Scottish High Court of Justiciary Decisons

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Cite as: 2009 SCCR 312, [2009] HCJAC 15, [2009] ScotHC HCJAC_15, 2009 GWD 6-96, 2009 SCL 519, 2009 SLT 199

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APPEAL COURT, HIGH COURT OF JUSTICIARY

Lord Eassie

Lady Paton

C G B Nicholson QC

2009 HCJAC15

Appeal No: XJ1149/06

OPINION OF THE COURT

delivered by LORD EASSIE

APPEAL BY STATED CASE

GWH

Appellant;

against

THE PROCURATOR FISCAL, DUNDEE

Respondent.

Appellant: Shead, M. C. MacKenzie; Drummond Miller, WS for Muir Myles Laverty, Dundee

Respondent: Allan QC, AD; Crown Agent

6 February 2009

Introductory

[1] The appellant in this appeal by stated case was convicted of a charge of using lewd indecent and libidinous practices and behaviour towards a 15 year old girl, contrary to section 6 of the Criminal Law Consolidation (Scotland) Act 1995 - "the 1995 Consolidation Act". That section (as amended as respects penalties) provides:-

"Any person who uses towards a girl of or over the age of 12 years and under the age of 16 years any lewd, indecent or libidinous practice or behaviour which, if used towards a girl under the age of 12 years, would have constituted an offence at common law shall, whether the girl consented to such practice or behaviour or not, be liable on conviction on indictment to imprisonment for a term not exceeding ten years or on summary conviction to imprisonment for a term not exceeding three months".

[2] No evidence was led before the sheriff. The facts were settled by a

number of joint minutes, the nett effect of which is largely, but in some respects as to detail, incorrectly reflected in the sheriff's findings in fact, which are in these terms:-

"1. The date of birth of the complainer is 7^th February, 2001 [sic - '1991'] making her 15 on 6^th April, 2006. [25 March 2006 is the date of the alleged offence.]

2. On 6^th April, 2006 [25 March 2006] she and the appellant were in the common close at 63 Dens Road, Dundee, on the half landing leading to the top floor of this tenement. Said complainer was lying on the landing floor on her back with her trousers and pants at her ankles. The appellant was lying on top of her with his trousers and pants at his ankles. Both were clothed on the upper halves of their bodies. The appellant was rotating his pelvic area in a circular motion against her pelvic area. They were also engaging in mouth to mouth kissing. They had been together there for 10 to 15 minutes. They had removed each others' clothing.

3. Earlier that evening said complainer had told the appellant that she was 'aged between 16 and 17 years'.

4. When interviewed by the police at 00.30 on 26^th March, 2006, the complainer told them that she had told the appellant that she was 16.

5. When the appellant was interviewed by the police under caution at about 03.10 on 26^th March, 2006, he told them that the complainer had said to him that she was aged between 16 and 17.

6. SB is the complainer's mother who was present when Police Constables Haston and Peebles interviewed the complainer and took her clothing as productions.

7. The appellant was examined by Dr A. F. Ghaly, MB Ch. B FRCOG LLB (Hons), Police Surgeon, between 03.00 and 03.15 on 26^th March 2006 having given permission for such an examination, in relation to alleged sexual contact with said complainer at about 2.15 on 25^th March, 2006. He was calm and co-operative. No injuries were found. Penile warts were noted. Swabs were taken from his mouth and penis. His head and pubic hair was cut, pulled and combed. The findings neither confirmed nor refuted the allegation of alleged sexual contact.

8. Said Dr Ghaly also examined said complainer in the presence of her mother on 26^th March between 03.00 and 03.15. She was 15. No penetrative sex was alleged to have taken place. She was tearful and anxious. She refused regular medical examination and no swabs were taken".

[3] For completeness we would add that the appellant was aged 20 years at the time of the alleged offences.

[4] The issue raised in this appeal is whether in a prosecution under section 6 of the 1995 Consolidation Act the Crown requires to establish mens rea on the part of the accused as respects the age of the girl. While the sheriff's findings in fact do not include any express finding respecting the appellant's state of knowledge in that regard, it may readily be inferred from those findings that the appellant believed, on reasonable grounds, that the complainer was sixteen years or over. There is no contrary indicator. Further, the terms of the sheriff's note in the stated case and his report under section 21(4) of the Criminal Justice (Scotland) Act 2003 are all consistent with the sheriff's having made that inference. Before us the appeal proceeded on the basis that such an inference could, and should, properly be drawn.

