AB v Her Majesty’s Advocate [2017] UKSC 25

The Supreme Court held that section 39(2)(a)(i) of the Sexual Offences (Scotland) Act 2009, which removed the reasonable belief as to age defence from anyone previously charged by police with a relevant sexual offence, was incompatible with article 8 ECHR where the prior charge gave no warning about consensual sexual activity with older children.

Facts

The appellant, AB, was charged in July 2015, aged 19, with engaging in sexual intercourse with a girl aged 14 years and 11 months, contrary to sections 28 and 30 of the Sexual Offences (Scotland) Act 2009 (“the 2009 Act”). He did not deny intercourse, but wished to plead the “reasonable belief” defence under section 39(1)(a) of the 2009 Act, namely that he reasonably believed the girl was 16 or older.

In 2009, when AB was 14, he had been charged by the police with two common law offences of lewd and libidinous practices (one involving showing online pornographic images to a young boy; the other involving exposure of his genitals to girls aged 4, 12 and 13) and a contravention of section 6 of the Criminal Law (Consolidation) (Scotland) Act 1995. The Procurator Fiscal decided not to prosecute and the case was referred to the Children’s Reporter, who apparently took no action.

Section 39(2)(a)(i) of the 2009 Act provides that the reasonable belief defence is not available where the accused has previously been charged by the police with a “relevant sexual offence” as defined in Schedule 1. The Crown sought to rely on the 2009 charges to deprive AB of the defence. AB challenged the legality of section 39(2)(a)(i) as a compatibility issue under section 288ZA of the Criminal Procedure (Scotland) Act 1995, arguing it was outside the legislative competence of the Scottish Parliament under section 29 of the Scotland Act 1998 because it was incompatible with Convention rights.

Issues

The court had to decide:

• Whether section 39(2)(a)(i) of the 2009 Act was incompatible with article 6(2) ECHR (presumption of innocence);
• Whether it was incompatible with article 8 ECHR, considering whether it was in accordance with the law, pursued a legitimate aim, was rationally connected to that aim, whether less intrusive means were available, and whether it was proportionate;
• Whether it was discriminatory contrary to article 14 read with article 8.

Arguments

Appellant

Mr O’Neill QC argued that the impugned provision: (i) breached the presumption of innocence under article 6(2); (ii) was incompatible with article 8 because it lacked a rational connection to a legitimate aim, was not in accordance with the law, and was disproportionate; (iii) discriminated unjustifiably between those previously charged and those not, and between UK nationals and others; and (iv) failed to distinguish between accused persons charged as children and as adults.

Respondent (Lord Advocate)

The Lord Advocate accepted that article 8 was engaged because the prosecutor disclosed the earlier police charge in court. He no longer defended the “serial sexual predator” rationale set out in the Policy Memorandum, but argued instead that a prior police charge constituted “an official warning about sexual offences with children”, thereby putting the person on notice. He submitted the provision struck a fair balance between the accused’s rights and the public interest in protecting children, and that any differential treatment was objectively justified.

Intervener

The Community Law Advice Network submitted that offending by children was treated differently under the children’s hearing system, and that the “official warning” rationale had no place in that scheme. Less intrusive means were available to protect older children.

Judgment

Article 6

Lord Hodge (with whom Lord Kerr, Lord Wilson, Lord Reed and Lord Hughes agreed) held that the impugned provision did not engage article 6. It did not create an irrebuttable presumption against the accused; rather, when applicable, it converted the offence into one of strict liability as regards the victim’s age. Article 6(2) concerns procedural guarantees, not the substantive elements of an offence (citing R v G [2009] AC 92, Salabiaku v France and G v United Kingdom).

Article 8

The Lord Advocate rightly conceded that article 8 was engaged because the earlier police charge was disclosed in court. Lord Hodge went further, noting that the retention of sensitive personal data (including criminal charges) itself constituted an interference with article 8 rights.

The court considered four questions: whether the provision was in accordance with the law; whether it pursued a legitimate aim; whether there was a rational connection; whether less intrusive means were available; and whether it was proportionate.

In accordance with the law: The provision was held to be in accordance with the law on the hypothesis that a prior police charge gave an implicit official warning about the criminality of consensual sexual activity with older children.

