Reference of a Compatibility issue under section 288ZB(1) of the Criminal Procedure (Scotland) Act 1995 [2017] HCJAC 70
The minuter argued that section 39(2)(a)(i) of the 2009 Sexual Offences (Scotland) Act was incompatible with Article 6 and 8 of the European Convention on Human Rights (ECHR). The minuter had been indicted on two charges of having sexual intercourse and sexual activity with a child aged 14 contrary to section 28 and 30 of the 2009 Act. He argued that at the time of the offence he had believed that the complainer was over 16 and because of this he wanted to take advantage of the defence at section 39(1)(a).The problem was that the minuter had been charged with a relevant sexual offence aged 14 but never prosecuted and this prevented him from making use of the defence. As such, he raised the issue that his Article 6 right to a fair trial had been violated as he claimed that while a prior conviction could prevent his ability to rely on a defence this should not be the case with a previous charge. He also claimed that his Article 8 right had been violated as sexual activity is an element of private life and at the time of the offence as he had believed the complainer to be over the age of 16, his Article 8 right to privacy should be respected. The court decided that Article 6 was not engaged as the right to a fair trial was focused on procedural fairness and not on substantive criminal law. The minuter had not raised a procedural complaint as the creation and decision to limit the defence at section 39(1)(a) to those not charged with a relevant sexual offence was taken by the Scottish Parliament as a matter of substantive criminal law. The court also decided that the minuter was not entitled to respect for his decision to engage in sexual activity with a child and so there was no violation of Article 8. The case was remitted to the Sheriff to proceed as accords.
