Hilary
Term
[2017] UKSC 25
On appeal from: [2016]
HCJCA HCA/2015/3552/XC
JUDGMENT
AB (Appellant) v Her Majesty’s Advocate
(Respondent) (Scotland)
before
Lord Kerr
Lord Wilson
Lord Reed
Lord Hughes
Lord Hodge
JUDGMENT GIVEN ON
5 April 2017
Heard on 11 July 2016
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Appellant
Aidan O’Neill QC
Janice Green
Edward Craven
(Instructed by John
Pryde & Co)
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Respondent
HM Advocate
Andrew Brown QC
Angela Gray
(Instructed by
Appeals Unit, Crown Office and Procurator Fiscal Service)
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Intervener
(Community Law Advice Network)
Morag Ross
Daniel Byrne
(Instructed by Clan
Childlaw)
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LORD HODGE: (with whom
Lord Kerr, Lord Wilson, Lord Reed and Lord Hughes agree)
1.
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”.
2.
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 …”
The legislative provisions
3.
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. …”
4.
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.
The history of the reasonable belief defence
5.
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”).
6.
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. …”
7.
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.
8.
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).
9.
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 rationale of the current legislation
10.
The Scottish Parliament in enacting the 2009 Act took up the Scottish
Law Commission’s recommendation that the reasonable belief defence should be
available regardless of the age of the accused person. But it chose to
reformulate the previous charge proviso in two material respects. First, as
section 39(2)(a)(i) expressly states, a prior police charge is sufficient to
disentitle the accused to the reasonable belief defence; a charge at trial is
not necessary. Secondly, the prior charge is not confined to the like offences
to which I referred in para 5 above, but extends to all of the relevant sexual
offences in Schedule 1 to the 2009 Act (para 4 above).
11.
In the Policy Memorandum to the Bill the Scottish Government explained
the policy and their rejection of the Scottish Law Commission’s recommendation.
They stated (a) that the proposed restriction on the reasonable belief defence
reflected the then current law in preventing someone who had been charged with
a like offence from using the defence (paras 131-132) and (b) that the
restriction was being re-enacted because they were concerned that its removal
could enable serial predators to evade conviction (para 135). Both statements
are problematic. First, the assertion (in paras 131-132) that the Bill’s
restriction of the defence reflected the current law was incorrect because the
range of “relevant sexual offences” extended far beyond the “like offences” of
the prior law. Secondly, as I will show, the Lord Advocate has not attempted to
defend the impugned provision on the basis that its purpose was to prevent
serial sexual predators repeatedly exploiting the defence.
12.
In evidence to the Scottish Parliament, the Scottish Government’s Bill
Team Leader adopted the line of the Policy Memorandum by asserting that the purpose
of the restriction of the defence was “to prevent a serial sexual predator who
relied on that defence on a previous occasion but was acquitted of all charges
from using the same defence to evade conviction on a subsequent offence or
offences” (Subordinate Legislation Committee, 28 October 2008, col 392). But,
immediately afterwards, a representative from the Scottish Government Legal
Directorate expressed a different view as to the purpose of the restriction. He
described the prior charge as “a shot across the bows” and as “effectively
[putting the accused person] on notice” to be careful not to engage in sexual
activity with another person who was under the age of 16 and thereby
discouraging them from engaging in such activity (Subordinate Legislation
Committee, 28 October 2008, cols 392-393). The Lord Advocate in his written
case in this appeal did not attempt to defend the reasoning in the Policy
Memorandum and relied instead on the latter rationale which the Scottish
Government had presented to the Parliament, stating (para 19):
“The defence is excluded where the
accused has been charged by the police with a relevant sexual offence - and has
therefore received an official warning about sexual offences with children.”
In his careful oral submissions, the Lord Advocate again
founded on the rationale of an official warning that one must make sure that
one’s sexual partner was aged 16 or over.
The factual background to the appeal
13.
In 2009, when the appellant was aged 14, the police charged him with two
charges of lewd and libidinous practices at common law and one contravention of
section 6 of the Criminal Law (Consolidation) (Scotland) Act 1995, which
concerned indecent behaviour towards a girl aged between 12 and 16. One of the
common law charges involved the allegation of showing online pornographic
images to a young boy. The other common law charge and the statutory charge
involved the allegations of exposing his penis to, and chasing after, three
other children, who were girls aged 4, 12 and 13. The police reported the case
to the Procurator Fiscal and a decision was made not to prosecute the
appellant. Instead, the case was referred to the Children’s Reporter. The
outcome of this referral is unknown as there are no extant records, but it is
legitimate to infer that the case did not proceed to a Children’s Hearing.
14.