[5] The solicitor who appeared for the appellant in the sheriff court, Mr Hampton,

argued that section 6 required mens rea as to the age of the girl in question. He noted however that section 5 of the 1995 Consolidation Act, which currently enacts the offence of having, or attempting to have, sexual intercourse with a girl in the equivalent age range, provides for a defence of belief on reasonable grounds that the female was of or over the age of 16 years, the availability of that defence being restricted to males under the age of 24 years not "previously charged with a like offence". The statute did not however make any provision for such a defence in respect of an offence under section 6. In light of those provisions in the 1995 Consolidation Act the sheriff appears to have felt constrained to the view that the accused's state of knowledge respecting the age of the female was irrelevant in a prosecution under section 6 of that Act. In his note the sheriff readily acknowledges the illogicality of that view of the statutory provisions. It was absurd that, if the appellant and the complainer had proceeded to have or to attempt to have sexual intercourse, then the appellant would have a valid "reasonable belief defence" respecting the complainer's age but that he could advance no such defence respecting lesser sexual activity falling short of intercourse or attempted intercourse. In his section 21(4) report the sheriff reiterates those views and expresses his concern about the legislation in issue (and indeed about the decision to bring and continue this prosecution).

[6] The discussion before the sheriff, and the sheriff's decision, appear to have proceeded simply on a consideration of the terms of the 1995 Consolidation Act without the sheriff having been given the assistance of the citation of authority or, particularly, the exploration of the legislative antecedents of that consolidation, with which we were helpfully favoured in the submissions to us, a summary of which exploration we now set out.

The legislative history

[7] At common law, consensual heterosexual intercourse and other lesser sexual activity was not criminal once a girl reached the age of puberty, which the law fixed at the attainment of 12 years of age. In its application to Scotland, the Criminal Law Amendment Act 1885 -"the 1885 Act"- introduced, in its section 5, a new offence of having, or attempting to have, sexual intercourse with a girl of or over the age of 13 years but under the age of 16 years. Section 5 of the 1885 Act specifically provided for a defence, regardless of the age of the accused, where the accused had reasonable cause to believe that the girl was of or over 16 years of age. The 1885 Act made, as respects Scotland, no provision concerning other lesser sexual activity. Consensual heterosexual activity other than intercourse or attempt thereat with a girl of or over the age of 13 but under 16 remained lawful. Such activity was only criminalised in 1922 in the Criminal Law Amendment Act 1922 - "the 1922 Act".

[8] As its title suggests, the 1922 Act is an amending statute with a number of disparate statutory amendments. We note first section 2. It amended the reasonable belief defence enacted in section 5 of the 1885 Act by stating that:-

"2. Reasonable cause to believe that a girl was of or above the age of

sixteen years shall not be a defence to a charge under sections 5 or 6 of the Criminal Law Amendment Act, 1885 ....".

Having thereafter dealt with the unrelated topic of time limits, the text of the section then continues with this proviso:-

"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 (sic) section".

[9] Section 2 of the 1922 Act thus inserted, in that proviso, as a restriction to the removal of the general reasonable belief defence in section 5 of the 1885 Act, what is colloquially referred to as "the young man's defence" in relation to acts of sexual intercourse or attempts thereat. (As has been remarked elsewhere, the drafting is defective in that section 2 of the 1922 Act creates no offence).

[10] The amendment to the criminal law enacted in section 1 of the 1922 Act is in these terms:-

"1. It shall be no defence to a charge or indictment for an indecent assault on a child or young person under the age of sixteen to prove that he or she consented to the act of indecency".

We observe in passing that this provision is not directed to any state of knowledge respecting age. However it only applied in England and Wales, since the statute as a whole did not apply in Ireland, and since section 4(1) of the statute is in these terms:

"4. In the application of this Act to Scotland -

(1) The following provision shall be substituted for section one of this Act:-

Any person who uses towards a girl of or above the age of twelve years and under the age of sixteen years any lewd, indecent or libidinous practice or behaviour which, if used towards a girl under the age of twelve years, would have constituted an offence at common law, shall, whether the girl consented to such practice or behaviour or not, be guilty of an offence against this Act, and shall be liable on conviction on indictment to imprisonment with or without hard labour for a period of not exceeding two years, or on summary conviction to imprisonment for a period not exceeding three months".

