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You are here: BAILII >> Databases >> The Law Commission >> Inchoate Liability for Assisting and Encouraging Crime (Report) [2006] EWLC 300(8) (04 July 2006) URL: http://www.bailii.org/ew/other/EWLC/2006/300(8).html Cite as: [2006] EWLC 300(8) |
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PART 8
EXTRA-TERRITORIAL JURISDICTION
8.1 The common law of England and Wales evolved over centuries when relatively few offences were committed across national frontiers. However, the last fifty years has witnessed the phenomenon of globalisation. Criminal organisations have not been slow to exploit the opportunities afforded by the emergence of that phenomenon. Thus, although most serious crimes are still local in their commission and effect, a small but significant number cross national boundaries. This development is particularly pertinent to inchoate offences. Thus, it is not uncommon to encounter conspiracies formed in one country to import drugs, firearms, people or rare animals into another country. Similarly, there are multifarious ways in which encouragement or assistance may be sent from and to any place in the world.INTRODUCTION
8.2 The primary basis of English criminal jurisdiction is territorial. A court in England and Wales has jurisdiction to try a person, whether or not a British citizen, for an offence committed in England and Wales.[1] However, apart from statutory exceptions,[2] a person cannot be tried within the jurisdiction 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 conduct occurring outside the jurisdiction should be an offence triable within the jurisdiction.[3] 8.3 In some cases, it may not be obvious whether or not an offence has been committed within the jurisdiction. Prior to 1970, the orthodox view was that, for the purposes of determining jurisdiction, the last element needed to complete the offence had to take place within the jurisdiction.[4] It followed that if an offence consisted of both a conduct element and a consequence element, the consequence had to take effect within the jurisdiction. 8.4 However, in 1970, Lord Diplock challenged the orthodox view.[5] He concluded that, provided a statutory offence contains no express geographical limitation, comity only precludes a person being tried for the offence within the jurisdiction if neither the conduct nor the consequences take place within the jurisdiction:GENERAL PRINCIPLES
8.5 However, cases of conspiracy apart, the English courts continued to apply the terminatory theory of jurisdiction[7] until Smith (Wallace Duncan) (No 1).[8] In that case, the Court of Appeal held that the courts of England and Wales had jurisdiction to try a charge of obtaining by deception where the last act, the obtaining, took place in the city of New York. Subsequently, however, in Manning,[9] a differently constituted Court of Appeal refused to follow Smith (Wallace Duncan) (No 1). 8.6 More recently, in Smith (Wallace Duncan) (No 4)[10] the Court of Appeal has held that where a substantial measure of the activities constituting an offence takes place within the jurisdiction, the courts of England and Wales have jurisdiction to try the offence, irrespective of where the last element of the offence occurred. The policy that underpins the decision is that, given the prevalence of international financial activity, jurisdiction should not be restricted by the technicality of the terminatory theory.… 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.[6]
8.7 Inchoate offences present particular difficulties because frequently all of the activities that constitute an inchoate offence take place outside the jurisdiction of the territory where it is intended that the principal offence should be committed. Thus, D and P agree in New York to commit a robbery in London. Alternatively, D in Paris sends a letter to P in Rome urging P to murder V in London.INCHOATE OFFENCES
Conspiracy
8.8 The offence of conspiracy is complete as soon as an agreement to commit an offence is formed:Introduction
Example 8A
P1 and P2 agree in Calais to commit a robbery in Dover.
If the general principles that apply to substantive offences were applied, P1 and P2 could not be tried within the jurisdiction for conspiracy to rob because the offence has been committed in France. However, the courts have displayed a readiness to depart from the general principles.
