being a concern about there being a deficiency in the directions that are given just now and in cases where the focus is whether consent or not, the jury is being confused because there has not been a focus on injury or not. I do not know if that answers the question in a roundabout way, but I think that, again, this might be a matter where, if there had been jury research, that would be helpful. If there was research that showed that, at the end of a case, there were still preconceptions that remained and had led to there being a perverse decision, that might be one thing, but in the absence of evidence to suggest that the directions that are being given at the moment in accordance with the law are causing a problem, then one would be wary about changing that. In an actual just sceptical that there is a problem here that we need to address in that specific aspect? I may be more guarded than that to say that before one changes things, one would want there to be evidence with regard to that. I do notice that in the police response, there is reference to research in England and a statement from a prosecutor in England. One of the things that was filed up by Lord Boniway's review would be the value in there being some jury research. I was quite surprised that one advocate expects another candidate to give something back in a nutshell. I do not want to be rude there, but you are very cautious in your flight quite rightly. Gil, you are a supplementary to that. I am very aware through regards to directions. I speak as a former board member of rape crisis of 12 years. I know that there is evidence available that juries in particular have common expectations and they expect certainly to the injury to take place and that injury to be significant. The person who is claiming rape, if they present and become that they are not found to be honest, they should not become and that they should have resisted. That is very common. If you talk to anyone who has been raped and a case has taken place and is a guilty verdict, then commonly that is the case and those who have been unfortunately unable to proceed with cases are those who have gone to cases and it has been unsuccessful. It is very common in the area that people at work within rape crisis and other organisations. Have you said your experience, but that is more of evidence that you are giving us? I am leading that to counter the point that there is no evidence. There is quite conclusive evidence that that is how juries think in quite substantial numbers. If that is the case, how do we overcome this prejudice that people have commonly? There is an expectation that all those things should happen and very often it does not happen. With respect, how do victims of rape know how a jury were thinking when jurors do not give reasons for their decisions? We simply do not know. I am not disputing that there are cases where complainers have given evidence and that there has been distress, there have been injuries and there are acquittals, so there are acquittals in a whole range of cases and perhaps for a whole range of reasons. The point that I simply wish to make is that one does not have evidence as such as to what has happened in an individual case. It may be, for example, in the type of case that you have mentioned, the accused has given evidence and the jury's position is that we are not sure who to believe here. That may be the situation, so it might not be the absence of medical injury or the reaction of the witness, but that goes back to the point that I was making earlier on. If the sense is that jurors may be expected to be an injury, then why not lead evidence from an experienced police surgeon who can say to their jury, I have examined victims of sexual abuse and I can say that even in the case of a child, very often one does not find injury, because if you are hearing him from a medical or a person who is experienced in that type of examination, then I would have thought that that would carry far more force with the jury and more importantly be given at an earlier stage in the case. What I can say is that today we have another panel and we have a paper from them and it is explicitly on evidence, unfortunately, because you are not allowed to use what happens and to interview people who are engaged in juries. That is evidence that has been structured with general public, but that evidence clearly shows that all the items that I have mentioned earlier on or all those reactions from juries in effect does happen. The only thing that I would want to see very quickly is that there was an academic submission that I noticed among your papers. While I took issue with quite a lot of their findings, their research did not seem to support the second suggested direction regarding injury in the research that they carried out. I am not saying that that is any better than anyone else's, but it shows that it is not quite as straightforward as saying that everyone knows that there is a certain position. Even the evidence before you. I will keep your question until the end. I want to move on to other sections, but if you feel that it has not been fully explored, we have lots of questions to ask in this bill. Elaine, you are on a different matter. The bill has taken the approach of introducing a statutory aggravation of domestic abuse rather than a specific offence of domestic abuse. I wondered if you could comment on whether you thought that that was the correct approach and why. Yes, we think that it is the correct approach. I think that the issue really is that domestic abuse is something that is surrounding particular actions. It is not an offence in itself. It would be quite difficult to do that. I think that it is appropriate that it is an aggravator. When we look at the types of charges that we get in what would be an overall domestic abuse situation, they can be really wide-ranging. It can be a rape where, if it is in a domestic situation, it would be an aggravator that it was a partner or ex-partner that had carried that out, but at the moment the charge just says that it is rape. There is not an indication of going forward for conviction that that was in the context of domestic abuse. Vandalism can be in the context of domestic abuse. The approach to say that there is a statutory aggravation to be attached rather than trying to get a definition of domestic abuse is probably the way to go. You might have noticed that the Law Society was probably the only contributors that had concerns about that. The concern, basically, is that we did not see that there would be any value in introducing that. Aggravations are normally introduced either to increase the penalty, because sometimes a sheriff can decide that there should be an additional penalty for that aggravation, or to gather information as to whether a particular behaviour is a major problem and a continuing problem, for example, the introduction of an aggravation to do with racial abuse. Domestic abuse cases are very assiduously prosecuted in the courts and are given a lot of special consideration. The person who is often taken into custody immediately will appear in court, will be subject to bail conditions and bail restrictions. In Glasgow, which deals with a lot of those cases, there will be specialist sheriffs. There will be an attempt not to have too long a time before the case is brought to trial. There are a lot of special positions brought into place to deal with domestic cases, so they are treated very seriously within the current system and steps are taken. Sorry, I was just going to say that it is recorded in the conviction. When someone is convicted and it is a domestic element to it, that is recorded in that person's conviction, so if they appear in court again in a similar matter, the sheriff can see that there is a pattern of behaviour here. All those steps are in place. The system already accommodates the importance that domestic violence cases should be treated with all seriousness. To put this aggravation in it, I think that it may lead people to expect consequences that I do not think it will deliver and therefore it might lead to disappointment for those who feel that it is a good idea. I think that the Crown thinks that it is a more transparent way of making it clear to the court and to the offender that the Crown is seeking to have this considered as a domestic abuse incident. Although there are mechanisms just now in terms of bail orders or whatever, actually on the face of the complaint or the indictment where the charges are set out, it does not indicate to the accused person from the outset that the Crown is going to consider this to be in a domestic abuse context. We think that it is a more open and transparent mechanism to indicate from the outset that that is the Crown's position and to alert the sheriff to the fact that it is the Crown's position and to also allow that there is evidence that indicates that it is a domestic situation. In terms of the definition of the partner of another person, one of the definitions is in an intimate personal relationship with each other. Is that difficult to interpret? Would that exclude people who have had a short-term relationship and then become abusive? I think that the thing is that we already adhere to that description when both the police and the Crown are looking at it and I think that the courts would expect also that it is not just something happening in any house, it is between the parties because of their relationship. That is really the definition of domestic abuse and we can obviously prove that already at the moment. We do do that in terms of personal relationship, what would have to be proved if people were in a relationship rather than a brief sexual encounter if you wish. Thank you for returning to what Ms Dyer said. I think that everybody has acknowledged that trying to define domestic abuse is very difficult and that is why there is not a specific crime being brought forward in this bill. However, the statutory aggravation must somehow be defined. You must be able to define it. How is it easier to define domestic abuse in relation to a statutory aggravation rather than a particular offence? I was not indicating that it was difficult to define domestic abuse as such. That is where there are actions between people who are in the intimate relationship where one is abusive of the other. I think that what I was trying to indicate was that that can take many forms in terms of there can be vandalism, assault or threats. At the moment, those are already able to be proved in Scots law. What the domestic aggravator is doing is highlighting that those offences took place in the context of a domestic abuse situation. That is why we think that it would be helpful. It is quite transparent from the outset that this is not just simply an assault, it is an assault that took place within a domestic abuse context or it is not just a vandalism, it is a vandalism that took place within a domestic abuse context. That is the purpose of the aggravator. I was trying to say that it is not possible that I do not think to have a charge of domestic abuse full stop, but it is always going to have to the elements that you are saying of what the actual actions were that were criminal. It is just that the context is within the domestic abuse situation. Would you expect, because of the aggravation, that it would secure a greater penalty? At the moment, the sentencing part of it is difficult in terms of making it clear. I think that people do find that that happens in a situation in which people should expect themselves to be safe. It is within their own home. It is with someone that they are intimately involved in. In terms of the response to that, there is almost a greater betrayal of trust and the criminality aspect of it is picking on someone that you know in terms of their vulnerabilities or whatever. I want to ask about some section that has given me a bit of trouble, which is the sexual risk order section 25. There is a word in section 26 that bothers me, which is that an appropriate sheriff may make a sexual risk order only if satisfied that the respondent has, whether before or after the chapter comes forth, done an act of a sexual nature, not being convicted but done. I have concerns here because, as I understand it, it is a civil order, so it is the balance of probabilities. I do not know what is meant by done an act when it is not convicted or charged or whatever. Also, there follows on quite a list of severe restrictions. Maybe I am just wrong, but it seems to me that this is, for me, a very difficult section. I wonder whether you would comment on that. The faculty in its written evidence makes the observation that what one is dealing with here is a situation where the precondition is that a person is done or committed an act of a sexual nature. What is apparent from subsection 2 is that there is no requirement that that act was in any way criminal, but thereafter an order that can impose quite stringent restrictions on a person may be imposed. That is a matter that is significant because the nature of the order has been extended to more people can be affected. Previously, the orders would relate to children only. What one now has is a situation where the risk orders can be extended to adults and those are orders that can be made when there has not been a prior crime. I suppose that begs the question what type of sexual act do the police and crown envisage may be committed? That is not a criminal act that should nevertheless require some requirement that is a restriction on a person. That is not really about the crown. If you look at the wording of the act, it is about the civil law, if you like, on the basis that an act may be criminal but it might not be able to be proved to be criminal, partly because of the requirement for corroboration in the country at the moment. That is a civil act in which the chief constable applies to the sheriff to say— I agree that it is a civil order. That was another point that I made when I introduced it, but it is just that there are lots of bits to this. I have done an act of sexual nature on the balance report. I do not know— It could be carried out. I mean, done is maybe not the best English on it. It is a horrible, very legal word. The crown is not responsible for the drafting of bills. In other words, my understanding is that, if the police have information that is sufficient on the balance of probability to say to the sheriff that an act, an event has happened and that this person is responsible for it, but there is not sufficient corroboration, that is the point. It is a civil order that can still be taken forward in the way that interdicts can be taken forward for other matters where it might be that there is an act that people would constitute as criminal, but there is not the sufficiency to prove beyond reasonable doubt with corroborated evidence. I will just take this a step further and say that, if there is an order made by the court, not withstanding our concerns about the kind of orders that can be made, would that be in public? Would that be a public? It would be publicised in a court order, and you would find it and you could read about it. If people with a risk order could find the name of the press, is that the