[12] These provisions were carried forward into the consolidation effected in the Sexual Offences (Scotland) Act 1976 and were then carried into the consolidation in the 1995 Consolidation Act.

Submissions

[13] Before us counsel for the appellant submitted that Mr Hampton had been correct in contending before the sheriff that in a prosecution under section 6 of the 1995 Consolidation Act mens rea as to the age of the female was a necessary element of the offence.

[14] In support of that submission counsel referred first to Regina v K [2001] UKHL 41; [2002] 1 AC 462. The appellant in that case had been charged, in England, with indecent assault of a girl aged 14 years. His defence was that the sexual activity was consensual; that she had told him that she was sixteen; and that he had no reason to disbelieve her. The House of Lords held that mens rea as to age was required. As encapsulated in the headnote to the report of the decision, there was an overriding presumption of statutory interpretation that mens rea was an essential ingredient of every statutory offence, unless Parliament had indicated, by express words or by necessary implication, that it should be excluded. Counsel further referred to the fact that the section under which the prosecution was brought in that case was in a consolidating statute, as is the position in the present case. The section was thus not part of a coherent legislative scheme which had been considered as such by Parliament (counsel referred in particular to the speech of Lord Bingham of Cornhill at paragraph 4 and also paragraphs 9 and 15).

[15] Counsel next referred to B(A Minor) v Director of Public Prosecutions [2000] 2 AC 428 in which the accused, aged 15 years, had been charged with inciting a

14 year old girl to commit an act of gross indecency, namely by inviting her to indulge in fellatio, contrary to section 1(1) of the Indecency with Children Act 1960, which prohibited such acts with children under the age of 13 years (and which applies in England and Wales but not in Scotland). It having been accepted by the justices that the defendant honestly believed the girl to be 14 or over, the question was whether that belief constituted a defence, which question the inferior court had answered in the negative. The House of Lords, in allowing the appeal and quashing the conviction, held that mens rea was an essential ingredient in every criminal offence, unless the legislature expressly, or by necessary implication, provided to the contrary; and no such express or necessary implied contradictory expression was to be found in the case of those statutory provisions. Counsel noted that both this case, and the case which he had previously cited, were in the broad area of, in Scottish terminology, lewd, libidinous or indecent practices towards females in early teenage years.

[16] In light of these authorities counsel submitted that, while in principle Parliament might exclude a requirement for mens rea as respects one or more of the ingredients of an offence, such exclusion required express words or legislative provisions carrying that necessary implication. Paragraph [49] of the Opinion of the Lord Justice Clerk in Webster v Dominick 2005 JC 65, indicated the breadth of the common law offence of lewd, libidinous or indecent practices and the statutory offence in section 6 of the 1995 Consolidation Act applied that common law concept. There was nothing in the terms of section 6 of the 1995 Consolidation Act which expressly or by necessary implication excluded mens rea as to age. Further, it was appropriate to consider the terms of the 1922 Act and there was nothing in those terms which expressly or by necessary implication excluded mens rea as to the age of the female. Although it was not expressly stated, it could be inferred from the terms of the sheriff's report that he would have acquitted if reasonable belief that the girl was 16 or over were a defence. While not wholly translated into the findings in fact, in one of the joint minutes it was agreed that the appellant had told the police that he believed the complainer when she said she was aged between 16 and 17.

[17] On a discrete and narrower point, counsel submitted that the essence of lewd, libidinous or indecent behaviour was its tendency to corrupt the innocence of the complainer - see Webster v Dominick, paragraph [49] of the opinion of the Lord Justice Clerk. In Moynah v Spiers 2003 SCCR 765 the court had presumed that, as respects that aspect of matters, the common law and statutory offences were the same. While counsel accepted that this point had not been canvassed before the sheriff, he submitted that in the circumstances of the present case it was hard to see how the sheriff could have considered the test of a tendency to corrupt innocence to have been met in light of what was said by the sheriff in his section 21 report which included the observation that:

"It appears this young couple were doing little more (and one might say significantly less) than many of their peers and teenage predecessors over decades if not centuries without the world coming to a shuddering halt."

The agreed facts could not justify any conclusion that the conduct of the appellant was liable to corrupt the innocence of the girl. Irrespective of the wider ground of appeal, on this narrower ground counsel urged that the appeal should be allowed.

