Caught in the past
Two judgments upholding human rights challenges to Scottish legislation point to the need for an urgent review of the effect of childhood offending behaviour later in life
In AB v HMA  UKSC 25 (5 April 2017) the Supreme Court ruled that s 39(2)(a) of the Sexual Offences (Scotland) Act 2009 was incompatible with the European Convention on Human Rights, and that it was outside the legislative competence of the Scottish Parliament and therefore not law. Clan Childlaw intervened in this case to put forward a child law perspective and supported the argument that prevailed.
When the appellant was aged 14, the police charged him with lewd and libidinous practices and contravention of s 6 of the Criminal Law (Consolidation) (Scotland) Act 1995. The alleged behaviour involved him showing online pornographic images to a young boy, and exposing himself to three other children. The matter was referred to the children’s reporter who, it is understood, took no further action. When the appellant was aged 19, he was charged with engaging in sexual intercourse with a girl who was under 16 years. He did not deny that sexual intercourse took place. He wished to rely on the defence that he reasonably believed that the girl had attained the age of 16 years. However, he was not able to rely on this defence as the statute does not allow it to be used if the person has previously been charged with a “relevant sexual offence”. The offences with which he was charged when he was aged 14 are listed as “relevant sexual offences”.
The appellant challenged the legality of the statutory provision by arguing that it was incompatible with the ECHR.
The Supreme Court held that the relevant section was incompatible with the ECHR, as it interfered disproportionately with the appellant’s article 8 right to private and family life. The rationale behind the legislation put forward by the Lord Advocate was that when an accused has been previously charged by the police with a relevant sexual offence, the individual has received an “official warning”. This “official warning” means that they must make sure that any future sexual partner is aged 16 or over. However, Lord Hodge concluded at paras 44-45: “the use of 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… 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 [certain relevant] charges relating to sexual conduct… 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”.
In our written submissions as intervener we argued that “for a warning to be in any way effective, there would have to be an obvious connection between the behaviour that gave rise to the charge and the behaviour that is being warned against… If the purpose of the warning at the time of the charge is to put a person on notice that he or she must take care about future sexual behaviour, and that person is unaware that it is a warning, then it fails its purpose... this will be the position in the majority of cases where a child has been charged. That being the case, the 'official warning' is no warning at all”.
We are pleased with this decision, which is consistent with the approach taken in Scotland in the children’s hearings system that children who are charged with offending behaviour are considered having regard to their welfare and not on a punitive basis. The case will now be remitted to the High Court of Justiciary.
It is interesting to look at this decision along with the Outer House decision in P (AP) v Scottish Ministers  CSOH 33 (28 February 2017), which also concerned the effect of childhood offending in later life. It held that the Police Act 1997 and the Protection of Vulnerable Groups (Scotland) Act 2007 Remedial (No 2) Order 2015, which attempted to make the Protection of Vulnerable Groups (Scotland) Act 2007 compatible with article 8 ECHR following the Supreme Court decision in R (on the application of T and another) v Secretary of State for the Home Department  UKSC 35, was itself incompatible with article 8. This was because it operated arbitrarily in permitting automatic disclosure of certain offences without safeguards to enable the proportionality of disclosure to be evaluated.
Reading these two judgments together, an urgent review of the effect of childhood offending behaviour later in life is required.
Alison Reid is principal solicitor with Clan Childlaw
Click here to access the written intervention and other materials