8.9 In DPP v Doot[11] the House of Lords held that a conspiracy formed abroad to commit an offence in England and Wales was triable within the jurisdiction provided an "overt act" in pursuance of the conspiracy had taken place within the jurisdiction. In Somchai Liangsinpraseret v United States[12] the Privy Council dispensed with the need for any "overt act" within the jurisdiction.[13] Having noted that inchoate offences were developed with the principal objective of frustrating the commission of a contemplated crime by enabling the authorities to arrest offenders before the commission of the crime, Lord Griffiths observed:Conspiracy formed out of the jurisdiction to commit a crime within the jurisdiction
If the inchoate crime is aimed at England with the consequent injury to English society, why should the English courts not accept jurisdiction to try it if the authorities can lay hands on the offenders, either because they come within the jurisdiction or through extradition procedures? … . Crime is now established on an international scale and the common law must face this new reality. Their Lordships can find nothing in precedent, comity or good sense that should inhibit the common law from regarding as justiciable in England inchoate crimes committed abroad which are intended to result in the commission of offences in England.[14]
Conspiracy formed within the jurisdiction to commit a crime abroad
COMMON LAW
8.10 By contrast, the common law has adopted a restrictive approach to conspiracies formed within the jurisdiction to commit a crime abroad. In Board of Trade v Owen[15] it was held that a conspiracy formed within England and Wales to commit an offence abroad is not triable within the jurisdiction.[16]STATUTE
8.11 However, Parliament has subsequently enacted that parties who conspire within the jurisdiction to commit an offence in a country outside the United Kingdom may be indicted and tried within the jurisdiction if the act:(1) would be a criminal offence in the foreign country concerned;
(2) would be an offence under English law if committed within the jurisdiction; and
(3) a party to the agreement:
did anything within the jurisdiction in relation to the agreement before its formation; or
became a party to the agreement within the jurisdiction; or
did or omitted anything within the jurisdiction in pursuance of the agreement.[17]
8.12 The offence of incitement is complete as soon as the incitement comes to the attention of the intended recipient:Incitement
Example 8B
D in New York phones P in Chicago and encourages P to commit a robbery in London.
The offence is committed outside the jurisdiction and, again, were the general principles that apply to substantive offences to be applied, D cannot be tried within the jurisdiction for incitement to commit robbery.
8.13 Although there is no authority which confirms that the principles that apply to conspiracy also apply to incitement, there is nothing to suggest that in Liangsiriprasert v United States Lord Griffiths intended his observations to be confined to conspiracy. Accordingly, in example 8B, a court in England and Wales would have jurisdiction to try D for incitement to commit robbery.[18]An act of incitement done abroad to commit an offence within the jurisdiction
An act of incitement done within the jurisdiction to commit an offence abroad
COMMON LAW
8.14 By analogy with conspiracy, the general rule is that if D in England incites P to commit an offence abroad, at common law the incitement is not triable within the jurisdiction. However, as with conspiracy, the incitement will be triable if the principal offence is one that, although committed abroad, can be tried within the jurisdiction.[19]STATUTE
8.15 In contrast to conspiracy, Parliament has not enacted a general provision enabling incitements to commit offences abroad to be tried within the jurisdiction. Instead, there are specific statutory provisions which make it an offence triable in England and Wales to incite the commission abroad of certain types of offences.[20]8.16 In this report, our objective is to set out a comprehensive statutory scheme of inchoate liability for encouraging or assisting crime to replace the common law rules. A comprehensive statutory scheme cannot disregard the issue of extra-territorial jurisdiction. We have explained that, while the courts have considered the issue in relation to conspiracy and to a lesser extent attempt, there is a dearth of authority in relation to incitement. In this section, we will set out our recommendations in relation to the new offences. However, we emphasise that, were our recommendations to be implemented, only the common law offence of incitement would be abolished. Our recommendations do not impact on statutory offences of incitement.[21] Accordingly, statutory offences of incitement that have their own jurisdictional rules will continue to be governed by those rules.OUR RECOMMENDATIONS IN RELATION TO THE NEW OFFENCES
8.17 We agree with Lord Griffiths that it should be an offence triable in England Wales to commit an inchoate offence abroad intending that it should lead to the commission of a principal offence within the jurisdiction. However, we would go further:Principal offence anticipated to take place wholly or partly in England and Wales
Example 8C
D sends an e-mail from Los Angeles to P in New York. D urges P to fly to Europe to murder V. D says that V may or may not be in London but that, if V is not in London, he will be in his summer villa in France. Acting on intelligence, the police arrest P before P can murder V.
Arguably, because D cannot be sure that V will be in London, D does not intend the principal offence to be committed within the jurisdiction. However, D believes that the principal offence might be committed within the jurisdiction and that should be sufficient to ground liability.