[18] In response the Advocate depute first invited the court to distinguish the cases Regina v K and B(A Minor) v DPP. The history of the English statutory provisions was such that it appeared that there was no basis for making a distinction between the two offences in issue in those two cases. The Advocate depute went on to say that by contrast, in Scotland, there was the common law crime of lewd, libidinous and indecent behaviour towards children, confined in the case of girls, to those under the age of 12 years. The 1922 Act extended that common law protection to girls of and over 12 but under 16 years of age without providing any defence of reasonable belief as to the age of the girl in question. The 1976 Act continued that protection, as did the 1995 Consolidation Act, without on either occasion Parliament having adjected to the statutory provisions a defence of reasonable belief as respects age. So, said the Advocate depute, Parliament plainly had regard to the common law position. The Advocate depute further submitted (without citation of any authority on the matter) that at common law there was no defence of a reasonable belief in respect of the age of the complainer.

[19] The Advocate depute understandably appeared to accept the general, quasi constitutional principle discussed and accepted in B(A Minor) v DPP and Regina v K that in any statutory offence mens rea as respects the whole elements of the offence required to be established by the prosecution unless the legislature had dispensed with that requirement by express words or necessary implication from the terms of the legislation. He further accepted the absence of any express words of exclusion in section 6 of the 1995 Consolidation Act, and its statutory predecessors, including the 1922 Act. He submitted however that in the legislative scheme of matters, where, in the case of an offence under section 5 of the 1995 Consolidation Act (and its consolidating predecessor, the 1976 Act) express provision had been made for a limited, reasonable belief defence - "the young man's defence" - the implication was that mens rea as to age was not required in respect of the other statutory sexual offences embraced in the consolidation. The Advocate depute did however acknowledge that the reasoning of the House of Lords in the cases which had been cited to the Court presented some difficulty for that submission.

[20] On the subsidiary but separate point advanced by the appellant's counsel respecting the absence of any evidence of conduct tending to corrupt the innocence of the complainer, the Advocate depute submitted simply that having regard to the sheriff's second finding in fact there was an advanced extent of sexual activity, from which a tendency to corrupt might possibly be inferred.

Discussion

[21] In considering the principal issue, of general importance, in this appeal, namely whether mens rea as to the age of the girl is required for a conviction under section 6 of the 1995 Consolidation Act, the starting point must be the presumption that mens rea is required for all the elements of a statutory offence, unless that requirement is excluded by express words in the legislative provision in question or by necessary implication. That presumption was affirmed by the House of Lords in Sweet v Parsley [1970] AC 132 (see especially Lord Reid at pp 148-9) and was re-affirmed in the two decisions in the House of Lords placed before us by counsel for the appellant namely B(A Minor) v DPP and Regina v K. We think it is sufficient to set out the following passage from the speech of Lord Bingham in the latter case, commencing in paragraph 16 at page 471D:-

"..................

In B (A Minor) v Director of Public Prosecutions [2000] 2 AC 428 the issue was whether, under that section, it was necessary for the prosecution to prove the absence of a genuine belief on the part of the defendant that the child was over the specified age of 14. The House (Lord Irvine of Lairg LC, Lord Mackay of Clashfern, Lord Nicholls of Birkenhead, Lord Steyn and Lord Hutton) unanimously held that it was.

17 In reaching this conclusion the House relied on

'the established common law assumption that a mental element, traditionally labelled mens rea, is an essential ingredient unless Parliament has indicated a contrary intention either expressly or by necessary implication. The common law presumes that, unless Parliament has indicated otherwise, the appropriate mental element is an unexpressed ingredient of every statutory offence.' (Per Lord Nicholls of Birkenhead, at p 460.)

Lord Steyn, at p 470F, quoting from Professor Sir Rupert Cross, referred to the presumption that mens rea is required in the case of all statutory crimes, a presumption operating as a constitutional principle and not easily displaced by a statutory text. Crucial to the conclusion of the House was the now classic statement of principle in the speech of Lord Reid in Sweet v Parsley [1970] AC 132, 148-150. The speech is too well known to require extensive citation; brief extracts will suffice:

'there has for centuries been a presumption that Parliament did not intend to make criminals of persons who were in no way blameworthy in what they did. That means that whenever a section is silent as to mens rea there is a presumption that, in order to give effect to the will of Parliament, we must read in words appropriate to require mens rea.' (At p 148.)

