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MK v Procurator Fiscal, Kilmarnock

The appellant had appealed against the competency of three charges brought against him under the Sexual Offences (Scotland) Act 2009, in relation to exposing himself to children on social media.

The appellant argued that as the original charges libelled by the Crown did not contain a locus and that this was only rectified when the Crown were allowed to amend the libels at a diet of debate, they were not competent. The original complaint only specified that the offences were alleged to have happened at “an address known to the Prosecutor”. At debate, the Sheriff allowed more specific loci to be added to the complaint specifying the towns in which offences were libelled to have had taken place. The appellant had argued that the original charges were “fundamentally null” and that the amendments that the Crown sought to make would not rectify this.

The appellant further submitted that it was “unsatisfactory” that he had been deprived of the locus, which was necessary to satisfy the court of jurisdiction. Furthermore, it was submitted by the
appellant that the sheriff at debate had erred by not finding the complaint fundamentally null.

The opinion of the Appeal Court was delivered by Sheriff Drummond. In the opinion of the court, it was held that whilst indeed the failure to specify the locus on a complaint “may render a complaint fundamentally null and that cannot be cured by amendment”, the Crown in this case did sufficiently specify the locus on the original complaint as drafted.

Sheriff Drummond went on to address the issue of jurisdiction: “The locus was specified as an address known to the prosecutor within the jurisdiction of Kilmarnock Sheriff Court. It is a district
wide locus. It is open to the prosecutor, under Schedule 3, paragraph 4(3) [of the 1995 Act] to take exceptional latitude where the circumstances of the case make it necessary to do so. There is no need to specify the circumstances in the libel.”

The Appeal court further held that as the loci was not the essence of the charges at hand, especially considering that the offences were committed online, that it was appropriate for the Crown not to disclose the exact addresses. There was also a considerable consideration given to the effects that disclosing the address of the complainers could have in terms of their rights under Article 8 of the ECHR.

Sheriff Drummond, in closing, said: “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.”

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