case? I am not clear on that. The findings of the court usually are public. Do you see my concerns here about it being publicised? Sorry to interrupt it. I was just going to say that part of the point of it would be to publicise it and to alert other people if the chief constable feels that there are folk who are of risk to the public. Not that I want to protect evil doers and so on, but my point is called a sexual risk order. That sounds criminal to most people. It is a civil order. It is public. It has not been tried in court. Those are huge issues for me. I appreciate that it is a civil order, balance of probabilities and all that, but it has the tenor of a criminal finding. I think that there was previous legislation. That is just bringing it within this bill that were supposed or whatever they were called. I am trying to sort of read my colleague's note here, but there are already in existence and they have been carried out on that basis, so perhaps Police Scotland would want to comment on that. Thank you for that. I was going to call Police Scotland. The amendments to existing prevention orders. At the moment in time, we have sexual offences prevention orders, which there must be a conviction and the individual must be a qualifying offender. At this moment in time, there is the risk of sexual laharm orders, which were introduced in 2005, and that created the ability for the chief constable to apply to a relevant sheriff court for a risk of sexual harm orders, where it appeared on at least two occasions that an individual had committed, but was not convicted of acts. That included engaging in sexual activity involving a child or in the presence of a child or causing or inciting a child to watch, a person engaging in sexual activity or giving a child anything that relates to sexual activity or contains reference or communicating with a child. That person did not have to be convicted, but there had to be two occasions because it is a preventative order. The threshold for that was that we had to provide that the information was to protect serious sexual harm. You can remember ACC Graham being challenged on the few number of Roshos being applied for and granted in Scotland in terms of that protection of children. ACPO, as it was, did some research about two years ago to look at prevention orders and how they met the needs of predominantly children in terms of protection. Even the suggestion that we would have to prove that the protection was necessary against serious sexual harms, actually questions should not be protecting against any sexual harm against a child. The provisions in the bill are such that, instead of having to have at least two occasions, while in actual fact the vast majority of those occasions would allow for criminal proceedings to take place, because there may be mutual corroboration, etc., that if we are actually talking about protecting children, then if there is sufficient information to suggest that a person is posing at a risk of sexual harm to a child and it has now been extended to children outwith the United Kingdom and vulnerable adults, that there would be an ability for the chief constable to apply to a court for an order in terms of a prevention order, either to place some restrictions or obligations on that person. On children, it says that it protects the public or any particular members of the public in section. I can understand the point that you are making about making it easier in a sense to get those orders in respect of vulnerable adults and children, but it goes beyond that. It is a protection order. I understand that. I will take the question, because I do not need it, and then I will ask John. Would it be helpful to have a definition of sexual harm? Is it not the definition of sexual harm? The definition between sexual harm and sexual harm is very… No, our position and we are quite happy that the legislation is drafted in such a way that the threshold has been lowered from a serious sexual harm to sexual harm. It is not its sexual nature. It has done an act of a sexual nature, not sexual harm. Yes, in terms of the act, but the consequence of that. No, this is here, sorry. I am back to section 26, which I have been witching on about. An act of a sexual nature, not an act of a sexual harm. Sorry, I was talking about the… I am getting back to definitions here about this moose. What is sexual nature and is always harmful, might the question be, you know, see what I am saying. I can say that, again, 2A probably makes it a bit clearer that the purpose is that it is not just an act of a sexual nature. It has got to be that it is protecting from the harm of that, and then it is indicating that harm means physical or psychological harm caused by the person doing an act of a sexual nature. I know that it is kind of circular. It is badly drafted in my book. I do not like done and I do not like sexual nature when we could have said other things. There we are, I am getting disagreement from members of the committee. Christian, you are still there. No, I am still confused about what the definition is. You said about the do as well, but sexual nature as well. What is really the definition of it? I think what is drafted in the legislation is sexual harm, definition is physical or psychological harm. To be honest, Police Scotland has highlighted in our response that we perhaps do not like the word done, either. I am not seeking a job, but I know how difficult it is to be a parliament who drafts minutes for the very skilled, but there we are. You can have a clarification. I am not sure that I really understand the difference between a sexual harm prevention order and a sexual risk order. Maybe somebody will clarify. What the difference is? Sexual harm prevention order is when a person is a qualified offender, so they have already been convicted and they have been managed through MAPA, multi-agency. There is a mountain of difference, I think. John. On that particular point, and it is the panel's views on whether we have got the balance right there, because, clearly, everyone would want to protect the public, children, young people, whoever. Is the balance right there? Are there implications for Police Scotland, for instance, about the protection of the individual who becomes the subject of one of those orders, because, presumably, there is a risk pose to them due to publicity? Excuse me. In terms of whether we have got the balance right, in terms of the applications that we make just now in terms of risk of sexual harm orders—which will now be sexual harm orders—there is a stringent process that we go through in terms of the officer identifying the individual having to assess the risk that that individual poses. That is then assessed by the relevant detective superintendent, and, if he or she agrees, there may be other actions that the police can take without going for a prevention order. It is then passed to our legal services department, which then considers two before applying to a sheriff who will consider whether he or she would grant an order. I think that there is a number of safeguards in terms of the application process to ensure that we are applying. Each application has to be absolutely justified and proportionate to what we assess the risk to be, and any conditions would only be put in place to meet those risks. In terms of the individual himself, that individual would be managed in a certain way, far easier in terms of when there is already a conviction, because they will already be managed by the multi-agency public protection group, but for an unconvicted person when an order is placed, there will be that interaction with the police, which will include a safety assessment of them as well. I think that that is absolutely fine, because what we are trying to do is protect, and it is a protection order. In our response, what we would hope or what we have asked for further consideration is for those individuals who have not been convicted and are then subject to a prevention order that they are included in the map of structure as well. There is that multi-agency information sharing and multi-agency wraparound in terms of that individual, and potential victims in terms of protection. It is clearly a poor second to getting someone convicted and being punished appropriately for. Is there a danger that this becomes, if you like, a soft option when we have not enough evidence to proceed, so we will go for this? No, I do not think so. Our opinion is that we would rather prevent a sexual crime than have to investigate and convict somebody for it, for a whole range of reasons, most importantly, victims. Can I just go back to your RSOs? Do we know how many have been applied for and refused? No, I can tell you how many we have got at the moment, if you can bear with me two six. Perhaps we could find out how many have been applied for and refused as well. I do not have that information. No, if you could perhaps strike us with it. It does not matter if you come back with it later. I have actually got it here, the cluster, right? This is by the end of October, if that is okay. In terms of sexual offences prevention orders, so these are where the persons have a conviction. In total, there are, as of the end of October, 483. Over which period of time? That is in October. Over which period of time, though, over a year? No, that is October. Well, currently, okay, sorry. There were 483 registered sex offenders who were the subject of sexual offences prevention orders, 13 of which were interim and 470 which were full orders. In terms of risk of sexual harm orders, which are for individuals who do not have convictions, there were 20 across Scotland, seven interim and 13 full. Perhaps, if we could, in respect of the RSOs, have the figure perhaps for the number applied for, it gives us an idea of how that perhaps is operating currently. I have some information that members might find interesting, and that was after similar legislation was introduced in England and Wales. Between March 2014 and September 2014, risk of sexual harm orders, so those are the individuals who have not been convicted. Across the whole of England and Wales, five full orders were in place, and eight interim orders were granted, and eight interim orders were granted. With the introduction of their new legislation, which is similar to what is proposed in the bill, there is a lowering of threshold in terms of not having to be serious and not having to have two. For the same time period, it was 32 full orders and 13 interim, so there is about a 3.5 increase. I would still like to know the number applied for in the current system and the RSOs. You have not asked these questions, so I will just open up so that you will then ask questions on it. That is with regard to the posting of images on the internet known as revenge porn. Just to open up this particular part for questions from members, can I ask at the moment how Police Scotland and the Crown Office deal with these currently, just to put a bit of background to that? I hope that members will ask questions. It is much like the domestic abuse part of it. At the moment, we have to look to see what particular aspect of the law is being broken, and that can mean that it can appear. It is not clear necessarily to the public that this is an offence, because just now it could be a breach of the peace or a contravention of section 38, which could be part of the stalking of somebody in section 39. The position is that we are supportive of this introduction because it has really again in societal change. It has become very common, no matter what one thinks of it as an individual, whether you are in favour of it or not, that people take images of each other again in relationships and that there have been a number of cases where those have been inappropriately shared for the purpose again of causing harm to the individual whose picture it is. Instead of having to look for fitting into some other context of crime, I think that the idea of this bill is to say that this has now become something that is able to be identified on its own and that it would be clear for the public if this has made a specific offence. What are you using currently? At the moment, we are using things like breach of the peace, uttering threats or extortion, because that can sometimes be with it. Conspiracy, there are all sorts of things that could fall into where part of the acting is sharing an indecent image, or not an intimate image, rather than an indecent image. I think that the point has come where there is so much of this and the harm to the individuals who find themselves paraded across the internet or that their friends and family or their employers see some of this. It has become clear that we really need to signal for people that nowadays the fact that you can take very easily images does not mean that you are entitled to share them and that that does cause harm. If you are doing it, you know that that is what you are trying to do. In terms of how we respond to reports of intimate images being shared, I do not like the terminology revenge porn for all the reasons that have probably been outlined in terms of the research that was done. In any case, it is difficult. Operation Officers will note statements from the complainer in a statement form. Officers will try and work out if there is a bit of legislation that would render it a crime or offence. For us, that is the risk because there are some inconsistencies in terms of that initial assessment. When a crime has been established, if it is a domestic incident, then our input will be made on our vulnerable person database. In addition, the domestic abuse unit locally will be notified. It will then meet the victim and undertake a series of domestic abuse questions that will allow for victim safety planning. If a crime is recorded, officers will work together to gather the evidence, including productions from screenshots and relative material. The inquiry will then process or will be processed predominantly through our communications investigation unit, which is part of the specialist crime division. It acts as a single point of contact for coordinating any authorisations that will be made. Whether that is for subscriber checks at inspector level or more significant traffic data and service history data is at the superintendent level. What is there after is probably quite operational in terms of detail. Probably everything that we want to go into in a public forum. Do you try to put it under domestic abuse processes? Is that all that is left to you? Is that what you have to do? To be honest, it is the part that Catherine made in terms of what legislation fits. Sometimes we find that there is very little legislation that fits the bill. We can consider section 38, but on some occasions the circumstances do not provide for that to fence. That is section 38 of the Criminal Justice and Licensing Scotland Act, which is for threatening or abusive behaviour. There is a possibility of section 127 of the Communications Act, which is sending a message that is grossly offensive, but sometimes the communications will not reach a threshold of being grossly offensive. It causes absolute heartache and so much distress to individuals, but the image might not be grossly