A Supreme Court case has found that one aspect of Scottish sexual offence law is not compatible with human rights. Scottish Acts have to be compatible with the European Convention on Human Rights to remain as law.
When the appellant in the case was 14, he was charged with two charges of lewd and libidinous practices (including showing online pornographic images to a young boy and exposing himself to other children) and one act concerning indecent behaviour towards girls aged between 12 and 16. The decision was ultimately taken not to prosecute and the case was referred to the Children’s Reporter. While the facts are unclear as to what the outcome of this referral was, it seems that there was no Children’s Hearing.
In 2015, aged 19, the appellant was charged with having sex with a girl who was 14 years and 11 months old. While he did not deny that sexual intercourse took place, he did seek to rely on the defence that he reasonably believed that the girl was 16. However, due to the Sexual Offences (Scotland) Act 2009, he was not able to reply on this defence because he had already been charged with a ‘relevant sexual offence’. He argued that this is an infringement of his rights set out in the European Convention of Human Rights.
The court accepted that the provision was incompatible with Article 8 right to privacy and family life as it was a disproportionate interference with the appellant’s rights. The Court held that the charges made when the appellant was 14 did not act as a sufficient warning.
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