Scottish Law Commission (Reports)

Part 7 Miscellaneous issues

Introduction

7.1      In this Part we consider various matters in relation to sexual offences but which deal with issues other the definitions of those offences. In particular, we focus on (1) commencement and transitional provisions; (2) continuity of the law; (3) penalties; (4) jurisdiction; and (5) alternative verdicts.

Commencement and Transitional Provisions

7.2      The Draft Bill contains a section which allows for its provisions to come into force on a date or dates to be specified by order made by the Scottish Ministers.^[1] There is in addition a further section which gives power to the Scottish Ministers to make by order provisions as to a wide range of issues, including transitional matters.^[2] Although the Draft Bill does not therefore specify what those transitional provisions are to be, we consider that it would be useful if we set out our views on certain transitional issues.
7.3      The appropriate fundamental principle, and one provided for by article 7 of the ECHR, is that no person can be found guilty of a criminal act which did not constitute a criminal offence at the time it was committed, nor can he or she be given a heavier penalty than the one applicable at the time the offence was committed. Accordingly we envisage that the offences which are created by the provisions of the Draft Bill will apply only to conduct which takes place after the time when the relevant provision comes into force.
7.4      However, the same reasoning does not apply to provisions in the Draft Bill which do not impose criminal liability.^[3] In our view there is no need to prevent retrospective effect in respect of section 29 of the Draft Bill (children requiring compulsory measures of care).^[4] That provision allows for a child to be referred to a children's hearing on the ground that he or she has engaged in sexual activity or has been subject to sexual activity with another person. As the children's hearings system is concerned with the welfare of the child and this ground of referral does not involve proof that the child committed a criminal offence, it is therefore appropriate that the provisions of section 29 of the Draft Bill should apply in respect of sexual activity occurring prior to the date on which those provisions come into force.^[5]
7.5      There is another provision in the Draft Bill which we suggest should have pre-commencement effect and in relation to which we have recommended a provision in the Draft Bill itself. This is section 37 (consensual acts carried out for sexual gratification). This provision removes criminal liability for certain types of attack done for purpose of obtaining sexual gratification.^[6] There is no question here of imposing criminal liability retrospectively and we can see no good reason for limiting this exemption to conduct occurring after the provision comes into force.
7.6      We therefore recommend that:

The removal of criminal liability for attacks carried out by persons for the purpose of obtaining sexual gratification should apply in respect of attacks which take place before or after the date on which the relevant provision comes into force but this rule should not affect convictions for assault before that date.

(Draft Bill, section 37(3))

Continuity of the law

7.7      A problem in introducing new statutory offences to replace existing offences is illustrated by the experience of the Sexual Offences Act 2003 in English law. The problem arises where there is evidence, especially from the victim, that the offence took place within a particular period of time but the precise date when the conduct occurred cannot be established. If this time-frame includes the date on which the new provision came into force, the question is whether the accused can be convicted under the new law, the old law, or neither.
7.8      This problem is especially likely to arise in cases involving child victims who may have difficulties in remembering the exact date on which an offence had been committed. For example, in R v Newbon,^[7] a nine year-old boy complained that he had been anally raped by the accused "just before the bank holiday at the end of the month" but was unable to specify the exact date of the incident. The bank holiday in question fell on 3 May 2004 but the Sexual Offences Act 2003 came into force on 1 May 2004. The accused was charged (presumably alternatively) under the Sexual Offences Act 1956 (which was repealed by the 2003 Act) and under the 2003 Act. The court upheld a defence submission that as the Crown had failed to prove which statute was applicable to the accused's conduct he was not liable under either of them and should be acquitted.^[8]
7.9      A solution to problem was provided by section 55 of the Violent Crime Reduction Act 2006. The provision applies to cases where it cannot be proved that the offence took place either before or after the commencement of the 2003 Act. In such cases it will now be presumed that the offence was committed after commencement, unless the maximum pre-commencement penalty is less than the maximum penalty under the 2003 Act, in which case the conduct will be deemed to have taken place before the repeal of the pre-2003 offence.
7.10      We consider that a similar problem might well arise in cases relating to conduct which occurs around the date when particular provisions of the Draft Bill are brought into force and we see merit in adopting the model used in English law to deal with it. Accordingly we recommend that:

Where the accused is charged with an offence under the Act and with an offence under the law in force prior to the Act, and the actual date on which the accused's conduct took place cannot be proven, the accused is liable to be convicted of an offence under the Act unless the maximum penalty for the offence under the prior law is less than that for the offence under the Act.

