Case details

AB (Appellant) v Her Majesty’s Advocate (Respondent) (Scotland)

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Case ID: UKSC 2016/0083

Case summary

Issue

Whether the High Court erred in holding that the provisions of the Sexual Offences (Scotland) Act 2009, which prevent the appellant, from relying on the "reasonable belief" defence are compatible with arts.6, 8 and 14 ECHR

Facts

As a 14 year old, the appellant was charged by the police with showing pornography, and indecently exposing himself, to some other children. He was not prosecuted. When aged 19 he was charged with engaging in sexual intercourse with a girl aged under 16, contrary to ss.28 and 30 of the Sexual Offences (Scotland) Act 2009. He awaits trial on these charges. He is prevented from relying on the defence that he reasonably believed that the girl in question was 16 by s.39(2)(a)(i) of the 2009 Act, which provides that the defence is not available to a person who has previously been charged with a relevant sexual offence. The appellant challenged that provision as being incompatible with Convention rights under the ECHR, and therefore outside the powers of the Scottish Parliament. He relied on art.6, either on its own (in particular, the presumption of innocence) or together with art.14 (non-discrimination), and also on art.8 (private life). The High Court of Justiciary concluded that the provision was compatible with art.8, and that art.6 was not engaged, either on its own or in conjunction with art.14.

Parties

Appellant

AB

Respondent

Her Majesty's Advocate

Intervener

Community Law Advice Network

Appeal

Justices

Lord Kerr, Lord Wilson, Lord Reed, Lord Hughes, Lord Hodge

Hearing start date

11 Jul 2016

Hearing finish date

11 Jul 2016

Watch hearing
11 Jul 2016 Morning session Afternoon session