The Scottish Government

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Summary of Responses

Number and type of respondent

7. Listed below is an analysis on the options contained within the consultation.

Option 1 - Repeal of section 264 of Criminal Procedure (Scotland) Act 1995 and section 130 of Civil Partnership Act 2004

8. 50% of respondents were in favour of this option being adopted with 14% against. 14% of respondents didn't have a clear preference on whether option 1 or option 2 should be pursued.

9. Most of the respondents who were in favour of this option agreed that this option was the most straightforward of all the options and goes further than the others in relation to the protection of children. The Association of Scottish Police Superintendents commented that "this would be of great assistance in the investigation and prosecution of offending behaviour within a familial setting and would provide clarity in respect of directions given by trial judges." The Association of Chief Police Officers in Scotland commented that option 1 "proposes to remove the protection for married couples, ensuring the legal standard is consistent for all members of the public, regardless of domestic circumstances."

10. There were a few concerns raised at the possible adoption of option 1, notably the Law Society of Scotland who commented "Option 1, would be less desirable and would essentially ignore the long established purpose behind the rule which is the focus of the consultation, as established in common and statute law." Stirling Action for Change, who were in favour of option 1 were concerned that if this option was pursued "vulnerable witnesses must be afforded full protection. Those responsible for compelling the witness must take any concerns expressed seriously and take all possible steps to protect the witness and/or any third party (e.g. other family member) under threat." The Sheriffs Association was also concerned that if option 1 was adopted "that there could be an increase in circumstances during the course of criminal trials leading to such witnesses being in contempt of court by virtue of prevarication or indeed committing perjury."

Option 2 - Removing the right not to give evidence against a spouse or civil partner where the offence is one against a child

11. 22% of respondents were in favour of this option being adopted with 7% against. 14% of respondents didn't have a clear preference on whether option 1 or option 2 should be pursued. The majority of respondents (57%) didn't make a comment on option 2.

12. Those in favour of this option thought it was the most appropriate as it brought the law into line with that in England and Wales. The Scottish Child Law Centre who are in favour of option 2 commented that they would like to see a "modification of the current law by removing the right not to give evidence against a spouse or civil partner where the offence is one against a child. Further, we agree with the proposal to remove the right not to give evidence in relation to any offence committed against a child, not just those relating to violence or sexual abuse."

13. A number of respondents raised issues with option 2 being adopted, notably from the Sheriffs Association who commented that adoption of option 2 "in broad terms heralds a return to the legal position prior to the enactment of the Criminal Procedure (Scotland) Act 1995. Accordingly this proposal simply restores in the main the provisions of the Criminal Procedure (Scotland) Act 1975 sections 143 and 348 and relevant schedules." Children 1st who were one of the organisations who didn't have a clear preference for either option 1 or option 2 commented that if option 2 was pursued "spouses should be able to be compelled to give evidence when there has been any type of offence committed against a child, not solely personal violent or sexual abuse as is the case in English law."

Option 3 - Retention of Current Law

14. 0% of respondents were in favour of this option being adopted. 43% of respondents stated that the current law should be changed and 57% made no comment on it.

15. Not a single respondent was in favour of this option. Of the reasons why the current law shouldn't be retained, East Ayrshire Council commented that "the current law encourages collusion in respect of physical and sexual abuse of children. This in turn has an adverse impact in terms of the ability of adults to accept responsibility for child abuse which is a necessary precursor to any programmes designed to effect changes in behaviour." The Association of Chief Police Officers in Scotland also commented that "the law at present can be used to shield perpetrators of crimes against children from justice, this should not be allowed to continue."

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