In July 2015, when the appellant was aged 19, he appeared on petition on
charges of having shortly before engaged in sexual intercourse with a girl who
was then aged 14 years and 11 months, contrary to sections 28 and 30 of the
2009 Act. He does not deny that sexual intercourse took place. His only defence
to the charges is that at the time he reasonably believed that the girl had
attained the age of 16 years. In other words, he wishes to plead the reasonable
belief defence in section 39(1)(a) of the 2009 Act. But section 39(2)(a)(i) of
the 2009 Act, if lawful, has the effect that the reasonable belief defence is
not available to him. He has therefore challenged the legality of that
statutory provision by raising a compatibility issue.
The prior proceedings
15.
Sheriff Joan Kerr, Sheriff of Glasgow and Strathkelvin at Glasgow,
referred the compatibility issue to the High Court under section 288ZB of the
CPSA 1995. In the reference Sheriff Kerr asked whether article 8 of the ECHR
was engaged by the prohibition against utilising the reasonable belief defence
and, if so, whether the interference was compatible with the appellant’s
article 8 right; whether the lack of a mechanism to challenge the validity of
the police charge would result in his trial being unfair under article 6 of the
ECHR; and whether the prohibition applied when the police charged a child and
the Lord Advocate did not instruct a prosecution on the charge.
16.
On 26 February 2016 the Appeal Court of the High Court of Justiciary
(the Lord Justice General (Lord Carloway), Lady Dorrian and Lord Bracadale)
issued their opinion on the reference. In that opinion the court rejected the
appellant’s submission that the prohibition on raising the reasonable belief
defence created a presumption of guilt and held that, absent any relevant
complaint of procedural unfairness, the appellant was not within the ambit of
article 6 of the ECHR. The court held that the appellant’s decision as an adult
to engage in sexual activity with a child under the age of 16 did not engage
the protection of article 8 of the ECHR. It held that, even if article 8 were
engaged, the interference was both in accordance with the law and
proportionate. The court stated (para 25):
“The purpose of section
39(2)(a)(i) is to give legal significance to a charge by the police as a ‘shot
across the bow’. An individual is entitled to plead ignorance of a child’s true
age on one occasion only. If the provision were not framed to cover charges, as
distinct from convictions, the aim of protecting children from adults who may
prey on their vulnerability may not be realised. The defence could be utilised
over and over again. This would undermine the purpose of the provision. There
is nothing disproportionate about the measure. Had article 8 been engaged, the
interference would have been justified under article 8(2).”
The court answered the questions accordingly.
17.
The appellant applied for leave to appeal to this court. On 24 March
2016 the High Court of Justiciary issued a statement of reasons on the
application to appeal to this court. It held that the ground of appeal
concerning article 6 of the ECHR was not arguable but that the ground relating
to article 8 was, and that the latter raised a matter of general public
importance. The High Court therefore granted leave to appeal to this court.
The challenge and the response
18.
Mr Aidan O’Neill QC for the appellant advances four arguments. First, he
argues that section 39(2)(a)(i) of the 2009 Act (“the impugned provision”) is
incompatible with article 6(2) of the ECHR because it breaches the presumption
of innocence. Secondly, he submits that the impugned provision is incompatible with
article 8 of the ECHR because it is not rationally connected to a legitimate
aim, because it is not in accordance with the law, because there were less
intrusive means of achieving the desired result and because it is
disproportionate in its effect on the protected right. Thirdly, he argues that
it unjustifiably discriminated (a) between those persons who had been
previously charged with a relevant sexual offence and those who had not and (b)
between UK nationals and others: article 14 read with article 8 of the ECHR.
His fourth submission is that the impugned provision failed to distinguish
between accused persons who had previously been charged as children and those
who had previously been charged as adults, contrary to article 14 read with
article 8 of the ECHR.
19.
The court also has the benefit of submissions by Ms Morag Ross, advocate
(now QC), on behalf of the charity, Community Law Advice Network, which aims to
improve life chances for children and young people in Scotland by obtaining for
them access to legal advice and securing the recognition and enforcement of
their rights. Her submissions focus on the challenge under article 8 of the
ECHR, and describe how offending by a child is treated differently from adult
offending under the children’s hearing system, which has existed in Scotland
for over 50 years and which treats the welfare of the child as a paramount
consideration. She submits that the rationale of an official warning has no
place in such a scheme. There are less intrusive means of achieving the
legitimate aims of protecting older children from sexual activity and
predation. The impugned provision does not strike a fair balance between the
public interest and the accused person’s article 8 rights. In essence, her
submission is that the impugned provision’s interference with a person’s
article 8 rights when he or she has committed the relevant sexual offence as a
child is not justified.
20.
The Lord Advocate, in response, argues that the appellant’s
circumstances do not come within the ambit of article 6. Contrary to the
opinion of the High Court of Justiciary, he accepts that the appeal comes
within the ambit of article 8 of the ECHR because the prosecutor relied on the
earlier police charges in the course of the criminal proceedings against the
appellant and disclosed the charges to the court. In essence, he submits that
the impugned provision strikes a fair balance between the accused person’s
rights and the public interest in the prevention of crime, the protection of
health and morals, and the protection of the rights and freedoms of others. He
also submits that any difference in treatment or absence of difference, on
which the appellant founds, is objectively justified and so meets the
requirements of article 14. The appellant whilst a child has been afforded the
special treatment which the criminal justice system gave to children. Reliance
on the 2009 charges once he had become an adult does not upset the fair balance
which the Parliament had struck.
