APPEAL COURT, HIGH COURT OF JUSTICIARY
Lord Justice Clerk Lord Clarke Lord Bannatyne	[2010] HCJAC 109 Appeal No: XJ860/10 OPINION OF THE LORD JUSTICE CLERK in APPEAL UNDER DEVOLUTION REFERENCE by DARREN LOGAN Minuter; against PROCURATOR FISCAL, GLASGOW Respondent: _______

Appellant: Shead, Mason; J P Mowberry, Glasgow

Respondent: Prentice, QC; Crown Agent

4 November 2010

The charges

[1] The minuter is being prosecuted at Glasgow sheriff court on summary complaint on two charges of having had unlawful sexual intercourse with a girl above the age of 13 and under the age of 16 years, contrary to section 5(3) of the Criminal Law (Consolidation) (Scotland) Act 1995 (the 1995 Act). It is alleged that he committed these offences on various occasions between 1st January and 27th February 2009, when he was aged 17 and 18 and the complainer was 14.

The devolution minute and its basis

[2] The minuter has lodged a devolution minute in which he submits that for the Lord Advocate to go to trial against him would be incompatible with his rights under article 8, read in conjunction with article 14, of the European Convention on Human Rights. He also seeks a declaration in terms of section 4 of the Human Rights Act 1998 that section 5(3) of the 1995 Act is incompatible with the Convention in these respects.

[3] The minuter contends that section 5(3) discriminates against him as a heterosexual man. It criminalises sexual intercourse by a man with a girl who is within the specified age limits, but does not criminalise sexual intercourse by a woman with a boy who is within the same age limits. Therefore, he submits, it contravenes article 8 when read together with article 14. Since section 57(2) of the Scotland Act 1998 provides that the Lord Advocate has no power to do an act incompatible with any of the Convention rights, the present prosecution is ultra vires.

The reference

[4] Having heard parties, the sheriff has made a reference to this court in terms of Schedule 6, paragraph 9, of the Scotland Act 1998 on the following questions:

"1. Does the fact that the statutory provision, under which the accused is being prosecuted, does not provide for women to be prosecuted for having sexual intercourse with boys aged between 13 and 16, mean that it is incompatible with article 8 and article 14 of the Convention, when read together?

2. Is it incompatible with the accused's Convention rights for the Lord Advocate to continue to prosecute him on these charges?"

Sexual offences against children

[5] It is a crime at common law to engage in indecent practices towards children under the age of puberty (Gordon, Criminal Law, 3rd ed, para 36.09). The 1995 Act consolidates various provisions for the protection of children from sexual abuse. These include the offences of incest (s 1), intercourse with a stepchild (s 2), intercourse with a child under the age of 16 by a person who lives in the child's household and is in a position of trust towards the child (s 3), and intercourse with a girl under the age of 13 (s 5(1)). Section 5(3), with which this reference is concerned, provides as follows:

"(3) Without prejudice to sections 1 to 4 of this Act, any person who has, or attempts to have, unlawful sexual intercourse with any girl of or over the age of 13 years and under the age of 16 years shall 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."

[6] The Act also provides for the statutory offence of lewd, indecent and libidinous practices with a girl aged between 12 and 16 (s 6) and for various offences directed to the protection of girls and young women from involvement in prostitution (ss 7 to 10). A homosexual act between two males constitutes an offence where one of the parties is aged under 16 (s 13(5)). Further offences have since been created by statute. It is an offence to have sexual activity with a person aged under 18 towards whom one is in a position of trust (Sexual Offences (Amendment) Act 2000, s 3), or to pay for the sexual services of a person aged under 18 (Protection of Children and Prevention of Sexual Offences (Scotland) Act 2005, s 9 (the 2005 Act)). The court can make certain orders prohibiting a person from engaging in particular sexual activity, the breach of which is an offence (Sexual Offences Act 2003, s 113; 2005 Act, s 7). I need not go into the details of these provisions.

