Commentary on Parts Part 2 – Sexual Harm Chapter 2 – Sexual acts outside Scotland Section 7 – Incitement to commit certain sexual acts elsewhere in the United Kingdom
48.Section 7 amends section 54 of the Sexual Offences (Scotland) Act 2009 (“the 2009 Act”) so as to provide that it is a criminal offence for a person to incite the commission of a sexual act that would constitute a “listed offence” (that is, a sexual offence listed at Part 1 of schedule 4 to the 2009 Act) in Scotland, where the act in question is intended to occur outside Scotland, whether within or outside the United Kingdom. Section 54 of the 2009 Act previously only provided for the incitement offence to have extraterritorial effect where the criminal act is intended to occur outside the United Kingdom.
49.The offences listed in Part 1 of schedule 4 to the 2009 Act are in general sexual offences committed against children or young people under 18 (for example, rape, sexual assault, sexual exposure, voyeurism, sexual abuse of trust, indecent assault).
50.Subsection (3) amends section 54(2) of the 2009 Act and inserts a new section 54(2A). This provides that where the person inciting the commission of a sexual act elsewhere in the United Kingdom is not a habitual resident of Scotland, they only commit an offence if the act which they are inciting involves the commission of a criminal offence in the part of the United Kingdom in which it is intended to take place. This means that in the event that, for example, a person habitually resident in Northern Ireland incites the commission of a sexual act in Northern Ireland which is a criminal offence under Scots law listed at part 1 of schedule 4 of the 2009 Act, but which is not unlawful in Northern Ireland, they would not commit the offence. But if a Scottish habitual resident incited an offence in Northern Ireland in the same circumstances, the section 54 incitement offence would be committed, because in that case there is no requirement for the intended conduct to be a criminal offence in both jurisdictions.
51.Subsections (4) and (5) make consequential amendments.
52.Subsection (6)(a) amends section 54(8) of the 2009 Act to add a definition of “a habitual resident of Scotland” as someone who was at the time the act of incitement took place habitually resident in Scotland. Habitual residence is a much-used concept in private international law and it is expected that the courts would interpret this provision in accordance with those principles. Subsection (6)(b) amends the definition of a “UK national” at section 54(8) of the 2009 Act so that it applies only to persons who met the listed criteria at the time the relevant conduct took place, and not to those who became UK citizens or residents at a later date.
53.Subsection (7) amends the heading to section 54 to reflect the fact that it now applies to incitement to commit certain sexual acts anywhere outside Scotland.