Discussion
(i) Article 6 of the
ECHR
21.
Like the High Court, I am satisfied that the impugned provision is not
within the ambit of article 6, which guarantees that a trial will be
procedurally fair. The impugned provision did not, as the appellant’s counsel
asserts, create an irrebuttable presumption that the appellant did not have a
reasonable belief as to the age of the girl with whom he had sexual
intercourse, thereby overriding the presumption of innocence in breach of
article 6(2) of the ECHR which provides:
“Everyone charged with a criminal
offence shall be presumed innocent until proved guilty according to law.”
Instead, the impugned provision, when applicable, makes the
offences under sections 28 and 30 strict liability offences by treating as
irrelevant the accused person’s state of knowledge of the victim’s age. The
creation of what amounts to a strict liability offence in relation to the
victim’s age in such circumstances does not violate article 6(2) of the ECHR,
which is concerned with procedural guarantees and not with the substantive
elements of a criminal offence: R v G [2009] AC 92, paras 27-31 per Lord
Hope, para 46 per Lady Hale; Salabiaku v France (1988) 13 EHRR 379, para
27; and G v United Kingdom (2011) 53 EHRR SE 25, paras 26-27 (which was
a case concerning the strict liability offence of sexual intercourse with a
child under the age of 13). The European Court of Human Rights (“ECtHR”)
concluded in para 29 of G v United Kingdom that
“the court does not consider that
Parliament’s decision not to make available a defence based on reasonable
belief that the complainant was aged 13 or over can give rise to any issue
under article 6(1) or (2) of the Convention.”
In my view, that reasoning applies, mutatis mutandis, to
the decision of the Scottish Parliament in its enactment of the impugned
provision.
(ii) Article 8 of the
ECHR
22.
Article 8 of the ECHR provides:
“(1) Everyone has the right to
respect for his private and family life, his home and his correspondence.
(2) There shall be no
interference by a public authority with the exercise of this right except such
as is in accordance with the law and is necessary in a democratic society in
the interests of national security, public safety or the economic well-being of
the country, for the prevention of disorder or crime, for the protection of
health or morals, or for the protection of the rights and freedoms of others.”
23.
As I have said, the Lord Advocate concedes that in this case the
impugned provision fell within the ambit of article 8 because the prosecutor
relied on the earlier police charge in the course of the criminal proceedings
and disclosed its existence to the court. In my view that concession is rightly
made. I would go further: the recording for possible later use of the charges
involved interference with the appellant’s article 8 rights which may have to
be justified. In S v United Kingdom (2008) 48 EHRR 1169 the Grand
Chamber of the ECtHR held that, save in exceptional circumstances, the
retention by the police of DNA samples and fingerprints taken from persons who
were suspected but never convicted of a criminal offence represented an
interference with their article 8 rights. In Bouchacourt v France
(Application No 5335/06) [2009] ECHR 2276 (unreported), a case which concerned
material on a sex offenders’ register, the ECtHR in a judgment given on 17
December 2009 declared (para 57) that the retention by a public authority of
data relating to a person’s private life by itself represented interference
with that person’s article 8 rights. In R (T) v Chief Constable of Greater
Manchester Police [2014] UKSC 35; [2015] AC 49, Lord Wilson at para 21
referred to those cases but left open the question whether retention by a
public authority of data relating to private life which were not sensitive
amounted to an interference with article 8 rights. It is not necessary to
resolve that issue in this appeal as a criminal charge relating to a sexual
offence is sensitive personal data under domestic law: Data Protection Act
1998, section 2. Further support for this view of the ambit of article 8 can be
found in the judgments of the ECtHR in Rotaru v Romania (2000) 8 BHRC 449, para 46 and MM v United Kingdom [2012] ECHR 24029/07, para 159,
which Lord Reed discussed in R (T) (above) between paras 95 and 112. See
also Leander v Sweden (1987) 9 EHRR 433, para 48 and Amann v
Switzerland (2000) 30 EHRR 843, para 69. In this case, however, it is
sufficient to focus only on the disclosure of the charge in court.
24.
It is necessary to consider, first, whether the impugned provision is in
accordance with the law and, secondly, whether it was necessary in the
interests of one or more of the desirable outcomes set out in article 8(2). The
second issue involves a consideration (i) whether the objective of the impugned
provision is sufficiently important to justify the limitation of the
appellant’s right under article 8(1), (ii) whether there is a rational
connection between the impugned provision and that legitimate aim or objective,
(iii) whether a less intrusive measure could have been used without
unacceptably compromising the achievement of the objective, and (iv) whether
the impact of the right’s infringement is proportionate, having regard to the
likely benefit of the impugned provision.