8.18 We recommend that D should be guilty of one of the new offences if D knew or believed that the principal offence might be committed wholly or partly in England and Wales, irrespective of where D did the act capable of encouraging or assisting the commission of the principal offence.[22]Principal offence not anticipated to take place wholly or partly in England and Wales
8.19 We explained above that, by analogy with conspiracy, at common law an act of incitement done within the jurisdiction to commit a principal offence abroad is not triable in England and Wales. In relation to conspiracy, the common law position was radically altered by section 1A of the Criminal Law Act 1977.[23] The section requires that the conduct that is the subject of the conspiracy must be an offence under the law of England and Wales and also under the law of the foreign territory. It is the double requirement of criminality, together with the requirement that there has to be some act of D within the jurisdiction, which justifies the conspiracy being triable within the jurisdiction. 8.20 Simester and Sullivan describe the breadth of coverage of section 1A as "enormous", citing an example of two foreign tourists in London agreeing to cheat on the Paris Metro.[24] However, as a safeguard, the Attorney General must give consent to any prosecution. Further, the section enables prosecutions to be brought in England and Wales thereby avoiding the need for possibly protracted proceedings under the Extradition Act 2003.[25] 8.21 Accordingly, we believe that for the new offences that we are recommending, there should be a similar provision to section 1A which would inculpate D in the following example:D's act done within the jurisdiction
Example 8D
8.22 We recommend that D may commit one of the new offences if :D in London sends an e-mail to P in Newcastle encouraging P to commit theft in Madrid. Theft is an offence in Spain.
(1) D does an act wholly or partly within the jurisdiction capable of encouraging or assisting a person to commit what would be a principal offence under the law of England and Wales;
(2) D knows or believes that the principal offence might be committed wholly or partly in a place outside the jurisdiction;
8.23 However, subject to one exception, we do not believe that D should be liable for one of the new offences if the principal offence is not an offence under the law of the foreign territory. The exception is if the principal offence would be triable within England and Wales were it to be committed in the foreign territory:(3) the principal offence is also an offence under the law of the territory where D knows or believes that it might wholly or partly take place.[26]
Example 8E
D sends an e-mail from London to P, a British citizen, in country x. D urges P to murder V, a British citizen who is visiting country x. Under the law of country x, it is not an offence for a British citizen to kill another British citizen.
If P did murder V, P could be tried in England and Wales despite the fact that the murder of V is not an offence under the law of country x.[27] If P could be tried within the jurisdiction for the principal offence, it also ought to be possible to try D within the jurisdiction for encouraging or assisting its commission.
8.24 We recommend that D may commit one of the new offences if:(1) D does an act wholly or partly within the jurisdiction capable of encouraging or assisting a person to commit a principal offence under the law of England and Wales;
(2) D knows or believes that the principal offence might be committed wholly or partly in a place outside the jurisdiction;
(3) the principal offence, if committed in that place, is an offence for which the perpetrator could be tried in England and Wales (if he or she satisfies a relevant citizenship, nationality or residence condition, if any).[28]
8.25 Subject to one exception, D should not be guilty of one of the new offences if the principal offence is not anticipated to take place within the jurisdiction and D's act of encouragement or assistance takes place wholly outside the jurisdiction. The exception is if D, were he or she to commit the principal offence in the foreign territory, could be tried in England and Wales for the offence:D's act takes place wholly outside the jurisdiction
Example 8F
D, a British citizen, is on holiday with P and V, both British citizens, in France. Following a heated argument, D encourages P to murder V in France.
Example 8G
D, an American citizen, is on holiday with P and V, both British citizens, in France. Following a heated argument, D encourages P to murder V in France.
In example 8F, D could be tried in England and Wales were he or she to murder V in France because D is a British citizen. By contrast, in example 8G, D could not be tried in England and Wales were he or she to murder V in France because D is an American citizen.