offensive. There are other issues of the Sexual Offences Scotland Act. There is section 6, but we have to prove that it was for the purposes of gaining sexual gratification, and on a number of occasions that is not the motive for it. On some occasions we just have to fall back in a breach of the peace. The under-reporting of the crime is that victims are unclear that it is a crime or offence. Some police officers, given some of the circumstances, are not clear exactly which crime or offence it fits into. For perpetrators, there has to be a clear message that this is absolutely not acceptable in society. On how that impacts on victims, it is absolutely devastating. We have interpreted the bill as not only covering intimate images being disclosed in a domestic setting, but broadly. We welcome that, and I can give you an example of why we would welcome that as well. Between the 20th and 22nd of August this year, in quite a small area of Scotland, we had 25 separate reports made from members of the public regarding the unauthorised posting of intimate images. Basically, they had taken the images that either themselves or their partners had or friends had. They had stored them on their own personal computers, etc. An individual or individuals unknown had hacked in to their computers and then posted them along with personal information on the internet. Not in a domestic setting, we have done an awful lot of work with the victims in terms of questioning. There is no suggestion that it was any partner or prior partner for those 25 victims, but the work that has fallen from that is significant. The impact is just as a start for those 25 women than it would be for a domestic setting as well. We welcome that it is broader than just a domestic setting because of other examples that we have. I think that it is something about transparency. It is trying to make it clear to members of the public that this is not behaviour that can be tolerated, but it is also in the legislation coming into force that that will appear in some of the previous convictions. At the moment, it would just appear as perhaps a section 38 of the criminal justice and licensing, and that would not then mean that the court really had a feel for what was going on if it was somebody who was doing this on more than one occasion. That is very helpful. Perhaps, if the legislation is that broader and not just from a domestic setting, then the person who was convicted would have a domestic aggravator. Thank you. It is very helpful to set the scene as it were in the market, please. Certainly what you have said has added to what we have in front of us. Do you think that the offence of threatening to disclose an intimate photograph is already covered by section 38, or will the legislation help that? I do not have a copy of the section in front of me, but my recollection is that section 38 covers threatening behaviour. I would have thought that that is behaviour first of all, and I think that it is threatening behaviour, so I would have thought that it is covered. The constable spoke about the difficulties in tracking down offenders, and certainly the bill would help that. However, how difficult is it to track down the people who have sent the images? Is that what we hear about the IPs or the different web connotations that can be used? Is it difficult to find people who have sent the images, or is it really something else? There is always going to be challenges, but there are good processes in place where our communications investigation unit has links with service providers across the world. It depends on the different service providers. Some will assist as an act of good will. Some may require a warrant, but we will follow all opportunities in identifying the person. I have some statistics that you can bear with me for a couple of minutes. Because of our legacy systems, it has not been easy to pull information. However, what we have is, for the last financial year, 1415, only in four divisions in Police Scotland. I am sorry, but that is the best that I can get at the moment, which is Aberdeen, Fife, Forth Valley and Tayside. It gives a bit of a flavour. For that year, in those four divisions, there were 57 incidents where intimate images were either threatened or shared in a domestic setting. I hate using the terminology revenge porn, but of those 39 reports were submitted, there was sufficient evidence to report 39 of those cases to the crime office and procreator fiscal service. Is that a huge increase from the previous year? That is what we have heard that is on the increase. To be honest, we did not record and it is difficult because of the different crime types that we use to pull out any information. However, from support groups, from victims, this is an increasing type of activity without doubt. Is there an argument that the offences should be extended to include other forms of communication, such as text, messages, letters and videos? There is something specific about a visual image that can be flashed across and seen by hundreds of people. That is a particular thing that the bill is trying to get at and to say that that is unacceptable. We had asked when we were wondering how we would work with this about this kind of thing and we have not really had anybody come up to us with an example of something that would be more a text about an intimate part of it or whatever. It is more about the concern that people have that an image is taken and it is then spread about and it is there forever and it is there for other people to see. I was simply going to say that, from the lost society's perspective, the one thing that we wanted to draw attention to was the intent that is stated in here. It says that there is an intention or a recklessness. I think that you are going to be hearing some representations from Mr Chalmers later on in that. We would say that there should be an intention to cause harm or to cause humiliation rather than a recklessness, and we feel that that is too wide. I do not like the term revenge porn, but we all understand what it means. It is not the porn, it is the revenge element. That has to be crucial for it to be that type of offence, otherwise it becomes more of a privacy offence. You have exposed images that we find embarrassing or humiliating or upsetting. That then moves into a privacy element, whereas what is portrayed here is said to be where a vengeful or hurtful act is being perpetrated in someone for that purpose, not simply because it is a laugh or a carry on or we do not realise what effect it is having on people. If it has that specific purpose that it is to encapsulate that offence, I think that our position is that it would be restricted to the intention, which I think is reflected in the English legislation. That is the only point that I think that the Law Society would want to make on that. Mr Mayant. If I may agree with that, I think that the legislation that is drafted is very widely drafted. In England, there is no requirement for recklessness, and recklessness may simply be a person who has not thought about it. I think that it is fair to say that a lot of people will put things on social media without really thinking about it, so a person very quickly, without intending any harm, could be guilty of reckless behaviour. Another matter that we should like to touch upon with regard to the very wide drafting is that the committee will see that one of the categories of offence that does not arise in England can be where a person is covered only with underwear. That is not an offence in England. If I could perhaps give an example, say that a person comes home to find his flatmate asleep on the couch wearing only his boxer shorts and takes a picture of the flatmate, if he was simply to show that to another flatmate, that person would be guilty of an offence. The legislation provides no defence to that. To photograph a person in their underwear would commit an offence because recklessness would make it so. A person very often taking a photograph might think that that is amusing, that is funny and that is why I am making that record of it, but the last thing that that person would have intended to do would be to cause fear, alarm or distress. However, because that requirement is not there, that is criminal conduct. The images passing through me this committee are becoming extremely interesting for the wrong reasons. I think that the thing is to try and get the point. I am a bit concerned about taking pictures of people asleep in their underwear. That is probably an intrusion. The thing is that it would have to be looking at what the effect on the victim is. That is the raison d'etre behind it. It is not just any image and it is not about jokes or whatever. It is in terms of that there are certain types of image where it would be clear that if it was shared with other people that that is not appropriate. It is really focusing on the impact on victims of this kind of thing. There has to be a victim, it is not just a joke or whatever, it would have to be someone who was indicating that it really had to them being harmful and upsetting and distressing. Should we include, for example, sexting where someone sends or receives a sexually explicit text image or video on their mobile phone? People passing images consensually between each other is not what is being looked at by the bill. It is about where somebody has access to an image that was taken in an intimate image that was not meant to be shared with any third party. Sexting, as it is known—again, we have all these terms, which is difficult to then put into kind of dry legal terms—exchange of images or texts or whatever between consenting persons is not what is being looked at. It is about where an image that really is of an individual who does not want it shared with anybody else has access to that and is shared without their consent with other people. Sexting could very quickly come into play, though, because if a person was to send an intimate image to a person and they received it on the phone and they then show to the person next to them, look what's on, so it's just sent to me, that person would be guilty of an offence because they have shown an image to the person who is standing beside them. It comes down to all the proof of criminal activity. We have to have proof by the evidence and it's down to the individual circumstance. I don't think that it would be in what particular circumstance was that done. It is about whether the person sending it and their expectation and understanding that they have between each other is that it's not being shared. Is there not a problem with the use of the word reckless when talking to quite young people who... It's a different culture and a different generation who may do something which may be to somebody else's. That was a stupid thing to do, but at a certain age it's so common place that we're back to this problem of this recklessness. There was no intention, there was nothing behind us. There's not a bit of a generational problem here as well. I think again we have to get back to what's the impact if you're a victim and people do not feel that they're victims unless there is actually something that has happened to them. I appreciate that, but we're criminalising someone, so I'm just getting back. I absolutely appreciate that it may have an effect that was absolutely unforeseen and was just a daft, stupid thing to do, maybe resending a picture, you know, something like that. I think the law all the time and prosecutors and police all the time deal with sort of young people and it's looking at the circumstances in the whole to decide does it amount to criminal conduct as opposed to is it just daft behaviour, not sensible. It's not about saying that people shouldn't, that just is a fact of life that people send these images to each other and sometimes they share them, but it's again looking at it in a sensible way to say if there is harm done and it really comes to the point where you could prove that it was done and it was going to be obvious, it's an objective test, it was obvious to anyone that sharing that image widely was likely to be harmful and distressing, that's a different issue, so it's not really, I mean, I think part of it is to get across that we're saying as a society that if people have images like that they have to be aware that they should be taking care of them, they're not really for sharing willy nilly with anybody. Is this a supplement where I'm still, sorry, thank you, I've got Rod, Elaine, then Christian please. Small point for Mr Mayan, if you could just elaborate on your concerns on section 2 3D and which refers to it being a defensive disclosure as in the public interest as opposed to in your view, we talk about it, it doesn't refer to the generalistic material defence, could you just elaborate on that for the benefit of the committee? I think that part of the journalistic material is a defence that applies in England and the concern is that although it may well be that the matters would overlap if there's a different distinction for different jurisdictions but one encounters or there are publications which are UK-wide publications and that is the concern if one is to apply different tests for different parts of the UK but the publications are UK-wide. It may well be that in the public interest is something that would be pre-denied for journalistic materials so it may well be that there's an overlap but it's just raising the point that there's a distinction between the legislation in England and in Scotland. Okay, thank you. I just wanted to briefly bring back into the intention of causing a fear alarm in distress. Some people are saying, you know, should it be there, should be, should be there when we have, and you said it very, very well, the consent is there. If there is no consent, is it important what the perpetrator intention is that maybe the legislation will be a lot simpler if it was just around consent? Actually, I think that the section does talk about consent. Further down, section C. Would it be a lot clearer if the bill was only on that particular section about consent as opposed to trying to introduce a question of the intention or reclases behaviour? I suppose that that gets back to some of the difficulty around this, that it is trying to address what the public have identified quite rightly as an issue that it's in situations where it is causing fear alarm or distress to an individual that it becomes a criminal act. Would it be a lot simpler, a lot easier if we give a strong message that it's a matter of consent? If you don't have a consent, you shouldn't do it for whatever reason you're wishing. You should be reclased doing it to whatever intention that you have. Will that help Police Scotland, for example? I think that in terms of the consent aspect that's already contained in it, and I do agree that there has to be some outcome and that outcome in terms of the level of distress or upset or is important as well. It is about the consent that is the absolute vital important part to this legislation for us. So, if it's a vital important part about it, it should maybe be right from the front and forget about intention or reclases? I think that there's probably a need for both to be mentioned in the