[7] Apart from these provisions, there is no provision criminalising heterosexual intercourse with a boy aged between 13 and 16.

[8] A review of the law on sexual offences against children and young people by the Scottish Law Commission (Report on Rape and Other Sexual Offences, Scot Law Com No 209 (2007)) has led to the passing of the Sexual Offences (Scotland) Act 2010 which provides a new statutory framework for sexual offences in Scots law. These will include the offence of engaging in sexual activity with or towards an older child (section 30). That offence could be committed by a man or a woman engaging in sexual activity with a boy or a girl. The Act will come into force in December 2010.

The Convention

[9] Article 8 of the Convention is as follows:

"1. Everyone has the right to respect for his private and family life, his home and his correspondence.

2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others."

[10] Article 14 is as follows:

"The enjoyment of the rights and freedoms set forth in this Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status."

The protection afforded by article 14 is not free-standing. It applies only where the discrimination complained of falls within the ambit of a substantive Convention right (Watson v King 2009 SCCR 323).

[11] Sections 57(2) and 57(3) of the Scotland Act 1998 provide that:

"(2) A member of the Scottish Executive has no power to make any subordinate legislation, or to do any other act, so far as the legislation or act is incompatible with any of the Convention rights or with Community law.

(3) Subsection (2) does not apply to an act of the Lord Advocate-

(a) in prosecuting any offence, or

(b) in his capacity as head of the systems of criminal prosecution and investigation of deaths in Scotland,

which, because of subsection (2) of section 6 of the Human Rights Act 1998, is not unlawful under subsection (1) of that section."

[12] Section 6 of the Human Rights Act 1998 provides:

"(1) It is unlawful for a public authority to act in a way which is incompatible with a Convention right.

(2) Subsection (1) does not apply to an act if -

(a) as the result of one or more provisions of primary legislation, the authority could not have acted differently; or

(b) in the case of one or more provisions of, or made under, primary legislation which cannot be read or given effect in a way which is compatible with the Convention rights, the authority was acting so as to give effect to or enforce those provisions."

Submissions for the minuter

[13] Counsel for the minuter accepted that there had been no breach of article 8 per se; but he submitted that it was sufficient to engage the protection of article 14 that the measure complained of fell within the ambit of another Convention right (Abdulaziz, Cabales and Balkandali v United Kingdom (1985) 7 EHRR 471). The right to respect for private life extended to an individual's sexual behaviour (Brüggemann and Scheuten v Federal Republic of Germany (1977) 3 EHRR 244). For the purpose of article 14, it was proper to compare the position of the minuter with that of a woman of the minuter's age who had intercourse with a boy of 14. Except in the special case where she was in a position of trust, she could not be prosecuted as the law now stood. There was no objective justification for that difference in treatment. The risk that girls might become pregnant was not sufficient to justify the discrimination, since that consequence did not attach to complainers alone. The Lord Advocate should give effect to the minuter's Convention rights by declining to prosecute him.

Submissions for the Lord Advocate

[14] The advocate depute submitted that article 8 did not apply, since sexual activity with children did not fall within the scope of the right to respect for one's private life (R v G [2009] 1AC 92 Lord Hoffman at para. 7-9; Laskey, Jaggard and Brown v United Kingdom (1997) 24 EHRR 39). Therefore the applicability of article 14 did not arise (Watson, supra, Lord Eassie at para [13]; X and Y v Netherlands (1986) 8 EHRR 235, para 32). In any event the 1995 Act was not discriminatory. It did not differentiate on the basis of the accused person's sex or sexual orientation. While fewer offences applied to heterosexual women, that did not prejudice the minuter. It was recognised that girls faced a greater degree of threat from heterosexual men than did boys from heterosexual women, particularly in view of the risk of unwanted pregnancy (E v DPP 2005 EWHC 147(Admin); R v Craig [2002] EWCA Crim 1580). Even if section 5(3) were incompatible with the Convention, it would not be ultra vires of the Lord Advocate to continue with the prosecution, because in doing so she would be acting to give effect to provisions of primary legislation (1998 Act, s 57(3)).

