R v Shane Wisher

This is an appeal against conviction following a referral of the appellant's case to this court by the Criminal Cases Review Commission (CCRC) using its powers in section 9 of the Criminal Appeal Act 1995.

Section 72 of the Sexual Offences Act 2003 (section 72) (the 2003 Act) provides that a United Kingdom national is guilty in England and Wales of a sexual offence committed abroad to which section 72 applies, namely the sexual offences listed in Schedule 2 to the 2003 Act (Schedule 2). The list of offences in Schedule 2 was amended by the Domestic Abuse Act 2021 (the 2021 Act) in order to make offences of rape against an adult committed abroad by a United Kingdom national triable in this jurisdiction (by the introduction of paragraph 1A into Schedule 2) (the 2021 Amendment). The 2021 Amendment came into effect on 29 June 2021.

The issues to be determined on this appeal are: (i) whether section 72 is an offence-creating provision or merely a provision granting jurisdiction; and (ii) if section 72 is an offence-creating provision, whether the 2021 Amendment has retrospective effect such as to give jurisdiction to the Crown Court in England and Wales to try an offence of rape committed on an adult by a United Kingdom national in a foreign jurisdiction before that change in the law.

We are grateful for the assistance of Mr Wainwright on behalf of the appellant, and Miss Schutzer-Weissman on behalf of the respondent, neither of whom appeared as counsel in the court below.

On 13 November 2023, the appellant was convicted in the Crown Court at Derby of a number of offences, including one of rape contrary to section 1 of the 2003 Act. The victim of the rape was at all material times over the age of 18.

The rape was said to have occurred in Cape Verde between 2012 and 2015, and so before paragraph 1A was in force. In a pre-trial skeleton argument the prosecution submitted that the court had jurisdiction to try the offence, notwithstanding that it had occurred abroad, reliance being placed on section 72(1) of the 2003 Act (but with no reference to section 72(10) or Schedule 2). No argument to the contrary was raised, and the court proceeded on that basis. The other offences occurred in the United Kingdom and are not the subject of any appeal.

On 11 December 2023, the appellant was sentenced to seven years' imprisonment for the offence of rape. That sentence was ordered to run consecutively to a total term of four years' imprisonment for the other offences.

On 4 January 2024, the appellant applied for leave to appeal against conviction on the basis that he had not been properly represented at trial. That application was refused on 22 August 2024. There was no complaint by reference to any lack of jurisdiction at that stage.

On 29 January 2025 the appellant applied to the CCRC to review his case. Again, his complaint did not allege any lack of jurisdiction. However, having considered the case and reached the view that the court might have lacked jurisdiction to try the rape, the CCRC wrote to the Crown Prosecution Service identifying that the rape pre-dated the introduction of paragraph 1A. On 20 October 2025, the Crown Prosecution Service responded, agreeing that the court had not had jurisdiction to try the appellant for the rape in Cape Verde. The case was then referred to this court for further consideration.

However, as will be seen, the position has changed. It is now maintained by the respondent that the Crown Court did indeed have jurisdiction, on the basis that section 72 is not an offence-creating or penal section and/or, so far as necessary, in any event has retrospective effect.

Rape is an offence under section 1 of the 2003 Act.

As amended by the Criminal Justice and Immigration Act 2008, section 72 reads materially as follows:

From 14 July 2008 to 29 June 2021, Schedule 2, so far as material, read as follows:

Thus, between 14 July 2008 and 29 June 2021, offences contrary to section 1 of the 2003 Act were only caught by section 72(1) where the victim was under 18 years at the time of the offence.

Schedule 2 was amended by the 2021 Act which, by paragraph 2(3)(c) in Part 1 of Schedule 3, inserted paragraph 1A:

Part 1 of Schedule 3 to the 2021 Act came into force on 29 June 2021 by virtue of the commencement provision in section 90(2) of the same Act.

The single ground of appeal is that the Crown Court did not have jurisdiction to try the appellant on the rape committed in Cape Verde. At the time of the conduct it is submitted that Schedule 2 included rape only where the victim was under 18 at the time of the offence. The victim here was over 18 at the time of the offence. Thus the conduct fell outwith the remit of section 72(1). It is submitted that the 2021 Act, whilst giving the court jurisdiction to try cases of rape of an adult committed abroad by British nationals, contains no express provision for retrospective effect. Reliance is placed on R v R [2001] 1 WLR 1314 (R), a case which concerned a rape alleged to have occurred in Barbados before section 7 of the Sex Offenders Act 1997 (the predecessor to section 72) came into force. There Otton LJ stated at [19] that, given that there was no provision in the Sex Offenders Act 1997 Act for retrospectivity, the offence was non-justiciable in the United Kingdom, and the count of rape was a nullity.

