R v Shane Wisher

Section 72 of the Sexual Offences Act 2003 is an offence-creating provision, not merely a jurisdictional gateway. It makes specified conduct abroad criminal under English and Welsh law where the statutory conditions are met.

An amendment extending the provision to rape of adult victims committed abroad was substantive. The presumption against retrospectivity therefore applied. It was not rebutted by the absence of a retrospective clause, the prospective statutory language, policy objectives or the Istanbul Convention. Retrospective application would also risk infringing Article 7. The resulting conviction was a nullity, although the Court of Appeal had jurisdiction to declare it so.

The appellant was convicted in the Crown Court at Derby on 13 November 2023 of rape under section 1 of the Sexual Offences Act 2003, among other offences. The rape was alleged to have occurred in Cape Verde between 2012 and 2015, when the victim was an adult. At that time, paragraph 1A of Schedule 2, extending section 72 to rape of adult victims committed abroad, was not in force.

The conviction was referred to the Court of Appeal by the Criminal Cases Review Commission. The central questions were whether section 72 was offence-creating or merely jurisdictional, whether the 2021 amendment operated retrospectively, and whether the Court of Appeal could dispose of the matter if the Crown Court had lacked jurisdiction.

Disposition. The appeal was allowed in relation to the rape conviction. That conviction was declared a nullity. The other convictions and sentences were unaffected.

1. Nature of section 72. The primary basis of English criminal jurisdiction is territorial. As explained in Board of Trade v Owen [1957] AC 602, conduct abroad is not ordinarily criminal in England and Wales merely because it would be criminal if committed here. Section 72 applies specified provisions of the Sexual Offences Act 2003 to conduct abroad and makes the United Kingdom national guilty in England and Wales. It therefore creates criminal liability and is not purely procedural. The comparison with R v DA [2023] EWCA Crim 1428 was unhelpful because the requirements of section 72(3) were undisputed in that case.
2. Retrospectivity. The presumption against retrospective operation applies with particular force where retrospective criminal liability or punishment would result. The strength of the presumption depends on the unfairness involved, and clearer language is needed to rebut it. The formulation approved in Granada UK Rental and Retail Ltd v Pensions Regulator [2019] EWCA Civ 1032 and the requirement for a positive indication identified in R v CS and another [2021] EWCA Crim 134 were applied.
3. Application. Parliament could have included a retrospective clause but did not do so. The explanatory material was prospective. Applying paragraph 1A to completed conduct that was not criminal in England and Wales when committed would risk infringing Article 7 of the European Convention on Human Rights. The policy objectives relied on, including the Istanbul Convention, did not provide the necessary positive indication. R v R [2001] 1 WLR 1314 supported that conclusion; the drafting differences between the predecessor provision and section 72 were immaterial. Hager v Osborne [1992] Fam 94 and Ben Nevis (Holdings) Ltd and another v Commissioners for HMRC [2013] EWCA Civ 578 concerned continuing civil states of affairs and did not assist.
4. Jurisdiction and disposal. Section 29(3) of the Senior Courts Act 1981 concerns Crown Court jurisdiction other than trial on indictment. It did not exclude the Court of Appeal's jurisdiction under section 9(1)(a) of the Criminal Appeal Act 1995 to deal with a conviction on indictment referred by the CCRC. The rape count could not lawfully have been included, and the conviction and sentence on that count, including notification requirements, fell away.

• Court of Appeal (Criminal Division): On a referral by the Criminal Cases Review Commission under section 9 of the Criminal Appeal Act 1995, declared the rape conviction a nullity. The other convictions and sentences were unaffected.
• Crown Court at Derby: Convicted the appellant on 13 November 2023 and sentenced him on 11 December 2023 to seven years' imprisonment for rape, consecutive to the sentence for the other offences.