Jenny Wiltshire and Bartholomew Dalton on retrospective application of Sexual Offences Act
7 Jul 2026
Bartholomew Dalton and Jenny Wiltshire have written an article for Criminal Law Week on the CPS’s “most surprising” retrospective application of the law which makes adult rape committed overseas prosecutable in UK courts.
The Court of Appeal judgment in R. v Wisher [2026] EWCA Crim 695, 14 May 2026 describes a case involving “a catalogue of striking errors, and then failures to pick up on the errors”, Jenny and Bartholomew write, which together “indicate a sorry state of affairs that are deserving of some consideration”.
The case concerns a British national accused of raping an adult while in Cape Verde between 2012 and 2015.
At the time of his trial at Derby Crown Court in 2023, Section 72 of the Sexual Offences Act had been updated such that adult rapes allegedly committed overseas could constitute a sexual offence in this jurisdiction.
However, this update only came into force from June 2021: ie. at least six years after alleged rape in Cape Verde.
Jenny and Bartholomew describe how, despite this, the CPS submitted that Derby Crown Court had jurisdiction to try the offence; that the defence did not argue to the contrary; and that the Crown Court proceeded on the basis that there was jurisdiction.
The individual was convicted. He later appealed to the CCRC without raising the jurisdictional point. The CCRC referred the case to the Court of Appeal. Still then the case was not a simple one; with the CPS reversing its position and “extraordinarily” opposing the appeal by attempting to argue that the 2021 amendment was retrospective.
Bartholomew and Jenny conclude: “There are few bright spots in this case, but the CCRC, which has been much criticised recently, deserves some credit for spotting the jurisdictional issue that had been missed by everyone else multiple times.
“Further, although we say it should not have been needed, we now have unequivocal guidance from the Court of Appeal that section 72 does not apply retrospectively.”
The full Criminal Law Week article is available to Criminal Law Week subscribers here.