legislation. I think that without the intention then you don't have the crime that you're purporting to introduce in this legislation. The whole purpose of it is it's revenge, hurt, controlling your seeking to hurt someone by taking that act or threatening to take that act. That's an intrinsic part of what the Government states they're trying to introduce. If you simply say that you must not share an image of someone in their pants and they don't consent to it, then you're moving into more like a privacy issue that people are entitled to have images protected for their privacy. That's not what it would appear to me that the Government were suggesting in this. What they were saying is that you should not seek to hurt or control or express your vengefulness on someone by threatening to or issuing an image that you have of them. That seems to me an integral part of what's sought to being introduced here. I think that if you remove it completely, you have a completely different set of circumstances. Will you share some of the concern that young people and teenagers might not see the difference between the two? It would be a lot easier if you put on the consent. Do you think that we are giving mixed messages by trying to define intention? Particularly, you know, we heard it about young people and teenagers using a lot of this kind of sexting, etc. Well, I would assume and I would hope that the Government's intention is not to criminalise children unnecessarily. I would hope that that was the case. If that is the case, then clearly regard has to be had to the activities of young people. Remember, when we say children, it's all a bit varial now. Sometimes children are under 16. Quite often the move is to consider under 18s because of their vulnerability to be children. I would hope that the Government wouldn't be seeking to criminalise young people unnecessarily. I think that regard should be had to that. I think that it would be extremely unfortunate if a court was to find that it was completely satisfied that the person never intended in any way for the harm to be caused. Because they didn't pause to think about that, they are convicted of what is a very serious offence that would stay on their record and may cause some real difficulties with integrating in society when what really was at stake was not a criminal intent but perhaps a lack of maturity, a lack of judgment. I think that that would also apply to vulnerable adults as well or perhaps in the same kind of circumstances that you would be saying perhaps that they were unaware. My question is from Ms Dwyer. It is on the commission of certain offences elsewhere in the UK section 7 and 8, particularly the reference to habitual residents. At present, if the act isn't a crime in England, then it only becomes a crime in Scotland if someone has habitual residents. However, under the provisions in section 8 and the reference in 54A8, if they subsequently have habitual residents, they can be charged with the crime. Do you comment on that? In what sense? Do you want me to comment on it? If they had habitual residents when the crime was committed in England and it wasn't a crime there, then that's under Scott's law, they can be charged. Under the provisions of section 58A, then if they subsequently have habitual residents, then they can be charged with the crime. What that is trying to get at is when the report of the crime is made available to us. Either they are here and they are habitual residents and we know that the crime has been committed, or it could be that somebody commits the crime and then moves to Scotland. I think that's what it's trying to catch. Are you aware that there's a suggestion that could breach article 7 of the European Commission of Human Rights? Those issues are matters for Parliament to look at and for the draftsman to consider. At the moment, what we're trying to do is look at this on the basis of it, if there are actings in England. We can deal with it in Scotland because the person lives in Scotland or has moved to Scotland, then that's what the bill is trying to address. In terms of article 7? I think that there's always a balance because the rights that are under the articles also apply to the victims of crime, so that's one of the ones where it's a balance. It's the retroactivity provision. It's not really retroactivity. It's really simply if you committed the offence on day one and you then moved and you were in Scotland on day two, it's to allow that, so it's not retrospective. It's about, it must be after the offence is committed clearly. That's not retrospective, it's not going before you've committed. Isn't there the point that you can't be committed or punished for a crime that is not an offence at the time of committing? I'm sorry, I'm not quite getting this. Pete, my understanding of article 7 is that you can't be punished for a crime that wasn't an offence at the time of committing, so the act has subsequently been enforced. It wasn't an offence. No, no, no. If we look at article 5042, it makes it clear that this is covering only if the act would also constitute an offence under the law and force in the country where it took place, so it is to cover where somebody commits the offence, let's say in England, and then moves to Scotland, and by the time it's ascertained that the offence was committed it would have been an offence in England, but it can't be prosecuted because they're living in Scotland, then we can prosecute it in Scotland, that's what it's trying to do. I'm sorry if I was slowing the uptake there. I thought it was only if they had habitual residents at the time of committing the offence. It wasn't an offence in England, it was in Scotland, but they had habitual residents, and therefore it was a crime. To my mind, it's quite clear in subsection 2. It says, however, that a person who is not a habitual resident of Scotland commits an offence by virtue of subsection 1 only if the act would also constitute an offence under the law and force in the country where it took place, and then you go down to saying, right, that either they were habitually resident in Scotland or they've moved to Scotland. But the act wasn't in place when they committed the crime and they lived in England, that's the point. Pardon? The act wasn't enforced then, and then they moved to Scotland. I think that this is talking about once this comes into force, that will be the position, so there will be a commencement date for this, as with other acts. I don't think that the idea is to retrospectively deal with anything. It's about giving notice that from now on, if you move from England, you're not going to escape justice because Scotland's law will be able to prosecute you up here for something that would have been a crime in England, which is not what can happen just now, but there will be a commencement date for the act coming into force. It won't be retrospective, as far as I understand. I'll be interested to hear more evidence in that later, because I'm not entirely convinced. Could I just very briefly ask you to move on? Let's just to clarify this. If you would perhaps explain just now, which is perhaps the first thing that can get muddled now, what's the current position under for police and the Crown Office about prosecuting crimes, and how does this change it about residents and where the crimes committed, and how does this change it? That would be helpful. At the moment, if there are certain things that are by act of parliament, of which are UK wide and which can be dealt with in a number of places, but for instance, in sort of assaults or whatever, it has to be at the moment where the act took place. So if an English or Welshman or Irishman, as the story goes, committed a criminal act in Scotland that would be prosecuted in Scotland, because the crime took place, so we've sorted that out. What about this business of residents, habitually resident? So if a person from Scotland commits a crime in England, which is, no, they're staying here, they're resident, they're habitually resident, for HMRC has them habitually resident, they commit the crime in England, can it be prosecuted in Scotland, would it be prosecuted in England? No, not just now, but the position is, and if this applies, one of the good examples of this would be where, again, let's get back to sexual offending, where there's somebody who ends up in Scotland, but they've committed an offence in England, and they've committed an offence in Scotland. At the moment, we've had examples where there isn't sufficient in either jurisdiction unless you take two, the two incidents together to prosecute the person. So this would allow us to say, right, we can apply the Moor of Doctrine again back to the basis and prosecute the person in Scotland for the totality of the acts, and I think you'll have known in previous years there's been things where there's been serial murderers, for example, and the victims are all found down in one place, and we can't take anything because of where they're found and we have to have different trials and all the rest of it. So we don't need the Moor of Doctrine now, what you're saying is if the person's— No, we do still need the Moor of Doctrine. If the act came into place— No, we would be allowed to use the Moor of Doctrine in connection with an offence in England that was corroborated by the offence taking place in Scotland. So it would allow us to prosecute that whereas, at the moment, neither England nor ourselves would necessarily be able to prosecute it. Here's a third difficult question for my little pet. I hope I answer this. I don't know if I know what I'm asking. If someone's a bitually resident in Scotland and they do something in England which is not an offence in England but would be an offence in Scotland, can they be prosecuted? I hesitate to ask it. This is probably better for a member of the bill team, but I don't think so. I don't think that's what it's trying to get at. I was thinking about transmitted images and so on, and it might be an offence under Scots law for certain images to be an offence, and they're seen only in England, not anywhere else, or they're sent to somebody there. Could they be prosecuted? That's the question I'm asking. That's why I'm asking it. Not physically, I think so. Anyway, I've asked it and maybe somebody will explain. Yes. Coming on the point on the difficulties at the moment, for the investigation side, it doesn't pose great difficulties because of, you know, we do have that close working relationship with other police forces across or the other parts of the United Kingdom. Just want to highlight that Operation Hydrant, which was raised last year, 2014, covers the whole of the United Kingdom, and that is looking at non-recent reporting of child sexual abuse, either by persons of public prominence or from an institutional setting. That is able then to look at live investigations on going across the whole of the United Kingdom, including the Channel Islands and the Ministry of Defence Police, to be able to join the dots. So, where individuals have moved around the country, what we find is that we may have an investigation on going in Scotland, and there's a similar investigation going on in other parts of the United Kingdom and how to join the dots. And the difficulties has been, and we've experienced them, unfortunately, when we haven't been able to use that mutual corroboration, or the expectation then is that we would put victims through two different trials and two different jurisdictions. At the moment, I can say that we've got seven investigations on going when, in actual fact, there's investigations with those small criteria, non-recent public prominence or institutional setting, which covers. And I suppose, from a Police Scotland's perspective, I think that it is really interesting or it probably requires a bit clarification in terms of when the bill is enacted. Will that be retrospective? Because we know with the public inquiries on going, both in terms of Goddard in England and Wales and the Scottish Public Inquiry, we would anticipate that there will be more cases where there will be investigations undertaken by police forces across the United Kingdom. Doubt very much with respect, retrospective. I'm just a very little legislation in Scotland retrospective, but I don't know if I'm any clearer. I'll need to read the OR to find out all this business about if you get a crime here and somebody there and so on. But the point I was trying to make is this difficulty, because it's electronic communications and that changes the whole landscape for prosecution. It does, but maybe the help of an example was that there was a case in Scotland where indecent images were found and they were taken without permission of the person to get back to Mr Reacan's point. It was a young lady who had gone on holiday with a family friend, like those family members or whatever. They all lived in Scotland and the male person had set up a camera to take and naked pictures of her in the shower, which were then recovered when the police raided his house in Scotland. But the taking of the image, because it was able to identify, had taken place in England. And what had to happen there was that there were two trials because at the moment we can't conjoin, because one of them was the voyeurism, the setting up of the taking of the picture had been in the shower in England, and that's laying the English jurisdiction, but then the keeping of the image had happened in Scotland. And really it's really an attempt to take the point that you're making that at the moment with England's one of the places where we don't have this cross-border ability to just take in Scotland, things actually are pertinent that a court could take account of if the law was changed as it proposed in this bill. I'm being advised that these only apply to child sexual offences, is that correct at the moment? I think we'll need to go back. Yes, it says about the commission of certain offences and there's a schedule I think in terms of the type of offences. You see the crimes committed by the person sending the image, posting the image, whether we agree there's intent or it's reckless, there's a crime committed then, but then there's a person who sent it to somebody not committing a crime, but they then send it on to somebody else who may then be committing the crime because they do it for revenge. And that person's sending it lives in England. So what happens there? Who's going to be prosecuted? You know, A sends to Pal B. Pal B says, they send it with good intent, but B says, I'm going to do some of this and then spreads around the world, they live in England. Where has the crime been committed? Where has it prosecuted? I want to know. Again, it comes down to, I suppose, this is sort of unpicking each case on its merits, but from that description you've given, if it was appropriately sent and then it was misused in England, that's, it happens in England, it stays in England. Right, I'll need to, this, I think, I'm going to have a whole lot of them. Martin, what did you say there? What did you say there? What happened was that, you know, they sent, the act occurred in England when they were resident in England, so they send it off and this act, this bill has become