Case Preview: AB v Her Majesty’s Advocate (Scotland)
10 Friday Feb 2017
On 11 Jul 2016, the Supreme Court heard an appeal against the decision of the High Court of Justiciary in Scotland. This decision is subject to reporting restrictions. It involved consideration of the defence to a charge of engaging in sexual intercourse with a girl under the age of 16 under the Sexual Offences (Scotland) Act 2009, s 39(2)(a)(i) in light of the ECHR. Specifically, the appellant in the case is a man who, aged 14, was charged, though not prosecuted, for showing pornography and indecently exposing himself to other children. When 19, he was charged with engaging in sexual intercourse with a girl under the age of 16.
Due to the provision of the Sexual Offences (Scotland) Act 2009, the appellant has been prevented from relying on the defence that he had a reasonable belief that the girl in question was over the age of 16. This is because of the prior charges against him, as defendants are precluded from using the defence where they have previously been charged with a relevant sexual offence. The appellant has challenged this provision, submitting that it is incompatible with ECHR rights and therefore outside the remit of powers of the Scottish Parliament.
Judgment of the High Court of Justiciary
In the High Court of Justiciary the appellant argued that the Sexual Offences (Scotland) Act 2009, s 39(2)(a)(i) is incompatible with the presumption of innocence under ECHR, art 6, either alone or with the right of non-discrimination contained in art 14. He also argued that it is incompatible with the right to private and family life under art 8. The Court determined that the provision of the Sexual Offences (Scotland) Act 2009 was compatible with ECHR, art 8, and that art 6 was not engaged either alone or in conjunction with art 14.
Issues before the Supreme Court
The Supreme Court was called upon to determine whether the High Court of Justiciary erred in holding that the provisions of the Sexual Offences (Scotland) Act 2009 which prevent the appellant from relying on the ‘reasonable belief’ defence are compatible with ECHR, arts 6, 8 and 14.