(Draft Bill, section 41)

Penalties

7.11      The Draft Bill makes provision for the maximum penalty which the court can impose on a person who is convicted of an offence introduced by the Draft Bill.^[9] In selecting the penalties we took note of the relevant provisions in the Sexual Offences Act 2003 and the Draft Criminal Code for Scotland as well as those for offences in the current law which correspond to the offences in the Draft Bill. We also took into account the provisions of the Criminal Proceedings etc (Reform) (Scotland) Act 2007, which increase the sentencing powers of a sheriff sitting in summary proceedings.^[10] We have also added to the powers of a court in solemn cases the option of substituting or adding a fine to a sentence of imprisonment, though we accept that in many cases a sentence of imprisonment alone will be the appropriate disposal of the case.
7.12      We wish to comment on only one aspect of the penalty provisions. We recommend that the maximum penalty for the offences of rape, sexual assault and sexual coercion (as set out in sections 1 to 3 of the Draft Bill) should be life imprisonment (or a fine, or both). This is the most severe penalty which a Scottish court can impose.^[11] We consider that these offences warrant such a severe penalty as they may all involve non-consensual penetration of the victim or some other party. Non-consensual penetration is a major infringement of a person's sexual and physical integrity and it is appropriate that the court can deal with cases involving this particular wrong by imposing the most severe penalty.
7.13      We consider that for similar reasons the same maximum penalty should apply to the offences of rape of a young child, sexual assault on a young child, and causing a young child to participate in sexual activity.^[12] These offences are special instances of the conduct involved in rape, sexual assault, and sexual coercion but in these cases the victim who cannot, and does not, consent is a young child. By allowing for the imposition of life imprisonment the law will reinforce the signal that having any form of sexual contact with a child under 13 a serious form of wrongdoing.

Jurisdiction

7.14      We also have a recommendation as to the jurisdiction of the courts before which prosecution for offences may be brought. At present rape is one of the pleas of the Crown and can be tried only in the High Court of Justiciary. We see no need for a different approach on jurisdiction for the statutory offence of rape which we recommend should replace the common law crime. Allowing the proposed statutory offence of rape to be prosecuted in the sheriff court may be misinterpreted as downgrading it in comparison with the existing common law crime.
7.15      We also believe that the recommended offence of rape of a young child is a particular instance of rape, namely where the victim a child under the age of 13. We do not consider that there should any difference as to the matter of which courts should have jurisdiction in the prosecution of these two offences. We accept that under the present law the offence of having unlawful intercourse with a girl under the age of 13 may be prosecuted on indictment in either the High Court or the sheriff court but we consider that a similar rule for the recommended offence of rape of a young child might give the impression the offence is a lesser form of rape.
7.16      We recommend that:

The offences of rape and rape of a young child may be tried only in the High Court of Justiciary.

(Draft Bill, section 44(1); schedule 3, paragraph 5(2), (3))

7.17      We recognise that the question of the appropriate court in which a prosecution should be raised is in principle a matter for the discretion of the Crown, and apart from the cases of rape and rape of a young child, we recommend that the other offences in the Draft Bill can be prosecuted either on indictment or by summary procedure.

