Summary of Opinion — Appeal Court, High Court of Justiciary ([2026] HCJAC 7)

Factual and Procedural Background

The Appellant was indicted in the High Court on eight charges, including rape, sexual assault, sending indecent messages and attempting to defeat the ends of justice. There are three complainers. Charge 3 libels a single offence under section 1 of the Domestic Abuse (Scotland) Act 2018 of engaging in a course of behaviour abusive of a partner or ex-partner, specifying conduct (a)–(z) including controlling and monitoring behaviour, threats and various physical and sexual assaults. The libel alleges the course of behaviour occurred between 21 November 2019 and 25 December 2022 at multiple addresses, including [6 addresses in The City] and [an address in The City], and that the offence was aggravated by reason of involving a child.

At a continued preliminary hearing on 24 March 2025 the court repelled a plea challenging jurisdiction in respect of charge 3 on the ground that some alleged conduct occurred in The State (outside the Scottish jurisdiction). Leave to appeal was granted. A trial was set down for 13 October 2025.

Legal Issues Presented

1. Whether the Scottish courts have cross-border jurisdiction to try an offence under section 1 of the Domestic Abuse (Scotland) Act 2018 where parts of the alleged course of abusive behaviour occurred outside the Scottish jurisdiction.
2. Whether the common law on cross-border jurisdiction (including the crimen continuum principle) applies to statutory offences created by the Scottish Parliament, specifically section 1 of the 2018 Act.
3. Whether the absence of express territorial wording in the 2018 Act precludes cross-border jurisdiction.
4. Whether prosecuting such a cross-border charge in Scotland would give rise to unfairness to the defence (for example, in disclosure and citing witnesses located outside Scotland).

Arguments of the Parties

Appellant's Arguments

• The preliminary hearing judge erred in concluding the 2018 Act was intended to provide for cross-border jurisdiction.
• The common law has not developed to permit cross-border jurisdiction for the section 1 offence; institutional writings are limited and do not support the Crown's position.
• The 2018 Act does not engage the principle of continuing crime (crimen continuum) for the section 1 offence; incidents are separable and could be tried separately in another jurisdiction.
• Serious unfairness would arise for the defence due to disclosure constraints and difficulties in citing witnesses located outside Scotland.

Respondent's Submissions

• The common law rules on cross-border jurisdiction apply to statutory offences including section 1 of the 2018 Act; a distinction exists between extra-territorial jurisdiction and cross-border jurisdiction.
• Cross-border jurisdiction covers crimes whose preparation, commission or effects span two or more jurisdictions; no express statutory provision is required for cross-border jurisdiction.
• There are three bases for cross-border jurisdiction: a material part committed in Scotland (Laird), harmful or practical effect felt in Scotland (Clements), and the continuing crime principle (Lauchlan and O'Neill).
• The facts (as alleged and as supported by the complainer's commission evidence) establish that the course of behaviour began in The State, continued outside and returned to The State, such that each of the three bases may apply; normal disclosure and evidential mechanisms (including commission and diligence, citation of witnesses) are available.

Table of Precedents Cited

Court's Reasoning and Analysis

The court distinguished cross-border jurisdiction from extra-territorial jurisdiction and analysed statutory construction and common law. It held that:

• The common law rules on cross-border jurisdiction apply to statutory offences created by the devolved legislature as well as to Westminster statutes; express statutory wording is required only for extra-territorial jurisdiction, not for cross-border jurisdiction.
• Institutional writers (Hume, Alison) and Macdonald support three bases for cross-border jurisdiction: (i) material part of the offence committed in the forum jurisdiction (Laird), (ii) harmful/practical effect felt in the forum jurisdiction (Clements), and (iii) the offence being a continuing crime committed partly abroad and partly in the forum (Lauchlan and O'Neill).
• Section 1 of the 2018 Act criminalises a course of abusive behaviour; because a course of behaviour necessarily involves multiple occasions and can have continuing and practical effects in the forum jurisdiction, the common-law bases for cross-border jurisdiction can apply to that statutory offence.
• On the evidence (including the complainer's commission evidence), the alleged course of abusive behaviour began in The State, continued in another part of The State and returned to The State, such that jurisdiction could be founded on one or more of the three bases.
• Practical concerns about disclosure and obtaining evidence from another part of The State do not preclude jurisdiction; statutory powers (commission and diligence, citation of witnesses) and normal disclosure obligations apply, and no specific unfairness was demonstrated by the defence.
• The court rejected the appellant's contention that, because some sexual acts were alleged to have occurred wholly outside the forum jurisdiction, the whole charge was incompetent; a verdict on a separate sexual offence committed wholly abroad could not be returned by a Scottish jury, but that does not defeat jurisdiction over the course of behaviour properly libelled.

Holding and Implications

Holding: APPEAL REFUSED.

Implications: The court confirmed that the common-law rules on cross-border jurisdiction (including the crimen continuum principle and the bases identified in Laird and Clements) apply to offences created by the Domestic Abuse (Scotland) Act 2018 section 1. As a direct consequence, the preliminary plea of no jurisdiction was repelled and the case may proceed to trial on the date already appointed. The decision resolves the jurisdictional challenge in this case; the court proceeded on established authorities rather than announcing a novel principle beyond those authorities.

Panel: Judge Pentland (delivering the opinion); Judges Clark and Doherty. Representation at hearing: Attorney Green; Attorney Reid; Attorney Paterson; Attorney Bell; Attorney Harvey; Attorney Loosemore; Company A Agent.