LAW REFORM ESSAY COMPETITION 2008
NATHAN RASIAH
To Prosecute or to Extradite? A Duty to Consider the Appropriate Venue in Cases of
Concurrent Criminal Jurisdiction
Abstract
The increasing tendency of states to expand the ambit of their criminal law by exercising
jurisdiction to proscribe conduct that takes place outside their own territory necessarily leads to
situations of concurrent jurisdiction – that is, a single act may constitute a crime in two or more
states at the same time. In such situations, which state should prosecute? How should the
decision be arrived at? If more than one state wishes to prosecute, how should the conflict be
resolved? As it stands, neither English law nor international law provide satisfactory answers.
This essay proposes a law reform in national law, aimed at bringing a measure of certainty and
legal principle to the resolution of such questions when they arise before prosecuting authorities
in England and Wales.
I.
The Problem of Concurrent Criminal Jurisdiction
(i)
The Increasing Assertion of Extra-territorial Criminal Jurisdiction
The exercise by states of jurisdiction to proscribe conduct as criminal is regulated by public
international law, in so far as it requires the existence of a recognised jurisdictional link or nexus.1
Previously, the common law rule was that criminal jurisdiction – or, more accurately, the ambit
of the criminal law2 – was primarily territorial,3 with a few significant exceptions such as the
1
S.S. Lotus (1927)
2
See generally Hirst (2003).
3
Linked historically with the doctrine of venue – the requirement that the jury should be summoned from
the locality of the affair, to speak of their own knowledge. See Hirst (2003) pp. 29 – 35 and Williams
(1965).
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crimes of murder, treason and espionage for which British nationals could be prosecuted for
committing overseas.4 In 1891, Lord Halsbury LC stated: “All crime is local. The jurisdiction
over the crime belongs to the country where the crime is committed…”5 By contrast, on the
Continent, jurisdiction was more often based on nationality, reflecting a preference for trying
their own nationals rather than extraditing them for crimes committed overseas. Recently the
common law rule of territoriality has been increasingly subject to statutory exception, reflecting a
general tendency of states to enlarge the ambit of their criminal law beyond territorial boundaries.
One such area is in respect of crimes under international law – grave war crimes, crimes
against humanity and genocide. Despite being among the gravest crimes known to mankind,
those crimes have until recently been characterised by impunity –due partly to the fact that they
are often committed by state actors or with their acquiescence. In response to this, international
law has developed to allow states to exercise universal jurisdiction over those crimes. Hence, for
example, the House of Lords upheld Spain’s request to extradite General Pinochet to face
charges of torture, because the Criminal Justice Act 1988 (implementing obligations under the
United Nations Convention against Torture) made it a crime under English law for anyone to
commit torture anywhere in the world.6
A second prompt for the exercise of extra-territorial jurisdiction is the increasingly
transnational character of serious organised crime. As stated by Lord Griffiths, “[u]nfortunately
in this century crime has ceased to be largely local in origin and effect. Crime is now established
on an international scale and the common law must face this new reality.”7 A prime illustration of
this phenomenon is terrorism, which often involves plots hatched and prepared on the other side
of the world. English anti-terrorism law now creates extra-territorial terrorism offences based
both on the nationality of the offenders and the nationality of the victims.8
Similar
4
eg. Treason Acts 1351 and 1543; s. 57, Offences Against the Person Act 1861.
5
MacLeod [1891].
6
ex p Pinochet Ugarte (No 3) [2000]. cf. Lord Millett: English courts had universal jurisdiction for torture
under customary international law.
7
Somchai Liangsiriprasert [1991].
8
See eg. Explosive Substances Act 1883; ss. 62, 63C Terrorism Act 2000.
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considerations apply in respect of serious organised crime, drug trafficking, corruption, financial
crime and cyber crime.
Extra-territorial offences have also been introduced to cover reprehensible activities
committed by nationals abroad – such as sex tourism or football hooliganism – which give rise to
a responsibility to prosecute in order to uphold the standing and reputation of the United
Kingdom within the international community.9 States are also increasingly utilising the criminal
law to effectively protect and promote their interests in a broader sense than merely maintaining
order within their territory. For example, states may criminalise financial crime abroad deemed to
have an adverse effect on their own financial markets. That was illustrated in Bermingham and
others, in which the United States sought the extradition of three London based employees of Nat
West (“the NatWest three”) to stand trial on allegations of wire fraud connected to the collapse
of Enron.10
(ii)
Concurrent Jurisdiction – A Legal Lacuna
One consequence of this shift is that it will necessarily lead to situations in which crimes are
potentially triable in two or more states. For a simple example, if a British citizen commits child
sex offences in Thailand, it may be a crime in both Thailand and in England and Wales, by virtue
of s. 72, Sexual Offences Act 2003.