Alternative verdicts

7.18      Various statutes allow for the situation where an accused can be convicted of one offence although the indictment or complaint libels another.^[13] One example is section 14 of the Criminal Law (Consolidation) (Scotland) Act 1995, which applies where an accused has been indicted on a charge of rape or with having unlawful intercourse with a girl under 13. Where the jury are not satisfied that the accused is guilty of the offence charged, they may still, if satisfied of the accused's guilt, convict him or one of other specified offences, including having unlawful sexual intercourse with a girl under 16 or with indecent assault. Provisions of this nature are particularly useful where evidence at a trial does not completely prove one offence but does establish the commission of another offence, which usually is lesser though similar in nature. Where the Crown anticipates in advance that there may be problems in proving a constituent element of a particular offence it can indict in the alternative. But often such problems emerge during the course of a trial, and where no alternative verdict is provided in statute, the Crown may have to seek leave to amend the indictment or be forced to abandon proceedings.
7.19      We take the view that provisions on alternative verdicts should be made in respect of the offences recommended in this Report. Many of those offences are overlapping in scope. Moreover, with sexual activity there is a high likelihood that the evidence which emerges during a trial will not match exactly what the Crown had anticipated from pre-trial precognitions. For example, a complainer may have said that the accused had forced her to watch live sexual activity but it emerges at the trial that he had in fact shown her sexual images. Also, there may be competing evidence on some key element of an offence. For example, a man is charged with raping a 15 year-old boy, but the evidence suggests that the boy consented to the sexual activity. In such cases it is appropriate that, despite such failures of proof, the accused is still liable to be convicted for the offence for which there is evidence.
7.20      However, we are concerned that provisions allowing for the use of alternative verdicts might contravene the requirements of article 6 of the ECHR, which guarantees the right to a fair trial.^[14] We consider that any problem of this nature could be dealt with by requiring that the accused on receiving an indictment or complaint should be given fair notice as to the possibility of being convicted of an alternative offence. We recommend that one way of giving such fair notice would be by service on the accused of a written notice, in a form to be prescribed, which specifies the possible alternative verdicts.
7.21      We recommend that:

Where in proceedings against an accused person in respect of one offence, that offence has not been proved, the accused may be convicted of another offence provided:

(a) the court or jury are satisfied that he committed that other offence; and

(b) the accused had received notice that be was liable to be convicted of that other offence.

(Draft Bill, section 38; schedule 2)

Note 1   Draft Bill, s 45.    [Back]

Note 2   Draft Bill, s 43.    [Back]

Note 3   The European Court of Human Rights has held that the Convention is not necessarily breached by a retrospective change in the criminal law which operates in the accused's favour (KokkinakIs v Greece (1994) 17 EHHR 397; G v France (1996) 21 EHRR 288).    [Back]

Note 4   For discussion of our recommendation on this point, see paras 4.52-4.57.    [Back]

Note 5   However, the ground of referral would not be available if the child who is to be referred to the hearing was committing an offence by engaging in the sexual activity in question. See Constanda v M 1997 SC 217, discussed at para 4.58.    [Back]

Note 6   We discussed this matter at paras 5.19-5.27.    [Back]

Note 7   Unreported, 24 February 2005 in the Crown Court in Stoke on Trent. The case is summarised in [2005] Crim L Rev 738.    [Back]

Note 8   The court stated that it would uphold the submission "although it seemed nonsensical and outrageous [but] it was necessary to prove which statutory provision applied and the Crown had failed to do so." The same problem, with the same result, arose in R v A (Prosecutor’s Appeal) [2006] 1 Cr App R 28 and R v Christopher H [2006] EWCA Crim 2898.     [Back]

Note 9   Draft Bill, section 36; schedule 1.    [Back]

Note 10   The maximum period of imprisonment has been increased from 3 months to twelve months (Criminal Proceedings etc (Reform) (Scotland) Act 2007, s 43), and the maximum fine increased from £5,000 to £10,000 (s 48).    [Back]

Note 11   We understand the term life imprisonment will cover all forms of indeterminate sentence, including (i) discretionary life sentence; (ii) an order for lifelong restriction; (iii) detention for life; and (iv) detention without limit of time.     [Back]

Note 12   Draft Bill, sections 14-16.    [Back]

Note 13   Renton & Brown's Criminal Procedure (6th edn. by Gerald H Gordon assisted by James Chalmers), paras 8.79-8.84.    [Back]

Note 14   Pélissier and Sassi v France (1993) 30 EHRR 715.    [Back]