Perpetrator or victim?

It can be hard to keep up with the legislative changes afoot which will affect the lives of some Scottish children. At the time of writing, the Children’s Hearings (Scotland) Bill is about to enter stage 2. Many changes to the children’s hearings system will result. The Criminal Justice and Licensing (Scotland) Act 2010 received Royal Assent on 6 August 2010. Children under the age of 12 will not be prosecuted in the courts, but those as young as eight will still be capable of committing a crime, leading to a possible referral into the children’s hearings system on offence grounds.

Together with these legislative provisions, this article is concerned with the impact of the Sexual Offences (Scotland) Act 2009 (“the 2009 Act”), particularly the strict liability offences against “young children” found in part 4, ss 18 to 27. The 2009 Act will come into force soon, possibly in December 2010.

As noted by Charles Stoddart (Journal, June 2010, 46), there has been “a flurry of case law” concerning the definition of the crime of lewd and libidinous practices and behaviour. The provisions of the 2009 Act will render much, but not all, of the previous case law irrelevant.

At cl@n childlaw, we recently challenged the competency of a referral into the children’s hearings system of a 12-year-old boy, where the ground of referral was that he had committed the common law offence of lewd and libidinous practices and behaviour against a 10-year-old girl. That offence will no longer exist when the new Act comes into effect. However, not all of the arguments deployed may be obsolete. It should be noted that there was no judicial determination in this case, but it may be of interest to consider the issues which arose, and the extent to which similar issues may arise even under the scheme of the 2009 Act. The recent case in England in which two 10-year-old boys were prosecuted in the Old Bailey and found guilty of the attempted rape of an eight-year-old girl may also give us pause to reflect on the statutory scheme which will shortly govern such cases in Scotland.

Victim and offender

The common law offence of lewd and libidinous practices and behaviour is perpetrated against a child under the age of puberty. There is an irrebuttable legal presumption that a child under that age (that is, 14 for boys and 12 for girls) cannot consent to such sexual behaviour. A challenge to the competency of the referral was made on the ground that, put short, a child who cannot consent cannot possess the necessary criminal intent to commit. Such a child cannot be in the position of both victim and offender. There must be a range of behaviour between two children who are both below puberty which should properly be regarded, possibly as play or experimentation, but in any event not as offending. To treat as an offender a child who falls into the class of those whom the law seeks to protect is contrary to principle.

The range of behaviour covered by the present common law offence of lewd and libidinous practices and behaviour will, under the 2009 Act, broadly speaking be included in the strict liability offences against “young children” found in part 4, ss 18 to 27. Such behaviour constitutes an offence when it is directed against a child under 13, regardless of the gender of the child or the alleged perpetrator. No question of consent by the child arises.

The age of the offender is irrelevant, despite the unease expressed by Scotland’s Commissioner for Children and Young People at the time of the passage of the bill. In her oral evidence to the Justice Committee of the Scottish Parliament on 4 November 2008, the then Commissioner, Kathleen Marshall, stated: “I find it strange that we are prepared to criminalise younger children for engaging in behaviour that they are legally deemed to be incapable of consenting to. There should be no possibility of criminal liability in sexual offences that involve children under 13” (www.scottish.parliament.uk/s3/committees/justice/or-08/ju08-2602.htm# Col1252).

Article 8 issues

It may well be, however, that, even with the coming into force of the 2009 Act, it will be possible to challenge certain referrals on offence grounds on the proposition that they are disproportionate. Article 8 of ECHR offers, perhaps, a glimmer of hope for children and their parents who are anxious about the long-term consequences of such referrals. A children’s reporter’s decision to refer a child into the children’s hearings system on offence grounds, rather than on grounds of being “exposed to moral danger”, could be said to be disproportionate to the legitimate aim sought to be achieved, which is securing the welfare of the child throughout his childhood (under reference to ss 16(1), 52(2)(b) and 52(2)(i) of the Children (Scotland) Act 1995). It could be argued that such proceedings are, accordingly, an unlawful interference with the child’s rights under article 8.

In R v G [2009] 1 AC 92, the House of Lords was concerned with the prosecution of a 15-year-old boy for sexual intercourse with a 12-year-old girl. He was prosecuted for and convicted of the statutory offence of rape, although the girl had changed her account to say that the conduct had been consensual. In those circumstances, the boy could have been prosecuted for a lesser statutory offence – a child sex offence committed by a child.

In his dissenting judgment, at 105, Lord Hope of Craighead observed: “The questions then are whether the defendant’s continued prosecution for rape under section 5 was necessary in a democratic society for the protection of any of the interests referred to in article 8(2), and whether it was proportionate. Account must be taken in this assessment of the alternative courses that were open to the prosecutor… as well as the sentencing options that are available to the court.”

The defendant’s counsel had submitted “that to impose a strict liability for rape under s 5 on a 15-year-old child where the complainer consented to sexual intercourse, there being an alternative section under which he could more appropriately have been prosecuted for such conduct, was not necessary in a democratic society. The sanction was wholly disproportionate to any legitimate aim sought to be achieved”.