Under universal jurisdiction offences the position may be significantly more complicated.
Take a hypothetical example. General Himmel, a Ruritanian, allegedly commits acts of torture
while deployed in neighbouring Utopia. The victims are mainly Utopian nationals, but also some
British nationals caught up in the conflict. After the conflict, Himmel is spotted in the streets of
London, where he has been living under a false identity.
9
See eg. s. 72, Sexual Offences Act 2003 and the debates that preceded the Sex Offenders Act 1997; Home
Office (1996), para. 2.21; Hirst, supra note 2, pp. 268 – 271.
10
Bermingham and others [2006]. Another example would be Art. 113-10 of the French Code Penal which
applies extra-territorial criminal prohibitions on counterfeiting state seals etc. See Hirst (2003), p. 336.
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He could be charged in England for torture under s. 134, Criminal Justice Act 1988. A
significant number of the alleged victims now reside in England and are willing to give evidence.
However, the Utopian government – under significant pressure from public opinion – seeks his
extradition: stating that the alleged crimes occurred on Utopian territory and were committed
against the Utopian people. The Ruritanian authorities strenuously object and seek his return to
Ruritania: they claim that they will try him by military court-martial, that he has no prospect of a
fair trial in Utopia, and that any attempt to prosecute him in England would be a violation of
their sovereignty.
As things stand, English law makes no provision to assist the resolution of such a
situation.11 In all cases the Crown Prosecution Service has a discretion to prosecute exercisable in
accordance with the Code for Crown Prosecutors. But the test of evidential sufficiency and
public interest provides no specific guidance as to when extra-territorial prosecutions will be in
the public interest, bearing in mind the additional cost, logistical demands and international
cooperation involved. Nor does it address the further complexities involved in situations of
concurrent jurisdiction, where the enquiry is not simply whether it is in the public interest to
prosecute but, moreover, whether it is appropriate for a trial to be held in this country.
The case of the NatWest Three illustrated the lacuna. In that case, the defendants
opposed their extradition to the US, arguing primarily that if they were to be tried at all they
should be tried in England. In the Court of Appeal, Lord Justice Laws addressed this submission
in the following terms:
No statute enjoins any public authority whether court or minister in terms to decide,
where a criminal case is triable in either of two jurisdictions, which is the forum
conveniens… Under the [Extradition Act 2003] neither court nor minister possesses any
discretion to further the extradition process or not to do so.12
11
Assume the case is not admissible before the International Criminal Court, which offers no guidance on
how to choose between competing national jurisdictions in any case.
12
Bermingham and others [2006], para. 57.
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Following the political controversy that attached to the NatWest Three case, the Attorney
General published “Guidance for Handling Criminal Cases with Concurrent Jurisdiction between
the United Kingdom and the United States.”13 The Guidance stipulates that prosecutors should
consider whether there is a real possibility that a prosecutor in the other country may have an
interest in prosecuting the case, and establishes a procedure for consultation between
prosecutors, and, in the absence of agreement, between Attorney Generals. However, that
guidance only applies to cases involving the United States. It doesn’t set down any guiding
principles, maintaining rather that “each case should be considered on its own facts and
merits.”14 It has been described as a “prosecutor’s deal” which “takes care of prosecutorial
concerns but shows little regard for the interests of defendants.”15
(iii)
The Problem with the Status Quo
The status quo is unsatisfactory for a number of reasons. Certainty, predictability and accessibility
are virtues that all legal systems should aspire to, but they take on an enhanced significance in
respect of criminal law and procedure when the liberty of the subject is at stake. Under the
present arrangements, individuals have no reliable way of knowing the circumstances in which
they may be called to stand trial in a foreign jurisdiction for crimes allegedly committed in this
country.
Second, the decision whether to try an individual in this country or another is one which
has a fundamental impact on the individual’s interests. The least he or she could expect is for it
to be taken by reference to legally relevant criteria, and to have recourse to the courts if it is felt
that the decision has been swayed by unlawful considerations. The dictum of Lord Justice Laws
confirms the present vacuum of legal guidance and judicial oversight of this decision.
13
25 January 2007.
14
Id.
15
Brookson-Morris (2007)
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Third, the absence of authoritative guidance laid down in law heightens the chance that
cases will not be heard in the most appropriate forum. This could jeopardise the chances of an
effective prosecution or, more worryingly, prejudice the fairness of the eventual trial.
Finally, the unpredictability of the present arrangements could affect international
relations. As illustrated in the hypothetical example, the enforcement of criminal jurisdiction is
closely associated with state sovereignty and can affect vital national interests. States, as well as
individuals, have an interest in a transparent and predictable system for determining such
questions.16
II.