8.26 We recommend that D may commit one of the new offences if:(1) D's conduct takes place wholly outside the jurisdiction;
(2) D knows or believes that the principal offence might be committed wholly or partly in a place outside the jurisdiction;
(3) D could be tried in England and Wales if he or she committed the principal act in that place.[29]
8.27 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 requirement in relation to the new offences. 8.28 We recommend that, in cases where it cannot be proved that D knew or believed that the principal offence might take place wholly or partly within the jurisdiction, no proceedings may be instituted except by or with the consent of the Attorney General.[30]Role of the Attorney General
8.29 We think that it is desirable that there should be a correspondence between the jurisdictional rules governing inchoate offences of encouraging or assisting crime and the jurisdictional rules for conspiracy. Accordingly, we suggest that consideration be given to providing a statutory scheme of jurisdictional rules for conspiracy to run in tandem with the scheme that we are recommending for the new offences that we are recommending.IMPLICATIONS FOR CONSPIRACY
POSTSCRIPT
European arrest warrant
8.30 Having described the extra-territorial provisions that we are recommending, we believe it might be helpful to provide a brief outline of the European arrest warrant. 8.31 In 2003 Parliament enacted the Extradition Act in order to discharge the United Kingdom's duty to transpose into national law the obligations imposed on it by the European Council Framework Decision of 13 June 2002 on the European arrest warrant and the surrender procedures between member states ("the Framework Decision"). 8.32 The European arrest warrant represents the response of member states of the European Union to the problem of those who, facing prosecution or imprisonment in one member state, seek refuge in another member state in the hope of evading trial or imprisonment. Member states recognised that previous procedures founded on bilateral treaties had not always worked effectively. Instead, member states agreed to implement a simplified system of surrender of suspected or sentenced persons. 8.33 The chosen mechanism was a European arrest warrant based on a principle of mutual recognition. The warrant is a judicial decision issued by one member state ("the issuing state") for the arrest and surrender by another member state ("the executing state") of the person named in the warrant ("the requested person"). The surrender is so that the issuing state can conduct a criminal prosecution or execute a custodial sentence in respect of the offence specified in the warrant ("the extradition offence"). 8.34 The warrant may only be issued in respect of an offence punishable by the law of the issuing state by a sentence of at least 12 months or, where a sentence has been passed on the requested person, by a sentence of at least four months. 8.35 The Framework Decision lists kinds of criminal conduct, described in general terms, which it is assumed will feature in the criminal law of member states, for example murder, armed robbery and trafficking in human beings ("the framework list offences"). A warrant that specifies such an offence permits the executing state to surrender the requested person to the issuing state irrespective of whether the offence is a criminal offence under the law of the executing state.[31] In other words, if the offence is a framework list offence, there is an assumption of double criminality. 8.36 The operation of the European arrest is not confined to framework offences. However, if the offence is not a framework list offence, the Framework Decision entitles the executing state to refuse to accede to the request for surrender if the conduct referred to in the warrant does not constitute an offence under its own law. 8.37 The Framework Decision also enables the legislature of each member state to pass legislation preventing its courts from executing a European arrest warrant if the warrant relates to an offence which:Introduction
(1) is regarded by the law of the executing state as having been committed in whole or in part in its own territory; or
(2) was committed outside the territory of the issuing state and the law of the executing state does not allow prosecution for the offence when committed outside its own territory.
8.38 In order to give effect to the Framework Decision, Parliament enacted the Extradition Act 2003. The Act defines the offences in respect of which the issuing state may seek the surrender of the requested person. Importantly, it sets out the territorial conditions that have to be satisfied in respect of an offence ("the extradition offence") before the courts of England and Wales may order the extradition of the requested person to the issuing state.[32]The Extradition Act 2003
THE TERRITORIAL CONDITIONS
8.39 Where the conduct that constitutes the extradition offence occurred outside the territory of the issuing state, the territorial conditions that must be satisfied before a court in England and Wales may order extradition of the requested person to the issuing state are:The offence is committed outside the territory of the issuing state
(1) the equivalent conduct would constitute an extra-territorial offence under the law of England and Wales punishable with imprisonment for a term of 12 months or more;[33] or
(2) no part of the conduct occurred in the United Kingdom and the conduct would constitute an offence under the law of England and Wales punishable with imprisonment for a term of 12 months or more; or
(3) no part of the conduct occurred in the United Kingdom and the conduct constitutes or, if committed within the United Kingdom, would constitute an offence of genocide, a crime against humanity or a war crime.[34]
8.40 Where the conduct that constitutes the extradition offence occurred within the territory of the issuing state, the territorial conditions that must be satisfied before a court in England and Wales may order extradition of the requested person to the issuing state are:The offence is committed within the territory of the issuing state
(1) the conduct would constitute an offence under the law of England and Wales if it occurred in England and Wales; or
(2) the conduct:
(a) constitutes a framework list offence; and
8.41 In Office of the King's Prosecutor, Brussels v Cando Armas,[35] the House of Lords held that references to conduct occurring in the territory of the issuing state included conduct occurring wholly or partly within the territory of the issuing state. In doing so, the House of Lords recognised the frequency of offences being committed across national borders.(b) no part of the conduct occurred in the United Kingdom.
