Jurisdiction of the Scottish criminal courts (multi-jurisdictional case)

Question

Recently, the Hate Crime and Public Order (Scotland) Act 2021 came into force. The author, J. K. Rowling, on X (formerly known as Twitter), asked the police to arrest her if she had violated the law. Police Scotland said that she hadn’t actually committed an offence.

However, what if she had? Apparently, she posted it from England. Would the Scottish courts still have jurisdiction if people in Scotland had viewed the post, or for any other reason? Would it make a difference if she was in another UK jurisdiction or a non-UK jurisdiction?

I ask because the CPS, the prosecution authority in England and Wales, cites this case to demonstrate the jurisdiction, or rather its scope, of the courts in England and Wales (in which the Court of Appeal upheld the convictions):

R v Sheppard and Whittle (2010) EWCA Crim 65, Sheppard posted racially inflammatory material to a website, registered in his name and operated by him, but based in California. Once the material reached the server in California, it was posted online and made available on the internet to all those visiting the website, including people in the jurisdiction of England and Wales. The court came to the conclusion that jurisdiction was governed by the substantial measure principle enunciated by the court in R v Smith (supra). Everything in the case related to England and Wales except for the server being in California.

I just wonder if a similar rule exists in Scotland as regards jurisdiction.

Thanks in advance for any response. :)

Answer 1

The location of a server is almost never legally relevant for jurisdictional purposes, especially in criminal cases, even though this seems like unassailable logic to many IT people for some reason.

A crime committed by someone while this defendant in a criminal case is in Scotland, is always going to be within the jurisdiction of Scotland's criminal courts.

Crimes directed at and/or harming someone in Scotland, the classic case would be someone firing a gun at someone in Scotland from the English side of the England-Scotland border, would also be within the jurisdiction of the Scottish criminal courts.

Whether merely making information available to someone on the web without directing it at some specific person in Scotland would suffice to give its criminal courts jurisdiction over the defendant is an open question. It will be a question of first impression for whichever court ends up dealing with it first.

As a practical matter, Scotland can only prosecute someone if they can arrest that person within Scotland or gain extradition from somewhere else to Scotland after the authorities somewhere else arrest that person. So, the theoretical reach of "directed at" criminal jurisdiction is greatly limited by the capacity of Scotland to arrest defendants and bring them before its courts. Scotland does not try and convict people of crimes in absentia.