Rape and Sexual Offences - Chapter 8: Statutory Limitations on prosecution of offences committed abroad

• Introduction
• International Inquiries
• Statutory Limitations
• The Sexual Offences (Conspiracy and Incitement) Act 1996
• Sexual Offenders Act 1997
• Sexual Offences Act 2003
• Domestic Abuse Act 2021
• The unique position with offending occurring in Scotland and Northern Ireland

Introduction

This section should be considered in conjunction with the CPS legal guidance on Jurisdiction.

When considering sexual allegations that have been committed outside the United Kingdom prosecutors must firstly consider the dates of the incidents and the age of the complainant at the relevant time. Prosecutors are often required to review non-recent allegations and the legislation regulating sexual offending committed outside the United Kingdom has changed a number of times. The dates of the allegations and the age of the complainant will determine what, if any, charges can be considered. Where allegations are part of a course of conduct or series of events the prosecutor should consider drafting a chronology of incidents so that the appropriate legislation can be applied. Prosecutors should refer to the Annex B for a quick guide to the legislation that was in force.

International Inquiries

The obligation under the Criminal Procedure and Investigations Act 1996 Code of Practice to pursue all reasonable lines of inquiry applies to overseas material, see guidance in Chapter 35 of the Disclosure Manual on International Disclosure Issues for further details.  If it is a reasonable line of inquiry to obtain material from overseas, then prosecutors should consider their strategy at the earliest stage.  If the CPS has a Liaison Prosecutor for the specific country, then the prosecutor should contact them as soon as possible to assist. The case strategy should consider the potential for co-operation with overseas partners informally or, particularly if they have commenced their own investigation into related offending, through formal mechanisms such as Eurojust or Joint Investigation Teams. Consideration should also be given to the issue of concurrent jurisdiction within the Jurisdiction legal guidance.

If the offending occurred wholly outside of the United Kingdom or if there is no link to incidents that occurred within the United Kingdom prosecutors should consider whether there is jurisdiction to commence proceedings in the UK (see Jurisdiction Legal Guidance). If there is no jurisdiction to prosecute the matter within the UK consideration should still be given to whether a transfer of crime and/or transfer of proceedings to the relevant jurisdiction is appropriate or possible. Each case must be considered on its own facts.

If the suspect resides outside the United Kingdom prosecutors should consider the extradition agreement with the relevant jurisdiction. There may be nationality bar restrictions which prevent extradition and alternatives such as transfer of crime and/or proceedings should be identified early. If extradition is considered, prosecutors should follow the appropriate Extradition legal guidance.

Prosecutors should also consider the needs of witnesses including their location, victim support and whether equivalent special measures are available in the other jurisdiction. If the witnesses are overseas early consideration of whether they can give evidence by video link should be completed and this will usually require an application for mutual legal assistance. Prosecutors should be aware that if a witness is to give evidence via video link a fixed date for the hearing must be set and the request for mutual legal assistance made as early as possible.

For further information on the obtaining of evidence from abroad, including mutual legal assistance, see the International legal guidance which includes country specific guidance. 

Statutory Limitations

Prior to 1 October 1996 there was no power for English and Welsh courts to try any sexual allegations that occurred outside the United Kingdom. If the police refer such a case, the prosecutor should consider the options. The case may involve a series of incidents some of which occurred outside the United Kingdom. If most of the acts were committed in the United Kingdom and the prosecutor authorises charges, they should consider whether a bad character application can be advanced to admit the evidence of the acts that occurred outside the United Kingdom. Prosecutors should consider the Bad Character legal guidance.

The Sexual Offences (Conspiracy and Incitement) Act 1996

On 1 October 1996 the Sexual Offences (Conspiracy and Incitement) Act 1996 came into force. This act made it an offence to conspire to commit, or to incite the commission of certain sexual acts abroad against children. Section 1 relates to conspiracy to commit certain sexual acts outside the United Kingdom and section 2 relates to incitement to commit certain sexual acts outside the United Kingdom.

