Scottish High Court of Justiciary Decisons

Act: Shead, C Smith; Carr & Co., Glasgow

Alt Allan, Q.C., A.D.; Crown Agent

6 February 2009

Introductory

[1] This is a reference to the High Court of Justiciary made by the sheriff of South Strathclyde, Dumfries and Galloway at Ayr in terms of paragraph 9 of Schedule 6 to the Scotland Act 1998 in respect of the issues raised in a devolution minute tendered by the accused, Joseph King, in a summary prosecution brought against him by the procurator fiscal at Ayr. No trial in the prosecution has yet taken place and the referring court has thus not made any findings in fact relating to the circumstances of the case.

[2] The accused is charged with a contravention of section 5(3) of the Criminal Law (Consolidation) (Scotland) Act 1995 - "the 1995 Consolidation Act" - which is in these terms:

[3] Subsection (5) of section 5 of the 1995 Consolidation Act sets out what is sometimes colloquially or informally referred to as "the young man's defence". It is in these terms:

[4] Before the sheriff the contention for the accused was essentially to the effect that the non - availability of a section 5(5) defence would result in his being deprived of the fair trial to which he was entitled under Article 6 of the European Convention on Human Rights; and consequently his prosecution by the procurator fiscal was ultra vires in terms of section 57 of the Scotland Act 1998. The sheriff was persuaded that he should make a reference to this court in terms of paragraph 9 of Schedule 6 to the Scotland Act 1998 and the questions which the sheriff referred were, reflecting the terms in which the case had been drafted by the parties, as follows:

[5] The contention for the accused before the sheriff appears to have overlooked an issue which might have been apparent from a consideration of certain decisions of the European Court of Human Rights, namely that the fair trial requirements of Article 6 are not habile to address complaints directed to a perceived unfairness or inequity in the substantive law. That procedural focus of Article 6, and its inapplicability to any underlying complaint respecting the equity of the substantive law, was given clear expression by the House of Lords, in the exercise of its appellate criminal jurisdiction in England and Wales, in R v G [2008] UKHL 37; [2008] 1 WLR 1379. In light of that decision, which was given after the reference was made by the sheriff, counsel for the accused moved the court at a procedural hearing on 16 September 2008, to allow the questions in the reference to be substituted by the following:

"1. Whether the act of the Lord Advocate in raising a prosecution against the accused is an act which is incompatible with his rights under Article 6(1) and Article 8 and accordingly ultra vires in terms of section 57(2) of the Scotland Act 1998?

2. Whether the exercise of the Lord Advocate's discretion to prosecute was an act which was incompatible with the Convention rights referred to and accordingly ultra vires in terms of section 57(2) of the Scotland Act 1998?

3. Whether in any event the prosecution represents an abuse of process as being a breach of the accused's Convention rights?

4. Whether the prosecution is ultra vires under reference to the Scotland Act 1998 having regard to the rights referred to when read with Article 14 of the Convention?"

That motion was granted, no doubt on the pragmatic view that the furnishing of a response to the referring court useful to the expeditious conduct of the proceedings before the referring court was desirable.

Submissions

[6] In opening his submissions, counsel for the accused expressly abandoned any argument under or respecting Article 8 ECHR, to which the first of the substituted questions refers.

[7] Counsel then described the legislative history of what is now section 5 of the 1995 Act. Sexual intercourse with a girl over the age of 12 but under the age of 16 was first made criminal by section 5 of the Criminal Law Amendment Act 1885, which provided, without restriction respecting the age of the accused, a defence of reasonable belief that the girl in question was of or above the age of 16 years. However, section 2 of the Criminal Law Amendment Act 1922 removed that defence subject to the qualification - "Provided that in the case of a man of twenty-three years of age or under the presence of reasonable cause to believe that the girl was over the age of sixteen years shall be a valid defence on the first occasion on which he is charged with an offence under this section." These provisions were later consolidated in the Sexual Offences (Scotland) Act 1976 and further consolidated in the 1995 Consolidation Act. Counsel then referred to the Sexual Offences (Scotland) Bill, currently before the Scottish Parliament, section 29(1) of which proposes a defence (as respects offences involving sexual activity with a person under the age of 16 but of or over 13 years) of reasonable belief that the person in question had attained the age of 16 years. The Scottish Law Commission, upon whose report the Bill bears to proceed, had described the current limitation of the defence of reasonable belief to males under the age of 24 years as "unprincipled".

[8] Counsel for the accused then embarked on an argument - not advanced before the sheriff - based on Article 14 ECHR which provides:

Counsel recognised that Article 14 was not "free-standing" but required to be applied in the context or ambit of another, substantive Convention right. He referred to the discussion of Article 14 by Baroness Hale of Richmond in her opinion in AL (Serbia) v The Secretary of State for the Home Department [2008] UKHL 42; [2008] 1 WLR 1434 at paragraph [20] ff. As respects the substantive Convention right in whose ambit the claim of discrimination under Article 14 was to operate in the present case, counsel invoked only Article 6 ECHR.

