AB v HM Advocate
| Jurisdiction | Scotland |
| Judge | Lord Hodge,Lord Kerr,Lord Wilson,Lord Reed,Lord Hughes |
| Judgment Date | 05 April 2017 |
| Neutral Citation | [2017] UKSC 25 |
| Court | Supreme Court (Scotland) |
| Docket Number | No 6 |
| Date | 05 April 2017 |
[2017] UKSC 25
Lord Kerr
Lord Wilson
Lord Reed
Lord Hughes
Lord Hodge
THE SUPREME COURT
Hilary Term
On appeal from: [2016] HCJCA HCA/2015/3552/XC
Appellant
Aidan O'Neill QC
Janice Green
Edward Craven
(Instructed by John Pryde & Co)
Respondent
HM Advocate
Andrew Brown QC
Angela Gray
(Instructed by Appeals Unit, Crown Office and Procurator Fiscal Service)
Intervener (Community Law Advice Network)
Morag Ross
Daniel Byrne
(Instructed by Clan Childlaw)
Heard on 11 July 2016
(with whom Lord Kerr, Lord Wilson, Lord ReedandLord Hughesagree)
This appeal is concerned with a challenge to the legality of legislation of the Scottish Parliament which deprives a person, A, who is accused of sexual activity with an under-aged person, B, of the defence that he or she reasonably believed that B was over the age of 16, if the police had previously charged A with a "relevant sexual offence".
The appellant raises a compatibility issue, which is a question, arising in criminal proceedings, as to "whether an Act of the Scottish Parliament or any provision of an Act of the Scottish Parliament is incompatible with any of the Convention rights": section 288ZA(2)(b) of the Criminal Procedure (Scotland) Act 1995 ("the CPSA 1995"). Convention rights are the rights set out in the articles of the European Convention on Human Rights ("ECHR") which are listed in section 1(1) of the Human Rights Act 1998, and include the rights in articles 6, 8 and 14 of the ECHR which are the subject of this appeal. The compatibility issue raises a question of legality because section 29 of the Scotland Act 1998 provides:
"(1) An Act of the Scottish Parliament is not law so far as any provision of the Act is outside the legislative competence of the Parliament.
(2) A provision is outside that competence so far as any of the following paragraphs apply —
…
(d) it is incompatible with any of the Convention rights …"
Sections 28 to 37 of the Sexual Offences (Scotland) Act 2009 ("the 2009 Act") create various sexual offences against older children, who are children who have attained the age of 13 years but who have not attained the age of 16 years. Section 39 provides the qualified defence ("the reasonable belief defence"), as follows:
"(1) It is a defence to a charge in proceedings —
(a) against A under any of sections 28 to 37(1) that A reasonably believed that B had attained the age of 16 years, …"
The defence is qualified because subsection (2) provides:
"(2) But —
(a) the defence under subsection 1(a) is not available to A —
(i) if A has previously been charged by the police with a relevant sexual offence,
( ia) if A has a previous conviction for a relevant foreign offence committed against a person under the age of 16, or
(ii) if there is in force in respect of A a risk of sexual harm order. …"
The relevant sexual offences to which section 39(2)(a) refers are set out in 34 paragraphs in Schedule 1 to the 2009 Act and cover a wide range of sexual offences against children under the age of 16 in Scotland, England and Wales or under the age of 17 in Northern Ireland. In relation to offences under the 2009 Act, paragraph 1 of Schedule 1 includes in the phrase "relevant sexual offences":
"Any of the following offences under this Act —
(a) an offence under Part 1 against a person under the age of 16,
(b) an offence under Part 4 (but not an offence of engaging while an older child in sexual conduct with or towards another older child (section 37(1)) or engaging while an older child in consensual sexual conduct with another older child (section 37(4)),
(c) sexual abuse of trust (section 42) of a person under the age of 16,
(d) sexual abuse of trust of a mentally disordered person (section 46) of a person under the age of 16."
Offences in Part 1 of the 2009 Act, to which paragraph 1 of Schedule 1 refers, cover both consensual and non-consensual sexual activity. They range from rape to indecent communications, exposure of one's genitals and voyeurism. Those offences can be committed against a person of any age but paragraph 1(a) of Schedule 1 makes them a relevant sexual offence only if the victim is under the age of 16. Paragraph 15 of Schedule 1 lists common law offences against a person under the age of 16, which have been replaced by offences under the 2009 Act, including lewd, indecent or libidinous practice or behaviour.