Whilst section 1 and 2 relate to sexual conduct that is committed outside the United Kingdom a party to the agreement or incitement must join or commit an act or omission in England or Wales. This means that there is no power to try allegations that have been committed wholly outside England and Wales. These offences are aimed at persons within England and Wales who plan to commit sexual offences or incite sexual offences to be committed outside the United Kingdom.

Section 1 requires four conditions to be satisfied and prosecutors must ensure that each condition is fulfilled when considering a charge.

Section 2 applies where:

• any act done by a person in England and Wales would amount to the offence of incitement to commit a listed sexual offence but for the fact that what he had in view would not be an offence triable in England and Wales,
• the whole or part of what he had in view was intended to take place in a country or territory outside the United Kingdom, and
• what he had in view would involve the commission of an offence under the law in force in that country or territory.

Any act of incitement by means of a message (however communicated) is to be treated as done in England and Wales if the message is sent or received in England and Wales.

These sections only apply to a limited number of offences and only if the complainant is under the age of 16 years when the incident occurred. The offences which they apply to are as follows:

Sexual Offences Act 1956

• section 1 (rape, complainant must be aged under 16)
• section 5 (intercourse with girl under the age of thirteen)
• section 6 (intercourse with girl under the age of sixteen)
• section 12 (buggery, complainant must have been under 16)
• section 14 (indecent assault on a girl, complainant must have been under 16), and
• section 15 (indecent assault on a boy, complainant must have been under 16)

Indecency with Children Act 1960

• section 1 (indecent conduct towards young child)

Section 1 was repealed by the Criminal Justice (Terrorism and Conspiracy) Act 1998 and replaced by section 1A of the Criminal Law Act 1977 which came into force on 4 September 1998. The Attorney General’s consent must be obtained before any proceedings for an offence triable by virtue of section 1A are instituted. See the legal guidance on Consents to Prosecute to prosecute for further details. Section 2 remains in force and from 1 May 2004 it applies to the following offences:

Sexual Offences Act 2003

• sections 1 to 12, 14 and 15 to 26 (complainant must be aged under 16)

Sexual Offenders Act 1997

Section 7 of the Sex Offenders Act 1997 came into force on 1 September 1997 and it extended the jurisdiction of the courts of England, Wales and Northern Ireland. It only applies to a limited number of offences listed within schedule 2 and only if the complainant is aged under 16 years at the time of the incident. Section 7 applies to acts committed in a country or territory outside the United Kingdom and the acts must have constituted an offence under the law in that country or territory. This is taken as satisfied unless the defence serve a notice on the prosecution, but prosecutors must ensure that the condition is met before instigating proceedings.

To rely on this section the suspect must on 1 September 1997 have been or have subsequently become, a British citizen or resident in the United Kingdom.

Section 7 applies to the following offences listed at schedule 2 of the Act:

Sexual Offences Act 1956

• section 1 (rape complainant must be aged under 16)
• section 5 (intercourse with girl under 13)
• section 6 (intercourse with girl between 13 and 16)
• section 12 (buggery, complainant must be aged under 16)
• section 14 (indecent assault on a girl, complainant must be aged under 16)
• section 15 (indecent assault on a boy, complainant must be aged under 16)
• section 16 (assault with intent to commit buggery, complainant must be aged under 16)

Indecency with Children Act 1960

• section 1 (indecent conduct towards young child)

Protection of Children Act 1978

• section 1 (indecent photographs of children)

Sexual Offences Act 2003

Section 7 was repealed and replaced by section 72 of the Sexual Offences Act 2003 on 1 May 2004. If a person commits an act abroad, which is an offence in that country or territory, that person can be prosecuted in the UK for the offence if it is a sexual offence listed in Schedule 2 of Sexual Offences Act 2003. Proceedings relating to offences committed abroad can only be brought against a person who was on 1 September 1997, or has since become, a British Citizen or person who is resident in the UK.

An amended section 72 was substituted by the Criminal Justice and Immigration Act 2008 which came into effect on 14 July 2008. This amendment made significant changes to the residency and nationality conditions. In this section a person meets the residence or nationality condition at the relevant time if the person is a United Kingdom national or a United Kingdom resident at the time when the proceedings are brought.

