AB v Her Majesty’s Advocate

Legislation may exclude a reasonable-belief-as-to-age defence following an earlier police charge only where its application strikes a fair balance under article 8 of the European Convention on Human Rights. A prior charge can justify exclusion if it objectively warned the accused that consensual sexual activity with a person under 16 was criminal. A charge concerning materially different conduct provides no such warning.

Using an unrelated prior charge to remove the defence for life is disproportionate. By contrast, making an offence one of strict liability as to age concerns substantive criminal law and does not itself infringe the procedural presumption of innocence under article 6(2).

When aged 14, the appellant was charged by the police with sexual offences involving pornographic images and exposure to children. He was not prosecuted, and the matter was referred to the Children’s Reporter. At 19, he was charged under sections 28 and 30 of the Sexual Offences (Scotland) Act 2009 with sexual intercourse with a girl aged 14 years and 11 months. His only proposed defence was that he reasonably believed she was at least 16.

Section 39(2)(a)(i) made that defence unavailable because of the earlier police charges. The High Court of Justiciary, in [2016] HCJCA HCA/2015/3552/XC, rejected his Convention challenge but granted permission to appeal on article 8.

The Supreme Court considered whether removing the defence was compatible with articles 6, 8 and 14 of the European Convention on Human Rights and, consequently, within the Scottish Parliament’s legislative competence.

1. Appeal allowed unanimously and proceedings remitted to the High Court of Justiciary. Lord Hodge delivered the principal judgment, with which all members of the court agreed. Lord Reed gave additional reasons, with which Lord Kerr, Lord Wilson and Lord Hughes agreed.

2. Section 39(2)(a)(i) of the Sexual Offences (Scotland) Act 2009 did not infringe article 6(2). When engaged, it made the offences strict liability offences in relation to the victim’s age by treating the accused’s knowledge or belief as irrelevant. Article 6 protects procedural fairness and does not prescribe the substantive elements of a criminal offence.

3. The prosecution’s reliance on and disclosure of an earlier sexual-offence charge interfered with the appellant’s article 8 rights. Such a charge was sensitive personal information. The interference therefore required justification under article 8(2).

4. The provision was sufficiently accessible and foreseeable in principle. The words “previously been charged” were to be read as referring to a charge concerning conduct alleged to have occurred before the conduct in the current proceedings. That construction avoided an absurd result.

5. The protection of children from premature sexual activity, pregnancy, disease, exploitation and abuse was a legitimate and sufficiently important objective. Restricting a defence which might be difficult for the Crown to disprove also had some rational connection with protecting children and preventing repeated exploitation of the defence.

6. The interference was nevertheless disproportionate in the appellant’s case. The Crown defended the provision on the basis that an earlier charge operated as an official warning about sexual activity with children. The appellant’s earlier charges concerned pornographic images and exposure, rather than consensual sexual activity with an older child. They therefore gave no express or implicit warning that such consensual activity was unlawful or that a future offence would be one of strict liability as to age.

7. Lord Reed emphasised that the statutory definition of “relevant sexual offence” was too broad to support the warning rationale. It included offences for which the victim’s age was immaterial and non-consensual offences, while excluding consensual sexual activity between older children. The necessary link between the earlier charge and the supposed warning was therefore absent.

8. Section 39(2)(a)(i) was incompatible with article 8 in its application to the appellant and was likely to be incompatible wherever the prior charge did not objectively give the relevant warning. Section 101 of the Scotland Act 1998 could not cure the defect by interpretation. Any exercise of the powers under section 102 was for the High Court of Justiciary. It was unnecessary to determine the article 14 challenge.

1. United Kingdom Supreme Court: Allowed the appeal unanimously and remitted the proceedings to the High Court of Justiciary.
2. High Court of Justiciary: In [2016] HCJCA HCA/2015/3552/XC, held that article 6 was not engaged and that article 8 was not engaged or, alternatively, that any interference was lawful and proportionate. It granted permission to appeal on the article 8 issue.
3. Sheriff Court: The Sheriff referred the compatibility issue to the High Court of Justiciary under section 288ZB of the Criminal Procedure (Scotland) Act 1995.