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Judgment in this case was handed down by the Supreme Court in April 2017.steels_becky-311x288

Background

AB, at the age of fourteen, was charged by the police with two offences of lewd and libidinous practices, involving allegations of showing pornographic images to a young boy, and of exposing his penis to, and chasing, three girls aged four, twelve and thirteen. Due to these allegations, and pursuant to the Sexual Offences (Scotland) Act 2009, s 39(2)(a)(i), when AB was subsequently charged, age nineteen, with having sexual intercourse with a girl aged fourteen years and eleven months, AB was not permitted to rely on the defence of reasonable belief that the girl was aged sixteen. This was because an individual previously charged with a “relevant sexual offence” (as detailed in the 2009 Act, sch 1), under which the charges brought against AB when he was fourteen fell, is precluded from relying on the reasonable belief defence. AB sought to challenge s 39(2)(a)(i) under the ECHR, arguing that it breached ECHR, arts 6(2) in terms of the presumption of innocence, 8 in terms of the right to privacy, and 14 as discriminatory when read with art 8.

Appeal Court of the High Court of Justiciary

In the Appeal Court, the Lords issued an opinion on the reference from the Sheriff of Glasgow, rejecting AB’s claims. The Court considered that the prohibition on raising the reasonable belief defence contained in s 39(2)(a)(i) did not create a presumption of guilt, and thus did not engage ECHR, art 6. The Court also held that an adult decision to engage in sexual activity with a child under the age of sixteen did not fall under ECHR, art 8 protection, and that even if it did, the interference from s 39(2)(a)(i) was in accordance with the law and proportionate. This justification was held to be because the purpose of s 39(2)(a)(i) was “to give legal significance to a charge by police as a ‘shot across the bow’” [15] and therefore the protection of children was the legitimate aim at which the provision was targeted, enabling ignorance of a child’s true age to be pleaded only once. AB appealed.

Supreme Court Judgment

Agreeing with the Appeal Court, the Supreme Court held that ECHR, art 6 was not engaged as s 39(2)(a)(i) does not result in an irrebuttable presumption of guilt, but rather a strict liability offence by treating the defendant’s knowledge of the child’s age to be irrelevant.

The Supreme Court then held that ECHR, art 8 was interfered with through the provision of s 39(2)(a)(i) because, analogously to the retention of data relating to a person’s private life by a public authority ruled to be an interference in Bouchacourt v France (App. No 5335/06) [2009] ECHR 2276 (unreported), recording of charges (which constitute sensitive personal data per Data Protection Act 1998, s 2) for possible later use involved interference with art 8 rights.
The real issue for the provision was one of justification. Whilst there could have been interference with ECHR, art 8, had this been justifiable the Supreme Court would have had to rule against AB’s challenge.  The Court held that s 39(2)(a)(i) was ‘in accordance with the law’ as its basis was in domestic law, it was clearly accessible to the individual, and had sufficient precision to avoid arbitrariness. However, the justification failed upon consideration of whether the law was necessary in the interests of one or more desirable outcomes listed in ECHR, art 8(2), the most relevant of which were the prevention of crime, the protection of health and morals, and the protection of the rights of others. Despite the legitimacy of these aims, the Supreme Court found that there was some difficulty in proving s 39(2)(a)(i) to be necessary in their interests because “the rational connection between the restriction of the reasonable belief defence in the impugned provision and the legitimate aims of protecting children and deterring adults from sexual activity with older children principally, but not exclusively, depends on the extent to which the prior police charge can operate as a warning to the person so charged” [32]. Nonetheless, though the warning is only an implied notice to be inferred by the charged person meaning it is difficult to establish deterrent effect, there is a rational connection to the protection of children through creating strict liability offences which are easier to prove. Thus, the Supreme Court held that the provision does not unjustifiably infringe the art 8 right because of an absence of rational connection. Ultimately the Court found that the lack of justification of the provision stemmed from its lack of proportionality. The Court held that the use of the prior charges in this case to exclude the reasonable belief defence amounted to a disproportionate interference with AB’s art 8 right because the prior charges related to different kinds of offences to the current offence of consensual sexual activity with an older child, and so did not give the official warning or official notice. As such, the Supreme Court upheld AB’s challenge, and declared that s 39(2)(a)(i) was incompatible with ECHR, art 8 and so was not law.

Comment

This case appears to have wider implications within Scottish law, with the Lord Advocate recognising that there are no guidelines on charging children. He has instructed a review to consider whether such guidelines are required, and it seems likely this may reflect the ‘welfare principle’ of the Children Act 1989, s 1. According to the intervener in the case, Clan Childlaw, this would also be in line with the Children’s Hearings System in Scotland which charges children with regard to their welfare rather than focusing on punishment.