Stephen Motroni v. Procurator Fiscal, Kilmarnock [2022] HCJAC 7

Description

Appeal from the Sheriff Appeal Court in terms of section 194zb of the Criminal Procedure (Scotland) Act 1995:- The appellant was charged on a summary complaint libelling two charges of lewd, indecent and libidinous behaviour which had allegedly occurred at various loci in Scotland and Italy between 1992 and 2001 and proceeded to trial. At the conclusion of the evidence the trial sheriff raised the question whether he had any jurisdiction over the incidents in Italy. Following submissions from parties the sheriff considered he did not and deserted the parts of the charges that related to the alleged conduct in Italy. The appellant was thereafter acquitted of both charges. The respondent appealed to the Sheriff Appeal Court. The appeal was allowed, the verdict of acquittal was quashed and the case was remitted to the sheriff to proceed. The appellant appealed against that decision of the Sheriff Appeal Court. The appeal raised a point of statutory construction of section 16B of the Criminal Law (Consolidation) (Scotland) Act 1995 (as amended by the Criminal Justice (Scotland) 2003, section19(2)(c)) which came into force on 27 June 2003) which provides:- “16B.– Commission of certain sexual acts outside the United Kingdom…(1) ..., any acts done by a person in a country or territory outside the United Kingdom which– (a) constituted an offence under the law in force in that country or territory; and (b) would constitute a listed sexual offence if it had been done in Scotland, shall constitute that sexual offence. ... (6A) A person may be proceeded against, indicted, tried and punished for any offence to which this section applies– ... (b) in such sheriff court district as the Lord Advocate may determine, as if the offence had been committed in that district; and the offence shall, for all purposes incidental to or consequential on trial or punishment, be deemed to have been committed in that district.” Subsection (6) provides that in proceedings on indictment the question whether the condition in subsection (1)(a) was satisfied was to be decided by the judge alone. Section 16B as originally enacted (inserted into the 1995 Act by the Sex Offenders Act 1997) took effect from 1 September 1997 did not make express provision for the trial of offences in the sheriff court. The question raised in the present case was whether the amendment of section 16B in 2003 was retrospective so as to provide the sheriff with jurisdiction to deal with matters arising between 1997 and 2001. It was submitted on behalf of the appellant that it was clear from McCarron v HMA 2001 JC 199 that prior to the amendment in 2003 the sheriff had no jurisdiction and the presumption is that statutory provisions are not applied retrospectively although there are certain exceptions, for example, when the amendments are purely procedural. It was submitted on behalf of the appellant that the Crown and the Sheriff Appeal Court erred in describing the amendment to section 16B as procedural. Further, that the provisions allocating jurisdiction are substantive and could not be waived or affected by the agreement of parties the amendment was fundamental given that the statutory provision allowed the procurator fiscal power to prosecute alleged offences in Italy as if they had been committed in the sheriffdom a power only previously available to the Lord Advocate in proceedings in the High Court. On behalf of the respondent it was submitted that the amendment was purely procedural and enacted the necessary procedural machinery to confer jurisdiction in respect of the sheriff court. It was submitted that there could be no clearer an example of a procedural amendment than a provision which governed where an accused person could be prosecuted. Here the court refused the appeal and remitted the case to the sheriff to proceed as accords. The court stated that as a generality a statute is not intended to have retrospective effect. The clarity of the language used by Parliament and the light shed on it by consideration of the circumstances in which the legislation was enacted are important factors in considering the question of fairness and whether a provision may be deemed to be retrospective. In the present case the court considered that there was nothing unfair in giving retrospective effect to the amendment. The court stated that the amendment was clearly intended to provide a mechanism to give effect to the intention of Parliament which had been since 1997 to allow the sheriff court to deal with such offences. The court considered that the amendment was procedural. The court observed that before the amendment the only forum which could try the offences covered by section 16B was the High Court and there is nothing unfair in a provision which allows cases to be prosecuted on summary complaint with the accompanying reduced penalties.