The Court of Appeal went beyond the indictment without sufficient notification to the parties

The case concerns sexual activity with children under the age of 14. In the District Court, the defendant was convicted, in accordance with the indictment, of one case of masturbation of the penis of a younger boy.

The Court of Appeal found it proven that the sexual activity was more extensive than what was described in the indictment, and convicted the defendant also of oral and anal intercourse. Although the minimum sentence for sexual intercourse does not apply to a defendant under the age of 18, the sentence was significantly increased. 

In the Supreme Court’s view, the Court of Appeal offence dealt with the same offence as that stated in the indictment. However, section 38 of the Criminal Procedure Act requires the court to give the parties an opportunity to express their views before applying a penal provision other than that indicated in the indictment.

In this case, the Court of Appeal notified the parties of the change without receiving any reaction. This took place at a very late stage – after the presentation of evidence and the closing arguments. It concerned a change that could lead to a significantly stricter sentence. In such a situation, the Court of Appeal must be particularly clear. The defence counsel must have a genuine opportunity to argue on behalf of the defendant. Based on the specific circumstances of the case, the Supreme Court’s majority of four justices found that the requirement for clarity was not met, and that the Court of Appeal’s judgment should be set aside. 

One justice did not find evidence to say that the Court of Appeal had not been sufficiently clear about the change but agreed that the judgment should be set aside due to the failure to give the parties an opportunity to express their views. 

The Supreme Court’s judgment clarifies the content of the requirement for notification in Section 38 of the Criminal Procedure Act.

Read the judgment from the Supreme Court (Norwegian only) (PDF)

Area of law: Section 38 of the Criminal Procedure Act

Key paragraphs: 29–31, 48–50, 53–54

Justices: Webster, Bergh, Thyness, Hellerslia, Lund