25.
“In accordance with the law”: It is well established that in
order to be in accordance with the law under article 8(2) of the ECHR the
measure must not only have some basis in domestic law but also be accessible to
the person concerned and foreseeable as to its effects. There is a clear basis
in domestic law in the 2009 Act, which is an enactment of a democratic
legislature. The additional qualitative requirements of accessibility and
foreseeability have two elements: (i) a rule must be formulated with sufficient
precision to enable any individual, with appropriate advice when needed, to
regulate his or her conduct and (ii) the rule must be sufficiently precise to
give legal protection against arbitrariness. In relation to the latter element,
there must be safeguards which have the effect of enabling the proportionality
of the interference to be adequately examined: R (T) (above), para 114
per Lord Reed.
26.
The impugned provision innovates on the prior law by making a criminal
charge by a police officer the basis for excluding the reasonable belief defence.
The Lord Advocate explains that police officers are trained to charge an
individual with an offence if they are satisfied that there is sufficient
evidence that a crime has been committed. There is no formal guidance on
charging people with criminal offences and no distinction is made between
adults and children. He informs the court that this appeal has alerted him to
the lack of any guidelines on charging children and that he has instructed a
review of whether such guidelines are required.
27.
If the only rationale of the impugned provision was to prevent a person
asserting a reasonable belief defence more than once, the provision could have
arbitrary results because it could deprive a person of that defence when he or
she had never used it in the past. But the rationale, which the Lord Advocate
advances and which is supported by what the representative of the Scottish
Government’s Legal Directorate told the Parliament, is that the charge by the
police officer gives the person charged an official warning that consensual
sexual activity with children between the ages of 13 and 16 is an offence. On
the hypothesis that there was a warning or notice, the rule that a person once
warned would not in future be able to advance the reasonable belief defence
would in my view be sufficiently accessible to enable the person charged to
regulate his or her conduct and thus be “in accordance with the law”.
28.
Finally on the topic of the requirement to be “in accordance with the
law”, I do not accept the submission of the appellant’s counsel that the
impugned provision gives rise to arbitrary results because a prior charge could
relate to an alleged offence which occurred after the occurrence which is the
subject of the criminal proceedings in which the accused person wishes to
advance the reasonable belief defence. It is straightforward to interpret the
impugned provision in a way which avoids that absurd result by reading “A has
previously been charged … with a relevant sexual offence” to refer to an
offence which is alleged to have occurred before the events which are the
subject matter of the proceedings in which the accused person seeks to advance
the defence.
29.
Thus, as a prior charge can act as a relevant warning, I consider the
provision to be “in accordance with the law”. The problem in this case, which
is relevant to the issue of proportionality, is that the prior charges, which
were not charges of consensual sexual activity with a child aged between 13 and
16, did not by themselves provide such a warning.
30.
Necessary for the prevention of crime, the protection of health or
morals, and the protection of the rights of others: (i) The importance of
the aims: Of the public purposes listed in article 8(2) as possible
justifications for an interference with an article 8(1) right, the prevention
of crime, the protection of health or morals, and the protection of the rights
of others, in this case potential victims of sexual offending, appear the most
relevant. The aims of the legislation, as the Lord Advocate submits, include
the protection of children from premature sexual activity, young teenage
pregnancy, sexually transmitted diseases, and also exploitation and abuse. It
also seeks to deter adults from sexual activity with children under the age of
16. Those aims are undoubtedly legitimate and are consistent with the state’s
positive obligation to protect children from exploitation and abuse. The aims
are, in my view, sufficiently important to justify some limitation of the
appellant’s right to privacy.
31.
(ii) Rational connection: As a matter of policy both the United
Kingdom Parliament and the Scottish Parliament have not sought to criminalise
all sexual activity between an adult and children between the ages of 13 and
16, recognising the possibility of reasonable mistake as to age. In the 2003
Act in England and Wales and in the 2009 Act in Scotland the democratic
legislatures have created strict liability offences where sexual activity is
with children under the age of 13, but have allowed a role for honest belief as
to age to exclude criminal liability where that activity is with older
children. In English law the prosecution must exclude such honest belief (para
7 above); in Scots law a reasonable belief defence is available so long as the
accused person has not been charged with an earlier relevant sexual offence
(paras 10 and 11 above).
32.
The rational connection between the restriction of the reasonable belief
defence in the impugned provision and the legitimate aims of protecting
children and deterring adults from sexual activity with older children
principally, but not exclusively, depends on the extent to which the prior
police charge can operate as a warning to the person so charged. There are no
operating procedures which require police officers to give any particular
warning. Instead, the official warning or notice on which the Lord Advocate relies
is (if it exists at all) an implied notice as it is left to the charged person
to infer from the particular charge that consensual sexual activity with older
children is a criminal activity.
33.
