Scottish law on sexual offences incompatible with human rights
7 April 2017
AB (Appellant) v Her Majesty’s Advocate (Respondent) (Scotland)  UKSC 25 – read judgment
This week the Supreme Court ruled handed down its judgment on the legality of section 39(2)(a)(i) of the Sexual Offences (Scotland) Act 2009.
Section 39(1)(a) of the 2009 Act allows a person accused of sexual activity with an under-age person to rely on the defence that, at the time, he or she believed that the under-age person was in fact over the age of 16. Section 39(2)(a)(i), however, deprives the accused of this defence where he or she has previously been charged by the police with a ‘relevant sexual offence’. The relevant sexual offences are set out in Schedule 1 of the 2009 Act.
The appellant argued that s.39(2)(a)(i) of the 2009 Act is not compatible with the European Convention on Human Rights (“the Convention”). If a Scottish Act is incompatible with a right under the Convention, in accordance with section 29 of The Scotland Act 1998, it is outwith the competence of the Scottish Parliament and therefore not law. It was submitted that section 39(2)(a)(i) was incompatible with Article 6 (right to a fair trial), Article 8 (right to privacy and family life) and Article 14 (prohibition on discrimination) of the Convention.
The factual background
When the appellant was 14, he was charged with two charges of lewd and libidinous practices at common law (including showing online pornographic images to a young boy and exposing himself to other children) and one contravention of section 6 of the Criminal Law (Consolidation) (Scotland) Act 1995 concerning indecent behaviour towards girls aged between 12 and 16. The decision was ultimately taken not to prosecute and the case was referred to the Children’s Reporter. While the facts are unclear as to what the outcome of this referral was, it seems that there was no Children’s Hearing.
In 2015, aged 19, the appellant was charged with engaging in sexual intercourse with a girl who was 14 years and 11 months old. While he did not deny that sexual intercourse took place, he did seek to rely on the defence that he reasonably believed that the girl was 16. However, he would be unable to rely on this defence due to s.39(2)(a)(i). He therefore challenged the legality of the section in the present case.
It was submitted that relevant provision breached the presumption of innocence in Article 6(2) of the Convention. The appellant’s argument was that the presumption of innocence was overridden by s.39(2)(a)(i) as an ‘irrebuttable presumption’ was created that the appellant did not have a reasonable belief that the girl was over 16.
However, the Court entirely rejected this argument. Delivering the lead judgment, Lord Hodge held that the relevant provision was not within the ambit of Article 6 at all. Article 6 guarantees that a trial will be procedurally fair – it is not concerned with the substantive elements of a criminal offence. The relevant section renders offences under the 2009 Act strict liability offences by treating the person’s knowledge of the victim’s age as irrelevant. This is a matter of substantive law – not procedure – and therefore does not fall within Article 6.
It was accepted by all parties that the provision fell within the scope of Article 8 as the charges raised when the appellant was 14 years old were relied on in the course of the later criminal proceedings.
The Lord Advocate argued that the provision was justified as it sought to protect older children and deter adults from sexual activity with older children. He submitted that the charge made when the appellant was 14 acted as a warning about sexual offences with children.
However, it was held that the provision was incompatible with Article 8 as it was a disproportionate interference with the appellant’s rights. The Court held that the charges made when the appellant was 14 did not act as a sufficient warning. The Court held that the charges ‘did not involve consensual sexual activity with an older child and could not amount to an implicit warning that such activity was an offence.’ (para. 43) Equally, it was noted that there was no explicit warning given by a police officer and no warning that in the future any sexual activity with an older child would be a strict liability offence.
The Court ultimately held that
the use of the prior charges in this case to exclude the reasonable belief defence amounts to a disproportionate interference with the appellant’s article 8 right because the prior charges did not give the official warning or official notice, which is the only rationale of the impugned provision which the Lord Advocate seeks to defend. (para. 44)
The interference was therefore disproportionate under Article 8 and there was a violation, meaning that the Court did not believe it was necessary to discuss the challenge under Article 14.
Section 39(2)(a)(i) was therefore held to be incompatible with the Convention in its application to the appellant, the appeal was allowed and the proceedings were remitted to the High Court of Justiciary.
The case is particularly interesting considering the early age of the appellant when the initial charges were made. The Intervener in the case, Clan Childlaw, had argued that the interference with a person’s Article 8 rights when he or she had committed the relevant sexual offence as a child (as in this case) was not justified. Commenting after the judgment was handed down, they noted that the approach taken by the Supreme Court ‘is consistent with the approach taken in Scotland in the Children’s Hearings System that children who are charged with offending behaviour are considered having regard to their welfare and not on a punitive basis. The Scottish Government are looking afresh at the disclosure of early childhood offending to enable young people to move beyond early mistakes.’ It will be interesting therefore to see if this judgement has a wider impact on the Scottish legal landscape, particularly in relation to offending in childhood.
Seonaid Stevenson is a Scottish trainee solicitor