Sexual Offences (Scotland) Act 2009 violates ECHR, art 8 by denying ‘reasonable belief’ defence


Re: AB v HM’s Advocate (Scotland) [2017] UKSC 25

This appeal considered whether the High Court erred in holding that the provisions of the Sexual Offences (Scotland) Act 2009, which prevent the defendant from relying on the ‘reasonable belief’ defence, specifically s 39(2)(a)(i), are compatible with ECHR, arts 6, 8 and 14. The Supreme Court unanimously allowed the appeal. The Court held there was no violation of ECHR, art 6 as the provisions of the Sexual Offences (Scotland) Act 2009 did not create an irrebuttable presumption that the defendant lacked a reasonable belief in the victim’s consent, but rather created a strict liability offence. Nonetheless, the Supreme Court held that there was interference with ECHR, art 8, and that this was disproportionate, because 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. Therefore the prior charges failed to alert the person charged to the importance of a young person’s age in relation to sexual behaviour, and so could not justify depriving that person, if later charged with a sexual offence against an older child of the reasonable belief defence. As a result, the Court held that s 39(2)(a)(i) was not lawful. Proceedings have been remitted to the High Court of Justiciary for it to suspend or vary the effect of the decision.

Aidan O’Neill QC and Edward Craven was involved in this case.