BAILII is celebrating 24 years of free online access to the law! Would you consider making a contribution?

No donation is too small. If every visitor before 31 December gives just £1, it will have a significant impact on BAILII's ability to continue providing free access to the law.
Thank you very much for your support!



BAILII [Home] [Databases] [World Law] [Multidatabase Search] [Help] [Feedback]

The Law Commission
You are here: BAILII >> Databases >> The Law Commission >> Participating in Crime (Report) [2007] EWLC 305(6) (May 2007)
URL: http://www.bailii.org/ew/other/EWLC/2007/305(6).html
Cite as: [2007] EWLC 305(6)

[New search] [Printable RTF version] [Help]


     
    PART 6
    EXTRA-TERRITORIAL JURISDICTION
    INTRODUCTION

    6.1      The common law of England and Wales evolved over centuries when relatively few offences were committed across national boundaries. However, the last fifty years have witnessed the phenomenon of globalisation. Criminal organisations have adeptly exploited the opportunities that globalisation has brought. Thus, although most serious crimes are usually still local in their commission and effect, involving a perpetrator and victim in the same country, an increasing number transcend national boundaries. This development is particularly pertinent in the context of inchoate and secondary liability. It is not uncommon to encounter conspiracies formed in one country to import people, drugs, firearms, or rare animals into another country. Similarly, there are infinite ways in which encouragement or assistance may be sent to and from any place in the world.

    GENERAL PRINCIPLES

    6.2      The primary basis of English criminal jurisdiction is territorial. The English courts are concerned with the keeping of the Queen's peace within the jurisdiction.[1] Generally, offences committed abroad have not impacted upon the Queen's peace and hence are not the concern of English courts. Thus, English courts have jurisdiction to try a person, whether or not a British citizen, for an offence committed within the jurisdiction. However, generally they do not, statutory exceptions aside,[2] have jurisdiction to try a person, whether or not a British citizen, for an offence committed outside the jurisdiction. In addition, when construing a statute creating an offence, there is a "strong presumption" that Parliament did not intend that statute to criminalise conduct occurring outside the jurisdiction.[3]

    6.3      Given that the general rule is that the courts have jurisdiction to try an offence provided that it is committed within the jurisdiction, the issue of where an offence has been committed is crucial. There are two competing theories. The first, and orthodox, theory is the 'last act' or 'terminatory' theory. The second, more recent and controversial, is the 'initiatory' or 'comity' theory.

    6.4      The terminatory theory holds that an offence which includes a consequence element is committed "when and where"[4] that consequence occurs.[5] Accordingly, if the consequence occurs within the jurisdiction then the offence has been committed within the jurisdiction, regardless of where the conduct element of the offence was performed. It is the consequence element, not the conduct element, which determines where the offence was committed and hence which state has jurisdiction to try the offender.

    6.5      For many years the terminatory theory held sway. Hence, in cases of obtaining property by deception, the general rule was that English courts had jurisdiction providing the obtaining occurred within the jurisdiction:

    Example 6A
    P is in England. V is in Spain. P phones V and persuades V, by means of deception, to transfer money from V's Spanish bank account to P's bank account in England.
    Example 6B
    P is in England. V is in Spain. P phones V and persuades V, by means of deception, to post an envelope full of money to P's address in England.
    In both examples, P obtains V's money by deception. In example 6A, the obtaining occurs in England because the effect of the deception is ultimately that P's bank in England increases the amount to which his account is in credit. Therefore, the offence is committed within England and, under the terminatory theory, English courts have jurisdiction to try the offence. In example 6B, the obtaining occurs in Spain. This is because under English law P obtained the money when the envelope was deposited in a Spanish post box. Therefore, the offence is committed in Spain and, under the terminatory theory, Spanish courts, not the English courts, have jurisdiction to try the offence.