Legitimate aim: The aims of protecting children from premature sexual activity, pregnancy, sexually transmitted diseases, and exploitation, and deterring adults from sexual activity with children under 16, were legitimate.

Rational connection: Lord Hodge held that there would in many cases be no rational connection between the supposed “warning” and the deterrent purpose, because the wide range of “relevant sexual offences” in Schedule 1 includes offences in which the age of the victim is not an essential component, and excludes (under paragraph 1(b)) the consensual offences under section 37 that would most obviously serve as a warning to a person of the appellant’s age. Nonetheless, the provision was rationally connected to the broader aim of preventing serial sexual predators evading conviction.

Less intrusive means: The court declined to identify the least intrusive measure, recognising the Parliament’s margin of discretion.

Proportionality: This was the decisive issue. The only rationale advanced by the Lord Advocate was that the prior charge provided an official warning. However, the 2009 charges against AB concerned conduct against children under puberty and non-consensual conduct, none of which could constitute an implicit warning that consensual sexual activity with older children was an offence. No explicit warning was given by the police; no prosecution followed; the case was referred to the Children’s Reporter with no apparent further action. Lord Hodge concluded that use of these prior charges to exclude the reasonable belief defence amounted to a disproportionate interference with article 8 rights.

Lord Reed’s concurring judgment

Lord Reed (with whom Lord Kerr, Lord Wilson and Lord Hughes agreed) emphasised that the 2009 Act departed from the prior law in two material respects: a police charge sufficed (no trial required), and “relevant sexual offences” was defined much more broadly than “like offences”. The Lord Advocate had abandoned the serial predator rationale, but the “official warning” rationale did not fit the breadth of the definition in Schedule 1. Many relevant offences (rape, sexual assault, offences against children under 13) are not concerned with consensual conduct with older children and could not put a person on notice of the importance of the age of consent. Paragraph 1(b) of Schedule 1 even excluded the very offences (section 37, consensual sexual activity between older children) which would have most clearly served as a warning. Section 39(2)(a)(i) was therefore disproportionate where the necessary link between the prior charge and the supposed warning did not exist. The problem could not be resolved by narrow interpretation and required further legislation.

Remedy

The court held that section 101 of the Scotland Act 1998 could not save the provision. The power under section 102 to suspend or vary the effect of the decision was for the High Court of Justiciary. The appeal was allowed and the proceedings remitted.

Implications

The decision establishes that legislation depriving an accused of a defence on the basis of a prior police charge will be incompatible with article 8 ECHR where the prior charge cannot objectively be said to have alerted the accused to the criminality of the conduct in question. The court expressly accepted that an “official warning” rationale could in principle justify exclusion of the reasonable belief defence, but only where the prior charge objectively conveys such a warning – for example, a prior charge of a “like offence” of consensual sexual activity with an older child.

The court identified specific deficiencies in section 39(2)(a)(i) and Schedule 1: the inclusion of offences in which the victim’s age is not an essential element; the inclusion of non-consensual offences; the inclusion of offences against children under 13 which are themselves strict liability; and the exclusion of section 37 offences (consensual conduct between older children). These flaws mean the impugned provision is likely to give rise to article 8 infringements in many cases beyond AB’s own.

The decision matters to those facing prosecution under sections 28 to 37 of the 2009 Act who have prior police charges that do not objectively serve as a warning concerning consensual sexual conduct with older children. It also has wider significance in confirming that the disclosure in court of records of prior police charges engages article 8, and that strict liability offences as such do not violate article 6(2).

The judgment is a notable illustration of the Supreme Court’s willingness to strike down provisions of Acts of the Scottish Parliament that fall outside legislative competence under section 29 of the Scotland Act 1998 by reason of Convention incompatibility. The court left to the High Court of Justiciary the question of suspending or varying the effect of its decision under section 102 of the Scotland Act 1998, and did not need to decide the article 14 discrimination challenge.

Verdict: The appeal was allowed. The Supreme Court held that section 39(2)(a)(i) of the Sexual Offences (Scotland) Act 2009 was incompatible with article 8 ECHR in its application to the appellant, and therefore outside the legislative competence of the Scottish Parliament under section 29 of the Scotland Act 1998. The proceedings were remitted to the High Court of Justiciary.

Source: AB v Her Majesty's Advocate [2017] UKSC 25