Commentary on Parts Part 2 – Sexual Harm Chapter 2 – Sexual acts outside Scotland Section 8 – Commission of certain sexual offences elsewhere in the United Kingdom
54.Section 8 inserts new sections 54A, 54B and 54C into the 2009 Act, so as to provide that the Scottish courts may take jurisdiction over an act which takes place elsewhere in the United Kingdom that would have constituted a “listed offence” had it taken place in Scotland. For the purposes of these provisions, “listed offence” means the sexual offences listed at Part 2 of schedule 4 to the 2009 Act (see section 54A(8)), which includes all the sexual offences against children or young people under 18 to which section 54 of the 2009 Act applies, as well as a number of other sexual offences (for example, offences involving indecent images, sexual services and pornography committed against children or young people under 18).
55.The effect of these provisions is that the extra-territorial jurisdiction of Scottish courts in relation to sexual offences against children and young people under 18 is expanded to cover the other jurisdictions of the United Kingdom, as well as places outwith the United Kingdom (which is already provided for at section 55 of the 2009 Act).
56.Section 54A(2) and (3) restrict the extra-territorial offence by providing that it may be committed by a person who is not a habitual resident of Scotland only if the act in question is also a criminal offence, however described, in the country where it took place. If it is proven that the act took place somewhere in the United Kingdom but the particular country where it took place is not proven, the person could only be found guilty of the offence if the act is a criminal offence in all of the countries in which it is alleged it may have taken place.
57.Sections 54A(4) to 54A(6) set out the procedure that a person accused of an offence must follow if they intend to argue that the conduct did not constitute a criminal offence in the part of the United Kingdom in which it took place.
58.Section 54A(8) sets out some relevant definitions, including a definition of habitual resident of Scotland in the same terms as in the amendments to section 54 of the 2009 Act by section 7.
59.New section 54B places limitations on the use of section 54A to prosecute listed sexual offences which were committed elsewhere in the United Kingdom. This applies whether the person committing the offence is a Scottish habitual resident or not. These limitations apply only if the country in the United Kingdom in which the listed offence took place can be determined from the indictment or complaint. If the country cannot be determined, the limitations in new section 54C apply instead.
60.Section 54B(2)(a) provides that, subject to the exception at section 54B(3), the offence cannot be prosecuted in the Scottish courts if the person is being or has been prosecuted for the same conduct in the country within the United Kingdom where the act took place.
61.Section 54B(2)(b)(i) provides that, before initiating a prosecution for a listed offence which is alleged to have occurred in another country within the United Kingdom, the prosecutor must consult the director of public prosecutions in the country in which the offence is alleged to have been committed.
62.Section 54B(2)(b)(ii) provides that prosecution for a listed offence which is alleged to have occurred in another country within the United Kingdom is only competent where the accused is also charged, on the same indictment, with an act in Scotland constituting a listed offence. This is intended to ensure that the Scottish courts can only hear a case relating to an offence alleged to have been committed elsewhere in the United Kingdom where it forms part of a course of conduct of offending, a part of which took place in Scotland.
63.Section 54B(3) provides that the restriction at section 54B(2)(a) prohibiting a prosecution in the Scottish courts where the person is being or has been prosecuted for the same conduct in the country within the United Kingdom where the act took place does not apply in circumstances where that prosecution has been withdrawn in order to enable the prosecution of the person in Scotland. This may occur where, for example, such a prosecution brings to light more serious offences committed by that person in Scotland and prosecutors agree that it is appropriate to prosecute all the offences on a single indictment or complaint in the Scottish courts.
64.New section 54C sets out limitations on the prosecution of listed sexual offences where it is not known in which jurisdiction within the United Kingdom the offence is alleged to have been committed. This may occur where, for example, the offence was committed in an unknown location close to the border between Scotland and England. Another example would be where the offences have taken place over a long period within a family unit and the family have lived in different parts of the United Kingdom at different times as the children grew up.
65.Section 54C(1) provides that it is not necessary that an indictment or complaint contains information from which it is possible to determine the jurisdiction in which the act constituting the listed offence is alleged to have taken place. This ensures that it is legally competent for an indictment to be served in which there is uncertainty as to the jurisdiction within which an offence is alleged to have been committed.
66.Section 54C(2) provides that where an indictment or complaint does not contain such information, subject to the exception at section 54C(5), the offence cannot be prosecuted in the Scottish courts if the person is being or has been prosecuted for the same conduct elsewhere in the United Kingdom and that a prosecution is only competent if the applicable conditions in section 54C(3) are met.
67.Section 54C(3) provides that, before serving an indictment or complaint in respect of a listed offence where the jurisdiction in which the act constituting the offence is alleged to have occurred is not known, the prosecutor must consult the Director of Public Prosecutions in the other jurisdiction or jurisdictions in which the act may have been committed.
68.Section 54C(5) provides that the restriction at section 54C(2)(a) prohibiting a prosecution in the Scottish courts where the person is being or has been prosecuted for the same conduct in the country within the United Kingdom where the act took place does not apply in circumstances where that prosecution has been withdrawn in order to enable the prosecution of the person in Scotland.