'It is firmly established by a host of authorities that mens rea is an essential ingredient of every offence unless some reason can be found for holding that that is not necessary. (At p 149.)'

The general rule that a crime involves a guilty mind as well as a forbidden act is, as the Latin version of the rule makes clear and as Lord Reid emphasised, of very long standing. Brett J in his dissenting judgement in R v Prince LR 2 CCR 154 referred to it at pp 159-169, concluding, at p 169: Upon all the cases I think it is proved that there can be no conviction for crime in England in the absence of a criminal mind or mens rea. In R v Tolson (1889) 23 QBD 168 Stephen J, an authority on the criminal law without rival in his time, observed, at p 187:

'The mental element of most crimes is marked by one of the words 'maliciously', 'fraudulently', 'negligently', or 'knowingly', but it is the general - I might, I think, say, the invariable - practice of the legislature to leave unexpressed some of the mental elements of crime. In all cases whatever, competent age, sanity, and some degree of freedom from some kinds of coercion are assumed to be essential to criminality, but I do not believe they are ever introduced into any statute by which any particular crime is defined.'"

The speech then continues with further citations respecting the presumption for mens rea to which we think it unnecessary to set out.

[22] While the Advocate depute observed that these two House of Lords cases were, of course, dealing with different statutory provisions, we did not understand him to question that the presumption which they affirmed was applicable in construing a statute applying to Scotland (cf Gordon, Criminal Law, 3rd Edition Para 8-06; Mitchell v Morrison 1938 JC 64; Duguid v Fraser 1942 JC 1). As Lord Steyn pointed out in his speech in B(A Minor) v DPP by his quotation of Sir Rupert Cross at p470 F (to which Lord Bingham refers in the passage in his speech in Regina v K which we have quoted) the presumption for the necessity of mens rea may be seen as operating as a constitutional principle. In our view the presumption clearly applies as respects any statute affecting Scotland.

[23] In the case of section 6 of the 1995 Consolidation Act (and its predecessors) there are of course no words of express exclusion of the need for the prosecution to establish mens rea respecting the age of the female complainer. So, if the presumption is to be displaced, it has to be by way of necessary implication. In that respect we note what was said by Lord Hutton in his speech in B (A Minor) v DPP at p 481:

"But the test is not whether it is a reasonable implication that the statute rules out mens rea as a constituent part of the crime - the test is whether it is a necessary implication" [emphasis in original].

As already indicated, in his submission the Advocate depute advanced the contention that absence of mens rea as an element in a prosecution under section 6 of the 1995 Consolidation Act, might be implied from the terms of section 5 of that Act. The limited "young man's defence" to a charge under section 5 of having, or attempting to have, sexual intercourse with an under-age girl pointed to a general presumption that all the other age-related sexual offences in the relevant part of the 1995 Consolidation Act did not require establishment of mens rea as respects age. The matter had - so ran the submission - been considered by Parliament both in the 1995 Consolidation Act and the earlier 1976 Act. The Advocate depute did not engage in any examination of the statutory origins of section 6 of the 1995 Consolidation Act.

[24] The speeches in the Regina v K, and also B (A Minor) v DPP, contain useful reminders of the dangers of construing the terms of one provision of a consolidation statute by reference to other provisions therein, whose legislative ancestry may be different. Essentially, being a consolidation statute, the legislature proceeds upon the basis that the inclusion of any provision reflects its existence in the statute book. The legislature is not brought to debate the merits of the consolidated provisions or their coherence as a legislative code. So in cases of doubt as to the proper interpretation of a consolidated provision it is relevant, and on occasion may be crucial, to look to the statutory origins of the consolidated provisions. Noting, among other things, the illogicalities mentioned by the sheriff, we therefore turn to the 1922 Act.

[25] The 1922 Act contains a number of discrete and disparate provisions. As already mentioned, in section 2 it effected a restriction of the mens rea element in cases of sexual intercourse, or attempts thereat, with a girl of or over 13 years of age but under 16 years of age to what is commonly referred to as the "young man's defence". However, section 2, despite the wording of the proviso in fine does not create any offence. As respects section 1, its background is explained by Lord Bingham in his speech in Regina v K. Briefly, section 52 of the Offences against the Person Act 1861 created, for England and Wales, an offence of "indecent assault upon any female". Since consent on the part of the female elided any "assault" Parliament enacted in the Criminal Law Amendment Act 1880 that it should be no defence to a charge of indecent assault upon a girl under the age of 13 years that she consented to the act constituting the assault. Section 1 of the 1922 Act replaced that statutory provision with the relevant age being increased from 13 to 16 years. The House of Lords held in Regina v K that the successor provision in the consolidating statute was subject to the presumption of a requirement of mens rea and that the prosecution required to show absence of genuine belief on the part of the accused in that the girl in question was of or over the age of 16 years.