    6.6      However, the speech of Lord Diplock in Treacy[6] gave rise to an alternative theory: the 'initiatory' or 'comity' theory. In essence, this theory holds that the jurisdiction of English courts is limited only by the theory of international comity. Provided a statutory offence contains no express geographical limitation, English courts must decline jurisdiction only if neither the conduct element nor the consequence element occurred within the jurisdiction. According to Lord Diplock:

    … each sovereign state should refrain from punishing persons for their conduct within the territory of another sovereign state where that conduct has had no harmful consequences within the territory of the state which imposes the punishment… . In my view, where the definition of [an] offence contains a requirement that the described conduct of the accused should be followed by described consequences the implied exclusion is limited to cases where neither the conduct nor its harmful consequences took place in England and Wales.[7]

    6.7      Consider the following examples:

    Example 6B
    P is in England. V is in Spain. P phones V and persuades V, by means of deception, to post an envelope full of money to P's address in England.
    Example 6 C
    P is in France. V is in Spain. P phones V and by deception persuades V to post an envelope full of money to P's address in France.
    In relation to example 6B (repeated) we noted, above, that according to the terminatory theory the offence should be tried in the Spanish courts.[8] However, since the conduct element of the offence was performed in England, international comity allows the English courts to claim jurisdiction. In contrast, in example 6C, both the conduct and the consequence elements (the deceiving and the obtaining of the money) occur outside the jurisdiction. Accordingly, both the terminatory theory and the comity theory require English courts to decline jurisdiction to try the offence.

    6.8      Lord Diplock's speech in Treacy is not free from difficulty, in part because he appeared to treat the issue as ascertaining the ambit of the offence as a matter of statutory interpretation rather than a matter of extra-territorial jurisdiction.[9] However, the comity theory has gradually increased in influence. In Smith (Wallace Duncan)(No 1)[10] the Court of Appeal recognised it as an alternative means of deciding the issue of jurisdiction. Subsequently, however, in Manning,[11] a differently constituted Court of Appeal refused to follow Smith (Wallace Duncan) (No 1).

    6.9      Despite this, the comity approach has recently been revived by the Court of Appeal in Smith (Wallace Duncan)(No 4).[12] Faced with its own previous conflicting decisions, the Court of Appeal held that Smith (Wallace Duncan)(No 1) had been correctly decided. The policy that underpins the decision is that, given the nature of international financial activity, jurisdiction should not be restricted by the technical considerations that the terminatory theory spawns.

    6.10      However, it is important to recognise that in Smith (Wallace Duncan) (No 4) the Court of Appeal was careful to limit the scope of Smith (Wallace Duncan) (No 1). According to Lord Chief Justice Woolf, it was not authority for the view that an English court has jurisdiction merely because to do so would not breach international comity. Rather, an English court can assume jurisdiction only if the alleged offence has a "substantial connection with this jurisdiction".[13]

    6.11      A recent academic article has described Smith (Wallace Duncan) (No 4) as "controversial" and based on "policy rather than principle".[14] However, it appears that until the House of Lords considers the issue, the current law is that jurisdiction can be determined by reference to either the terminatory theory or the comity theory. This is subject to the proviso that the latter theory can only be relied upon where the alleged offence has a substantial connection with this jurisdiction.

    OUR RECOMMENDATIONS

    6.12      We will explain and set out our recommendations separately in relation to the three distinct forms of liability that make up our scheme.

    Secondary liability
    P commits the principal offence in England and Wales

    6.13      The starting point is that if P commits an offence within this jurisdiction, an English court has jurisdiction to try P. In our view, they should also have jurisdiction to try D irrespective of where D was when he or she did the act which provided the assistance or encouragement.

    6.14      It might be said that our recommendation merely reflects a general rule of secondary liability, namely that for D to be liable, D's assistance or encouragement must be operative when P commits the offence:

    Example 6D
    D in New York provides P, also in New York, with a gun so that P can commit a robbery in London. P does so.
    D's act of assistance, although performed in New York, is a continuing act, in that P is still being assisted by it at the moment that P commits the robbery. Accordingly, D's act, although in one sense done in New York, was done within the jurisdiction.

    6.15      Our recommendation accords with the comity theory because, if an offence is committed within the jurisdiction, there will necessarily be a substantial connection between the offence and the jurisdiction. If there is a substantial connection between the offence and this jurisdiction, it ought to be possible to try each person who is alleged to be a party to the offence.

    Recommendation[15]

    6.16      We recommend that if P commits an offence within the jurisdiction, D may always be tried within the jurisdiction no matter where he or she was at the time of rendering the assistance or encouragement or entering into the agreement.