Until the 2009 Act was enacted, the prior charge which excluded the
reasonable belief defence in a charge of sexual intercourse with an older child
was a charge of a “like offence”, ie principally, having or attempting to have (consensual)
sexual intercourse with an older child (para 5 above). As I have said, it was
generally accepted that the relevant charge had to proceed to trial before the
reasonable belief defence was excluded. In the 2009 Act, by contrast, the
charge can relate to a wide range of “relevant sexual offences” in Schedule 1, involving
both consensual and non-consensual sexual activity and including offences, such
as coercing a person into looking at a sexual image, sexual exposure or
voyeurism (sections 6, 8 and 9), in which the age of the victim is not an
essential component. The sexual offence in, for example, Part 1 of the Act
becomes a relevant sexual offence under Schedule 1 if the victim is in fact
under the age of 16. Thus, while the police officer in formulating the charge
of a sexual offence may follow the practice in a formal charge in an indictment
by narrating the date of birth of the victim, if a child, in cases where that
person’s age is not an essential component of the crime, the charge itself
would contain no further warning about the criminality of consensual sexual
activity with an older child.
34.
In addition, it is striking that Schedule 1, Part 1, paragraph 1(b)
excludes from the list of relevant sexual offences those which prima facie
would have been most relevant as a warning to a person who, like the appellant,
committed the prior offence while still aged between 13 and 16, namely the
offences of older children engaging in sexual conduct with each other: section
37(1) and (4).
35.
In my view there will in many cases be no rational connection between
the suggested “warning” and the deterrence of the person who is charged from consensual
sexual activity with older children, because there will not be an adequate
basis in the charge from which the charged person can infer the official
warning about sexual behaviour with children under 16, for which the Lord
Advocate contends. On the other hand, the limitation of the availability of the
reasonable belief defence, which may often be difficult for the Crown to
disprove, is rationally connected with the protection of children from sexual
activity and predation, because it creates strict liability offences which are easier
for the Crown to prove. It may therefore contribute towards the aim stated in
the Policy Memorandum of preventing serial sexual predators evading conviction
by repeated use of the reasonable belief defence. I conclude therefore that the
impugned provision does not infringe the appellant’s article 8 right because of
an absence of rational connection.
36.
(iii) Less intrusive means: Mr O’Neill submits that the
Parliament could sufficiently have achieved the legitimate aims of protecting
older children from sexual activity and deterring adults from such activity
with them by other means which would not interfere with the appellant’s article
8 right to the same extent. He puts forward four possibilities. He suggests that
the reasonable belief defence could be disallowed either if the accused person
has been convicted of a relevant sexual offence or if the accused has actually
relied on the defence in court on a previous occasion. Alternatively, the
Parliament could have adopted the recommendation of the Scottish Law Commission
to allow the Crown to challenge the credibility of the accused if he or she has
attempted to raise a reasonable belief defence in earlier criminal proceedings.
Finally, he suggests that if the mere fact of a police charge were to be used
as the basis for modifying the individual’s defences, its effect could be
confined, for example, to imposing a legal burden rather than merely an
evidential burden on the accused to establish the existence of the reasonable
belief.
37.
I am not persuaded. It is important to recall that the question of
whether the Parliament could have used a less intrusive measure does not
involve the court in identifying the alternative measure which is least
intrusive. The court allows the legislature a margin of discretion and asks
whether the limitation on the article 8 right is one which it was reasonable
for the Parliament to propose: Bank Mellat v HM Treasury (No 2) [2013] UKSC 38, [2014] AC 700, para 75 per Lord Reed; Animal Defenders
International v United Kingdom (2013) 57 EHRR 21, para 110. Had the 2009
Act provided that the reasonable belief defence would not be available if on an
earlier occasion the accused had been charged with an offence which itself
objectively entailed a warning of the illegality of consensual sexual activity
with older children, the fact that there were other options, which were less
intrusive, to restrict the availability of that defence would not cause an
infringement of the individual’s article 8 right. The problem for the Lord
Advocate in this appeal is where to find such a warning.
38.
(iv) Proportionality: The Scottish Parliament has sought to
strike a balance between protecting young people under the age of 16 from both
premature sexual activity and predation on the one hand and the recognition
that it might be harsh to criminalise an honest mistake when an older child
appears older than his or her true age. It has expanded the reasonable belief
defence by making it available to accused persons regardless of their age. But
it has set a limit on the defence by excluding it when the accused person has
previously been charged with a relevant sexual offence. As I have said, the
principal rationale now advanced for the use of the prior charge to limit the
availability of the defence is that the charge amounts to “an official warning
about sexual offences with children” as the Lord Advocate states in his written
case.
39.
The balance, which this court is enjoined to address, is different. It
is the question of a fair balance between the public interest and the
individual’s right to respect for his or her private life under article 8. The
question for the court is, in other words, whether the impact of the
infringement of that right is proportionate, having regard to the likely
benefit of the impugned provision.
40.