In the circumstances, Lord Hope held that it was unlawful for the prosecutor to continue to prosecute the defendant for the more serious crime.

Although in that case Lord Hope’s approach did not prevail, it can be argued that it is appropriate in the different Scottish procedure under consideration, in which the choice made by the reporter is between referral on offence or non-offence grounds, rather than a choice between two offences. Adopting Lord Hope’s approach, in the circumstances outlined above, it could be argued that, given (i) the alternative course open to the reporter, and (ii) the consequences of the offence grounds being established, such a referral is not necessary for the protection of any of the interests referred to in article 8(2), nor is it proportionate.

The alternative: “moral danger”

A 12-year-old boy is within the category of potential victims, as is a 10-year-old girl. Given that the aim of the children’s hearings system is to secure the welfare of children, it is difficult to reconcile this with a decision by a children’s reporter to refer on offence rather than “moral danger” grounds. In fact, in written evidence to the Justice Committee in relation to the Sexual Offences (Scotland) Bill, the Scottish Children’s Reporter Administration submitted: “The legislation as currently drafted also sets up the potential for sexual behaviour between two younger children to be regarded as a criminal offence. This is at odds with SCRA’s position that such concerns would be most effectively and appropriately addressed as an issue of welfare, care and protection.”

Constanda v M 1997 SC 217 is often cited as authority for the proposition that a reporter has little choice but to refer on offence grounds. In any future case, it may be possible to distinguish Constanda on various grounds, not least that it was decided prior to the coming into force of the Human Rights Act 1998. No issue of proportionality was advanced or determined in Constanda. The possible effect of the Human Rights Act provisions on the decision was not discussed by the Scottish Law Commission at para 4.58 of their Report on Rape and Other Sexual Offences, dated December 2007 (although at paras 4.35-4.38 they did consider the Court of Appeal decision in the case of R v G, cited above).

If offence grounds are established

By virtue of s 3 of the Rehabilitation of Offenders Act 1974, acceptance of the grounds by the child or establishment to the satisfaction of the sheriff is treated as a conviction of a criminal offence. Rehabilitation periods are set out in s 5 of
the 1974 Act. In his article at Journal, July 2010, 22, Professor Kenneth Norrie examines the problems which can arise in the disclosure certification system when spent convictions are disclosed.

Professor Norrie suggests various possible remedies that might be deployed. He seems to have some encouragement not least from Adam Ingram, the Minister for Children, both in evidence at stage 1 of the Children’s Hearings Bill and now in his response of 3 September 2010 to the committee’s report (see www.scottish.parliament. uk/s3/committees/ellc/inquiries/ CHBillCommitteeHomepage. htm). Interestingly, in the stage 1 debate on the bill on 16 June 2010, Nigel Don MSP asked “whether inviting a child to plead guilty or to accept guilt for an offence for which they cannot be prosecuted is an infringement of some part of their human rights” (Official Report at col 27346). That may well be a question which is worthy of further consideration.

However, for the time being, it is possible that a child referred into the children’s hearings system on offence grounds may be haunted by a “conviction” well into adult life. According to the police weeding policy (review and removal of criminal convictions), “all disposals for child offenders are to be weeded when a child has attained 16 years of age, except: (a) a supervision requirement order; (b) a disposal in a court of law”. In either case, the general weeding policy will apply, including weeding “when the subject… has attained 40 years of age and the conviction is 20 years old”.

Indeed, even where grounds are not admitted or established, so-called soft or non-conviction disclosure at the discretion of the local chief constable on an enhanced certificate may result in a mere referral being disclosed many years on. This would apply whatever the grounds, even “moral danger” grounds.

Leaving aside the niceties of the disclosure and weeding systems, there is likely to be an enduring stigma of having grounds established in relation to a sexual offence. Is it desirable that conduct of this nature by children as young as eight should operate to blight them well into adult life? (It is important to note perhaps that, unless the child is dealt with by the courts, no possibility of registration on the sex offenders’ register arises.)

Referral on “moral danger” grounds carries with it no possibility of the disposal being treated as a conviction, with the attendant risks for future prospects. As noted above, however, disclosure of soft or non-conviction information on an enhanced disclosure remains a risk.

Facing both ways

In Scotland, we pride ourselves that, for children in trouble, we have a welfare rather than a punitive-based system, referring both child offenders and children in need of care and protection into the children’s hearings system. Given the legislative activity currently under way, it is perhaps timely to consider whether we want a system which has the potential to penalise and stigmatise children who have indulged in sexualised play or experimentation, whether as part of what might be regarded as their normal development or in circumstances which give rise to concern about over-sexualised behaviour.

Are children who indulge in sexual behaviour perpetrators or victims? With the introduction of the new statutory sexual offences, it appears that we have, at best, a schizophrenic answer to this question. It is clear that, despite the public expressions of concern for the welfare of such children, our system allows for serious, long-term and potentially damaging consequences of such behaviour, long into adulthood.

It may not be too late to act by addressing these important issues in the Children’s Hearings (Scotland) Bill. It is to be hoped that the Scottish Parliament seizes the opportunity to speak with greater clarity.