    P commits the principal offence outside England and Wales
    D'S BEHAVIOUR TAKES PLACE WHOLLY OR PARTLY IN ENGLAND AND WALES

    6.17      We believe that it ought to be possible for an English court to try D if:

    (1) it would have jurisdiction to try P; or
    (2) it would have had jurisdiction to try P had P satisfied a condition relating to citizenship, nationality or residence.
    Where an English court has jurisdiction to try P

    6.18      If an English court has jurisdiction to try P for an offence committed outside the jurisdiction, it should have jurisdiction to try D for the offence if D's assistance, encouragement or agreement consisted of acts done (wholly or partly) within the jurisdiction:

    Example 6E
    P is in England. V is in Spain. D in England encourages P to telephone V and by deception persuade V to post an envelope full of money to P's address in England. P does so and V posts the money.

    6.19      By virtue of the postal rule, the offence of obtaining property by deception is committed in Spain. Under the terminatory theory, P cannot be tried in England. However, under the comity theory, P can be tried in England (assuming that the court holds that there is a substantial connection between the offence and England). Accordingly, under our recommendation, it would also be possible for an English court to try D for the offence.

    6.20      By contrast:

    Example 6F
    D is in London, P is in Chicago and V is in Madrid. D telephones P and encourages him to send a package containing sweets with a toxic substance in to V. The intention of D and P is to cause serious harm to V. P sends the package. V eats the sweets and suffers serious organ failure but survives.
    If the terminatory theory is applied, P cannot be tried in an English court. Further, it would appear that application of the comity theory leads to the same result because, absent D's act of encouragement, there is no substantial connection between P's offence and this jurisdiction. We doubt whether the comity theory, as so far developed, permits a court to take into account D's behaviour when determining whether there is a substantial connection for the purposes of determining P's liability. Therefore, in example 6F, P's offence is not triable in the jurisdiction and, under our recommendations, it would also not be possible to try D in an English court.
    Where an English court would have had jurisdiction to try P had P satisfied a condition relating to 'citizenship, nationality or residence'

    6.21      Sometimes an English court does have jurisdiction to try P for an offence committed outside the jurisdiction irrespective of whether the offence is triable in an English court under the terminatory or comity theory. These are cases where Parliament has expressly enacted that an offence committed abroad may be tried in an English court. Where Parliament does so, it is not unusual for it to provide that P must satisfy a condition relating to citizenship, nationality or residence. One example is section 9 of the Offences against the Person Act 1861 ('the 1861 Act') which provides that a British citizen who commits murder or manslaughter overseas may be tried in an English court regardless of whether the victim was a British citizen. Another example is section 72 of the Sexual Offences Act 2003 which provides that an English court has jurisdiction to try P for certain sexual offences committed abroad provided P is a British citizen or a resident of the United Kingdom:

    Example 6G
    P, a British citizen, murders V, in Madrid. P commits the murder by shooting V with a firearm which D gave to him in London.
    P can be tried in an English court by virtue of section 9 of the 1861 Act. Accordingly, under the recommendation outlined above, D could also be tried in an English court. Whether or not D is a British citizen would be irrelevant. By contrast:
    Example 6H
    The same facts as in example 6G except that P is not a British citizen.
    In example 6H, an English court would not have jurisdiction to try P because P is not a British citizen. However, under our recommendation, an English court would have jurisdiction to try D because it would have had jurisdiction to try P had P been a British citizen. Again, under our recommendation it would be possible to try D in an English court even if D was not a British citizen.
    Recommendation[16]

    6.22      We recommend that if P commits an offence outside the jurisdiction, D may be tried within the jurisdiction if D's behaviour takes place wholly or partly within the jurisdiction and P

    (1) could be tried within the jurisdiction; or
    (2) could have been tried within the jurisdiction had P satisfied a condition relating to citizenship, nationality or residence.
    D's behaviour takes place wholly outside England and Wales

    6.23      We are recommending that an English court should have jurisdiction to try D if D could have been tried in an English court had he or she committed the offence committed by P in the place where P committed it:

    Example 6J
    D is a British citizen living in Paris. P is an Australian citizen living in Chicago. V is an Italian citizen living in Madrid. D sends an e-mail to P encouraging P to travel to Madrid and cause grievous bodily harm to V. P does so.
    Under both the terminatory and the comity theories, an English court lacks jurisdiction to try P. Further, causing grievous bodily harm with intent is not an offence that Parliament has provided can be tried within the jurisdiction when committed abroad. Since an English court would lack jurisdiction to try P, there would, under our recommendation, be no jurisdiction for an English court to try D.