[9] In that respect it was submitted that the ambit of Article 6 ECHR was wider than purely procedural matters. In Texheira de Castro v Portugal (1998) 28 EHRR 101, the use of entrapment evidence, where the offence was instigated by undercover police officers, was held to be a breach of Article 6(1); cf. Brown v HMA 2002 S.C.C.R. 684. Thus, it was submitted, Article 6 could "claw back" to matters arising before the trial. The bringing of a prosecution may in certain circumstances be inherently unfair or oppressive. As a matter of policy, in light of the Scottish Law Commission report and the Sexual Offences (Scotland) Bill, the Lord Advocate should not be prosecuting a case such as the present. Article 6 ECHR might also apply where the legislature created an offence with presumptions, which the defence was required to rebut. Ultimately, in his response to the Crown's submissions, counsel contended that the accused was within the ambit of Article 6 "simply because he is being prosecuted".

[10] On the assumption that, put shortly, one was relevantly within the ambit of Article 6, counsel turned to the question of discrimination. He cited first the evident discrimination as respects the age of accused persons. There was discrimination between those under the age of 24 years and those over that age. Counsel accepted however that the legislature could have enacted an absolute offence of sexual intercourse with a girl under the age of 16 years; and so one was concerned with the limited defence available to the male accused under the age of 24 years. Counsel further adverted to the position of a woman charged, on an art and part basis, with participation in this statutory offence and the difficulty of knowing whether a female accused had no "reasonable belief "defence, or whether, in accordance with the normal presumption of the need for mens rea as respects all elements of an offence, in the prosecution of a female accused mens rea required to be established as regards all those elements irrespective of the age of the female accused. There was thus discrimination in the legislation on the basis of gender. Counsel for the accused then referred to Ghaidan v Godin-Mendoza [2004] UKHL 30; [2004] 2 AC 557 and floated the possibility of a "reading down" in terms of section 3 of the Human Rights Act 1998. But despite that excursion into that territory counsel for the accused did not offer any coherent submission as to whether the provisions in question were, or were not, capable of being so read down.

[11] For the Crown the leading submission was that, despite the shift of focus from Article 6 (which was the contention before the sheriff) to the current focus on Article 14 read with Article 6, the complaint advanced by the accused was one which related to the terms of the substantive law. Article 6 ECHR was intended to ensure that when a charge is prosecuted, it is prosecuted fairly. Article 6 has however nothing to do with the equity of the legislation under which the charge was brought. If Article 6 were thus not engaged, Article 14 could not come into play. Since the complaint in the present case related to the definition of the offence and the elements in respect of which mens rea was required, the complaint was one which related to a matter of substantive law and had nothing to do with the law of procedure, evidence, or other properly forensic matters, or the acquisition of evidence in advance of trial.

[12] Esto Article 6 were engaged, the Advocate depute submitted, in summary, that the legislature had a justifiable basis for distinguishing between young men, whose sexual and social attitudes were developing, and older men whose development in those respects could be taken to be mature. The legislation had been considered by Parliament at various points in its history. The Advocate depute pointed out that it was accepted by counsel for the accused that Parliament could properly create offences without mens rea as respects one or more of the elements of the offence. Just as the legislature could draw age-based boundaries in its definition of the person to be protected by the offence, so similarly might it draw age-based boundaries in its definition of the offender, and the elements to be established in light of those boundaries.

[13] As already indicated, although the substituted questions in this reference ranged more widely in their terms, the essential contention advanced by counsel for the accused was based on Article 14 ECHR. As counsel for the accused rightly recognised, the anti-discrimination provisions of Article 14 ECHR are not "free standing". They apply only where the discriminatory act or measure of which complaint is made falls within the ambit of some other Convention right - see Reed and Murdoch "A Guide to Human Rights Law in Scotland" (2^nd ed., 2008) para.3.42 and the ECHR authority to which reference is there made. Counsel for the accused abandoned at the outset of his submissions the suggestion in the first substituted question that Article 8 ECHR was in issue. The only article within whose ambit the complaint respecting the accused's inability to invoke the "young man's defence" is said to arise is Article 6 ECHR.

[14] The terms of Article 6 are, on their face, concerned only with the fairness or forensic propriety of court proceedings. They are not concerned with the equity, or the compatibility with the Convention, of the legal norms or provisions upon which the relevant court proceedings may be based. In a dictum, repeated and adopted in subsequent cases, the European Court of Human Rights in James v United Kingdom (1986) 8 EHRR 123, a case involving civil law, said at paragraph 81:

"Article 6(1) extends only to 'contestations' (disputes) over (civil) 'rights and obligations which can be said, at least on arguable grounds, to be recognised under domestic law: it does not in itself guarantee any particular content for (civil) 'rights and obligations' in the substantive law of the Contracting States."