Proposal for Reform: A Duty to Consider the Appropriate Venue in Cases of
Concurrent Criminal Jurisdiction
(i)
Reform in National Law
Before addressing the precise content of the reform proposal, there is a preliminary consideration
as to whether the issue should be addressed at the international or national level. It might be
argued that the issue essentially requires agreements between states as to who will prosecute and
who will extradite, and so should be addressed at the international level. As long ago as 1965,
Glanville Williams called for such an international agreement on the subject of jurisdiction.17
However, the fact that one has not been forthcoming in the intervening years may reflect the
difficulty of garnering an international consensus in this area – criminal justice continues to be a
highly sensitive area for states, and it would not be practical to plan a reform of this issue at the
international level.
There have been initiatives aimed at addressing the issue of concurrent jurisdiction as
part of European Union harmonisation of aspects of criminal law and procedure.18 The initiatives
16
See for example Congo’s complaint against France in respect of criminal investigations concerning
members of the Congolese government: Certain Criminal Proceedings in France (pending).
17
Williams (1965), Part 3.
18
Green Paper and Freiburg Proposal.
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envisage information sharing, consultation between prosecutors and, in cases of disagreement
between member states, European-level bodies tasked with mediation and ultimately empowered
to make binding decisions on the most appropriate jurisdiction. These initiatives make valuable
contributions to the debate concerning harmonisation at the European Union level, but suffer
the obvious deficiency of not being comprehensive in effect as they only cover the European
Union.
In conclusion, while any national solution must be compatible with both international
and European law, the most feasible way of approaching the problem is at the national level
where important and relevant decisions concerning whether to prosecute or extradite are
presently taken.
(ii)
The Role of the Crown Prosecution Service
Who should be ultimately responsible for making decisions at the national level as to appropriate
venue? As it stands, decisions concerning prosecution and extradition fall within the authority of
the Crown Prosecution Service and the Serious Organised Crime Agency. While an aim of this
reform is to promote certainty and accountability, it must also respect constitutional
considerations such as prosecutorial independence. It would be constitutionally unworkable, for
example, to enact a reform that in effect vests the ultimate decision on prosecution in the
judiciary.
Bearing that in mind, for the proposal to be constitutionally workable, the decision in
situations of concurrent jurisdiction should be in the hands of the CPS, which should be placed
under a statutory duty to consider the most appropriate venue in such cases. While that decision
cannot be dictated by statute, it should entail a structured discretion by which Crown Prosecutors
are bound to consider and weigh up certain relevant factors. In making the decision the
Prosecutor may need to consult the prosecuting authorities of other states, and also, in
appropriate cases, the defendant.
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(iii)
NATHAN RASIAH
Factors Relevant to Appropriate Jurisdiction
There are three related groups of factors relevant to determining the most appropriate
jurisdiction. First, there are factors relating to which country has the strongest claim to
jurisdiction. While it is not clear that international law recognises a strict hierarchy of
jurisdictional bases in cases of concurrence, it is suggested that territoriality provides the
strongest nexus reflective of state sovereignty over their own territory,19 and that universal
jurisdiction under customary international law is the weakest claim, exercisable only in the
absence of a stronger claim to jurisdiction.20
Second, the determination should promote an effective prosecution and the right to a
fair trial.21 Primarily, this would entail examining factors such as the attendance of prosecution
and defence witnesses, witness protection, the location and accessibility of prosecution and
defence evidence, and the personal safety of participants in proceedings including judges and
lawyers. It may also concern issues such as prejudice and partiality in the court or tribunal. The
right to a fair trial dictates that where it is determined that a fair trial cannot be guaranteed in a
particular jurisdiction this should be decisive, as is presently the case under the Extradition Act
2003.
Third, issues of practicability will come into play: the willingness or ability of a state to
prosecute, the location of accused and the availability of extradition or transfer of criminal
proceedings. Finally, improper considerations should be expressly excluded from the
determination.
As there is room for debate over the exact formulation of the relevant factors, the most
sensible approach may be to empower the Director of Public Prosecutions in consultation with
Attorney General to formulate a Code addressing the relevant factors in the form of a structured
19
S.S. Lotus (1927) Diss. Op. Altamira, p. 95
20
Arrest Warrant of 11 April 2000 (2002), Sep. Op. Higgins, Koojimans and Burgenthal, para. 59; A. Cassese
(2003).
21
Green paper; Freiburg Proposal; Lord Goldsmith (2005).
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discretion, in a manner analogous to the Code for Crown Prosecutors issued pursuant to s. 10,
Prosecution of Offenders Act 1985.