Since 1885 our law has recognised the possibility of an honest mistake as to a young person's age and has allowed a reasonable belief defence in some form. Section 5 of the Criminal Law Amendment Act 1885 ("the 1885 Act") created the offence of unlawful carnal knowledge of a girl between the ages of 13 and 16 but that offence was subject to a defence that the accused had reasonable cause to believe that the girl was aged 16 or over. The defence was restricted by section 2 of the Criminal Law Amendment Act 1922 ("the 1922 Act") to a man aged 23 or under and was available only on the first occasion that he was charged with the offence under section 5 of the 1885 Act. The law was restated in Scotland in section 4 of the Sexual Offences (Scotland) Act 1976 so that the reasonable belief defence was available only when the accused man was under the age of 24 and had not previously been charged with a "like offence". The offences which were "like offences" were defined as (i) having or attempting to have unlawful sexual intercourse with a girl aged between 13 and 16, and (ii) permitting a girl under the age of 16 to use premises for sexual intercourse. The law was restated without any substantive change in section 5 of the Criminal Law (Consolidation) (Scotland) Act 1995 ("the 1995 Act").
Although there was no Scottish judicial authority on the point, it was widely understood that the prior charge in the relevant provisions of the legislation, including the 1995 Act, referred to a charge at a trial in Scottish proceedings. In English law there was judicial authority that it referred to a charge at committal proceedings: R v Rider [1954] 1 WLR 463. In the highly respected textbook, Sir Gerald Gordon, "The Criminal Law of Scotland", 3rd ed (2000), para 36.06, it was stated:
"These words [ie 'previously charged'] have not generally been judicially defined in Scotland. They could refer to a charge by the police, an appearance on petition or complaint at the instance of the procurator fiscal, or an appearance on indictment. In England it has been held that where a man appears before a magistrate in committal proceedings that is a previous charge, being an appearance before a competent court, except where he is committed for trial, in which case the trial itself is his first charge. [fn: R v Rider [1954] 1 WLR 463] The nearest Scots equivalent to committal proceedings is an appearance on petition, but it is unlikely that such an appearance would be regarded as a 'previous charge' for the purposes of the subsection, particularly as it does not nowadays involve any adjudication on the case by the court. In practice, therefore, a man may not be regarded as having been 'previously charged' with an offence unless he has previously stood trial for it. …"
In recent years Scots law and English law have diverged. In England and Wales section 6 of the Sexual Offences Act 1956 made the offence of unlawful sexual intercourse with a girl between the ages of 13 and 16 subject to exceptions which included the exception that the defendant was under the age of 24, had not previously been charged with a like offence, and believed on reasonable grounds that the girl was aged 16 or over. In this Act a "like offence" was the offence of unlawful sexual intercourse with a girl aged between 13 and 16 or an attempt to commit that offence. Under the Sexual Offences Act 2003 the absence of reasonable belief as to age is made part of the definition of many sexual offences by persons aged 18 or over against children aged between 13 and 16. Under that Act the prosecution must establish that absence of belief against all such defendants, regardless of their age. The existence of a previous charge is no longer relevant in English law.
In 2006 the Scottish Law Commission published a Discussion Paper on Rape and Other Sexual Offences (Scot Law Com DP No 131) in which it described the reasonable belief defence, which was confined to accused persons under the age of 24, as "unprincipled" and suggested that it was a political compromise which led to the enactment of the 1922 Act. It proposed (a) that the age of the accused person should not be a formal restriction on the raising of the defence, and (b) that the fact that the accused may have raised the reasonable belief defence before should go to the accused person's credibility and not be a restriction on the raising of the defence (paras 5.63 – 5.67).
The Scottish Law Commission in its Report on Rape and Other Sexual Offences (2007) (Scot Law Com No 209) recommended that there should be a defence to an offence relating to sexual activity with a child aged between 13 and 16 that the accused believed on reasonable grounds that the child was 16 or older (para 4.64). The Commission saw merit in the view that the Crown should in appropriate cases be allowed to lead evidence that the accused had previously been charged with a like offence whenever the accused raised the defence for a second time, in order to test the accused person's credibility rather than to disallow the defence (paras 4.61–4.62). It recommended that the accused should bear an evidential, but not a legal, burden of establishing that defence (para 4.74).
The Scottish Parliament in enacting the 2009 Act took up...
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