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  4. Sex offence summary case amendment can be retrospective

Sex offence summary case amendment can be retrospective

7th February 2022 | criminal law | Criminal legal aid

There is no unfairness to an accused in allowing them to be prosecuted under summary procedure for sexual offences allegedly committed abroad, at a date before effective legislation was passed conferring jurisdiction on the sheriff court.

Lord Justice General Carloway, Lord Pentland and Lord Matthews in the Criminal Appeal Court gave the ruling in refusing an appeal by Stephen Motroni against a decision of the Sheriff Appeal Court, which held that the sheriff at Kilmarnock had jurisdiction on a complaint libelling two charges of lewd, indecent and libidinous behaviour at various loci in Scotland and Italy between 1992 and 2001. The sheriff at first instance had held that he did not have jurisdiction over alleged incidents in Italy, and deserted the relevant parts of the charges.

The appeal turned on the effect of the amendment to s 16B of the Criminal Procedure (Scotland) Act 1995 by the Criminal Justice (Scotland) Act 2003. Section 16B states that certain sexual acts outside the UK which constituted an offence under the law of the place where they were committed, and would constitute a listed sexual offence if done in Scotland, would constitute that sexual offence. The original provision did not make express provision for the trial of offences in the sheriff court, and McCarron v HM Advocate (2001) held that the jurisdiction of the sheriff court was territorial and there was nothing to say in which sheriff court a crime committed abroad could be tried. The 2003 amendment gave the Lord Advocate power to determine in which sheriff court district a person could be proceeded against.

For the appellant it was argued that there was a presumption that statutory provisions were not applied retrospectively; while there was an exception where they were purely procedural, provisions allocating jurisdiction were substantive, and gave the procurator fiscal power to prosecute where previously only the Lord Advocate could have done so in the High Court. Here a complete defence to proceedings on summary complaint had been removed.

Giving the opinion of the court, Lord Matthews said: “The court should proceed on the basis that, as a generality, a statute is not intended to have retrospective effect. However, care has to be taken when applying such a presumption. The basis of the rule is fairness.”

How the question of fairness would be answered in relation to a particular provision depended on several factors. “The degree of likelihood that retrospectivity is what Parliament intended will vary from case to case, as will the clarity of the language used and the light shed on it by the context in which the provision was enacted.”

It was recognised in McCarron that Parliament had probably intended summary jurisdiction in such cases, and the court considered that amending legislation would be purely procedural in nature. That was not a complete answer, but the legal fiction that the crimes were deemed to have been committed in Scotland remained the same and the amendment “did not introduce anything of substance which involved a departure from Parliament’s original intention”.

He continued: “There is nothing unfair in giving retrospective effect to this amendment. There is no right in an accused person in this country to be tried by a jury. The choice of forum is always a matter for the Crown, except where that is restricted by law. Before the amendment, the only forum which could try the offences covered by s 16B was the High Court of Justiciary. We acknowledge the authorities which provide that the identity of the decision-maker in a case is of importance. On the other hand, there is nothing unfair in a provision which allows cases to be prosecuted in a summary fashion with restricted penalties in the event of a conviction and where the decision-maker is expected to give reasons.”

The sheriff had jurisdiction to deal with matters arising in Italy between 1997 and 2001, and the matter was remitted to proceed as accords.

Click here to view the opinion of the court.

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