Extraterritorial Rape of an Adult: Schedule 2 Expansion Is Not Retrospective Under Sexual Offences Act 2003 s72

1. Introduction

In R v Wisher [2026] EWCA Crim 695, the England and Wales Court of Appeal (Criminal Division) allowed an appeal against conviction following a referral by the Criminal Cases Review Commission (CCRC) under section 9 of the Criminal Appeal Act 1995.

The appellant, a UK national, had been convicted at the Crown Court of rape contrary to section 1 of the Sexual Offences Act 2003. The alleged rape occurred abroad (Cape Verde) between 2012 and 2015, when the complainant was an adult. The appeal focused on whether the Crown Court had jurisdiction to try that count in England and Wales.

The critical statutory mechanism was section 72 of the 2003 Act (offences outside the UK), which applies only to the offences listed in Schedule 2. Until 29 June 2021, Schedule 2 captured rape abroad only where the complainant was under 18. The Domestic Abuse Act 2021 inserted paragraph 1A into Schedule 2 to extend extraterritorial reach to rape of an adult by a UK national, effective 29 June 2021.

The Court addressed two linked issues: (i) whether section 72 is merely “jurisdictional” or is “offence-creating”; and (ii) whether the 2021 extension (paragraph 1A) operates retrospectively to capture conduct completed before 29 June 2021.

2. Summary of the Judgment

  • Section 72 is not purely procedural: it renders certain conduct abroad criminal in England and Wales which would otherwise not be an offence triable here.
  • The 2021 amendment is not retrospective: paragraph 1A does not apply to rapes of adults committed abroad before 29 June 2021.
  • The rape count on the indictment should not have been included; the resulting conviction was declared a nullity, and the sentence and notification requirements for that count fell away.
  • The Court of Appeal had jurisdiction to determine the matter on a CCRC referral notwithstanding the nullity conclusion.

3. Analysis

3.1 Precedents cited

Territoriality as the default rule

The Court anchored its approach in the orthodox principle that English criminal jurisdiction is primarily territorial, citing Board of Trade v Owen [1957] AC 602 (Lord Tucker at 625) for the proposition that English criminal courts maintain the King’s peace “within his realm”. This framing matters because it places the burden on Parliament to speak clearly when it wishes to criminalise conduct abroad (and still more clearly if it wishes to do so retrospectively).

Retrospectivity and extraterritorial sexual offences

The key authority was R v R [2001] 1 WLR 1314, which considered section 7 of the Sex Offenders Act 1997 (a predecessor regime to section 72). In that case, a rape alleged to have occurred abroad before section 7 came into force was held “non-justiciable” in England and Wales, and the rape count was a nullity. Although the point was conceded in R v R, the Court treated the decision as supportive of the appellant’s position: absent express retrospectivity, extraterritorial criminalisation does not “reach back” to completed conduct.

The Court rejected attempts to distinguish R v R on (i) the historical “dual criminality” requirement (present in section 7 but not in section 72), and (ii) drafting differences (“shall constitute an offence” vs “is guilty”). In the Court’s view, neither distinction could do the heavy work of converting the modern provision into one conferring retrospective power.

Presumption against retrospective operation

The Court adopted the modern statement of the presumption against retrospectivity from Bennion on Statutory Interpretation (8th ed), as approved in Granada UK Rental and Retail Ltd v Pensions Regulator [2019] EWCA Civ 1032; [2020] ICR 747 at [55]. The Court emphasised that (a) legislation is retrospective if it alters the legal consequences of past events, and (b) the clearer the unfairness, the clearer the language required to displace the presumption.

The Court also relied on R v CS and another [2021] EWCA Crim 134 at [58] for the need to identify a “positive indication” of Parliamentary intent if the presumption is to be rebutted. The Court found no such positive indication in the 2021 amendment.

Authorities on “procedural” changes

The respondent invoked civil authorities concerning changes affecting ongoing states of affairs: Hager v Osborne [1992] Fam 94 and Ben Nevis (Holdings) Ltd and another v Commissioners for HMRC [2013] EWCA Civ 578. The Court held these did not assist because the alleged rape was completed years before the change; the alleged “retrospectivity” problem here was not about regulating an ongoing situation, but about whether a court had power to try the offence at all.

The respondent also relied on R v DA [2023] EWCA Crim 1428 (in connection with the reference in section 72(3) to bringing “proceedings”). The Court found no useful parallel: R v DA did not concern whether the offence was within section 72’s substantive reach at the relevant time; rather, it concerned satisfaction of procedural preconditions where section 72 plainly applied.

3.2 Legal reasoning

(a) Section 72: “jurisdictional gateway” or “offence-creating”?

The Court’s reasoning turns on a functional view of section 72. While rape was of course an offence under domestic law, that did not answer whether rape committed abroad was an offence triable in England and Wales. Section 72 operates by deeming a UK national who does an act abroad to be “guilty in England and Wales” only if the act would constitute a listed sexual offence and the offence is one “to which this section applies” (as delimited by Schedule 2).