Note 1 In order to avoid wearisome repetition, instead of referring to “England and Wales” we will sometimes refer just to “the jurisdiction”. [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 [1971] AC 537, 551 by Lord Reid; Air India v Wiggins [1980] 1 WLR 815. [Back] Note 4 Ellis [1899] 1 QB 230; Harden [1963] 1 QB 8. Professor Glanville Williams, “Venue and the Ambit of Criminal Law” (1965) 81 Law Quarterly Review, 276, 518 described this as the “terminatory theory of jurisdiction”. - [Back] Note 5 Treacy [1971] AC 537, 561 to 564. [Back] Note 6 Above, 564 (emphasis in original). [Back] Note 7 Tirado (1974) 59 Cr App R 80; Beck [1985] 1 WLR 22; Thompson [1984] 1 WLR 962; Nanayakkara [1987] 1 WLR 265. [Back] Note 8 [1996] 2 Cr App R 1. [Back] Note 10 [2004] 3 WLR 229. [Back] Note 12 [1991] 1 AC 225. [Back] Note 13 This is true of both common law and statutory conspiracies – Sansom [1991] 2 QB 130. [Back] Note 14 [1991] AC 225, 251. [Back] Note 16 Unless the principal offence is one of those offences that can be tried in England and Wales even if committed abroad, eg murder or manslaughter committed by a British citizen in a country outside the United Kingdom – Offences against the Person Act 1861, s 9. [Back] Note 17 Criminal Law Act 1977, s 1A (inserted by the Criminal Justice (Terrorism and Conspiracy) Act 1998, s 5(1)). [Back] Note 18 In DPP v Stonehouse [1978] AC 255 D faked his death in Miami so that his wife in England, who was not a party to the fraud, could claim on life insurance policies. The House of Lords held that a court in England and Wales had jurisdiction to try D for attempting to obtain property by deception even though no act constituting the attempt had taken place in England or Wales. [Back] Note 19 Again, there is no authority. [Back] Note 20 Eg, Sexual Offences (Conspiracy and Incitement) Act 1996, s 2 which makes it an offence to incite certain sexual offences against children outside the United Kingdom; Terrorism Act 2000, s 59 which makes it an offence to incite act of terrorism wholly or partly outside the United Kingdom; Criminal Justice Act 1993, s 5(4) (inciting offences of fraud and dishonesty). [Back] Note 21 Apart from sch 1 Part 1 of the Bill which provides that D cannot be convicted a cl 2 offence for encouraging or assisting P to incite X to commit certain statutory offences of incitement, eg Offences against the Person Act 1861, s 4 (soliciting to murder). [Back] Note 22 Clause 7(1) of the Bill. For explanation, see Appendix A paras A.69 to A.70. [Back] Note 23 As inserted by Criminal Justice (Terrorism and Conspiracy) Act 1993. See para 8.11. [Back] Note 24 Criminal Law Theory and Doctrine (2nd ed 2003) p 321. [Back] Note 25 In addition, the witnesses to the inchoate offence are likely to be resident in England and Wales. [Back] Note 26 Schedule 2 para 2(1) to the Bill. For explanation, see Appendix A paras A75 to 76. [Back] Note 27 Offences against the Person Act 1861, s 9. [Back] Note 28 Para 1(1) of sch 2 to the Bill. For explanation, see Appendix A paras A73 to A74. [Back] Note 29 Schedule 2 para 3 to the Bill. For explanation, see Appendix A paras A77 to A 78. [Back] Note 30 Clause 8 of the Bill. [Back] Note 31 However, under the law of the issuing state, the offence must be punishable by a term of imprisonment of at least three years. [Back] Note 32 The relevant sections are s 64 (person not sentenced for offence) and s 65 (person sentenced for the offence). In addition to territorial conditions, s 65 also contain conditions that relate to the sentence passed on the requested person by the issuing state. For the purposes of this report, it is not necessary to refer to those conditions. [Back] Note 33 Eg, murder or manslaughter committed by a British citizen – Offences against the Person Act 1861, s 9. [Back] Note 34 These are offences against s 51 or s 58 of the International Criminal Court Act 2001. [Back]
