Advocates oppose statutory directions in sex crime trials
Opposition to a Scottish Government proposal to introduce statutory jury directions on certain matters in trials for sexual offences has been declared by the Faculty of Advocates.
The comments come in the Faculty's response, published today, to the consultation "Equally safe: reforming the criminal law to address domestic abuse and sexual offences". Among the proposed measures in the paper are mandatory directions to a jury to make them aware that there may be good reasons for reporting an offence, and as to why a victim may not offer physical resistance to their attacker.
In its submission, Faculty responds that ill-founded preconceptions about sexual offences should rather be addressed through evidence and discretionary directions.
“The need for particular directions in any given case is best left to the judge or sheriff presiding over the trial”, Faculty states. “They have heard all the evidence and are best placed to determine the issues in dispute and what directions are best suited to those circumstances.”
It adds: "It would be best left to the Judicial Institute to develop possible directions for such cases and include these in the Jury Manual to assist judges in particular cases."
Responding to a question whether there should be a specific ofence of domestic abuse, Faculty says this is difficult to answer when no definition of the suggested crime is given. "If policy and law reform focus on policing and punishing coercive control whilst recognising a distinction between common couple violence and coercive control, this will facilitate the justice system response to domestic abuse being more effective and allow the resources of police and prosecution to be focused appropriately", the advocates state.
Any offence would be "extremely difficult" to define; similarly, a statutory aggravation of domestic abuse would be more difficult to draft and apply than other aggravations such as race, where the motivation of the perpetrator will be more readily apparent. "The Faculty’s view is that a statutory aggravation will not address any gap in legal provision but could impact on sentence"; sentences in domestic abuse cases should differentiate between one-off incidents and those occurring against a background of coercive control.
Support is expressed however for the proposed "revenge porn" offence, provided it is clearly defined – restricted to video and still images.
Regarding the possible extension of non-harassment orders to where an offender is found unfit to stand trial, Faculty observes: "Before a non-harassment order (NHO) could usefully be granted in respect of a mentally disordered offender, the judge would require to be satisfied that the subject of the order understood the terms of the order and had the capacity to obtemper the order"; and "If NHOs are to be used to improve the safety of victims of abuse, improved enforcement of such orders and response to breaches will be necessary."