Sexual Offences (Scotland) Act 2009

40Special provision as regards failure to establish whether child has or has not attained certain ages

(1)Deeming provision 1 applies to a trial where—

(a)A is charged with an offence under any of sections 28 to 36 or 37(1),

(b)there is a failure to establish beyond reasonable doubt that B was a child who had attained the age of 13 years at the relevant time, and

(c)the court or, in the case of a trial of an indictment, the jury is satisfied it is established beyond reasonable doubt that B had not attained the age of 16 years at the time.

(2)Deeming provision 2 applies to a trial where—

(a)B is charged with an offence under section 37(4),

(b)there is a failure to establish beyond reasonable doubt that A was a child who had attained the age of 13 years at the relevant time, and

(c)the court or, in the case of a trial of an indictment, the jury is satisfied it is established beyond reasonable doubt that A had not attained the age of 16 years at the time.

(3)Deeming provision 3 applies to a trial where—

(a)A is charged with an offence under section 37(1),

(b)there is a failure to establish beyond reasonable doubt that A was a child who had not attained the age of 16 years at the relevant time, and

(c)the court or, in the case of a trial of an indictment, the jury is satisfied it is established beyond reasonable doubt that A had attained the age of 13 years at the time.

(4)Deeming provision 4 applies to a trial where—

(a)B is charged with an offence under section 37(4),

(b)there is a failure to establish beyond reasonable doubt that B was a child who had not attained the age of 16 years at the relevant time, and

(c)the court or, in the case of a trial of an indictment, the jury is satisfied it is established beyond reasonable doubt that B had attained the age of 13 years at the time.

(5)Where any of the deeming provisions apply, references in sections 28 to 37 to A or B having or not having attained a particular age are to be construed in accordance with this section and section 41.

(6)In this section and section 41, the “relevant time” is when the conduct to which the proceedings relate occurred.