Mr Wainwright submits, in summary, that as a matter both of precedent and principle the 2021 Amendment did not have retrospective effect. Anything else would, he says, produce a "most surprising" result.

Despite the original concession made by the Crown Prosecution Service noted above, the respondent now submits that the Crown Court did have jurisdiction to try the appellant on the rape in Cape Verde. It is said that section 72 is not an offence-creating provision. Rape was already an offence in England and Wales at the time at which the events in Cape Verde occurred. It is submitted that section 72 merely provides extra-territorial jurisdiction to try offenders who have committed such offences outside England and Wales.

Miss Schutzer-Weissman submits, in summary, that the 2021 Amendment did not alter the legal nature of the appellant's actions, only the court's jurisdiction to try them. The 2021 Amendment was no more than a procedural gateway. She emphasises her submission by reference to the wording of section 72(3), where the reference is made to the bringing of “proceedings”; in this context she relies on the case of R v DA [2023] EWCA Crim 1428 (DA). If this submission is correct, no issue of retrospectivity would arise.

In the alternative, if retrospectivity does arise as an issue, the respondent argues that retrospectivity can be read into the 2021 Amendment. Further, it is said that this court has no jurisdiction to hear the appeal because if the Crown Court had no jurisdiction, the proceedings on the Cape Verde rape are a nullity, and the proper remedy to challenge the decision would be by way of judicial review to the High Court, rather than an appeal to this court.

The starting point is that "the primary basis of English criminal jurisdiction is territorial, it being the function of the English criminal courts to maintain the King's peace within his realm" (per Lord Tucker in Board of Trade v Owen [1957] AC 602 at 625). Thus, unless otherwise expressed, the offences in the 2003 Act do not apply to conduct outside the United Kingdom. The effect of section 72 is to apply certain provisions of the 2003 Act to conduct abroad, limited to those specified in Schedule 2. Absent section 72, conduct that would otherwise be criminal if committed in the United Kingdom does not constitute an offence in England and Wales if it is committed abroad. So much is reflected in the wording of section 72: where it apples, the United Kingdon national "is guilty". Similarly, the Explanatory Notes to the 2021 Act state that the effect of the 2021 Amendment is "to make it an offence in England and Wales for a UK national or resident to commit certain other acts in a country outside the UK" (emphasis added).

The various authorities referred to by the respondent (such as Hager v Osborne [1992] Fam 94 at 99, and Ben Nevis (Holdings) Ltd and another v Commissioners for HMRC [2013] EWCA Civ 578 at [48] do not assist (and Miss Schutzer-Weissman did not develop her reliance on them in her oral submissions). They relate to ongoing states of affairs in civil proceedings entered into prior to the relevant change in law but, critically, states of affairs still in existence at the time of the change. Here the alleged offence pre-dated and was completed by the time of the relevant change in law. The objectional retrospectivity here arises precisely because, absent jurisdiction, the court has no power to try the offence at all. Prior to 2021, put simply, the appellant could not have been prosecuted in England and Wales for the alleged rape in Cape Verde.

The respondent is entitled to point to the fact that there is a jurisdictional aspect to paragraph 1A, and obviously so; but it is too narrow an approach to characterise the section as purely procedural as a result. There is no useful parallel with the position in DA, for example, where there was no doubt that the requirements of section 72(3) were met on the facts. In short, section 72 renders criminal under English and Welsh law certain conduct abroad which would otherwise not constitute an offence in England and Wales. It does not act simply to remove a jurisdictional bar to trying in this country offences committed abroad; rather, it renders illegal conduct abroad which had not previously amounted to a crime in the United Kingdom.

The question then is whether the 2021 Amendment is of retrospective effect.

There is no doubt that Parliament has power to create a new offence with retrospective effect. However, the presumption is that Parliament does not intend a statutory provision to have retrospective effect ("the Presumption"). In Bennion on Statutory Interpretation (8^th edition), the Presumption is stated in the following terms (approved in Granada UK Rental and Retail Ltd v Pensions Regulator [2019] EWCA Civ 1032; [2020] ICR 747 at [55]):

The Presumption is rooted in fairness, with the potential for unfairness at its most acute where, as would be the case here, a retrospective penalty or obligation is being imposed. As, as it was put in R v CS and another [2021] EWCA Crim 134 at [58]:

The task for this court is thus to determine Parliament's intention as a matter of normal statutory interpretation, bearing in mind the Presumption and the principles identified above.

