AB v Her Majesty’s Advocate

This appeal concerned the compatibility of section 39(2)(a)(i) of the Sexual Offences (Scotland) Act 2009 with Convention rights. The provision removes the defence of reasonable belief as to age where the accused has previously been charged by the police with a "relevant sexual offence". The Supreme Court held that the provision, as applied to the appellant, interfered with his right to respect for private life under article 8 of the European Convention on Human Rights and that the interference was not proportionate because the earlier charges did not objectively give the warning on which the Scottish Government relied.

The court rejected the submission that the provision breached the presumption of innocence under article 6(2), accepting that the creation of strict liability as to the victim's age engages substantive criminal law rather than procedural protections under article 6. The court also rejected the article 14 complaints as unnecessary to determine once the article 8 incompatibility was established.

The appellant, when aged 14, had been charged by the police with a series of sexual offences (the police referred the matter to the Children's Reporter and there was no prosecution). Years later, as an adult, he was charged with sexual intercourse with a girl aged under 16 and sought to rely on the statutory defence that he reasonably believed the complainer to be 16 or older (section 39(1) of the Sexual Offences (Scotland) Act 2009). The Crown relied on section 39(2)(a)(i), which disallows that defence where the accused has previously been charged by the police with a "relevant sexual offence" defined in Schedule 1.

The procedural posture: the sheriff referred a compatibility issue under section 288 ZB of the Criminal Procedure (Scotland) Act 1995 to the High Court of Justiciary, which held that article 6 was not engaged and that, even if article 8 was engaged, the measure was proportionate. The appellant obtained leave to appeal to the Supreme Court.

The issues for the Supreme Court were (i) whether section 39(2)(a)(i) violated article 6(2) by undermining the presumption of innocence, (ii) whether it interfered with article 8 rights and, if so, whether the interference was "in accordance with the law" and justified and proportionate under article 8(2), and (iii) whether the provision amounted to unjustified discrimination contrary to article 14 read with article 8.

The court reasoned that article 6(2) was not infringed because the statutory removal of the belief defence operated as a substantive strict liability rule as to the victim's age and did not breach procedural presumption of innocence guarantees. The court accepted that disclosure and use of earlier police charges in later proceedings engage article 8. It then analysed whether the asserted objective (prevention of crime/protection of children) was legitimate and whether the mechanism chosen by Parliament was rationally connected and proportionate. The Lord Advocate's principal justification before the Supreme Court was that a prior police charge constitutes an "official warning" about sexual offences involving children. The court held that because the statutory definition of "relevant sexual offences" is very wide (including non-consensual offences and offences concerned with much younger children) and excludes certain consensual offences between older children, many prior charges will not in objective terms have conveyed the putative warning. Consequently, in the appellant's case the earlier charges did not provide the requisite warning and the interference with article 8 was disproportionate. The court therefore allowed the appeal and remitted the matter to the High Court of Justiciary.

Appeal allowed. The Supreme Court held that section 39(2)(a)(i) of the Sexual Offences (Scotland) Act 2009 is incompatible with article 8 ECHR in its application to the appellant because the prior police charges did not objectively provide the "official warning" relied upon to justify excluding the reasonable belief defence; article 6(2) was not breached and it was unnecessary to decide the article 14 challenge.

Reference made by Sheriff Joan Kerr under section 288 ZB CPSA 1995 to the High Court of Justiciary. The Appeal Court of the High Court of Justiciary (Lord Justice General Lord Carloway, Lady Dorrian and Lord Bracadale) gave opinion 26 February 2016 and rejected the appellant's article 8 challenge; leave to appeal to the Supreme Court was granted (statement of reasons 24 March 2016). The appeal to the Supreme Court was heard 11 July 2016 and allowed on 5 April 2017. (Original neutral citations as in the cover sheet: [2016] HCJCA HCA/2015/3552/XC.)