In addressing this question, I acknowledge that the Scottish Parliament
might have chosen to make sexual activity with older children a strict
liability offence by excluding altogether the reasonable belief defence. But it
did not. Instead, it chose to use as a limit on the defence the prior police
charge of a relevant sexual offence, thereby bringing the limitation in the
impugned provision within the ambit of article 8.
41.
In addressing the limit which the Parliament has chosen to place on the
defence and its effect on the appellant’s article 8 right I bear in mind that
“… it will almost always be
possible for the courts to conclude that a more precisely tailored bright line
rule might have been devised than the one selected by the body to which the
choice has been democratically entrusted and which, unlike the courts, is
politically accountable for that choice. … the courts are not called on to
substitute judicial opinions for legislative or executive ones as to the place
at which to draw a precise line.”
(R (Tigere) v Secretary of State for Business,
Innovation and Skills [2015] UKSC 57, [2015] 1 WLR 3820, para 93 per
Lord Sumption and Lord Reed (in a dissenting judgment)). I also have regard to
the fact that once a police officer has charged a person with a relevant sexual
offence, the record of that charge will remain available to exclude the
reasonable belief defence for the rest of that person’s life.
42.
I am satisfied that in principle a warning by a police officer that
sexual activity with older children, including consensual activity, was a
criminal offence, could form a basis for the exclusion of the reasonable belief
defence without infringing an accused person’s article 8 right. The problem in
this case is that there does not appear to have been such a warning.
43.
The relevant sexual offences with which the appellant was charged when
he was aged 14 (para 13 above) were common law offences which could be
committed only against children under the age of puberty and a statutory
offence which could be committed only against girls aged 12 or over and under 16.
To that extent, he, when a child, was given notice that certain sexual activity
involving children was criminal. But the charges, which involved showing online
pornographic images to a young boy and the exposure of his genitals to girls,
did not involve consensual sexual activity with an older child and could not
amount to an implicit warning that such activity was an offence. There is no
suggestion that the police officer gave any explicit warning that such
consensual activity amounted to an offence or that in future any such sexual
activity with an older child would be a strict liability offence because the
reasonable belief defence would not be available. No charge was laid against
the appellant at a trial. Instead, the case was referred to the Children’s
Reporter, who appears to have decided to take no action.
44.
In my view the use of the prior charges in this case to exclude the
reasonable belief defence amounts to a disproportionate interference with the
appellant’s article 8 right because the prior charges did not give the official
warning or official notice, which is the only rationale of the impugned
provision which the Lord Advocate seeks to defend. If the appellant had in the
past been charged with an offence of consensual sexual activity under section
37 of the 2009 Act and that offence had been listed as a relevant sexual
offence, it would clearly be arguable that he had been given sufficient notice
to meet the rationale of an official warning. Similarly, if an adult had been
charged with the equivalent of a “like offence” under the prior law, there would
clearly be scope for finding that there had been an implicit warning which would
justify a restriction of the defence by the Parliament. But that is not what
happened in this case.
45.
When discussing whether there was a rational connection between the
impugned provision and the legitimate aim, I have observed that the list of
“relevant sexual offences” includes charges in which the age of the victim is
not an essential component, extends far beyond consensual sexual activity with
an older child and excludes charges relating to sexual conduct (including
consensual conduct) under section 37 of the 2009 Act, which might be most
relevant to a person of the appellant’s age when he was first charged. This
suggests that the impugned provision is likely in many other cases to give rise
to infringements of article 8 because of the absence of a warning.
Discrimination: article 8 and article 14
46.
Having reached the conclusions which I have in relation to
proportionality, it is not necessary to discuss this alternative challenge.
Conclusion and remedy
47.
I am satisfied that section 39(2)(a)(i) of the 2009 Act is incompatible
with Convention rights in its application to the appellant because it
interferes disproportionately with his article 8 right (paras 43-44). It is
likely to do so in all other cases where the prior charge does not objectively
give the relevant warning.
48.
I do not consider that it is possible to invoke section 101 of the
Scotland Act 1998 to interpret the impugned provision narrowly so as to bring
it within the competence of the Parliament.
49.
The court’s power under section 102 of the Scotland Act 1998 to suspend or
vary the effect of its decision on a compatibility issue is to be exercised by
the High Court of Justiciary: Scotland Act 1998, section 102(5A).
50.
I would therefore allow the appeal and remit the proceedings to the High
Court of Justiciary.
LORD REED: (with whom
Lord Kerr, Lord Wilson and Lord Hughes agree)
51.
When the provision which became section 39(2)(a)(i) of the Sexual
Offences (Scotland) Act 2009 was introduced into the Scottish Parliament, as
part of the Sexual Offences (Scotland) Bill, the Parliament was told, in the
Scottish Government’s policy memorandum which accompanied the Bill:
“The Bill provides that it shall
be a defence to a charge of sexual activity with an older child that the
accused reasonably believed that the child was 16 years old or older. This is similar
to what the SLC [Scottish Law Commission] proposed but differs by restricting
the use of the defence to those not previously charged with a like offence.