    6.24      By contrast:

    Example 6K
    The same facts as in example 6J except that D encourages P to murder V, which P does.
    In this example, had D murdered V in Madrid, D could have been tried for murder by an English court by virtue of section 9 of the 1861 Act. Under our recommendation, it would be irrelevant that P, being an Australian citizen, cannot be tried by an English court by virtue of section 9.

    6.25      By contrast:

    Example 6L
    Same facts as in example 6K except that D is a South African citizen and P is a British citizen.
    Under our recommendation, an English court would not have jurisdiction to try D because had D committed the murder an English court would not have had jurisdiction to try him. An English court would have lacked jurisdiction to try D under both the terminatory theory and the comity theory. Moreover, because D is a South African citizen, an English court would not have had jurisdiction to try him by virtue of section 9 of the 1861 Act either. The fact that an English court would have jurisdiction to try P by virtue of section 9 would be irrelevant to its ability to try D.
    Recommendation[17]

    6.26      We recommend that if P commits an offence outside the jurisdiction , D may be tried within the jurisdiction if:

    (1) D's behaviour takes place wholly outside the jurisdiction; and
    (2) irrespective of whether P can be tried within the jurisdiction, D could have been tried within the jurisdiction had he or she committed the offence in the place where P committed it.
    Where D uses P as an innocent agent
    P's 'offence' is committed in England and Wales

    6.27      Our policy is the same as for secondary liability. If P commits the conduct element of the principal offence within the jurisdiction, an English court should be able to try D irrespective of D's location at the time when D caused P to commit the conduct element. Even if D is physically outside the jurisdiction, he or she is acting within the jurisdiction through the medium of P:

    Example 6M
    D, in Canada, telephones his seven-year-old nephew, P, in London telling him to stab V, the boy living next door to P. P does so, thereby causing V grievous bodily harm.
    Under our recommendations, an English court could try D for causing grievous bodily harm with intent. Our recommendation is consistent with the comity theory.
    P's 'offence' is committed outside England and Wales
    D'S BEHAVIOUR TAKES PLACE WHOLLY OR PARTLY IN ENGLAND AND WALES

    6.28      In cases where D's own culpable conduct occurs within the jurisdiction, we believe that, in accordance with the comity theory, an English court should have jurisdiction to try D for the offence even if both the conduct and the consequence elements of the offence occur outside the jurisdiction:

    Example 6N
    D, in London, telephones his seven-year-old nephew in Montreal and tells him to stab V, the boy living next door. P does so. V sustains serious harm.
    Under our recommendation, D could be tried in an English court for causing grievous bodily harm with intent.
    D'S BEHAVIOUR TAKES PLACE WHOLLY OUTSIDE ENGLAND AND WALES

    6.29      In cases where D's behaviour takes place wholly outside the jurisdiction, our recommendation mirrors that which we made in relation to secondary liability. An English court ought to be able to try D provided that D could have been tried within the jurisdiction had he or she committed the principal offence in the place where P would have committed it had P not been an innocent agent:

    Example 6P
    D is a British citizen living in Paris. He telephones his seven-year-old-nephew, P, in Madrid telling him to cause grievous bodily harm to V, a boy living next door to P. P does so. V sustains grievous bodily harm.
    Causing grievous bodily harm with intent is not an offence that Parliament has provided can be tried within the jurisdiction even if committed abroad. Under our recommendations, therefore, an English court would have no jurisdiction to try D.