(iv)
Accountability to Law
As has been noted, the decision on venue will involve issues of policy which should rightly fall
within the discretion of CPS. Nevertheless, one of the aims of this proposal has been to place the
decision on a legal footing, thus providing defendants with an opportunity to have recourse to
the courts in cases where the decision is suspected to have been made on unlawful grounds. As
such, while the CPS retains its discretion, it is equally imperative that it is exercised subject to law.
To that end, the individual should be entitled to a reasoned decision on venue, and the decision
should be reviewable in the High Court on normal judicial review principles.
(v)
Proposal Summary
o
The introduction of a duty on Crown Prosecutors to consider the appropriate
venue in all criminal proceedings that raise issues of concurrent jurisdiction, that
is, where it appears that the relevant allegations could be tried in more than one
country;
o
Crown Prosecutors will be bound to take into consideration relevant factors laid
down in a supplementary Code issued by the DPP in consultation with the
Attorney General;
o
The Code should address: (i) the relative strength of jurisdictional link; (ii) the
objectives of an effective prosecution and the right to a fair trial; (iii) other
relevant considerations including the location and residency of the defendant
and the availability of extradition or transfer of criminal proceedings.
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o
NATHAN RASIAH
The CPS may notify and consult the prosecuting authorities of other interested
states, and it may also take representations from the defendant – for example, in
relation to the evidence that he or she might require at trial;
o
When a decision is made, the CPS will be under a duty to provide the defendant
with reasons for the decision, and the decision will be reviewable by High Court
under normal judicial review principles.
III
Conclusion
It is submitted that such a proposal has the virtue of being a modest and practical reform that
addresses a significant lacuna in criminal procedure that has resulted from the changing nature of
criminal jurisdiction. It would provide a measure of certainty and predictability to both
individuals and other interested states, and allow for decisions to be taken in a coherent,
principled and transparent manner.
This in turn will help ensure that cases are only tried in the most appropriate venue thus
maximising the chances of an effective prosecution and a fair trial. Furthermore, it would reduce
the likelihood of conflict between states, whilst at the same time providing individuals with
recourse to law in challenging decisions that may fundamentally impact their interests.
Word Count (including footnotes): 3000
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Bibliography
Cases
MacLeod v. Attorney General for New South Wales [1891] AC 455, 458. (“MacLeod[1891]”)
Somchai Liangsiriprasert v. US Government [1991] 1 AC 225, 241. (“Somchai Liangsiriprasert [1991]”)
R v. Bow Street Metropolitan Stipendiary Magistrate and others, ex p Pinochet Ugarte (No 3) [2000] 1 AC
147, 276. (“ex p Pinochet Ugarte (No 3) [2000]”)
Bermingham and others v. Director of the Serious Fraud Office [2006] EWHC 200 (Bermingham and others
[2006]”)
International Cases
S.S. Lotus (France v. Turkey) (1927) PCIJ Rep, Series A, No. 10. (“S.S. Lotus (1927)”)
Arrest Warrant of 11 April 2000 (Democratic Republic of Congo v. Belgium), ICJ Rep (2002) (“Arrest
Warrant of 11 April 2000 (2002)”)
Case Concerning Certain Criminal Proceedings in France (Republic of Congo v. France) (pending before the
International Court of Justice). (“Certain Criminal Proceedings in France”)
Books
M. Hirst, Jurisdiction and the Ambit of the Criminal Law (OUP: Oxford, 2003). (“Hirst (2003)”)
Articles
G. Williams, ‘Venue and Ambit of Criminal Law’, 81 Law Quarterly Review 276. (“Williams
(1965)”)
K. Brookson-Morris, ‘Conflicts of Criminal Jurisdiction’, 56 International and Criminal Law
Quarterly 659, 660. (“Brookson-Morris (2007)”)
A. Cassese, ‘The Belgian Court of Cassation v. the International Court of Justice: the Sharon and
others case’, 1(2) Journal of International Criminal Justice 437 – 452. (“Cassese (2006)”)
Lord Goldsmith, ‘How Far Can Laws Reach?’ IBA Annual Conference (2005). (“Goldsmith
(2005)”)
Other Materials
Attorney General’s Guidance for Handling Criminal Cases with Concurrent Jurisdiction between
the United Kingdom and the United States, 15 January 2007.
Review of Extraterritorial Jurisdiction (Home Office, 1996), (“Home Office (1996)”)
EC Commission Green Paper: ‘On Conflicts of Jurisdiction and the Principle of ne bis in idem in
Criminal Proceedings’ (2005) (“Green Paper”)
Freiburg Proposal on Concurrent Jurisdictions and the Prohibition of Multiple Prosecutions in the
European Union (Max Planck Institute: Freiburg, 2003). (“Freiburg Proposal”)
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