The defendant appealed his conviction for having sexual relations with a child under 16 saying that the legislation denied his right of consideration that he genuinely believed that she was 16 years old.
Held: 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 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, and even if article 8 were engaged, the interference was both in accordance with the law and proportionate.
‘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).’
Judges:
Lord Justice General (Lord Carloway), Lady Dorrian and Lord Bracadale
Citations:
[2016] HCJCA HCA/2015/3552/XC
Statutes:
Sexual Offences (Scotland) Act 2009 39
Jurisdiction:
Scotland
Cited by:
Appeal from – AB v Her Majesty’s Advocate SC 5-Apr-2017
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 . .
Lists of cited by and citing cases may be incomplete.
Crime, Human Rights
Updated: 25 July 2022; Ref: scu.640834
