Complaint withholding details of locus ruled competent
It was competent for the Crown to charge the locus of an offence as being “at an address known to the Prosecutor within the jurisdiction of Kilmarnock Sheriff Court”, where the circumstances of the case made it necessary to do so, the Sheriff Appeal Court has held.
Appeal Sheriffs Norman McFadyen, Lorna Drummond QC and Fiona Tait gave the decision in refusing the appeal by an accused, MK, against the decision of Sheriff Jamieson to repel preliminary pleas to the relevancy and competency of a complaint.
MK faced three charges under the Sexual Offences (Scotland) Act 2009, two under s 8 (sexual exposure during an online video call) and one under s 7 (indecent communication via an online platform), each with the alternative of a charge involving an older child (ss 35 and 34 of the Act respectively).
Following debate the sheriff allowed the Crown to amend each charge by stating the town within the sheriff court district in which each offence was said to have taken place.
On appeal it was argued for MK that the original complaint was incompetent for want of specific locus, and therefore fundamentally null and incapable of being cured by amendment. The court had also been deprived of information to satisfy it that there was jurisdiction.
Sheriff Drummond, delivering the opinion of the court, said it was important to distinguish between objections to competency and relevancy. The former might arise where the court had no jurisdiction to try the crime charged. However in the court's view it did have jurisdiction, which was fixed by reference to the sheriffdom.
Here the charges sufficiently specified the locus as originally drafted, containing sufficient information to establish that the locus was within the court's jurisdiction. It was open to the prosecutor, under the Criminal Procedure (Scotland) Act 1995, sched 3, para 4(3) to take exceptional latitude where the circumstances of the case made it necessary to do so. There was no need to specify the circumstances in the libel.
She continued: “In our view, exceptional latitude is reasonable in the circumstances of the present case. The loci of where the complainers reside is not the essence of the charges which are alleged offences committed via social media. Disclosure of the complainers' addresses could be harmful to the complainers and may potentially breach their rights under article 8 of the European Convention on Human Rights.
“We are unable to identify any prejudice to the appellant by not knowing the complainers' addresses within the sheriffdom. We note that the appellant in the grounds of appeal states that 'Neither the appellant nor those representing him have any desire to know the particular addresses of the complainers.' If the appellant does not seek specification of the complainers' addresses, it is unclear what the appellant's complaint is in this appeal. For these reasons, we hold that the complaint as originally libelled was competent.”