[15] Consistent with that jurisprudence is the decision of the House of Lords in R v G. In paragraph 27 of his opinion, Lord Hope of Craighead says:

"... Article 6(2), like article 6(3), must be read in the context of article 6(1). The article as a whole is concerned essentially with procedural guarantees to ensure that there is a fair trial, not with the substantive elements of the offence with which the person has been charged. As has been said many times, article 6 does not guarantee any particular content of the individual's civil rights. It is concerned with the procedural fairness of the system for the administration of justice in the contracting states, not with the substantive content of domestic law: Matthews v Ministry of Defence [2003] 1 AC 1163, para 3, per Lord Bingham of Cornhill, paras 30-35 per Lord Hoffmann, para 142, per Lord Walker of Gestingthorpe; R (Kehoe) v Secretary of State for Work and Pensions [2005] UKHL 48; [2006] 1 AC 42, para 41. The approach which the article takes to the criminal law is the same. Close attention is paid to the requirements of a fair trial. But it is a matter for the contracting states to define the essential elements of the offence with which the person has been charged. So when article 6(2) uses the words 'innocent' and 'guilty' it is dealing with the burden of proof regarding the elements of the offence and any defences to it. It is not dealing with what those elements are or what defences to the offence ought to be available."

We note in particular the last three sentences of that passage. On this aspect there was no dissent among the members of the Judicial Committee.

[16] In our view the complaint advanced by counsel for the accused is directed essentially to the definition of the constituent elements of the offence with which the accused is charged. Counsel for the accused accepted, in our view rightly, that in defining the elements involved in a sexual offence against a child, the legislature could properly exclude the age of the child as being an element respecting which mens rea would require to be established. Exclusion of that element of the offence being thus within the State's power to define the offence - and not within the ambit of Article 6 ECHR - if follows in our view that the partial exclusion of that element, as respects those males of 24 years or more, must equally be part of the definitional, legislative exercise and not within the ambit of Article 6. Put more shortly, and in other terms, in its nett effect it is possible to analyse the legislation as creating two offences. One of those offences is the act of sexual intercourse by a male of the age of 23 years or under with a girl of or over the age of 13 years but under the age of 16, for which a reasonable belief defence as to the age of the girl is available in terms of statute. The other offence is a similar act by the older man, for which no such defence of reasonable belief as to the age of the participating girl is available in terms of the statute.

[17] While there are no doubt criticisms which may be made of the legislative policy thus adopted, we consider that it is clear that those criticisms relate to the substantive defining of the offence. While counsel for the accused referred to Texheira as, in his submission, exemplifying an extension of the ambit of Article 6 ECHR beyond the trial procedures, it is clear that the case was concerned with entrapment evidence, used in the criminal process against Texheira. It has nothing to do with the issue of the definition of the underlying criminal offence and is of no assistance to the accused's contentions.

[18] At various points in his address to us, counsel for the accused suggested that it was "oppressive" for the Lord Advocate to bring this prosecution given the terms of the Sexual Offences (Scotland) Bill before the Scottish Parliament and the terms of the Scottish Law Commission report. In essence, the suggestion appeared to be that the Lord Advocate, as a member of the Scottish Government, should anticipate acceptance by the Scottish Parliament of the current terms of the Bill and that on that account she should discontinue this prosecution.

[19] As respects this somewhat diffuse thread in counsel's address to us, it has to be observed at the outset that this is a reference under paragraph 9 of Schedule 6 to the Scotland Act 1998. It is not habile to entertain questions of general oppression - or what the issue really comes to be - whether this court can interfere with a decision of the Lord Advocate to prosecute in accordance with the existing law of the land on the view that the legislature might, if it approved proposals before it, decide that the law should be changed. To this question the answer is, in our view, plainly in the negative. Until the law is changed by the legislature, the Lord Advocate is entitled to prosecute in accordance with the existing law and is arguably required in her prosecutorial decisions to have its terms in mind.

[20] In these circumstances we answer all of the questions substituted for those posed by the sheriff in the negative. We therefore remit to the sheriff to proceed as accords.

[21] For completeness, we record that this reference was heard and argued along with the appeal by stated case in GWH v Procurator Fiscal, Dundee [2009] HCJAC 15. The argument for the accused in this reference and for the appellant in GWH was presented by the same counsel, and the Crown was represented by the same Advocate depute. In the event, it became apparent that, despite a contrary initial impression at earlier stages in the appeal proceedings, there was no real co-incidence or overlap in the issues arising in the respective cases.