Scottish legislation prevented an accused person from relying on a reasonable belief about a young person’s age if the police had previously charged the accused with a relevant sexual offence. AB argued that the earlier charges against him had given him no warning that consensual sexual activity with an older child was itself an offence.
The charges
The police had charged AB as a child with offences involving different conduct. He was not prosecuted on those charges. The surviving records did not establish that the allegations had been adjudicated.
As an adult, AB faced a new charge under the Sexual Offences (Scotland) Act 2009. He wished to argue that he reasonably believed that the other person had reached the age of 16.
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The statutory bar
Sections 28 to 37 of the 2009 Act create sexual offences against older children, meaning children who have reached 13 but not 16. Section 39(1)(a) gives a defence that the accused reasonably believed the child had reached 16. Section 39(2)(a)(i) removes that defence if the accused has previously been charged by the police with a relevant sexual offence. Schedule 1 defines that category widely. It includes many sexual offences against a person under 16, covering both consensual and non-consensual conduct and some offences in which the victim’s age is not an essential part of the crime. It excludes the section 37 offences of an older child engaging in sexual conduct with another older child.
Since 1885 Scots law had recognised some form of reasonable-belief defence, but later statutes confined it to an accused under 24 who had not previously been charged with a much narrower group of like offences, principally unlawful sexual intercourse with a girl aged between 13 and 16. It was widely understood in Scotland that the earlier charge had to be a charge at trial. The Scottish Law Commission recommended that the defence should not depend on the accused’s age and that an earlier charge should affect credibility rather than bar the defence. Parliament removed the age limit but retained and widened the bar. Its policy memorandum said that this reflected the existing law and would prevent serial predators from evading conviction. Lord Hodge described both statements as problematic: the new list went far beyond the old like offences, and the Lord Advocate did not defend the serial-predator purpose in this appeal.
The justification put to the Court was that a police charge is an official warning about sexual offences with children, putting the person on notice to ensure that a sexual partner is 16 or over. A government lawyer had described such a charge to the Scottish Parliament as a shot across the bows.
The decision under appeal
Sheriff Joan Kerr referred the compatibility issue to the High Court of Justiciary. On 26 February 2016 the Appeal Court, consisting of the Lord Justice General (Lord Carloway), Lady Dorrian and Lord Bracadale, rejected the article 6 argument. It held that the bar created no presumption of guilt and that, without a relevant complaint of procedural unfairness, article 6 was not engaged. It also held that AB’s decision as an adult to engage in sexual activity with a child under 16 did not engage article 8 and that, even if it did, the interference was in accordance with the law and proportionate. In its view, a person could plead ignorance of a child’s true age only once, and the bar had to cover charges rather than convictions if children were to be protected from repeated use of the defence. The High Court later granted leave to appeal on article 8 as a matter of general public importance, but held that the article 6 ground was not arguable.
Article 6
Lord Hodge, with whom Lords Kerr, Wilson, Reed and Hughes agreed, held that article 6 was not engaged. The provision did not irrebuttably presume that AB had no reasonable belief. Where it applied, it made the offences under sections 28 and 30 offences of strict liability as to the victim’s age by treating the accused’s knowledge of that age as irrelevant. Article 6 is concerned with procedural fairness, not with the substantive elements of an offence. Making liability strict as to age therefore did not breach the presumption of innocence.
Article 8 and the missing warning
Article 8 protects respect for private life. An interference must be in accordance with the law and necessary in a democratic society for a legitimate aim, including the prevention of crime and the protection of the rights of others. Contrary to the Crown’s position below and to the High Court, the Lord Advocate accepted that article 8 was engaged because the prosecutor relied on the earlier charges and disclosed them to the court. Lord Hodge considered that concession correct and said that it was sufficient to focus on that disclosure. He would also have treated the recording of the charges for possible later use as an interference which might require justification, because a charge relating to a sexual offence is sensitive personal data.
Lord Hodge held that the provision had a clear basis in an Act of the Scottish Parliament. On the hypothesis that a charge operated as a warning, it was sufficiently accessible and foreseeable to be in accordance with the law. He also read previously charged as referring to an offence alleged to have occurred before the events in the current proceedings, avoiding the absurdity of a later charge barring a defence to an earlier incident.
The aims of protecting children from premature sexual activity, young teenage pregnancy, sexually transmitted diseases, exploitation and abuse, and of deterring adults from sexual activity with children under 16, were legitimate and important enough to justify some limitation. Lord Hodge did not find a lack of rational connection. Although many charges would not communicate the suggested warning, limiting a defence which the Crown may find difficult to disprove creates strict liability and is connected with protecting children. It was also not enough that less intrusive alternatives could be imagined, such as requiring a conviction, letting the Crown challenge credibility, or altering the burden of proof. The Court allows Parliament a margin of discretion and does not itself choose the least intrusive measure.
The provision failed on proportionality in AB’s case. A police warning that consensual sexual activity with older children is criminal could in principle justify excluding the defence. AB’s 2009 charges gave no such warning. They involved showing pornographic images to a young boy and exposing himself to girls. They did not involve consensual sexual activity with an older child, and there was no suggestion of an explicit warning that such activity would in future be an offence of strict liability. No charge was laid at a trial.
Lord Reed, with whom Lords Kerr, Wilson and Hughes agreed, explained why the warning rationale fitted the enacted provision badly. Sections 28 to 37 are concerned primarily with consensual sexual behaviour involving older children. A charge such as rape or sexual assault does not warn the accused that consensual activity with a person under 16 is also unlawful, because the victim’s age is irrelevant to those offences. A charge which can be committed only against a younger child is likewise a poor warning about a willing older child. Schedule 1 also excludes the clearest warning case, consensual sexual conduct between older children under section 37. The serial-predator policy could not legally justify a bar extending to people who had never relied on, and could not have relied on, the reasonable-belief defence. AB, previously charged with offences against children under the age of puberty and with non-consensual statutory conduct, was such a person.
Community Law Advice Network intervened to argue that an official-warning rationale has no place in the children’s hearing system, which treats the child’s welfare as paramount, and that the interference was unjustified where the earlier conduct was committed as a child. Having decided the article 8 issue, the Court found it unnecessary to decide the separate discrimination arguments under article 14.
Verdict: The Court unanimously allowed AB’s appeal. Using the earlier charges to exclude his defence disproportionately interfered with his article 8 rights. Lord Reed, with whom Lord Kerr, Lord Wilson and Lord Hughes agreed, held that the provision was incompatible with article 8 and outside legislative competence. The case returned to the High Court of Justiciary, including for consideration of the effect of the ruling. The Supreme Court did not determine guilt.
