EVIDENCE IN TRIALS OF CERTAIN SEXUAL OFFENCES (Hansard, 2 May 1985)

§ The Solicitor-General for Scotland
I beg to move amendment No. 37, in page 27, line 15, at end insert 'in relation to sexual matters.'.

Mr. Deputy Speaker
With this we may take the following amendments:
519 No. 38, in page 27, line 15, at end insert 'with regard to sexual character and habits. Governments amendments Nos. 39 and 41.
No. 42, in page 29, line 12, at end insert 'with regard to sexual character and habits'. Government amendment No. 43.

§ The Solicitor-General for Scotland
During our debate in Committee on clause 33, as it then was, we had an interesting and helpful discussion on the question of evidence about the character of the complainer. This is a complex area of the law.
In its report on evidence in cases of rape and other sexual offences, the Scottish Law Commission proposed that there should be a ban on questioning and evidence which showed that the complainer in a sexual offence case was not of good character. The commission concluded in its report that the character concerned should be the sexual character of the complainer. That conclusion was arrived at on the basis that it can never be relevant to a charge of rape—any more than it is to a non-sexual offence—to assess a complainer's general credibility by reference to outdated standards of moral propriety. The Government accepted that conclusion, but were concerned that the draft Bill annexed to the commission's report went too wide in its reference to "character" alone. That could result in a sexual-offence complainer being treated more advantageously than his or her counterpart in a non-sexual offence case.
Further consultation on the commission's proposals carried out on behalf of my noble and learned Friend, the Lord Advocate revealed that the majority of opinion favoured some form of limitation on the prohibition on questioning and character.
The existing subsection (2), which the amendments propose to delete, reflects the underlying principle that the complainer in a sexual offence case should be treated neither more or less advantageously than the complainer in a non-sexual offence case. Subsection (2) sought to do that by displaying the prohibition on character questioning on cases where the questioning related to the truthfulness of the complainer. While convinced that the principle behind it was correct, the Government were aware that the exact terms of the subsection did not represent the best solution. Our helpful discussion in Committee confirmed that to be the case and I undertook to consider for Report alternative ways of dealing with the problem.
Subsection (2) does not implement the Government's policy effectively and arguably has the effect of undermining the main purpose of the clause, which is to provide a measure of protection for the complainer from unnecessary intimate and embarrassing questioning. However, a straightforward deletion of subsection (2) would not be sufficient. That would still leave us with the original problem of the reference to "character" in subsection (1)(a) being too wide and covering all aspects of character. For that reason I have tabled these amendments, which provide for the deletion of subsection (2) and also for the qualification of the reference to "character" so that it relates to sexual matters. I think that such an approach will find favour with the hon. Member for Glasgow, Garscadden (Mr. Dewar) especially, who tabled an amendment on similar lines in Committee.
The advantage of such an approach is that it limits the Bill's provisions to a particular type of character evidence 520 and leaves the other aspects of general character to be dealt with in accordance with the present law. This approach seems particularly appropriate in view of the forthcoming consideration by the Appeal Court to this particular area of the law in the O'Hara case.
It is certainly true, on the other hand, that amendment of the Bill in this way leaves unspecified the boundary between what is and what is not sexual character. I hope the House will accept that it would be undesirable to seek to define further that boundary and that questions of this sort are best left to the court to deal with in the light of the individual facts and circumstances.
The amendment of the Bill in this way removes the difficulty with subsection (2), and, by changing the focus of the main provision, is a neater and more effective method of dealing with this sensitive area so that the complainer secures the level of protection proposed by the commission, and at the same time the accused is allowed the opportunity of a fair trial.

§ Mr. Dewar
This is an important group of amendments, and the Minister's remarks meet with my approval. I confess that some of the more rewarding Committee experiences are in the less controversial areas of law reform, where it is not like bison locking horns with no chance of movement on either side.
I came away from the debates on the clause dealing with evidence in rape trials with not much hope of movement on the part of the Government. I knew that the Minister had looked seriously at the points already and I thought that we would not get much more from him. I have been pleasantly surprised, however, and this series of amendments is helpful.
Subsection (2), which falls, caused widespread alarm, particularly among some parts of the women's movement, as it was seen as a loophole which might have underminèd the whole point of the new provision. The subsection did not appear in the Law Commission's draft Bill. The difficulty was that, without the subsection, the drafting of what will become Section 141A(1)(a) meant that the normal right to attack—allowing for the possible retaliation—the general character of the complainer would have fallen. It was necessary, therefore, to limit the phrase is not of good character in some way that made it clear that it referred to the complainer's sexual habits. I suggested "sexual character and habits" whereas the Minister referred to "sexual matters," but I shall not argue the toss on that semantic point.
This series of important amendments significantly improves and strengthens the clause. The Minister deserves congratulations for showing flexibility, and there will be a welcome for these proposals in the areas in which this matter has been discussed and studied.