    6.30      By contrast:

    Example 6Q
    The same facts as in example 6P except that D encourages P to murder V, which P does.
    In this example, had D killed V in Madrid, D could have been tried for murder by an English court by virtue of section 9 of the 1861 Act. Accordingly, under our recommendations, an English court would have jurisdiction to try D for murder.
    Recommendation[18]

    6.31      We recommend that if D uses P, an innocent agent, to commit an 'offence':

    (1) if P's 'offence' is committed within the jurisdiction, D may always be tried within the jurisdiction;
    (2) if P's 'offence' is committed outside the jurisdiction, D may always be tried within the jurisdiction if D's behaviour takes place wholly or partly within the jurisdiction;
    (3) if P's 'offence' is committed outside the jurisdiction, D may be tried within the jurisdiction if D could have been tried within the jurisdiction if he had committed the principal offence in the place where P would have committed it had P not been an innocent agent.
    D causing P to commit a no-fault offence

    6.32      In the light of the relatively minor nature of most no-fault offences, we do not favour a broad jurisdictional rule. Accordingly, we believe that an English court should only have jurisdiction to try D for causing a no-fault offence if P commits the no-fault offence within the jurisdiction and D's behaviour took place wholly or partly within the jurisdiction.

    Recommendation[19]

    6.33      We recommend that an English court should not have jurisdiction to try D for causing P to commit a no-fault offence unless:

    (1) P commits the no-fault offence within the jurisdiction; and
    (2) D's behaviour took place (wholly or partly) within the jurisdiction.
    ROLE OF THE ATTORNEY GENERAL

    6.34      Section 1A of the Criminal Law Act 1977 provides that proceedings in respect of a conspiracy to commit an offence outside the jurisdiction can only be instituted with the consent of the Attorney General. The requirement is a sensible safeguard to ensure that proceedings are only brought in appropriate cases. We believe that there should be a similar safeguard in the present context.

    Recommendation[20]

    6.35      We recommend that if P's offence is committed outside the jurisdiction, no proceedings may be instituted except by, or with the consent of, the Attorney General.

    Ý
    Ü   Þ

Note 1    In order to avoid repetition, instead of referring to ‘England and Wales’ we will refer to ‘the jurisdiction’ and instead of referring to ‘courts of England and Wales’ we will refer to ‘English courts’.    [Back]

Note 2    Statutory exceptions include the Offences against the Person Act 1861, s 9 (commission of murder or manslaughter by a British subject on land overseas); the Anti-Terrorism, Crime and Security Act 2001, s 109 (bribery and corruption committed outside the United Kingdom); the Sexual Offences Act 2003, s 72 (commission of certain sexual offences outside the United Kingdom by British citizens or residents of the United Kingdom); Criminal Law Act 1977, s 1A (conspiracy to commit a crime abroad).     [Back]

Note 3    Treacy v DPP [1971] AC 537, 551 by Lord Reid; Air India v Wiggins [1980] 1 WLR 815.     [Back]

Note 4    M Hirst, Jurisdiction and the ambit of the criminal law (2003) p 123.    [Back]

Note 5    Ellis [1899] 1 QB 230; Harden [1963] 1 QB 8. It was Professor Glanville Williams, “Venue and the Ambit of Criminal Law” (1965) 81Law Quarterly Review, 276, 518 who described the theory as the “terminatory theory of jurisdiction”.     [Back]

Note 6    [1971] AC 537, 561 to 564.    [Back]

Note 7    Above, 564 (emphasis in original).    [Back]

Note 8    Para 6.5 above.    [Back]

Note 9    The Court of Appeal in Manning [1999] QB 980, 993 to 998 highlighted the problematic aspects of Lord Diplock’s speech.    [Back]

Note 10    [1996] 2 Cr App R 1.    [Back]

Note 11    [1999] QB 980.    [Back]

Note 12    [2004] EWCA Crim 631, [2004] QB 1418.    [Back]

Note 13    Above, at 1435.    [Back]

Note 14    D Ormerod and T Rees “Jurisdiction: jurisdiction of English courts – obtaining by deception” (2004) Criminal Law Review 951, 953.    [Back]

Note 15    Clause 2(1) of the Supplementary Bill.    [Back]

Note 16    Clause 2(2) and sch 1, para 1 to the Supplementary Bill.    [Back]

Note 17    Clause 2(2) and sch 1, para 2 to the Supplementary Bill.    [Back]

Note 18    Clause 3 and schedule 1, paras 3 and 4 of the Supplementary Bill.    [Back]

Note 19    Clause 4 of the Supplementary Bill.    [Back]

Note 20    Clause 7 of the Supplementary Bill.    [Back]

Ý
Ü   Þ

BAILII: Copyright Policy | Disclaimers | Privacy Policy | Feedback | Donate to BAILII
URL: http://www.bailii.org/ew/other/EWLC/2007/305(6).html