Wisher, R.

Factual and Procedural Background

The Appellant was convicted on 13 November 2023 in the Crown Court at The City of multiple offences including one count of rape contrary to section 1 of the Sexual Offences Act 2003. The rape was alleged to have occurred in The State between 2012 and 2015 when the alleged victim was over 18. The Appellant was sentenced on 11 December 2023 to seven years' imprisonment for the rape, to run consecutively to other sentences. An application for leave to appeal on representation grounds was refused on 22 August 2024. The Appellant applied to the Criminal Cases Review Commission (CCRC) on 29 January 2025; the CCRC later identified a potential lack of jurisdiction because the alleged rape pre-dated the 2021 Amendment to Schedule 2 of the 2003 Act. The Crown Prosecution Service initially agreed on 20 October 2025 that the Crown Court lacked jurisdiction; the matter was referred to this Court of Appeal by the CCRC under section 9 of the Criminal Appeal Act 1995. The Respondent later maintained that the Crown Court did have jurisdiction.

Legal Issues Presented

1. Whether section 72 of the Sexual Offences Act 2003 is an offence-creating provision or merely confers jurisdiction.
2. If section 72 is an offence-creating provision, whether the 2021 Amendment (inserting paragraph 1A into Schedule 2) has retrospective effect so as to give jurisdiction to try an offence of rape committed abroad by a United Kingdom national before the amendment came into force (29 June 2021).

Arguments of the Parties

Appellant's Arguments

• The Crown Court lacked jurisdiction to try the rape because, prior to 29 June 2021, Schedule 2 only captured rape where the victim was under 18. The victim here was over 18 when the alleged offence occurred.
• The 2021 Amendment contains no express provision for retrospective effect; reliance was placed on R v R [2001] 1 WLR 1314 to support that absence of retrospectivity renders the count non-justiciable.
• As a matter of precedent and principle the 2021 Amendment should not be read to operate retrospectively.

Respondent's Arguments

• Section 72 is not offence-creating but provides extra-territorial jurisdiction; rape was already an offence in England and Wales when the conduct occurred, so no retrospective criminalisation arises.
• The 2021 Amendment only altered jurisdiction or procedural gateway and did not criminalise new conduct; reliance was placed on R v DA [2023] EWCA Crim 1428 and the wording in section 72(3) referring to "proceedings".
• Alternatively, if retrospectivity arises, it can be read into the 2021 Amendment; and, if the Crown Court lacked jurisdiction, the proper remedy might be judicial review rather than appeal.

Table of Precedents Cited

Court's Reasoning and Analysis

The Court began from the territorial principle that English criminal jurisdiction is primarily territorial and, absent express provision, does not apply to conduct abroad. Section 72 applies certain provisions of the 2003 Act to conduct abroad by stating that a United Kingdom national "is guilty" in England and Wales of specified sexual offences listed in Schedule 2. Between 14 July 2008 and 29 June 2021, Schedule 2 captured rape only where the victim was under 18; paragraph 1A (inserted by the 2021 Amendment) extended coverage to offences where the victim was 18 or over, coming into force on 29 June 2021.

The Court analysed whether section 72 is merely jurisdictional or instead renders conduct abroad criminal (an offence-creating effect). It concluded that section 72 does more than remove a jurisdictional bar: it renders conduct abroad illegal under English and Welsh law which otherwise would not be an offence here. Thus the 2021 Amendment had the potential to create an offence where none existed within this jurisdiction at the time of the conduct.

The Court applied the presumption against retrospectivity (as set out in Bennion and approved authorities). It held that Parliament did not include any express retrospectivity clause in paragraph 1A and that the Explanatory Notes were prospective. The Court considered Article 7 ECHR, noting that retrospective criminalisation raises Article 7 issues. The Court found no positive indication in the statute, its Explanatory Notes, or the Parliamentary material relied upon to rebut the presumption. Authorities relied on by the Respondent concerning ongoing civil states of affairs were inapposite because the alleged rape was completed before the amendment. R v R supported the conclusion that where extra-territorial provision was not in force at the time of offending the offence is non-justiciable. Consequently, the presumption against retrospectivity was not displaced and paragraph 1A did not apply to offences committed before 29 June 2021.

Holding and Implications

CONVICTION DECLARED A NULLITY

Holding: The Court declared that the Crown Court lacked jurisdiction to try the Appellant for the rape alleged to have occurred in The State prior to 29 June 2021; the conviction on that count is a nullity.

Implications: The conviction for rape and the sentence (including notification requirements) imposed for that offence fall away. The convictions and sentences for the other offences remain unaffected. The Court exercised jurisdiction to declare the trial null by reason of the CCRC referral under section 9(1)(a) of the Criminal Appeal Act 1995. No broader change in precedent beyond the application of established principles (territoriality and the presumption against retrospectivity) was made by this decision.