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

https://www.supremecourt.uk/cases/uksc-2016-0083.html (Supreme Court, 5 April 2017)

Background: When the appellant was aged 14 he was charged with lewd and libidinous practices and contravention of section 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 old. He did not deny that sexual intercourse took place, and 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 the use of this defence if the person has previously been charged with a “relevant sexual offence”. 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 previously received an “official warning”. This “official warning” means that they must make sure that any future sexual partner is aged 16 or over.

The offences with which the appellant 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 European Convention Human Rights (ECHR).

Held: The court ruled that section 39(2)(a)(i) of the Sexual Offences (Scotland) Act 2009 was incompatible with the ECHR and that it was outwith the legislative competence of the Scottish Parliament. This incompatibility derived from a disproportionate interference with the appellant’s article 8 right.

Lord Hodge concluded that:

“…[T]he 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…” [44]

“…[T]he list of “relevant sexual offences” includes charges in which the age of the victim is not an essential component, extends far beyond sexual activity with an older child and excludes 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.” [45]

The case will now be remitted to the High Court of Justiciary.


Note: Clan Childlaw intervened in this case to put forward a child law perspective and supported the argument that prevailed. This decision is consistent with the approach taken 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.