First, Parliament could have enacted paragraph 1A with a retrospectivity clause, and chose not to. (It can be noted that the decision in R had of course been handed down before the introduction of paragraph 1A.) What is to be taken as a clear and deliberate decision is also consistent with the Explanatory Notes to the 2021 Act, the wording of which is all prospective. Where Parliament intends there to be retrospectivity, it can say so, and say so clearly: see, for example, section 1(1) of the War Damage Act 1965, and, to a more limited extent, section 72(3) and (4) of the 2003 Act.

Secondly, to hold that the Presumption is displaced would risk infringing Article 7 of the European Convention on Human Rights, which is absolute in its terms:

The commission of rape in Cape Verde was not a criminal offence in this country at the time of the appellant's actions, and those actions were not then punishable within this jurisdiction.

Thirdly, the decision in R does support the appellant's position. As indicated, it concerned section 7 of the Sex Offenders Act 1997, which section 72 of the 2003 Act re-enacted, and was in materially similar terms. Whilst the point was conceded in R (see [20]), itself telling, this court accepted that, as section 7 was not in force at the time of the relevant offending, the offence was non-justiciable in England and Wales.

For the avoidance of doubt, we reject the submission that a historical requirement for dual criminality to be proved, present in section 7 but not in section 72(1), amounts to a material difference, meaning that section 7 was an offence-creating provision, unlike section 72. The offences to which section 7 applied were set out in Schedule 1 to that Act and had been created by the Sexual Offences Act 1956 and subsequent statutes. Nor do we accept that a difference in the drafting of section 7(1), which states that the conduct "shall constitute an offence", and the wording in section 72(1)(b) "the United Kingdom national is guilty" is a distinction capable of bestowing retrospective jurisdiction.

The respondent submits that the Presumption is displaced because: (i) the aim of the legislation was to give enhanced protection to victims of sexual violence; (ii) it is now well understood that some victims of violence only report matters after an understandable delay; and (iii) the government made clear before the enactment of the 2021 Act that it was designed to incorporate into national law the provisions of Article 44 of the Istanbul Convention. That Convention placed a duty on the United Kingdom to prosecute forms of criminal conduct such as rape when they are committed abroad by one of their nationals or those with habitual residence in their territory.

Against that background, it is said that this court should displace the Presumption and read into the legislation an intention to assist victims of crimes committed before the legislation was enacted, as well as prospective victims of crime into the future.

However, the matters relied upon are at best policy objectives or statements; they come nowhere near establishing a basis for construing paragraph 1A to have retrospective effect by necessary and distinct implication. They provide no positive indication that Parliament intended the 2021 Amendment to be retrospective such as to displace the Presumption. Whilst the Istanbul Convention may impose prospective obligations on states, it does not require retrospective prosecution, not least in the context of Article 7. Article 12 of the Istanbul Convention, for example, makes it clear that the Convention is all about change for the future and not retrospectivity.

For these reasons, we do not consider that there is any positive indication that Parliament intended to give the 2021 Amendment retrospective effect. The Presumption that paragraph 1A applies only to offences committed after it was enacted is not rebutted. We conclude that there was no power to include the count of rape on the indictment and the conviction arising from it is a nullity.

As to the correct way forward on disposal, we do not agree that only the High Court has jurisdiction to quash the decision of the Crown Court on the basis that the Crown Court lacked jurisdiction. Section 29(3) of the Senior Courts Act 1981 provides:

Consistent with all the authorities to date, the matter in question here relates to "trial on indictment", whether the indictment was valid or not.

The Court of Appeal has jurisdiction over the matter by reason of section 9(1)(a) of the Criminal Appeal Act 1995, which provides:

The appellant has been convicted of an offence on indictment in England and Wales. It is for this court to declare the trial a nullity if the Crown Court lacked jurisdiction to try it, or to quash that conviction where the conviction is unsafe. Here, the Crown Court lacked jurisdiction to try the rape, and we declare the conviction of the appellant on that count to have been a nullity.

The effect of our decision is that the conviction for rape falls away, along with the sentence imposed for that offence (including notification requirements). The convictions and the sentences for the other offences are unaffected.