an act and what they do is then hot-feed it up and make the residents in Scotland, we could then prosecute them in Scotland. Right. I think it reminds me of those examples, my arithmetic teacher, I'm in buckets of water, can you get out of this back with two taps running? I'm going to have to think this through and clear my mind. Did the committee feel the same? It's still a bit confused. We get, sorry, biggy pardon? No, it's not your fault. We'll touch on it with the next panel who no doubt unconfuse us. Thank you very much. I have no further questions on the thing, so thank you very much for your evidence. I'll suspend for five minutes. Thank you very much. Back again and I welcome our second panel of witnesses, James Chambers, we just Professor of Law at the University of Glasgow, Jeremy, Professor of Criminal Law at the University of Edinburgh, Claire McGlin, Professor of Law at Durham University and Vanessa Monroe, Professor of Law in Society at the University of Leicester. Welcome very much. Thank you for your written submissions and we're going to start with you explaining to us the end of the last session. Roddie, you have a question. If you can put this simply for us, Roddie. Professor Chambers in particular, morning rest of the panel. Obviously, I just wanted to start with paragraphs 7 to 8 in particular of your written submission, Professor Chambers. Where you posed the conundrum which we had difficulties with in the last session. I want to just explain a wee bit more clearly your concerns and also is there a way round this concern, for example, removing a few words from the proposed section 54a8, although I appreciate that that might leave a gap elsewhere in the 2009 act in relation to the provisions you mentioned, sections 40, 54 and 55. But if you could perhaps simplify it for us for the committee, I'm sure we'd all be grateful. I shall do my best. If I could try to explain it, I think what Mrs Dyer said in her answers to you is how the bill is envisaged as operating, but not in fact how the wording of the bill would have effect in practice. The proposed section 54a2 draws distinction based on habitual residence and it can be put quite simply. If you are a habitual resident of Scotland, you carry Scots criminal law with you when you go out with Scotland and therefore you can be prosecuted in Scotland for a criminal offence under Scots law that took place in England, regardless of whether what you did was a criminal offence in England or not. If you are not a habitual resident of Scotland, you can still be prosecuted, subject to other provisions here, but dual criminality would need to be shown what you did would have to be a criminal offence both in Scotland and in England. So far, so good. The problem arises because a habitual resident of Scotland for these purposes is not only somebody who is habitual resident at the time they do the act, it is also somebody who becomes habitual resident in Scotland afterwards, and that is where retrospectivity effectively kicks in. That would be an extremely unlikely scenario. I do not think that it is something that MD wants the bill to cover, but if you did something in England that was not a criminal offence, it was criminal in Scotland and you were not habitual resident in Scotland, you could not be prosecuted, but the language of the bill implies that once you become habitual resident in Scotland, you could then be prosecuted for it because all that matters is that you are habitual resident at any point, not at the time. Yes. Would the answer for the problems with section 54 and 55 be to remove the words or who has subsequently become habitual resident in Scotland? Yes, I cannot see any value in those words except to create this problem. Yes, that is what I thought. Can I point out another possible anomaly, which is that there is no amendment to section 55 contained in this bill? Section 55 does not use the connecting factor of habitual resident but resident, so there seems to be a contrast drawn between the effect of offences committed outside of the UK, offences committed outside of Scotland within the UK. Take that point as well. Habitual resident is not the same as residence. That is indeed. I can also say that from the connecting factor used in private international law, it has now lost the simplicity at once hard as a connecting factor, and trying to establish habitual resident is not straightforward, unlike trying to establish residence. So, in essence, we think that there is work for the parliamentary draftsman here. Yes, yes. Thank you. Of course, have you finished writing that? Yes. It has been one what Catherine Dyer was saying in the previous section, because I think that her argument was that in section 54A2 it says, however, a person who is not habitual resident commits an offence by virtue of subsection 1, only if the act would also constitute an offence under the law and force in the country where it took place. I thought that she was implying that if the person then moved to Scotland, it would only be an offence, if it was also an offence in the place that it had taken place. That is what the act should say, but it is not what the act of Bill Brill says. It is not clear because that is certainly how she was interpreting it. On the basis of section 54A8, the proposed section, you could read section 54A2 as saying, however, a person who does not subsequently become habitual resident in Scotland commits an offence only if this condition is satisfied and that is where the retrospectivity problem comes from. The lack of clarity is exactly what that means. In cases like that, because Scots and English law are probably very similar in this area, cases where this could present a problem are going to be exceptionally rare, but they could occur because the law is not identical. I love the explanation that habitually resident means you carry criminal law with you, so I followed that bit and I followed the other bit about dual criminality, but as I take it, as I am now understanding it, but the way it is written, if you then move back to Scotland, which is the problem. Yes. Yes, thank you. I do not want to explain any more to me about that because I have grasped that bit. Gil, please. I have posed some questions to Professor Monroe and it is with regards to your research professor, and in particular with regards to directions. I am wondering, with the benefit of your research, how would you think that directions would impact on juries? Well obviously the first thing to say about the context of our research is that it is not research with real jurors given the nature of the restrictions, and you always need to bear that in mind when we are talking about a transferability of the findings of our research into the courtroom proper. That said, what we found in the study that looked at the impact of educational guidance, which we gave in two forms to our jurors either through expert evidence or alternatively judicial direction, was that it did, for the most part, have a productive impact in terms of removing certain assumptions from jurors that might have otherwise impacted negatively on their ability to assess the case on its merits. That was not universally the case, as I have said in the written evidence. We looked at three particular types of what might be seen as misconceptions that jurors might hold, one around timescales for reporting and offence, one around the existence of resistance and injury, both of which are dealt with in the bill, sorry, and also one around demeanour. We found that there was evidence of a shift in the way in which jurors approached complainants who had delayed or who had a calm demeanour when they gave their testimony, where they had had the benefit of some judicial instruction, which was a fairly modestly crafted judicial instruction, simply saying that some complainants will be emotional when they give evidence, some will not. There are many reasons why that might be. It does not necessarily indicate anything about the proof or falsity of the allegation. In regard to evidence of injury and resistance, we did not see the same impact as a result of the education guidance or instruction, but we would not necessarily read that as saying that instruction in that context would not work. What we found was that jurors in our study were struggled to translate the kind of freezing response that they were educated about in the context where the assailant was in acquaintance, and they felt that the freezing reaction of a victim would only really be credible when it was a stranger perpetrator. We hypothesised that some reshaping of the direction might also see an impact in that context as well. Why did you conduct the research in the first place? What led you to conduct this research? It started as the backdrop, too. In England and Wales, the officer of criminal justice reform had a proposal to introduce general expert testimony in rape cases designed to counteract juror stereotypes. It was in the backdrop to that, because that proposal has two underlying assumptions. One, that jurors hold the stereotypes in the jury room, and two, that some sort of educational guidance can counteract them. We were interested to test both of those, but as we put the study into motion, the response from the consultation for the office of criminal justice reform suggested a preference among some people for a judicial direction approach rather than an expert evidence approach. We then factored in judicial guidance as another mechanism by which we could introduce that material. Would you say that your research would lead you to believe, or otherwise, that directions would be beneficial to justice? Yes, in short, I think that— That was your conclusion. Did you look into any other evidence? I know that there are other evidence available. Before you conducted your research, did you cross-refer your research with other evidence that is available in that regard? What sort of evidence do you have in mind? I know that Dame Elisha Angiolini in her report referred to evidence in London, and I wonder if you were aware of that evidence. Yes, the Angiolini report actually came quite some time after this study. The study was conducted quite a few years ago. We have subsequently done other mock jury studies, but they were looking at different issues. We were looking at the impact of special measures testimony. The study predates when it was in 2007 or thereabouts that the key results were published from the findings. Well, thank you very much. Is there somebody else who wants to comment on that? Professor May, you know what's-if you're on that. Comment more generally on the question of statutory jury directions. I'm certainly not opposed to the jury directions on the two points that the bill addresses, but I do wonder why this has to be put in statute and not simply left to the judicial institute to provide for the jury directions in the jury manual. I'm concerned that there would be two categories of jury directions, statutory and non-statuary, and I wonder how they're supposed to interact. A recent case of high court or appeal court has said, it's not enough simply to go to the jury, for a judge to go to the jury manual, read out the directions. He's got to tailor the overall directions to the jury to the facts and circumstances of each case, but I do wonder if having statutory jury directions affects that obligation. Sub-country, many of the Australian jurisdictions do have a whole body of statutory jury directions. I'm slightly worried that we're introducing something here without seeing the complete picture of what jury directions are supposed to achieve. I also note that, in the state of Victoria, with the revised jury directions act, there's a controversy about a particular direction in relation to delay in reporting, which is that the direction that should also be a direction might be in favour of the accusation called forensic disadvantage, that if the jury is to be directed about the effect of delay in understanding the position of the complainer, they should also be directed in respect of the possibility of prejudice to the accusation waiting so long for a trial to come into being. Somebody else wished to comment. On the same point, I'm not just Professor Chandler. I think that one difficulty with suggesting what might be dealt with by the jury manual committee is that that committee, I understand, has traditionally seen its role as being effectively to compile the guidance of the appeal code in previous cases and the requirements of statute elsewhere to tell judges what it is they should do. To ask the jury manual committee, and this would not be the first time that it's been suggested, to ask that committee to innovate and suggest directions which may in fact not have a clear legal basis is asking rather much of that body. I present to the seminars to the other judicial institute. These issues have arisen in judicial training, so it may well be that as appropriate cases arise, jury directions will be modelled to deal with the two issues which the statute is addressing. I know why we have professors together because they don't agree. We don't hear anything. It's excellent. Yes, Professor. I share your concerns about the idea of there being a hierarchy of two different types of statutory and non-statutory. Of course, the statutory directions here are only covering two very specific instances, and there might well be other situations where you would in an ideal world wish a judge to direct the jury. The benefit, obviously, of the statutory basis for them is that they would then be mandatory subject to the subsection. Evidence in England and Wales, where they are voluntary and done much more through the Crown Court Benchbook, has suggested directions. It has been a real mixed experience. There is some anecdotal evidence that they are being used regularly and where they are being used. They are having what some judges have reported to me as a productive effect, but equally there is evidence suggesting that it is certainly not being taken up as fulsomly as might have been hoped. Still on jury direction? Yes, it's the same thing. Would you not think—to the whole panel on this question— that there is a problem when evidence would suggest that the population in general, because they have no experience in themselves of being raped, but they have preconceived ideas of how they would respond, which is entirely different to what actually happens? If that is the case, would you be convinced that if evidence was presented that juries actually need some education as to what experience happens, what happens to someone who is or has been raped? Is there not a problem there that we need to address? If commonly people think that they see something in a movie and they see something dramatic happen, then that's how it should be and that's not how it is. Could I answer first? Yes, I very much agree. I think that there are out there the so-called rape myths that members of the public have certain views about what a typical rape case may be and how a person reacts to a sexual assault, which is simply not evidence in fact. I think that there is a need for an approach in many fronts. One is a more social-educative approach, but I think that there is a place for jury directions. My