O'Rourke v HM Advocate

Criminal law – Sexual offences against children – Compatibility issue – Human rights – Rights to fair trial and respect for private life. High Court of Justiciary: In a reference to determine a compatibility issue which concerned a minuter who had been indicted on charges of having sexual intercourse and sexual activity with an older child and who wanted to rely on the statutory defence that he reasonably believed the complainer was aged 16 at the time of offences, the court concluded that s 39(2)(a)(i) the Sexual Offences (Scotland) Act 2009, which precluded an accused from relying on that defence when he had previously been charged by the police with a relevant sexual offence, was not incompatible with art 6 (the right to a fair trial) and art 8 (the right to respect for private life) of the European Convention on Human Rights.

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