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 was over the age of 16, if the police had previously charged A with a ‘relevant sexual offence’.
Held: ‘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 ‘
The impugned provision was 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
‘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. ‘
Lord Kerr, Lord Wilson, Lord Reed, Lord Hughes, Lord Hodge
[2017] UKSC 25, 2017 SLT 401, 2017 SCL 434, 2017 GWD 12-178, UKSC 2016/0083
Bailii, Bailii Summary, SC, SC Summary, SC Summary Video
Criminal Procedure (Scotland) Act 1995, European Convention on Human Rights, Scotland Act 1998 29, Sexual Offences (Scotland) Act 2009 39
Scotland
Citing:
CitedRegina v Rider 1954
The expression ‘charge’ is usually used to describe a formal accusation that a person has committed a criminal offence.
Stratfield J said: ‘there is another principle that one ought to apply, namely, that section . . exists for the purpose of . .
Appeal fromAB v Her Majesty’s Advocate HCJ 26-Feb-2016
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 . .
CitedSalabiaku v France ECHR 7-Oct-1988
A Zairese national living in Paris, went to the airport to collect, as he said, a parcel of foodstuffs sent from Africa. He could not find this, but was shown a locked trunk, which he was advised to leave alone. He however took possession of it, . .
CitedRegina v G (Secretary of State for the Home Department intervening) HL 18-Jun-2008
The defendant was fifteen. He was convicted of statutory rape of a 13 year old girl, believing her to be 15. He appealed saying that as an offence of strict liability he had been denied a right to a fair trial, and also that the offence charged was . .
CitedMarper v United Kingdom; S v United Kingdom ECHR 4-Dec-2008
(Grand Chamber) The applicants complained that on being arrested on suspicion of offences, samples of their DNA had been taken, but then despite being released without conviction, the samples had retained on the Police database.
Held: . .
CitedLeander v Sweden ECHR 26-Mar-1987
Mr Leander had been refused employment at a museum located on a naval base, having been assessed as a security risk on the basis of information stored on a register maintained by State security services that had not been disclosed him. Mr Leander . .
CitedAmann v Switzerland ECHR 16-Feb-2000
Hudoc Judgment (Merits and just satisfaction) Violation of Art. 8 with regard to interception of telephone call; Violation of Art. 8 with regard to creation and storing of information card; Preliminary objection . .
CitedRotaru v Romania ECHR 4-May-2000
Grand Chamber – The applicant, a lawyer, complained of a violation of his right to respect for his private life on account of the use against him by the Romanian Intelligence Service of a file which contained information about his conviction for . .
CitedS v The United Kingdom; Marper v The United Kingdom ECHR 4-Dec-2008
(Grand Chamber) The court commented that ‘in determining whether the personal information retained by the authorities involves any of the private-life aspects mentioned above, the court will have due regard to the specific context in which the . .
CitedBouchacourt v France ECHR 17-Dec-2009
The applicant had been sentenced to ten years’ imprisonment for rape and sexual assault on minors. His name had been placed automatically on a Register of Sexual and Violent Offenders, and had had to confirm his address every year and to give notice . .
CitedMM v The United Kingdom ECHR 13-Nov-2012
ECHR The applicant complained about the retention and disclosure in the context of a criminal record check of data concerning a caution she received from the police. he applicant, who lived in Northern Ireland, . .
CitedG v The United Kingdom ECHR 30-Aug-2011
The appellant aged 15, had sexual intercourse with a girl aged 12. He pleaded guilty to a charge of rape of a child under 13, contrary to section 5 of the 2003 Act, on the written basis that the intercourse was consensual in fact (although by reason . .
CitedT and Another, Regina (on The Application of) v Secretary of State for The Home Department and Another SC 18-Jun-2014
T and JB, asserted that the reference in certificates issued by the state to cautions given to them violated their right to respect for their private life under article 8 of the Convention. T further claims that the obligation cast upon him to . .
CitedAnimal Defenders International v The United Kingdom ECHR 22-Apr-2013
ECHR (Grand Chamber) Article 10-1
Freedom of expression
Refusal of permission for non-governmental organisation to place television advert owing to statutory prohibition of political advertising: no . .
CitedTigere, Regina (on The Application of) v Secretary of State for Business, Innovation and Skills SC 29-Jul-2015
After increasing university fees, the student loan system was part funded by the government. They introduced limits to the availability of such loans, and a student must have been lawfully ordinarily resident in the UK for three years before the day . .
CitedBank Mellat v Her Majesty’s Treasury (No 2) SC 19-Jun-2013
The bank challenged measures taken by HM Treasury to restrict access to the United Kingdom’s financial markets by a major Iranian commercial bank, Bank Mellat, on the account of its alleged connection with Iran’s nuclear weapons and ballistic . .

These lists may be incomplete.
Updated: 15 February 2021; Ref: scu.581351