It is important to ensure that any prosecution is brought under the provision in force at the time the alleged conduct occurred as the terms of the substantive provisions and details of the offences they cover are not identical. For offences from 1 May 2004 to 13 July 2008 see section 72 of the Sexual Offences Act 2003 (as enacted) and for offences from 14 July 2008 onwards see the amended section 72 of the Sexual Offences Act 2003.

Domestic Abuse Act 2021

On 29 June 2021 section 74 and Schedule 3 of the Domestic Abuse Act inserted a new section into Schedule 2 of the Sexual Offences Act 2003. Section 1A of Schedule 2 of the Sexual Offences Act 2003 extends the definition of a victim for the purposes of section 72 of the Sexual Offences Act 2003 to include individuals who were aged 18 or over at the time of the allegation. This means that English and Welsh courts can try offences contrary to sections 1 to 4 of the Sexual Offences Act 2003, involving adult victims, that occurred outside the United Kingdom if the conditions of section 72 of the Sexual Offences Act 2003 are met. This includes a requirement that the act was committed by a United Kingdom national or resident. The principle that offences should be tried in the jurisdiction in which they occurred remains and prosecutors must carefully consider whether it is appropriate to charge offences that occurred wholly or partly outside the United Kingdom. Prosecutors must also be mindful of their obligations under the CPIA, CPIA Codes of Practice and Attorney General’s Guidelines on Disclosure when considering whether to charge offences that occurred outside the United Kingdom. Prosecutors must be satisfied that reasonable lines of enquiry are pursued, and disclosure obligations are complied with. This may impact on the ability to instigate charges and matters must be considered on a case-by-case basis.

The unique position with offending occurring in Scotland and Northern Ireland

The wording within the Sexual Offences (Conspiracy and Incitement) Act 1996, the Sex Offenders Act 1997 and the Sexual Offences Act 2003 refers to acts that occur outside the United Kingdom. This means that there is no power for English and Welsh Courts to try acts that occurred in Scotland or Northern Ireland. If a case is referred to a prosecutor where there are a series of acts some of which have occurred in Scotland or Northern Ireland the prosecutor should carefully consider the position.

Sections 54A and 54B of the Sexual Offences (Scotland) Act 2009 (SOSA 2009) make provisions for certain specified sexual offences against under 18s (as specified in Part 2 of Schedule 4 of SOSA 2009) committed elsewhere in the United Kingdom to be prosecuted in Scotland. Prosecutors in Scotland are only able to prosecute an offence committed in England if they are also prosecuting another sexual offence against a person aged under 18 that occurred in Scotland on the same indictment/complaint. The effective date for the provision is 1 December 2010 and it is not retrospective. These cases must be referred to the Director of Legal Services Team ([email protected]) as they require the Director of Public Prosecutions consent.

The consequence of this means that sexual acts committed in Scotland cannot be added to an indictment in England or Wales whereas the Scottish court could add acts that occurred in England and Wales if specific criteria are met. Given the benefits of one single trial, this is a factor to be considered where separate but related offences take place in each jurisdiction.

Note also that the SOSA 2009 provisions allow Scotland to prosecute a case where it cannot be proved whether the offence took place in England or Scotland, such as when it takes place on a train traveling from one country to the other, but the trains location is not known at the time of the offence. Again, there is no equivalent statutory provision in England so in such scenarios a prosecution should take place in Scotland. If it is decided to refer the case to the Scottish authorities the prosecutor should notify the Fiscals Office. The Scottish police will then carry out a separate investigation, liaising with the English police.

Section 76 of the Sexual Offences (Northern Ireland) Order 2008 mirrors section 72 of the Sexual Offences Act 2003. This therefore means that the Northern Irish courts have no jurisdiction to try acts that occur in England and Wales. If there are a series of acts occurring in Northern Ireland and England or Wales, it may be necessary to have separate trials in each jurisdiction and potentially apply to admit bad character to adduce the evidence of cross jurisdictional offending.