Scottish High Court of Justiciary Decisons

GEORGE McCARRON v. HER MAJESTY'S ADVOCATE [2001] ScotHC 29 (11th May, 2001)

[1] The appellant is George Wallace McCarron who was indicted in the Sheriff Court at Dunfermline on two charges. The first alleged a contravention of Section 6 of the Criminal Law (Consolidation)(Scotland) Act 1995 ("the Consolidation Act") in respect of lewd, indecent and libidinous practices and behaviour, between 1 March and 2 September 2000, towards the complainer who was 13 at the time. The conduct was alleged to have taken place at an address in Cowdenbeath. The second charge was a charge under Sections 6 and 16B of the Consolidation Act and alleged that, between 2 and 16 September 2000, the appellant had committed a similar offence but involving a different complainer aged 14 at the time. The important point for present purposes is that the charge alleges that the conduct occurred in an apartment in Salou in Spain.

[2] Section 16B of the Consolidation Act provides inter alia:

[3] On 6 March 2001 the Sheriff adjourned the first diet until 8 March and on that date he heard submissions in respect of a minute of notice to the effect that the Sheriff Court at Dunfermline had no jurisdiction in respect of charge 2 where the offence related to alleged conduct in Spain. On 14 March the Sheriff repelled the plea and granted leave to appeal.

[4] At the hearing of the appeal Mr. Macinnes explained that his submission on behalf of the appellant could be put shortly. As he pointed out, the sheriff court is a court of universal jurisdiction, but - subject to any statutory provisions extending its territorial range - only in respect of offences occurring within the sheriffdom: Section 4(2) of the Criminal Procedure (Scotland) Act 1995. Parliament has provided, for instance, that, where a person is alleged to have committed a crime or crimes in more than one sheriff court district, the Lord Advocate may indict into the sheriff court of such one of the districts as he determines: Section 10(1). More significantly, Section 11 deals with murder or culpable homicide committed abroad by a British citizen or British subject (subsection (1)) and with offences committed by a British citizen or British subject in the course of his employment abroad (subsection (2)). In these cases subsection (3) makes specific provision for proceedings to be taken either in any sheriff court district in which the person is apprehended or is in custody (paragraph (a)) or in such sheriff court district as the Lord Advocate may determine (paragraph (b)). None of these provisions covers the offence in charge 2. And indeed when the Advocate Depute came to respond, he indicated that he had been unable to find any specific provision in the relevant legislation which governed this case.

[5] That being so, he said, frankly, that he had been thrown back on more general arguments. He put forward a powerful argument, based on Section 16B(6) of the Consolidation Act, for saying that Parliament must have envisaged that the offences specified in Section 16B(7) could be tried summarily. Had that not been so, he pointed out, Parliament would not have needed to say that, "[i]n proceedings on indictment", the judge alone was to decide whether the condition in subsection 1(a) was satisfied. The choice of wording showed that summary proceedings were possible and so a fortiori Parliament must also have intended that the offences should be triable on indictment in the sheriff court. We accept that this is so. Indeed, the same result could also be reached on the basis of Section 3(6) of the 1995 Act under which, in the absence of any express exclusion in statute, it is lawful to indict in the sheriff court all crimes except murder, treason, rape and breach of duty by magistrates. Subject to these qualifications, the sheriff court has the power or jurisdiction to try all crimes, including, of course, a contravention of Section 6 of the Consolidation Act.

[6] The Sheriff considered that, once it was established that, in terms of Section 3(6) of the 1995 Act, a prosecution for a contravention of Section 6 could be brought in the sheriff court, the appropriate forum was a matter for the discretion of the Crown. It followed, apparently, that since the Crown had chosen to indict the appellant in the Sheriff Court at Dunfermline - which certainly had jurisdiction in respect of the analogous charge 1 on the indictment - that sheriff court also had jurisdiction in respect of the offence that was alleged to have been committed in Spain.

[7] We cannot accept this reasoning. As we have pointed out, the jurisdiction of sheriff courts is, basically, territorial - as is indeed made abundantly plain by the detailed delimitation of the bounds of that jurisdiction by reference, for instance, to creeks, shores and anchoring grounds adjoining the sheriffdoms (Section 4(1) of the 1995 Act). Parliament's attention to these minutiae of the extent of the courts' jurisdiction would have been pointless if the Lord Advocate had a discretion to prosecute matters in whichever sheriff court he wished. Similarly, there would have been no need for Parliament to give the Lord Advocate a specific power in Section 11(3)(b) of the 1995 Act to prosecute certain offences committed abroad in such sheriff court district as he determined, if he already had that power at common law anyway. We therefore conclude that the Lord Advocate has no such general power at common law or under statute and that the Sheriff's reasoning is, for that reason, flawed.

[8] The very existence of the specific provisions in Section 11(3) of the 1995 Act takes the matter rather further, of course. They contain a discrete code upon which the jurisdiction of a sheriff court to deal with the Section 11 offences can be determined. That code would have been unnecessary if the sheriff courts would have had jurisdiction anyway. Since, however, a sheriff court has jurisdiction to try offences committed outside the sheriffdom only by virtue of statute, it can likewise have no jurisdiction to try offences committed abroad in the absence of a statutory provision conferring that jurisdiction. That being so, in the absence of any provision conferring jurisdiction on a particular sheriff court in the case of offences under Section 16B of the Consolidation Act, we have reluctantly reached the view that there is no statutory basis for the supposed jurisdiction of the Sheriff Court at Dunfermline. The appeal must accordingly be allowed.

[9] We add two observations. First, as Mr. Macinnes was the first to recognise, the appellant's success in this appeal does not mean that he cannot be tried for the offence in charge 2. It simply means that no sheriff court has jurisdiction to try the offence. There is, on the other hand, no doubt that, since the offence is triable on indictment, it can be tried by the High Court sitting at any place in Scotland (1995 Act, Section 3(2)). So, the upshot of the appellant's success may be that he comes to face an indictment in the High Court. That is, of course, a matter for the Lord Advocate and not for us and we say no more about it. Secondly, the point taken in this case reveals a flaw in the drafting of the Sex Offenders Act 1997 which fails to enact the necessary procedural machinery for the courts to carry out the intention of the legislature. The Scottish Ministers may wish to consider putting appropriate remedial legislation before the Scottish Parliament for their consideration.