APPEAL COURT, HIGH COURT OF JUSTICIARY
OPINION OF THE COURT
GARY JOHN CLARK
PROCURATOR FISCAL, FALKIRK
Appellant: Wheatley, Solicitor-Advocate; Wheatley & Co.
Respondent: Menzies, Q.C., A.D.; Crown Agent
10 June 1999
This is the appeal of Gary John Clark who was convicted of a contravention of section 5(3) of the Criminal Law (Consolidation)(Scotland) Act 1995, having unlawful sexual intercourse with a 14 year old girl. The only issue in the case was whether the appellant had made out the statutory defence under section 5(5)(b), which is that being a man under the age of 24, who had not previously been charged with a like offence, he had reasonable cause to believe that the girl was of or over the age of 16 years.
The sheriff's findings are that the complainer, who was in fact 14, was in the company of another 14 year old girl, and met the appellant and the boyfriend of the other girl. This was the first time the complainer had met the appellant, who was 19 years of age. The sheriff makes a specific finding that the complainer did not tell the appellant her age. There was a conversation between the group, who eventually went to the appellant's friend's house and there sexual intercourse took place between the appellant and the complainer. When the appellant was interviewed under caution he said that "the lassie was trying to get out with me and I kept saying no, and then I said that she was'nae even 16. We had a conversation about it and she ended up saying she was 16". As will have been seen, the sheriff has specifically not accepted that part of the appellant's statement where he says that she ended up saying she was 16, because he has found that the complainer did not tell the appellant her age.
Mr Wheatley, on the appellant's behalf today, said that the sheriff should have held the statutory defence to have been made out. He accepted that in effect he had to say that no reasonable sheriff could have refused to accept the defence on the facts of this case. He founded on the fact that the complainer did not say that she was under 16 to the appellant, but of course that is not the point. To make out the statutory defence the appellant has to have reasonable cause to believe that the girl was 16 or over. Mr Wheatley ultimately accepted that really the only piece of evidence upon which he could found to substantiate such a defence was contained in the appellant's statement to the police, where he says that the girl did in fact tell him that she was 16. As we have already pointed out, however, the sheriff has not accepted that piece of evidence, and in the absence of accepting that piece of evidence, in our opinion, he was fully entitled to hold that the appellant had failed to make out the statutory defence. Accordingly, in our view, this appeal is without merit, and we shall answer question 1 in the negative and question 2 in the affirmative and refuse the appeal.