APPEAL COURT, HIGH COURT OF JUSTICIARY
Lord Clarke Lord Menzies Lady Dorrian	[2013] HCJAC 44 XJ896/12   OPINION OF THE COURT   delivered by LORD CLARKE   in   STATED CASE   by   WD   Appellant;   against   PROCURATOR FISCAL, AIRDRIE   Respondent:   _____________

 

Appellant: C Mitchell; Paterson Bell

Respondent: I McSporran, Solicitor Advocate AD; Crown Agent

 

14 February 2013

[1] This stated case brought by WD, raises an interesting point in relation to section 7 of the Sexual Offences (Scotland) Act 2009, where prosecutions are brought under that section and where the recipients of the communications in question are under the age of 16. The Act itself, in section 34, deals with indecent communications with what are described as older children, that is children who have attained the age of 13 but who have not attained the age of 16 years. There is a material distinction between the two sections, section 7 and section 34, in that in section 7(1)(a) and (b) it is a requirement of a successful prosecution that it is established that the sexual written communication or sexual verbal communication was sent or directed by A to the other person B without B having consented to its being so communicated and that A does so without any reasonable belief that B consents to it being so sent or directed. Those provisos are not enacted in relation to the section 34 offence.

[2] The significance of all of that is that the present case is a prosecution under section 7 but which deals with three 15 year old girls who were in receipt of Facebook messages from a school bus driver. It is immediately conspicuous that the sheriff in the stated case has not addressed the significance of section 7(1)(a) and (b) in any detail. That is important because he appears clearly to have accepted a contention, made on behalf of the Crown, that, because of the girls' ages, they were not capable of consenting to the sexual content of the communications made by the appellant in this case by way of the Facebook messaging. In his findings in fact, the sheriff simply states in relation to two of the girls GS and HH, that they did not consent to the nature of the conversation with the appellant. All that this court can see that supports that finding is the assertion that that was so because of their age. The matter is further complicated in the case of BD, the third girl, because the finding of the sheriff in relation to her position is,

"BD was unaware of the nature of the conversation she was consenting to - had she been aware that the appellant was serious in his request, she would not have consented to the conversation."

 

It is difficult to know how that finding could be made to support a conviction under section 7 in respect of the appellant' alleged offending in relation to this complainer. It is noted that at finding in fact 7, the sheriff simply says, none of the girls consented to the sexual nature of the conversations.

[3] We are satisfied that the sheriff has entirely misdirected himself in this case in not having carried out the exercise, of reviewing the evidence, as to consent and belief, that is required under section 7(1) of the 2009 Act. The advocate depute, frankly and responsibly, accepted that something had gone wrong in this case in the sense that it would have been more appropriate for these matters to be charged in the alternative, that is either under section 7 or under section 34 where as has been noted, the issues of consent and reasonable belief do not arise as they do in section 7.

[4] Ultimately, the advocate depute did not, in any forceful way, seek to uphold the approach of the sheriff in this case and we consider that he was right in that respect. The difficulties encountered in this case will no doubt be noted for future prosecutions and those charged with trying these cases will bear in mind the distinction between the two sections and the insufficiency of, in ordinary circumstances, finding that there is no consent in a section 7 prosecution simply because of the age of the complainers in question.

[5] For all these reasons, we answer the question posed for the court in the affirmative.

 

Aud