221.Section 70 sets out the general parameters of the Sexual Offences Court’s jurisdiction. It provides for the Court to hear and determine cases as set out in the Act or elsewhere in legislation. There is currently no other legislation which gives the Court powers to hear cases. Subsection (2) provides for cases in the Court to be heard by the Judges who form the Court, as specified in section 69. The Court may sit with only one of those Judges, or with any combination of them. Subsection (3) ensures that the Court has the powers necessary to hear and determine the cases before it, while subsection (4) provides that those powers are subject to any restrictions set out elsewhere in the statute book.
222.Section 71 sets out which offences the Sexual Offences Court may hear. Subsection (1) provides for the Court to try any sexual offence which is triable on indictment in any place in Scotland. There is a definition of “sexual offence” in subsection (5), which defines a sexual offence as being an offence listed in schedule 4 of the Act, an attempt or conspiracy to commit one of those offences, or aiding, abetting, counselling, procuring, or inciting the commission of one of those offences. The Scottish Ministers can amend the list of offences by way of regulations.(8) There is no geographical restriction, within Scotland, to the cases the Sexual Offences Court may hear.
223.Subsection (2) provides further detail about the cases which may be heard by the Sexual Offences Court. Subsection (2) provides that, if an accused person is charged with more than one offence, the Sexual Offences Court may try all of those offences, provided at least one of them is a sexual offence as defined in section 71(5). This is subject to subsection (4), which provides that the Sexual Offences Court does not have jurisdiction to hear cases of treason, or breach of duty by magistrates. The High Court of Justiciary has exclusive jurisdiction to try these offences.
224.Schedule 4 sets out the common law and statutory offences which are sexual offences for the purposes of section 71. In paragraph 16 of schedule 4, an offence under section 1(1) of the Domestic Abuse (Scotland) Act 2018 (abusive behaviour towards partner or ex-partner) is only classed as a sexual offence for the purposes of section 71 if it is apparent from the indictment that there was a substantial sexual element to the alleged commission of the offence.
Crown Application Part 7 – Sexual Offences Court Jurisdiction and competence Sections 70 and 71 and schedule 4 – jurisdiction and competence: general, and jurisdiction: sexual offences