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UKSC: exclusion of reasonable belief defence to underage sex against ECHR

5 April 2017

A young man charged with having intercourse with a girl aged under 16, who sought to rely on the defence that he reasonably believed she was 16, has won an appeal to the UK Supreme Court on the basis that a provision passed by the Scottish Parliament which barred him from using the defence infringes human rights law.

Five judges ruled unanimously that s 39(2)(a)(i) of the Sexual Offences (Scotland) Act 2009, which provides that the defence is not available to an individual who has previously been charged by the police with a "relevant sexual offence", was contrary to article 8 of the European Convention on Human Rights because such relevant sexual offences included some which would not provide an official warning that consensual sexual activity with children between the ages of 13 and 16 was an offence. 

The man, referred to as AB, was charged with having intercourse with a girl aged 14 years and 11 months when he was aged 19. At the age of 14 he had been charged by police with lewd and libidinous practices and a statutory charge (showing pornographic images to a young boy, and exposing himself to, and chasing after, three girls), but he was not prosecuted.

These offences were all "relevant sexual offences" that barred AB from claiming reasonable belief regarding the present charge. He argued that s 39(2)(a)(i) breached both the presumption of innocence in article 6(2) of the ECHR and his article 8 right to privacy, and was unjustifiably discriminatory for the purposes of article 14 read with article 8.

The High Court rejected his argument and AB appealed. The Lord Advocate argued that any interference with AB's Convention rights was justified in the interests of protecting older children from sexual exploitation. The prior charge acted as an official warning, alerting the person charged to the importance of a young person’s age in relation to sexual behaviour, and therefore justified depriving that person, if later charged with a sexual offence against an older child, of the reasonable belief defence.

Lord Hodge, with whom Lord Kerr, Lord Wilson, Lord Reed and Lord Hughes agreed, said that s 39(2)(a)(i) did not come within the ambit of the article 6 right to a fair trial, since it did not create an irrebuttable presumption that there was no reasonable belief as to the age of the girl, overriding the presumption of innocence in article 6(2). Rather, the provision created what amounted to a strict liability offence. Article 6(2) was concerned with procedural guarantees and not with the substantive elements of a criminal offence.

However there was an interference with the article 8 right to private and family life which required to be justified under article 8(2). The exclusion of the reasonable belief defence in this case was a disproportionate interference with AB's article 8 rights because the prior charges did not give the official warning or notice that consensual sexual activity with children between the ages of 13 and 16 was an offence. They were not charges of sexual activity with a child aged between 13 and 16 and therefore did not provide such a warning. The list of “relevant sexual offences” included charges in which the age of the victim was not an essential component, extended far beyond consensual sexual activity with an older child and excluded charges where the charged person was an older child at the time of the charge.

This suggested that s 39(2)(a)(i) was likely in many other cases to give rise to infringements of article 8 because the prior charge did not objectively give the relevant warning.

In a concurring judgment Lord Reed observed that the difficulty arose from the width of the definition of “relevant sexual offences”. Since these were not confined to sexual conduct which was illegal because it was with children, prior charges of such offences could not be taken to have alerted the accused to the importance of making sure that a person was over 16 before engaging in sexual activities.

Further, since the definition included non-consensual offences, prior charges relating to those offences could not be taken to have alerted the accused to the importance of age in the context of consensual sexual conduct. The definition also excluded consensual sexual activities between older children, perhaps the clearest example of a situation where the charge alerted the person charged to the importance of the age of consent when engaging in consensual sexual behaviour.

Click here to access the judgment.

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