Therefore, absent inclusion in Schedule 2, the act abroad does not constitute a criminal offence in England and Wales at all (in the sense relevant to indictment and conviction). On that basis, the Court rejected the characterisation of the 2021 change as merely procedural. It was not simply removing a forum bar; it was expanding the class of conduct abroad that attracts domestic criminal liability.

This conclusion was reinforced by the Court’s reference to the Explanatory Notes to the Domestic Abuse Act 2021, which describe the amendment as making it “an offence in England and Wales” for a UK national or resident to commit certain acts abroad.

(b) Retrospectivity: why paragraph 1A did not “reach back”

Having concluded the amendment is substantive in effect, the Court applied the presumption against retrospective operation. The Court identified multiple features pointing against retrospectivity:

  • No express retrospectivity clause: Parliament could have included one, particularly in the legislative shadow of R v R, but did not.
  • Prospective language and structure: the commencement provision brought the amendment into force on 29 June 2021, and the Court read the materials as forward-looking.
  • Human rights constraint: the Court considered that displacing the presumption would “risk infringing” Article 7 ECHR, which prohibits conviction for conduct that did not constitute a criminal offence under national or international law at the time it was committed. The Court treated the lack of domestic justiciability at the relevant time as central: the conduct was not then punishable “within this jurisdiction”.

(c) Policy arguments and the Istanbul Convention

The respondent relied on the protective aim of the Domestic Abuse Act 2021, delayed reporting realities in sexual violence cases, and the aim of compliance with Article 44 of the Istanbul Convention. The Court held these considerations were policy objectives insufficient to establish the “necessary and distinct implication” required to rebut the presumption against retrospectivity. It further reasoned that the Convention does not require retrospective prosecution, and highlighted its future-facing orientation (referring also to Article 12 of the Convention).

(d) Remedy and appellate jurisdiction: nullity does not defeat a CCRC referral

The respondent argued that if the Crown Court lacked jurisdiction, the proceedings were a nullity and the proper route would be judicial review rather than appeal. The Court rejected that submission. It relied on:

  • Senior Courts Act 1981, section 29(3), which preserves High Court supervisory jurisdiction over the Crown Court except “trial on indictment”; and
  • Criminal Appeal Act 1995, section 9(1)(a), under which the CCRC may refer “a conviction” on indictment to the Court of Appeal.

Since this case related to trial on indictment (including whether the indictment was valid), the Court of Appeal was the proper forum to declare the conviction a nullity. Practically, this ensured that a jurisdictional defect discovered post-conviction could be corrected within the criminal appellate framework on a CCRC referral.

3.3 Impact

  • Clear non-retrospective boundary for adult-rape extraterritoriality: prosecutions in England and Wales for rape of an adult committed abroad by a UK national depend on paragraph 1A and therefore (absent future legislation) apply only to conduct on or after 29 June 2021.
  • Charging practice and pre-trial scrutiny: prosecutors and trial courts must scrutinise the Schedule 2 list and the relevant time period. A mistaken assumption that section 72(1) alone confers jurisdiction risks a conviction later being declared a nullity.
  • Article 7 foregrounded: the decision signals that attempts to treat extraterritorial expansions as merely procedural will be met with close analysis where the effect is to newly expose completed past conduct to domestic conviction.
  • CCRC pathway confirmed: jurisdictional defects relating to indictments can properly be addressed by the Court of Appeal on a CCRC referral, without forcing applicants into judicial review.

4. Complex Concepts Simplified

Extraterritorial jurisdiction
Parliament can extend criminal liability so that certain conduct abroad can be prosecuted in England and Wales. Without such an extension, the ordinary rule is territoriality.
“Offence-creating” vs “procedural” provisions
A procedural rule changes how an existing case is handled (for example, time limits or venue). An offence-creating (or substantively liability-extending) rule changes whether conduct is criminally prosecutable at all. The Court treated section 72 (as delimited by Schedule 2) as doing the latter for foreign conduct.
Presumption against retrospectivity
Courts presume Parliament does not intend to change the legal consequences of past events unless it clearly says so (or it is unavoidably implied). The presumption is stronger where retrospective criminal punishment would result.
Nullity
If a court had no power to try a count, the resulting conviction is treated as legally void (as if it never validly existed), rather than merely “unsafe” on the facts.
Article 7 ECHR
A person cannot be convicted for conduct that was not a criminal offence at the time it was committed, nor receive a heavier penalty than the one applicable at that time. The Court viewed retrospective application of paragraph 1A as creating acute Article 7 risk.

5. Conclusion

[2026] EWCA Crim 695 establishes that the 2021 extension of Schedule 2 (paragraph 1A) to cover rape of an adult abroad by a UK national is not retrospective. The Court reaffirmed territoriality as the baseline, construed section 72 as substantively extending criminal liability for foreign conduct (not merely adjusting procedure), applied a strong presumption against retrospectivity informed by Article 7 ECHR, and treated the resulting conviction as a nullity. The decision tightens the legal discipline required when indicting extraterritorial sexual offences and confirms the Court of Appeal’s role in correcting jurisdictional errors on CCRC referral.