This reflects the current law,
where the defence is allowed in respect of a charge of intercourse with a girl
under 16, but it is a requirement that the accused had not previously been charged
with a like offence.” (paras 131-132)
52.
As Lord Hodge has explained, however, the new provision departed from
the then current law in two important respects. First, it restricted the
defence to those not previously charged by the police, whereas the then current
law (contained in section 5 of the Criminal Law (Consolidation) (Scotland) Act
1995), as generally understood, restricted the defence to those who had not
previously stood trial. That was a significant change, since people who are
charged by the police are not necessarily brought to trial. The present case
provides an example: the appellant was charged by the police when he was 14,
but was not prosecuted. Instead, like most children in such circumstances, he
was referred to the Children’s Reporter, who seemingly decided to take no
action.
53.
Secondly, the defence was previously restricted to those not previously
charged with “a like offence”, defined as meaning (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 new provision, on the other hand, restricted the defence to those not
previously charged with “a relevant sexual offence”, defined in Schedule 1 to
the 2009 Act so as to include a far wider range of offences. That was another
important change.
54.
As to the policy justifying the provision, the policy memorandum
explained that the Scottish Government disagreed with the Scottish Law
Commission’s recommendation that there should be no restriction on the
availability of the defence, and stated:
“We were concerned that removing
this restriction could enable serial sexual predators to evade conviction and
have therefore re-instated it.” (para 135)
In evidence to the Scottish Parliament, the Scottish
Government’s Bill Team Leader explained the thinking more fully:
“Now, as regards the relevant
offence and its restriction, the defence … is restricted to those not ‘previously
... charged by the police with a relevant offence’ to prevent a serial sexual
predator who relied on that defence on a previous occasion but was acquitted of
all charges from using the same defence to evade conviction on a subsequent offence
or offences. … In each individual instance, the accused’s claim of mistaken
belief as to the child’s age may appear to be reasonable. However, when considered
together, the accused's behaviour would indicate that he or she was
deliberately preying on children.” (Subordinate Legislation Committee, 28
October 2008, col 392)
So the policy justification was to prevent the defence
from being exploited by serial sexual predators.
55.
No one could quarrel with that objective. The problem is that it cannot
provide a legally tenable justification for the measure which was introduced
and enacted. Indeed, the Lord Advocate has not attempted to defend the
rationale put forward in the policy memorandum and in the Bill Team Leader’s
evidence. The difficulty with that rationale is that the restriction on the
availability of the defence is not confined to persons who relied on the
defence on a previous occasion, or even to persons who could conceivably have
relied on the defence on a previous occasion. For example, a person who, like
the appellant, was previously charged with offences against children under the
age of puberty could not possibly have relied on a defence that he reasonably
believed that the victims were 16 or older, since that would not be a defence
to the charge.
The justification for the interference with article 8
rights
56.
The need for a legally defensible justification for the provision arises
from the fact, conceded on behalf of the Crown, that the application of section
39(2)(a)(i) involves an interference with rights guaranteed by article 8 of the
European Convention on Human Rights, since it involves the disclosure of
information about an earlier police charge. That concession departs from the
Crown’s position before the courts below.
57.
Given that concession, it is legally necessary for the interference to
be justified under article 8(2). The justification which is now put forward was
first advanced in evidence given to the Scottish Parliament by a representative
of the Scottish Government Legal Directorate. It was not, however, the policy
which underlay the drafting of the provision and was set out in the policy
memorandum, namely to prevent the defence from being exploited by serial sexual
predators. Unsurprisingly, the justification now put forward does not fit
particularly well with a provision which was drafted with a different rationale
in mind.
58.
The justification now put forward is that “where the accused has been
charged by the police with a relevant sexual offence [he] has therefore
received an official warning about sexual offences with children”. It is argued
that such a warning alerts the person charged to the importance of a young
person’s age in relation to sexual behaviour, and therefore justifies depriving
that person, if he is later charged with one of the sexual offences against
older children set out in sections 28 to 37 of the 2009 Act, of the defence
that he reasonably believed that the complainer was 16 or older. On that basis,
it is argued that the disclosure of the previous charge is justified in the
interests of protecting older children from sexual exploitation.
59.
In considering this justification, it is important to understand that
sections 28 to 37 are concerned primarily with consensual sexual behaviour
involving older children. Non-consensual offences, such as rape or sexual
assault, are dealt with elsewhere in the 2009 Act. For example, a boy and girl
of 15 who willingly have sexual intercourse together are both guilty of an
offence under section 37. Section 39(1), which provides the defence taken away
by section 39(2)(a)(i), provides the boy and the girl with a defence if they
reasonably believed that their partner was 16 or older. If, on the other hand,
the girl did not consent to sexual intercourse, the offence would be rape,
which is dealt with in section 1 of the 2009 Act. No question of a defence
under section 39(1) would arise: it is, of course, no defence to a charge of
rape that the rapist was mistaken as to his victim’s age.
