Successful intervention in Supreme Court case regarding offences committed as a child

Categories: Children in conflict with the law and Protection of privacy

14th April 2017

The Supreme Court has ruled that Scottish law on sexual offences committed against children is not compatible with the right to private life.

The case involved a 19-year-old man charged with engaging in sexual intercourse with a girl who was 14 at the time. He claimed that he believed the girl was over the age of 16, which is a defence for this offence, but under Scottish law, this "honest belief" defence is not available where a person has already been charged with a sexual offence involving a child. The man had previously been charged, but not prosecuted, for sexual offences allegedly committed when he was 14. The allegations were that he had exposed himself to children and showed pornography to a young boy, but these were dealt with out of court. The latest decision fell within the ambit of the right to private life because the prosecution disclosed the man's previous criminal record to the court. The Scottish government argued that any restriction on the right to private life was justified, because the rule acted as a warning about sexual offences against children, so that the defence could not be continuously raised by someone who had been accused of a string of offences in which they claimed to believe that the victim was older than 16. The court dismissed this argument, however, as the offences the man had been accused of previously were not related to his belief in the age of the victims and so could not be viewed as a warning about these kinds of offences.

Clan Childlaw, an advocacy and legal service for children and young people in Scotland, intervened in this case to put forward a child law perspective and supported the argument that prevailed. Clan Childlaw had argued that the interference with a person's Article 8 rights when he or she had been charged with committing the relevant sexual offence as a child (as in this case) was not justified. Commenting after the judgment was handed down, they noted that the approach taken by the Supreme Court 'is consistent with the approach taken in Scotland in the Children's Hearings System that children who are charged with offending behaviour are considered having regard to their welfare and not on a punitive basis. The Scottish Government are looking afresh at the disclosure of early childhood offending to enable young people to move beyond early mistakes.' This judgment may have a wider impact on the Scottish legal landscape, particularly in relation to offending in childhood.

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