Man accused of committing sexual offences in Scotland and Italy loses appeal against decision to overturn acquittal

Lord Matthews

About this case:

• Citation:
  [2022] HCJAC 7
• Judgment:
  External link
• Court:
  Appeal Court of the High Court of Justiciary
• Judge:
  Lord Matthews

Stephen Motroni faced trial on a summary complaint libelling two charges of lewd, indecent, and libidinous behaviour. The Procurator Fiscal in Kilmarnock, which successfully challenged the original acquittal verdict, argued that the trial sheriff had retrospective jurisdiction over the incidents in Italy under the amended Criminal Law (Consolidation) (Scotland) Act 1995.

The appeal was heard by the Lord Justice General, Lord Carloway, sitting with Lord Pentland and Lord Matthews. The appellant was represented by Dean of Faculty, Roddy Dunlop QC, and the Crown by Alex Prentice QC.

Purely procedural amendment

Section 16B of the 1995 Act allowed for persons who committed acts in another country that would constitute a listed sexual offence in Scotland to be tried in Scotland; however the original wording of the provision did not expressly provide for such offences to be tried in the sheriff court, something which was noted in the 2001 case of McCarron v HM Advocate. An amendment inserted by the Criminal Justice (Scotland) Act 2003 made express provision for this, which came into force on 27 June 2003.

The appellant was accused of lewd, indecent, and libidinous behaviour occurring at various loci in Scotland and Italy between 1992 to 2001, prior to the amended version of section 16B coming into force. The trial sheriff decided he did not have jurisdiction over the incidents in Italy and deserted the parts of both charges relating to them. He went on to acquit the appellant of the remainder of both charges.

In the Crown appeal to the Sheriff Appeal Court, the only live question was whether the amendment of section 16B in 2003 was retrospective. The Sheriff Appeal Court determined that, as the amendment was purely procedural, it was exempt from the general rule that amendments could not be applied retrospectively. It therefore held that the case should be remitted to the sheriff for further procedure.

It was submitted for the appellant that the amendment was not purely procedural and thus could not be applied retrospectively. Provisions affecting jurisdiction were substantive, especially in this case where they created a legal fiction that the offences committed in Italy were deemed to have been committed in the sheriffdom.

In response, the Crown submitted that the case of McCarron identified a “failure to enact the necessary procedural machinery” to confer jurisdiction in respect of the sheriff court, and the amendment had simply put that machinery in place. There could be no clearer example of a procedural provision than one which governed the forum in which an accused person could be prosecuted.

Nothing unfair

Lord Matthews, delivering the opinion of the court, noted generally: “A statute should not be interpreted as applying retrospectively if it will affect an existing right or obligation unless that is unavoidable on a plain construction of the language. There is an exception in the case of provisions which are purely procedural, because no person has a vested right in any particular procedure.”

He continued: “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.”

Examining the effect of the McCarron decision, he said: “We respectfully agree with that court that the intention of the legislature in enacting section 16B was to enable crimes allegedly committed abroad to be libelled in Scotland and, more particularly, in the sheriff court both on indictment and on summary complaint. The legal fiction whereby these crimes were deemed to have been committed in Scotland, was in the section before the 2003 amendment was inserted.”

He went on to say: “The amendment did not introduce anything of substance which involved a departure from Parliament’s original intention. It merely provided the procedural machinery to allow it to be carried into effect in line with the court’s suggestion in McCarron. It had been Parliament’s intention when the provision was originally enacted that the sheriff court have jurisdiction both on indictment and on summary complaint.”

Lord Matthews concluded: “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 amendment is merely procedural. It produces no unfairness if retrospective effect is given to it.”

The appeal was therefore refused, and the matter remitted to the sheriff for further procedure.