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Parliamentary debates and questions

S5W-08843: Claire Baker (Mid Scotland and Fife)

Scottish Labour

Date lodged: 19 April 2017

To ask the Scottish Government how many convictions there have been under the Sexual Offences (Scotland) Act 2009 and what the impact will be on these of the decision by the Supreme Court in the case of AB (Appellant) v Her Majesty’s Advocate (Respondent) (Scotland) that section 39(2)(a)(i) of the Sexual Offences (Scotland) Act 2009 does not comply with the European Convention of Human Rights; what its response is to the decision, and what action it is taking to introduce any corrective legislation.

Answered by: Michael Matheson 3 May 2017

The Supreme Court's ruling in the case of AB v. HMA concerns the defence at section 39 of the Sexual Offences (Scotland) Act 2009 of "reasonable mistaken belief as to age." The defence applies in respect of offences at sections 28-37 of the Act concerning sexual activity with children aged between 13 and 15.

There have been 460 people convicted of offences at sections 28-37 of the 2009 Act (where this was the main offence for which they were convicted) between 2010-11 and 2015-16.

The Supreme Court's ruling that section 39(2)(a)(i) does not comply with the European Convention on Human Rights does not of itself have any direct effect on the convictions of persons with such offences. It is the case that anyone who believes they suffered a miscarriage of justice can apply to the Scottish Criminal Cases Review Commission to have their case referred back to the Appeal Court. The Commission can refer a case to the Appeal Court where they consider that a miscarriage of justice may have occurred and it is in the interests of justice to do so. It is for individual convicted persons to consider whether to make such an application in light of this ruling.

The Scottish Government is carefully considering the terms of the judgement.