concern is not with the jury directions in these two specific points, but on appearing statutes. I've got a list of people. I just want to check whether we're still on jury directions. Christian, is yours on jury directions? It was, yes. Was or is? It was. I cannot pass. It's gone. Rod is yours on jury directions? Yes, it is. It is. Margaret, you're after that on jury directions. Then I've got a lean and something completely different. Thank you. Rod. Thank you, convener. In the previous session, we heard some evidence from the factive advocates regarding, in relation to the absence of physical resistance or force. They questioned the need for the provision to be in directions, given the current definition of consent and the requirement for any belief in consent to be reasonable under the Sexual Offences Scotland Act 2009. I wonder what the panel as a whole thought of that specific point just on physical restraint. I think it was also wrongly suggested, I think, by the law society that you hadn't actually considered that in your work, Professor Monroe, which, oh, but just the general point. Well, I think, on the one hand, that's true that, definitionally, particularly the phrasing around overbearing the will of the complainant, there is no requirement for overbearing the will, so the relevance of that is kind of redundant in a sense. But if we extrapolate from our research in England and Wales, where we have a similar definitional position that there is no need for force, even in a context in which, in our jury studies, the participants were very clearly directed by the judge on that definitional requirement. The issue of the need for force, the lack of resistance, the lack of evidence of injury continued to come out extremely strongly in all of the jury deliberations. It strikes me that this is an issue that notwithstanding the fact that, definitionally, it's not required, it continues to be something that is extremely dominant in jurors' preconceptions and understandings and expectations. So, to that extent, it's an important, if we use the language of myths, it's an important myth for us to be targeting. I don't want to be... Okay, but you're using the expression juries, and they weren't juries, of course. They were... Mock juries. They were participants. I think that's important, because just anybody reading the official report of this would think, oh, I didn't know we could ask juries questions like that, and we know you can't. They're participants of the public who have seen a trial in construction. Yes. Mock juries. Yes. Yes. Is that any other member of the panel who wants a comment on that particular issue? Partly not. That's you, gone, Rod. Margaret, please. If I could ask Jeremy about the fairness issue of introducing for the first time a mandatory jury's direction, also whether a legal expert could cover any misconceptions from the jury in terms of the delay factor or the absence of physical resistance and, also, if Professor... Let's just do these ones first. Okay. We'll do these two. Yes, please. Well, I didn't quite get the second part of your question. Yes, about a... A lead... Expert, yes. I did not deal with that. Yes. Yes, there is, of course, provision, sorry, there is, of course, provision already in the law for expert evidence on the matters concerning reaction to an attack and the possibility of delay, but my understanding is that that may not be enough by itself. Of course, if there is expert evidence given, that would then spark off the judge the duty to direct on it in any case. If I could add there, there is, as Professor Marr says, provision on the section 275C of the 1995 act for expert evidence on delayed disclosure, delayed reporting. I don't think there is a basis in law for leading expert evidence in the absence of physical resistance during the act itself. So, expert evidence could not be a solution there, at least not without reform. And where the matters concerned are are not contentious, and one of the witnesses in the earlier panel referred to the possibility of even using a statement of uncontroversial evidence in this situation, it seems unnecessarily cumbersome and expensive to deal with that through expert evidence rather than a direction to the jury, unless there are reasons for thinking that expert evidence would be more effective. Isn't there a concern that by giving that mandatory expert evidence the jury is going to put too much weight on the fact that maybe that's something— Is it mandatory in directions to you from the judge rather than expert evidence? Yeah, from the judge, sorry. And could Professor Marr perhaps pick up on his point about forensic disadvantage that might, you know, suffer? Yes, I mentioned it simply because I think but my concern is that the way that Bill addresses the issue of jury directions is isolated from more general questions about the whole nature of jury directions and whether they should be statutory or not statutory. And I'm simply drawing to the attention of this committee controversies in other countries that where jury directions are statutory and mandatory in that sense, they have to be balanced on this particular issue between explaining the position of the complainer and protecting the interests of the accused. I think in any case that where there has been a long delay in prosecuting any crime, the accused will often be at a disadvantage but there may be appropriate cases and sexual assault may be one of them with the jury have to be explicitly reminded of that fact by a jury direction. The two law professors, it's about the law society's evidence, the two gentlemen, sorry. And we've achieved it at last. Sorry, if I'm unwittingly causing a fence, it's not for me. And it's about what the law society refers to as a major departure with regard to jury directions and the desires they would see to have it evidenced. I think it best if I just read the actual paragraph of a May and they say, on the basis that Lord Bonomy's post corroborations safeguards review report recommended research into how juries deliberate and form views and evidence, we believe that prior to imposition of this provision, Scottish Government should at least carry out or commission a literature review of the relevant research before making this change or consider whether it may be incorporated into any programme of jury research to be carried out following Lord Bonomy's review. The Scottish Government has committed to undertaking research into decision making and criminal trials. So it has undertaken to pick that up. Yes, yes. So what's your position? Thank you for that point and confirm that you are under all law professors. Yes, I was meaning to do that. As the convener says, the Government has committed to research in this area. It has not, I think, at this stage committed to the precise terms of this research. I would say that this is being spoken of as a major departure. Now, of course, it's the first situation in which there will be mandatory directions required by statute. There's certainly not the only mandatory directions. A judge in a sexual offence trial must tell the jury about the presumption of innocence. They must tell the jury about the standards of proof. They must tell the jury about the requirements for corroboration. There are already a great many mandatory directions. Those would be the first to come in this form, but that isn't going to make a difference to the effect that they have on the jury who will not be concerned with whether those are required by statute or required by common law. I think that there's a danger of delaying almost everything until after the research that the Government may carry out. That research is not going to tell us everything that we might possibly want to know about the jury. There is already the research that Professor Monroe and others have carried out, which already gives us a basis for the proposals here. Does all the professors agree on that? The proposition that, because the Government is undertaking to commit research on this area, that we should therefore not delay because that's what Governments do. It's called long grass sometimes. Do you all agree with each other? There is an extensive body of research that attests to the existence of problematic assumptions and misconceptions in the population at large, which it's not unreasonable to assume would also be live issues in a jury room. I'm not sure that we need research to be confident on that aspect of it that there is a problem that needs to be addressed. In directions to the jury, is the only way to resolve that than you imagine? I wouldn't say that they are the only way to resolve it, but I think that we have already heard that social education and other factors are obviously also important contributors to that, but in the context of the courtroom they are, in my view, a powerful mechanism by which to do it. Can I just again apologise? I mixed up my professors with others that we have evidence from, so I wasn't meaning to cause any offence regarding the standing of any of our witnesses. His humility is endearing, isn't it? Alice, is this a new one, or a supplementary one? I just want to ask one thing before we depart from this, and that is, do you see any issues in principle by proposing to extend directions to a jury only in these sexual offences when there might be other offences that are up, which may involve perhaps a sexual element but are not actually being prosecuted as a sexual offence? If I can put it like that, there might be a different kind of assault, there may be something in it, and yet there would not be those directions to the jury because it would only apply to these certain offences. So in principle, we're going to do it here. Why don't we do it in other cases? That's probably what I'm asking, I think. If I could make some brief points in response to that. First of all, it would always be open to a judge to give these directions in other cases, and I would imagine that they probably would do so if the case were a sexual one. Secondly— Sorry, what do you mean it would always be open to them? I think we're expanding this, aren't we, into saying that here you are jurors, you look like nice people, but don't you realise that sometimes people claim that they've been raped to claim that they've been subject to a sexual assault, but they don't look distressed? In general, they're not always the same. That's a bit different from the usual directions, surely, from the courts. If I could try to answer that as well, the reason for not giving these types of directions generally is that there's a general legal principle that jurors do not need help to interpret the behaviour of ordinary and normal human beings. What we recognise in certain circumstances jurors are not terribly good at doing that, and their exceptional cases and sexual assault would appear to be one of those cases where jurors may need guidance. It's not the only case. Another comparable example in a very different context would be identification evidence, where we recognise that jurors are not very good at interpreting the accuracy or reliability of an identification, and so directions must be given. Now, there is provision there through a practice daughter of memorandum from the Logist General many years ago about the direction to be given in that case. That's why I think that these directions can be justified in certain categories of cases specifically because of that particular problem. But this is mandatory, must advise. Is this not taking things a bit further? At the same time, the provisions do preserve the discretion of the judge to not give that direction if they think it appropriate on the conditions laid out in the section, and, as I said before, those are not the only directions that judges must give. There are many, many directions that judges must give in all cases. I'm looking at subsection 2 of 288DA. In charging the jury, the judge must advise that their commit can be good reasons why a person against whom a sexual offence is committed may not tell others about it or report it or may delay. I'm considering it's not discretion there. Subsection 3 in each of the two sections. Subsection 2 does not apply to judge considering the circumstance in case no reasonable jury could consider the evidence question or statement by reasonable judge who would otherwise apply to material to the case of whether the alleged offence is brewed. I sit corrected. I should never take on a professor. Right. That's my first lesson for today. I'm sure there will be others. Any other questions on this particular section? Right. I've got Elaine and something completely different. Thank you. I wanted to turn to the disclosure of intimate photographs or films where, in the previous session, we heard that the legislation in England doesn't go as far as the Scottish Government's legislation. The Law Society felt that disclosure by somebody who was reckless as to whether they were causing distress was a privacy issue rather than a sexual abuse issue. The Crown agent argued that it was the effect on the victim, which was important that the victim could still be distressed whether it was reckless or not. I just wanted, first of all, Professor Chalmers, that you seem to be reasonably content with what the Scottish Government is proposing, whereas Professor McGlynn is suggesting perhaps it should go further and it should just be distribution without consent. Yes, if I could just respond to that then. I guess my argument is that we need to focus as much on the harms to the victims as on the motives of the perpetrators. And that's why I would suggest that we could follow a pattern, such as in the United States of Illinois, where the intention is simply the intention to disclose an intimate image without consent. And that's because there's all manner of reasons why these images could be distributed. Revenge, as was talked about in the last session, is one example of that and it's a very popular example. But I don't think we should be blinded by that one paradigmatic example. So in the last session as well, there was an example given about hacked images. When someone's hacking a computer and then distributing images, they're not often doing and they perhaps are rarely doing it to cause direct distress to the particular victim. They're doing it for a whole manner of other reasons. It could be financial gain, it could be that they're hacked, it could be for sexual gratification, it could be for a laugh. Often the images are distributed without the victim even knowing they've been taken or distributed. So that's why I think this restriction to intention to cause alarm and distress limits the scope of the law, doesn't take account of the victim's experiences. I also find it a problem as well because I think it means that we are just focusing on that revenge type situation and we are expecting victims to only feel distress or alarm. So for example sexual offences and I would put this in a category around sexual offences, it's about protecting sexual autonomy of the individual as well. And I think this practice limits women's and it's primarily women who are victims sexual autonomy and sexual expression. And I think we have to therefore recognise that as well as just this distress. If I could perhaps