Mark O’Rourke v. Her Majesty’s Advocate [2017] HCJAC 70

Reference of a Compatibility Issue under section 288ZB(1) of the Criminal Procedure (Scotland) Act 1995:- The minuter was indicted on having sexual intercourse and sexual activity with a child aged 14, contrary to sections 28 and 30 of the Sexual Offences (Scotland) Act 2009 when he was 19 years of age. The minuter accepted that the conduct referred to took place. In terms of section 39(1)(a) of the 2009 Act the minuter sought to rely on the statutory defence that he reasonably believed that the complainer was 16 years of age at the time of the offences, however, he had previously been charged by the police with a relevant sexual offence and thus, in terms of section 39(2)(a)(i) of the 2009 he could not rely on the defence. The minuter, when he was 14, was charged by the police in relation to:- (1) a charge of common law lewd and libidinous practices and behaviour towards younger children; and (2) a contravention of section 6 of the Criminal Law (Consolidation) (Scotland) Act 1995. The minuter was not prosecuted in the criminal courts but was referred to the Children’s Reporter. The minuter lodged a compatibility issue minute in which it was contended that section 39(2)(a)(i) was incompatibile with Articles 6 and 8 of ECHR. It was submitted on behalf of the minuter that section 39(2)(a)(i) was incompatible with Articles 6 and 8 separately, and when read together with Article 14. Article 6(2) refers to the right to be presumed innocent which means that not only is a person accused of a crime entitled to be presumed innocent until proven guilty, but also those who had been acquitted of a crime were not to be treated as though they were guilty. It was submitted that article 6 was engaged because the minuter would not be able to rely on the defence even where he had been acquitted of the previous charge and the minuter would necessarily be found guilty which created a presumption of guilt. Whilst a previous conviction might be a basis for restricting the availability of a defence a previous charge could not. In the present case not only was there no previous conviction but there were no criminal proceedings at all. It was further submitted that whilst strict liability offences could be created by member states where a defence was provided it was illegitimate to discriminate between those who had previously been charged and those who had not. Article 14 prohibited discrimination not only on a personal basis but also on the basis of the status of an individual. It was further submitted that the minuter’s right to respect for his private life under Article 8 was engaged when he was criminalised for having sexual intercourse with an older child, however, if the minuter believed the complainer was over the age of 16 then there was no criminality. It was conceded that article 8 was not an absolute right but that any interference with it required to satisfy the requirement of legality and Section 39(2)(a)(i) was too inflexible and the unavailability of a mechanism to challenge the prior police charge breached the requirement for legality. It was submitted that in relation to the question of proportionality the section failed particularly by the use of the word ‘charge’ rather than ‘conviction’. In addition, it was submitted that the restriction of the defence should differentiate between offences committed by adults and those committed by children. On behalf of the Crown, it was ultimately submitted that Article 8 was not engaged as the criminalisation of sexual conduct between an adult and a 14 year old child did not engage the minuter’s right to respect for private life. It was further submitted that if Article 8(1) was engaged the interference was necessary and proportionate and in accordance with the law. It was submitted that the interference was not arbitrary as it only affected those charged with a relevant criminal offence and as such, only related to a small number of people. The aim of the legislation was a legitimate one namely to protect young and vulnerable children from premature sexual activity, exploitation and abuse and the minuter’s whole history of offending should be taken into account in considering whether the interference was proportionate. It was submitted on behalf of the Crown that the prosecution of strict liability offences was not incompatible with Article 6 and Parliament was entitled to limit the availability of a defence to anyone that had not previously been charged with a relevant sexual offence. It was submitted that children required special protection in certain situations and now that the minuter was an adult, with a history of sexual offending, it was proportionate to restrict the defences available to him. Here the court considered the reference and noted that it would have been open to the Scottish Parliament to create an offence of strict liability for situations like the present, however, it had chosen to create, and then limit, the defence provided in section 39(2)(a)(i). The defence related to the substantive criminal law and Article 6 does not influence that but rather its purpose is to ensure that the trial process is fair. In the present case no procedural complaint was raised and as such Article 6 was not engaged. The court did not consider that the provision resulted in the minuter being presumed guilty as the burden of establishing his guilt remained with the Crown and the only effect of section 39(2)(a)(i) was that the Crown would not have to prove that the minuter knew that the complainer was under the age of 16. In relation to Article 14 the court stated that the restriction of the defence to those not previously charged was not discriminatory as those who have been previously charged are in a different position, having previously been warned about offending against children. In relation to Article 8 whilst an individual’s sex life may be considered to be an aspect of his private life that does not mean that a person is entitled to respect for any conduct he considers to be part of his sexual life in terms of Article 8 as the state is under a positive obligation to protect children. The court considered that even if Article 8 was engaged then the interference under Article 8(2) was both in accordance with the law and proportionate. The court observed that the question of whether a charge had previously been made would be an issue that required to be resolved outwith the presence of the jury as, to do otherwise, may be prejudicial to an accused. The court made the following findings in relation to the questions posed by the sheriff before remitting the case to the sheriff to proceed:- (i) the minuter’s right was not engaged when he was prohibited from relying on section 39(1)(a) of the 2009 Act by virtue of the application of section 39(2)(a)(i); (ii) even if Article 8 was engaged the interference was in accordance with the law and is necessary and is therefore compatible with his Article 8 right; (iii) the unavailability of a means to challenge a charge made by the police does not result in an unfair trial in terms of Article 6; (iv) section 39(2)(a)(i) is compatible in relation to charges even where the Lord Advocate decides not to prosecute; and (v) section 39(2)(a)(i) should not be read down to exclude situations where children are “charged by police” with a relevant sexual offence other than when the Lord Advocate has instructed a prosecution of that child on that offence.