W,D, v. PROCURATOR FISCAL, AIRDRIE

"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.