add there that there's a connection which I think is important here between the fault requirement for the offence, intention or recklessness and the type of images that are covered. Now the committee heard evidence earlier from I think particularly Mr Meehan about the breadth of the images that were covered. So under section 3 for example, an image can be covered if it's one where the person's genitals, buttocks or breasts are exposed or covered only with underwear. So the example was given of a picture of somebody asleep in a box of shorts and a flat, but somebody wearing underwear could be somebody at the beach, it could be somebody in a Halloween costume, it could be entirely innocent and non-sexual. The bill does not require that the image be sexual. If you create an offence that simply disclosing that image without consent is a criminal offence, regardless of any issue of intention or recklessness as to distress, you have an extremely broad offence that carries a maximum penalty of five years imprisonment. If you were therefore minded to widen the fault requirement and remove the requirement for intention or recklessness as to fear of distress, I think that you would correspondingly have to have a rather narrow definition of the kind of images which the offence covered. That within the provision in your draft bill is the defence of a reasonable belief in the consent around the sharing of the image. So when you have a situation of a fault requirement of intention to disclose without consent, there is a defence where there is a reasonable belief in the consent of the image and that can then restrict the activity. But I think what I'd also say about the boxer's short issue is I think it's very easy in lots of these contexts to get distracted by one sort of example that might seem ridiculous. And the analogy with that is again the concern in some of the papers about images of streakers and naked ramblers. And we could spend a lot of time discussing those examples. And I think what we need to do is discuss the examples of where there's real harm caused to many victims and the upskirting is an example of that. So we might be worried about the male student in his boxer's shorts but I think we should be more worried about the prevalence of images being taken surreptitiously up women's skirts and then distributed without their consent. And at the moment that's not going to be covered by these provisions. I have to say upskirting is a term I had never heard before and rather wish I never had heard There's full websites dedicated to it and down-blowsing as well. On this point because I think I understand the strength of the argument saying focus on consent and the lack of it. What I'm not sure in the bill is that consent does not seem to be defined. Is it meant to be the same group of definitions of consent contained in the 2009 act or is consent in some other sense for example in the law of assault. I think if consent is to play an important part it should be absolutely clear what the definition of consent is for the purposes of this provision. It's a difficult one really isn't it because there was a somewhat unflattering photograph of the current Prime Minister at his beach wear which was published all over the paper and I shouldn't imagine he consented to it particularly but would images like that then fall within the scope of this law? That's where you say I think we could at the moment the defences where the image if you like was taken in a public setting where there were members of the public presence so that image wouldn't be covered and that my understanding is that's in there because of this concern about the naked ramblers and such like but what that precludes then is the upskirting images. There are other ways of doing that so for example one could just exclude voluntary exposure in public so the person on the beach would not be covered by this provision because they were voluntarily exposing themselves or in their underwear on the beach. So there's a more straightforward way of covering and excluding that sort of situation but that's why we need to be mindful I think of what the harms are and not get distracted therefore by those sorts of examples. I don't think it would be helpful any potential liability in that situation depending on whether the the Prime Minister was on a private beach or a public beach and I accept the difficulty of concentrating on the examples which are removed from the harm that this offence is designed to cover but we need to ensure that those examples do not fall from the scope of the offence and the offence only covers that which is meant to tackle. So that would be an argument for drawing it more tightly. Yes. Yes. I mean by tightly by changing the language such that voluntary exposure in public wouldn't be covered but that's not what it covers at the moment it's just simply if you're in public and members of the public are present it wouldn't be covered so it wouldn't cover the upskirting distribution. Christian, would you finish? Yes, I'll finish. I've got Christian, then I've got you know he's a supplementary as well first before just before you it is a supplementary in this isn't it? Then it's you Margaret you're on this list. Yes, Professor McLean I was very interesting about your submission and I did ask the question to the first panel and I thought it was interesting in talking about upskirting I absolutely agree with you there's even a case of upkirting in Scotland which is you know we might find it it's funny but we had experiences where it was not funny at all but you know you are the same kind of abuse so the only problem on that is the first panel were very clear they were very much concerned about teenagers about people young people and people maybe who don't have the same ability to understand the difference so how would you respond to this? Okay so I absolutely accept this is something we have to think about in terms of young people's common practices as the provision is currently drafted it could be that the young person has a reasonable understanding a reasonable belief in that there was consent to the disclosure of that image it may be that the young person doesn't understand that actually that the harm that could result from disclosing these images so I think there is a way that the current bill could cover the concerns about say teenage boys distributing these images but what I would also say is we need to remind ourselves about the teenage girls whose images are being distributed and there is some research that's been done with young people of the coercion felt by many young girls to share these images so it's yes we don't want to criminalise large numbers of young men I've got a 14 year old boy myself so I'm very aware of this but I've also got a 12 year old daughter as well and so we need to be thinking about their experiences and the harms that they may suffer and just one further point about that is so when we talk about inadvertent sharing and when we talk about the common practice of sharing these images my argument would be it's that common practice that we're actually trying to challenge so rather than accepting that this is a common place in our society now we actually this is what we need to be trying to counteract and this legislation could be one way so long as there's an education campaign with it of trying to counteract it How much of a review I typically was the first panel that had a reasonable thing that the last thing we'd want is this bill to criminalise a lot of young people so maybe we're not there yet maybe we can use that bill maybe to have that educational practice and making sure that there are changes out there especially for young people of either gender I might say but I do think that maybe of a member who's panel wants to say that there is an argument in the first panel that it would be a step too far for young people Can I go back to and thank you for the educational point was very very important but can we go back to you I think you said in passing I may have misheard it that you said there's a way to deal with in this bill which would as it were I don't mean that it protects probably the wrong word but you know what it's just silly daff behaviour of some youngsters so what were you meaning by that so for example there's a defence A has a defence where A the perpetrator reasonably believed that B consented to the photograph or film being dispload dispload part consent they didn't consent but they just did it as a jake thought it was fun had no idea so consent is one issue but let's well the argument here would be that A the 15-year-old boy who distributed the image has a reasonable belief that the person in that image consented to it being disclosed and I guess what I was saying was well what if they didn't what if it was but what if they didn't have a reasonable belief yes just just because they just thought it was a funny picture a harm that's causing significant harm to to individuals what I'm getting at is and I you know I absolutely know where we want to get with this but you know they just thought this will be a laugh and I had no idea perhaps of the impact it would have so it wasn't it's some of the misdemeanors of youth in a sense to do something like that there wouldn't be a protection here under reasonable belief the consent to the photograph because they did it maybe they were sleeping or they were lying in the beach or something you know but it's turned out wrong for them let's put it like that how you know would that fit in with reckless you know you and I might say or it's a stupid thing to do how could you be so reckless but for the 14-50-year-old brain it was just a laugh and it wasn't that they didn't think of it as that and rather than criminalise them we're not going to be educating them in advance of this bill going out becoming an act it might be together but you know perhaps education will change things so they'll have a different perspective of even what the thing's a lark but prior to that if we brought this in like this we might be criminalising people that we weren't wishing to criminalise or even have them charged by the police I mean others will be able to come out more on on the scots law and recklessness but in terms of the recklessness I think anyway some of those individuals wouldn't actually be covered because they wouldn't necessarily have been giving thought to the to the harm and distress that would be caused in any event because you've got the harm and distress requirement I think this is an issue where it's actually difficult to give a definitive answer because the scots law of recklessness is itself slightly unclear it would certainly I think be the case in English law that that one could say A in that situation would not be reckless as the possibility fear distress because they concluded this was simply a joke this was funny there was no question of him being distressed it is arguable that in scots law recklessness may only require that a reasonable person would have been being aware of the risk it's slightly embarrassing that even at this stage we have to say the law not quite clear on that point the courts have moved in recent years I think towards an approach similar to English law and it certainly would be open to them to hold that a person in that situation was not legally reckless and therefore not guilty It's a point I mentioned earlier the lack of definition of consent if consent is using the model of the 2009 act then of course there's a specific provision about what constitutes reasonable belief in consent therefore recklessness and I'm not sure whether this act is meant to be divorced from the consent model of the 2009 act and it would give rise to the problems that James Chalmers has mentioned that recklessness is not well defined in scots law Right, I'll just leave that with them I've got now is this a supplement on the same line? Yeah Thank you very much Margaret Images Do Professor MacLennan I mean you mention about you have concerns about the scope on drafting of the specific offences in particular do you think that they should be extended to include text messages and letters? If I was drafting the bill I wouldn't include them myself and I think that's because I see this phenomenon if you like in the context of sexual abuse and sexual violence and it is the images that are the ones that are shared widely that go on to the porn sites that go on to the upskirting sites that go viral and it's also those images that are used to for the distress and alarm because they're used to shame women so I think that's why I'd limit the criminal law because I recognise that it is a very coercive tool to these particular images of a sexual nature that are disclosed without consent I think when you get into text messages and such like the definitions around what would come within that sort of criminal law get very much more difficult to define and I think we'd then lose a clear message that this bill could send to individuals about a particular area of behaviour so I wouldn't extend it to text messages myself Right and does that include sexting then? Well sexting if it's just text so i.e. the written word I wouldn't recommend the law covers in that sense if you mean just sexting in terms of sharing an intimate image with someone this provision only covers where that image is then passed on without consent and that's what's problematic my own view is that what we must make sure we're not doing here is criminalising one form of sexual expression which is taking and sharing intimate images which is very common so that in and of itself I don't think is problematic and I'd also be concerned at a message being sent that actually the way to stop this practice is just don't get the just don't take the images or just don't share the images because I think that gets into a bit of a a kind of victim blaming situation as well So what we're talking about is Facebook and Twitter use of images Of images Yeah I think that that keeps the role of the criminal law clearer and more distinct and focused on where the real harm is I didn't know you could use images in Twitter and I'm Twitterless so I didn't know that So can I just continue then because you mentioned criminal law there and in your submission you mentioned that civil law should be considered would you like to So in the example a good example is the protection of harassment act which I'm covered generally known to cover stalking and that provision also introduced a statutory civil offence or civil claim in relation to stalking that could be brought Now I'm not the expert in Scots Scots delict but broadly speaking there are civil offences that can cover some of this conduct but I think just in the same way as a new criminal offence can add clarity to victims, police and perpetrators a statutory civil offence relating to this conduct could also help and it gives victims another option if they want to take a claim or if the police don't say pursue a claim they would then have a civil option quite clearly set out that they could follow Perhaps Can I By waiting to see nobody else to say that they want to comment I don't think I can add anything to what professional glass Right, could you just ask one final question then do you think that the offence