[26] Accordingly, neither sections 1 or 2 of the 1922 Act created any new offence. Section 3 of the 1922 Act dealt with penalties on summary conviction of brothel keeping and, apart from section 4, the only other substantive provision of the Act, section 5, was a procedural provision removing a requirement that prosecutions (in England and Wales) for incest be held in camera. Section 4(1), which applied to Scotland alone, was thus the only provision in the 1922 Act which created a new offence. Since section 4(1) is thus a "stand alone" provision in terms of enacting a new offence, we consider that it is not possible to find in the terms of the 1922 Act any provision which by possible implication, let alone necessary implication, displaces the presumption that proof of mens rea is necessary for all the elements of the offence. A necessary element of the newly created offence was that the girl be under the age of 16 years. In that respect we would refer with agreement to the observations of Lord Nicholls of Birkenhead in his speech in B(A Minor) v DPP at p463 G:

"In principle, an age-related ingredient of a statutory offence stands on no different footing from any other ingredient. If a man genuinely believes that the girl with whom he is committing a grossly indecent act is over 14, he is not intending to commit such an act with a girl under 14."

[27] Our agreement with that observation leads to this further consideration. Section 4 of the 1922 Act, while creating a new statutory offence, did not seek independently to define the actus reus but simply adopted the common law actus reus of lewd, libidinous or indecent practices towards a girl under the age of 12 years. That common law crime has, to borrow the words of Lord Nicholls, an "age-related ingredient". In the course of his submissions the Advocate depute stated that at common law, in a charge of lewd, libidinous or indecent behaviour, there was no defence of reasonable belief that the girl was over 12 years of age. He did not offer any authority for that assertion; and in the debate it was in due course accepted by counsel on both sides that, in so far as they had researched matters, there was no reported authority on whether, at common law, a charge of lewd, libidinous and indecent behaviour required the establishment of mens rea as to age. The institutional writers, and current text books, do not appear to make reference to any reported decision or other authority dealing with this particular issue. Given the nature of the common law offence and the advent of the statutory accumulation upon it that absence of common law authority may well be understandable.

[28] However, while we are not required to pronounce definitively on whether, in a prosecution at common law for lewd, libidinous or indecent behaviour, the prosecutor must establish mens rea as to age, we are inclined to the view that, prior to the 1922 Act, the answer would probably have been in the positive. On ordinary principles, a reasonable belief (in those pre 1922 times) by a male that he was indulging in various sexual activities, short of sexual intercourse or attempt thereat, with a girl who was over the age of 12 would probably be an answer to a charge of his having indulged in lewd, libidinous or indecent practices at common law. That said, the important point for present consideration is that there is no authority for the view that the common law offence of lewd, libidinous and indecent behaviour, to which the legislature had resort by adoption in section 4(1) of the 1922 Act, could clearly be said to have involved strict liability as respects the knowledge or age of the female.

[29] For all these reasons, we consider that a prosecution under section 6 of the

1995 Consolidation Act requires establishment of mens rea as to age. We were not addressed on whether that mens rea requirement involved simply honest belief or such belief on reasonable grounds. That issue was not seen as of any relevance in the present case and so we express no view upon it. Given our decision on the principal issue, which means that the appeal succeeds, we do not feel it necessary to express any view on the subsidiary argument for the appellant, respecting the need for establishment of activity by the male corrupting the innocence of the female. We simply note, without dissonance, the sheriff's observations respecting the particular circumstances agreed in this case.

Decision

[30] For the reasons which we have given we consider that this appeal must succeed. We shall therefore answer the question submitted in the stated case in the negative with the result that the conviction of the appellant is quashed.

[31] For completeness, we would record that this appeal was heard in conjunction with the devolution reference in King v Procurator Fiscal, Ayr [2009] HCJAC 14 but counsel for the appellant made plain that, in the event, his submission did not raise any devolution issue.