Conclusions

[15] In my opinion article 8 does not apply in this case. Counsel for the minuter accepted, rightly, that there had been no breach of that article; but he suggested that section 57(3) of the 1995 Act nonetheless fell within the ambit of it and therefore entitled the minuter to rely on article 14. That submission is without merit. However widely the concept of private life may be construed, it cannot extend to sexual activity with children. In R v G (supra), where a 15-year old boy had been convicted of raping a 13-year old girl, Lord Hoffman made the point in the following way:

"The other ground of appeal is that the conviction violated the appellant's right of privacy under article 8. This is, on the face of it, an astonishing proposition. Is it really being suggested that a young person under 18 has a human right to have undisturbed sexual intercourse with a child under 13? If anything is likely to bring human rights into disrepute, it is such a claim ...

Article 8 confers a qualified right that the state shall not interfere with what you do in your private or family life. Any interference with your conduct by the state must be necessary and proportionate for one of the purposes mentioned in article 8.2. But you either have such a right or you do not. If the state is justified in treating your conduct as unlawful, for example, because you are beating your wife or sexually abusing children, article 8 does not generate an additional right that the state shall not be too hard on you for whatever you have done because it happens to have been done at home."

[16] In Laskey (supra) Judge Pettiti gave the concise answer to the submission in this case in these words:

"The protection of private life means the protection of a person's intimacy and dignity, not the protection of his baseness or the promotion of criminal immoralism."

[17] I conclude therefore that article 14 does not apply. Although counsel for the minuter tentatively suggested that there might also have been a breach of article 6(1), he did not pursue the point.

[18] Even if these Convention rights had been applicable, I would have considered that there was an objective and valid justification for the measure complained of. It is entirely reasonable that the legislature should have regarded underage pregnancy as a serious and pressing social problem and, on that view, to create the offence set out in section 5(3) (supra).

[19] Counsel for the minuter also sought a declaration of incompatibility under section 4 of the Human Rights Act 1998. For the reasons that I have given, the minuter is not entitled to such a declaration. In any event, such a declaration would be of no practical effect. By reason of section 57(3) of the Scotland Act 1998 (supra), it would not preclude the Lord Advocate from continuing with the prosecution.

Disposal

[20] I propose to your Lordships that (1) we should answer the first question in the negative; (2) answer the second question by saying that if the prosecution was incompatible with the minuter's Convention rights, it would nonetheless be open to the Lord Advocate to proceed with it by reason of section 57(3) of the Scotland Act 1998; and (3) thereafter remit the case to the sheriff to proceed as accords.

APPEAL COURT, HIGH COURT OF JUSTICIARY
Lord Justice Clerk Lord Clarke Lord Bannatyne	[2010] HCJAC 109 Appeal No: XJ860/10 OPINION OF LORD CLARKE in APPEAL UNDER DEVOLUTION REFERENCE by DARREN LOGAN Minuter; against PROCURATOR FISCAL, GLASGOW Respondent: _______

Appellant: Shead, Mason; J P Mowberry, Glasgow

Respondent: Prentice, QC; Crown Agent

4 November 2010

[21] I concur with your Lordship in the chair and have nothing further to add.

APPEAL COURT, HIGH COURT OF JUSTICIARY
Lord Justice Clerk Lord Clarke Lord Bannatyne	[2010] HCJAC 109 Appeal No: XJ860/10 OPINION OF LORD BANNATYNE in APPEAL UNDER DEVOLUTION REFERENCE by DARREN LOGAN Minuter; against PROCURATOR FISCAL, GLASGOW Respondent: _______

Appellant: Shead, Mason; J P Mowberry, Glasgow

Respondent: Prentice, QC; Crown Agent

4 November 2010

[22] I have read the Opinion of his Lordship in the chair. I am entirely in agreement with the terms thereof. There is nothing of substance which I would wish to add.