60.
Similarly, a boy of 16 who touches sexually a girl of 15, with her
consent, commits an offence under section 30 of the 2009 Act. If he reasonably
believed that she was 16 or older, he has a defence under section 39(1), unless
he is deprived of it under section 39(2)(a)(i). If, on the other hand, the girl
did not consent to being touched, the offence would be sexual assault, which is
dealt with in section 3 of the 2009 Act. No question of a defence under section
39(1) could arise: a mistake as to the age of the victim is irrelevant to the
question whether she was assaulted or not.
61.
There are also some offences in sections 28 to 37 which can be committed
either consensually or not (such as causing a child aged over 13 but under 16
to look at a sexual image), but in practice the offences charged under those
sections are primarily concerned with sexual activities involving two or more
willing parties. It is because even willing children need to be protected from
premature sexual activities that these offences have been created; and it is
because of the possibility that a person can make a reasonable mistake as to
the age of an older child that the defence in section 39(1) has been provided.
62.
Considered against that background, the fundamental problem with the
justification now put forward for depriving a person of the defence - namely,
that by being previously charged with a “relevant sexual offence”, he has been
alerted to the importance of making sure that his partner in sexual activities
is over the age of consent - is readily apparent. The problem is that “relevant
sexual offences” are defined in Schedule 1 to the 2009 Act as including almost
all sexual offences, provided they were committed against a person under the
age of 16. That made sense when the policy was to prevent the defence from
being exploited by serial sexual predators. But it does not make sense if the
justification is that the person charged has been warned about the importance
of the age of consent. That is because the age of the victim is irrelevant to many
sexual offences. As I have explained, rape and sexual assault, for example, are
offences whatever the age of the victim; and the same is true of many other
offences concerned with non-consensual sexual activities. A person who is
charged with an offence of that nature, even if the complainer is aged under
16, is not in consequence put on notice that consensual sexual activity with a
person of that age is equally unlawful.
63.
An analogous problem arises also where the “relevant sexual offence” is
one which can be committed only against younger children. For example, a person
who is accused of having sexual intercourse with a girl under 13 will be
charged with the rape of a young child, under section 18 of the 2009 Act. No
question arises of a defence under section 39(1): sexual intercourse with a
child under 13 is an offence of strict liability. It is difficult to regard
such a charge as constituting a warning of the need to make sure that an older
girl who is sexually mature and willing to engage in sexual intercourse is 16
or older. This point also arises in relation to the common law offences with
which the appellant was charged when he was 14, since they could be committed
only against children under the age of puberty. Even the statutory offence with
which he was then charged, although one which could only be committed against
someone aged between 12 and 16, was concerned with non-consensual conduct. On
what basis could it be said that his being charged with offences of those kinds
alerted him to the importance of ensuring that an older person who was willing
to engage in consensual sexual behaviour with him was over the age of consent?
64.
In short, the difficulty arises from the width of the definition of
“relevant sexual offences” in Schedule 1 to the 2009 Act. Since such offences
are not confined to sexual conduct which is illegal because it is with
children in the relevant age group, prior charges of such offences cannot be
taken to have alerted the accused to the importance of making sure that a
person is over 16 before engaging in the sexual activities which are
criminalised by sections 28 to 37. In addition, since the offences listed in
Schedule 1 include non-consensual offences, prior charges cannot be taken to
have alerted the accused to the importance of age in the context of consensual
sexual conduct.
65.
The difficulty is underlined by the fact that relevant sexual offences
are defined in paragraph 1(b) of Schedule 1 so as to exclude consensual sexual
activities between older children. For example, a 15 year old who has
previously been charged with having sexual intercourse with another 15 year old
is not deprived of the defence. Yet that is the clearest example of a situation
where the charge alerts the person charged to the importance of the age of
consent when engaging in consensual sexual behaviour. The explanation,
presumably, is that it was considered inappropriate to apply the “serial sexual
predator” policy to offenders who were themselves children at the time of a
previous charge involving consensual behaviour with another child.
66.
It follows that the interference with the right guaranteed by article 8
which is implicitly authorised by section 39(2)(a)(i) cannot be regarded as
proportionate in cases (such as the present case) where the necessary link
between the prior charge and the supposed warning does not exist. This problem
cannot be resolved by interpreting the legislation narrowly: it can only be
resolved by further legislation. It follows that section 39(2)(a)(i) must be
held to be incompatible with article 8 and therefore not law.
67.
Given that conclusion, and bearing in mind also that the Lord Advocate
has instructed a review in relation to the charging of children, it is
unnecessary to reach a concluded view on the challenge under article 14.
Conclusion
68.
For these reasons, and those given by Lord Hodge, I agree that the
appeal against the decision of the High Court of Justiciary should be allowed,
and that the proceedings should be remitted to that court.
