Jury direction clause in sexual harm bill ‘may breach article 6 ECHR’

Brian McConnachie QC

Following the passage of the Abusive Behaviour and Sexual Harm Bill at Holyrood some practitioners have expressed concern about judges giving juries specific directions when dealing with sexual offence cases, designed to “improve juries’ understanding of sexual violence”.

Speaking to Scottish Legal News, advocate Niall McCluskey expressed grave concern about the section and said he thought a challenge to it “inevitable”.

He said: “This provision is a staggering innovation which for the first time means that the legislature have prescribed how judges direct juries in relation to sex cases.

“In addition the terminology contained in the section is vague, unscientific and partisan in favour of the Crown.

“I think it is inevitable that there will be a challenge to the legislation as it potentially contravenes section 29 of the Scotland Act 1998 as it may breach article 6 of ECHR the right to a fair trial.”

Brian McConnachie QC told SLN the problem with the direction provided for “is that it is not evidence dependent”.

He added: “Normally a complainer would be asked why he/she did not report it and there are often a variety of answers to that question. Any direction should depend upon that answer.

“It is commonplace now to lead evidence or have reports from psychologists about issues of delayed disclosure and I am presuming a significant cost is involved in that process. Often an agreement is entered into preventing the necessity of leading such evidence.

“I think a direction along the lines indicated is unhelpful as it maybe give the impression (unintentionally perhaps) that the evidence is credible irrespective of the explanation given by the complainer for the lack of disclosure.”

However, James Chalmers, regius professor of law at the University of Glasgow disagreed, he told SLN: “Section 6 doesn’t require the directions it includes to be given in every single case, nor does it prevent the judge giving additional directions if they consider it appropriate.

“Given the discretion that’s left to the trial judge, it’s difficult to see how it could possibly contravene article 6.”

The bill also creates a new offence of sharing private intimate images without consent, or so-called revenge p*rn and strengthens powers for the police, prosecutors and courts to take action against perpetrators of domestic abuse, harassment and sexual offences.

A new statutory domestic abuse aggravator will also be introduced to ensure courts take domestic abuse into account when sentencing an offender.

SLN also spoke to Sharon Cowan, professor of feminist and queer legal studies at the University of Edinburgh, who said that in England and Wales judges can comment on “the frequency with which women delay in reporting an allegation of rape, to ensure fairness to the complainant, since delay by itself does not indicate that the complainant is lying.”

She added that juries have been shown to have “some preconceived ideas” about what a “normal” reaction to rape is and treat a delay as a lack of veracity.

Professor Cowan added that jury direction on a complainant’s delay “only educates the jury as to the fact that delay is common and does not by itself indicate that the complainant is lying.”

She added that the same can be said of a lack of physical resistance; that it occurs for various reasons – fear, freezing, or coercion and not necessarily because the complainant in fact consented.

Echoing Professor Chalmers, she noted that “there is nothing to stop the judge giving other additional directions to the jury about which aspects of the facts of the case, or the law, to focus on, outside of these matters, when deliberating.”

Finally, she added that just as the Faculty said “if it ain’t broke don’t fix it” when the Justice Committee heard evidence on the Sexual Offences Bill in 2008 perhaps now it is also “being overly conservative in its approach.”

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