of threatening to disclose an intimate photographer film is already covered by the section 38 So, I had a quick look when you were talking about this in the last session about that section but I don't know about the practice in Scots law under how that particular provision is being interpreted I guess all that from my own perspective the addition of adding in threatening is a really important a significant advance on the English law particularly in the domestic abuse context when these threats are used quite extensively Yes, if I could add there one difference is that the section 38 offence is defined only by reference to fear and alarm this offence is also defined by reference to distress so there would be considerable overlap but there would be something slightly broader about the offence under the bill Thank you Thank you Alison, is this in Just a quick follow-up to what Margaret Riddle was pursuing there if that's possible Photoshopped images so sometimes things are circulated that have been photoshopped to make them appear intimate Are you of the view that the bill should cover that? And are you comfortable that the bill does in fact allow us to pursue those images? I think measures in this field should cover those sorts of photoshopped images again because those are the images that can go viral and cause the real harm My reading of this provision is that it does cover photoshopped images unlike the English law and so I very much welcome that that would be my understanding of it Thank you Yes, I have of course Can I ask one question on this upskirting and down-blowsing? Is not an offence at the moment? My understanding is that it is a criminal offence in Scots law to take the upskirted images but what's not being covered is the distribution now of those images And I think this is an interesting example of where we get the kind of legislative response to one or two examples here and there because the upskirting was another amendment to a previous act I think it is helpful for us to step back and think what's the real harms going on here and this is image-based sexual abuse and there's a whole variety of ways in which that's perpetrated so let's make sure we're covering each of them So it is an actual offence but the distribution of it is what's not yet being covered I want to turn to my little pet problem which is section 26 on the sexual risk orders It appears apart from I don't like the word done I don't like sexual nature in subsection 26 subsection 2 as opposed to sexual harm I have concerns that this is quite draconian in the orders which can be imposed which are civil orders and which is not when somebody has been committed or even charged with anything but just apparently done something of a sexual nature Now could I have your comments on whether you think my concerns are misplaced I'm looking at Professor my name is Professor Charles I know you'll tell me the truth and nothing truth and the whole truth So do you share any of my concerns with that? Up to a point at least I might say about the use of the word done I suspect what the drafter has done here that was not deliberate or rehearsed is similar language is found for example in section 55 of the 1995 act which deals with people who are unfit to plead whether there's an examination of facts and the court makes a finding as to whether they did something so it's a useful formulation which is used where the drafter wishes to indicate the commission of something which might be a crime law that's not a requirement here but where criminal liability has not been proved and that's important because this is a civil process actually the court shouldn't be declaring somebody guilty of a criminal offence there are different reasons why one might want this provision to be of this breadth for example it might be desirable to apply for an order such as this where it's not possible to convict somebody because the act that they have done was outside the jurisdiction and can't be prosecuted but is a reasonable basis for concluding that that person poses a risk of harm that I think is legitimate what is not legitimate is I think that the point you were perhaps intending at earlier where the chief constable was saying what you did was not a crime at all but we would still like to take coercive measures against you because of something which was entirely lawful that you did and that I think is more problematic and that is permitted under this section as it stands Can it be remedied? It could be drafted in such a way as to indicate that the act of sexual nature would have to be one which amwys to a criminal offence you then run into the other problem that I highlighted which is that it starts to look as if you're declaring somebody guilty of a crime so actually there's an advantage in having it drafted in this way so you're not having a civil court declaring what looks like a criminal conviction I'm not sure that is a perfect solution to that problem Yes and again as I think I raised my question previously if a civil order would be made public the term would be a sexual risk order which to everybody all in sundry would sound like a criminal offence other issues with even calling them that or calling them something else that could be done that would hit the mark as it were and protect in the way I think it's intended but without losing balance for the rights of that individual perhaps If I can go back slightly one safeguard there of course is that the sheriff if the act which is done of a sexual nature is not one which is criminal it's unlikely I suppose that a sheriff could conclude that it would be necessary to make an order under this section I'm not sure much could be done in terms of the meaning of the order because in a situation where as one was mentioned earlier the order has to be communicated to the public for the purpose of the public with the protection of the public and aware of it the public will have to be made aware of the nature of the order and anything that obscures what the order is about is unlikely to be helpful there Any other comments? Yes, Professor I had a general comment about this balance between the civil and the criminal law because of course we are familiar with civil cases that deal with rape and other forms of sexual assault so someone can have a civil case brought against them and CB found have to pay damages to an individual for what is purportedly a rape but it's in the civil court so my own view is that it's not so unusual for us to have a civil order if you like that in practice is saying that on the balance of probabilities this form of sexual harm took place but then it would be a civil order for some order for compensation Yeah but it would still be a public I understand that but there's a big difference from saying in order to pay such and such and so and so has now got a sexual risk order against them there's a big difference between the language as I'm making perhaps I should leave this alone now I've just I've worked it to death probably Roddy, do you want to come in in that unique and something different? Yes I'm going to stick to my guns I think about a little John I'm with you in that convener and I just would like the panels for you and whether what's that so happy position to be with or me John I joke Well there you go Well I'm happy to be in that For you I meant On the question of the appeals process for that at section 31 is that robust enough should there be some provision of anonymity pending appeal or because I did ask the Police Scotland witness in the previous session about the protection of the individual which is a requirement for the police too and the panel will be aware of propensity for vigilante groups for instance to act as judge and jury So primarily are the appeals provisions at 31 robust enough? Whether it is robust enough or whether there should be anonymity should somebody which sort of defeats the order in a sense but there we are I mean on the first question these are the normal rules governing appeal and civil proceedings so I think they are robust enough On the question of anonymity I do not know what provision if any of it is at the moment for allowing anonymity in such cases in a civil process being appealed so I'm not sure I can answer the question I'm sorry I think the difficulty arises with the term sexual risk order if it looks like a criminal order or criminal order of the court rather than a civil order I think that would be perhaps in the wording I don't know how it would go about it but Margaret, do you want to ask something? Yeah, it was in section 5 and the bill extending the law to allowing on harassment order to be imposed in an individual found unfit to plead I think the law society and the mental welfare commission have had some difficulty in understanding how this wouldn't negate their ability to understand the terms of the sexual harassment order I think that provision is like to extremely rarely be of use but I can see how it could be appropriate for example in the case which gave rise to this provision may be an example of this where somebody is unfit to stand trial because they cannot cope with the trial process itself and that over time leads to them being unfit to plead and the trial have to be halted it may be possible for the sheriff to conclude in that situation that although the trial could not take place that person is nevertheless capable of understanding and complying with an order if they would not be capable of understanding and complying with an order there's no point in the order being made so this possible there's a very very narrow exceptional category of case where this could be used but I would imagine that we would see very few orders ever being made on this basis to share your concern it seems to me that most of the criminal law dealing with persons with mental disorder either at the time of trial or at the time of committing the offence are concerned with the welfare of that person and this seems to be a cut against that grain but at the same time the existing sexual offensive prevention orders would apply to a person who has a mental disorder so to some extent the precedent is already set there is some difficulty here but we have to remember that as well as having a vulnerable person who cannot be betrayed if a finding is made that the person did the act concerned we also have a victim and that actually it may be more appropriate to protect that victim through an order being made there than requiring that person to go through a civil process which actually is likely also to be equally distressing for the person who has already gone through the examination of facts so this in fact may be a neater solution than requiring the civil process to kick in separately afterwards which many people are not going to have the resources to implement in any case I was going to refer to the matter that Margaret has just raised but just going to enter a different subject which is extraterritorial jurisdiction being limited to sexual offences cases perhaps I could ask Professor Chalmers just to give a few general comments on that The only point I think I would like to make in addition to what was mentioned earlier is that the constitution paper that gave rise to this bill identified really two separate problems one is where the prosecution wished to prosecute for a chain of offences particularly where they wished to allegedly amutally corroborative some which took place in Scotland some which took place in England and the bill subject to the technical point of retrospectivity that I made earlier I think deals very well with that The consultation also mentioned the less likely but certainly possible situation where a victim of a sexual offence cannot identify exactly where that offence took place where it may have taken place for example in a vehicle that was travelling between Scotland and England and they don't know the exact location so there's uncertainty as to locus Now if there was uncertainty as to the location of an offence anywhere outside the United Kingdom there would be no problem because we take extraterritorial jurisdiction over sexual offences so it wouldn't actually matter whether the offence took place in France or Germany for example but it would matter whether the offence took place in Scotland in England and as it stands the bill I think does not give prosecutors a route adequately to deal with the situation where the locus of the offence is uncertain and that would require it to be drafted in a rather different way In a matter of a draw something I think I've got everybody Can I just before you go because just very briefly is there something we haven't asked that we ought to have asked you and you're sitting going why in earth didn't they ask me this this is the thing I'm etching to tell you You haven't asked us about it I would probably prefer it if you didn't section 4 and the position of websites which hosts the images covered by the section 2 offence I would only want to draw the committee's attention to the fact that you will have received or will shortly receive the recent evidence from Professor Lillian Edwards which deals with that point that Lillian Edwards is a professor at InternetLots, Traff Clyde and I would simply draw that to the committee's attention because it's an important point which I suspect we would not feel qualified to comment on but she will do It just reminded me the comment about anonymity I mean I think I understand that anonymity for complainers of sexual offences in Scotland is a matter of convention rather than legislation and I guess I just wanted to share the experience in England is that we don't have anonymity for those reporting image based sexual abuse and it's very problematic so I'd certainly be urging you to make sure that any new offence ensures that there's anonymity for those who wish to report this offence Can I perhaps add to that that there might be some benefit in reviewing the position relating to anonymity in Scotland more generally and I say that because as Professor McGill has mentioned it's a matter of convention Now of course it's a matter of convention media organisations do behave responsibly if there may be questions about the boundaries of where they feel anonymity is justified The practical use of the the criminal law relating to anonymity south of the border has been not in relation to news organisations but cases which are high profile where friends or supporters of a victim make their name widely known in social media they are prosecuted for that I suspect it is only a matter of time before a similar case arises in Scotland we may find that there's not an offence for which the persons reaching anonymity can be prosecuted legislation will promptly be brought before this Parliament and there will be something of a scandal about dealing with that promptly there might be some advantage to the Government in pre-empting that happening because I think it is only a matter of time before we have a case of that nature Thank you and that's not that I'm not looking for any more Thank you very much and that concludes this evidence session Thank you for attending it was very interesting Committee the next meetings on 24 November will continue taking evidence on this bill and I formally closed the meeting