- Annex A - Eurojust Guidelines, Annual Report 2003, Making the Decision - "Which Jurisdiction Should Prosecute?"
Code for Crown Prosecutors - Considerations
Prosecutors will have come across an increasing number of cases in recent years that are not solely confined to the jurisdiction of England and Wales.
In practice in cross-border cases, issues of forum will usually be decided between the police of the two (or more) jurisdictions, often before prosecutors become involved. In other cases, however, prosecutors of the relevant jurisdictions will have to make decisions as to where to prosecute, as the extent of the criminality and/or evidence in each of the countries may not be apparent until the conclusion of the investigation or even when the prosecution process is under way. There are a number of factors that can affect the final decision, and this will depend on the circumstances of each case. Prosecutors should balance all of these factors carefully and fairly, as this will weigh heavily on whether there is enough evidence to prosecute and whether it would be in the public interest to do so.
There are several ways by which a state can exercise jurisdiction:
- Active personality (i.e. the accused will be prosecuted in the country of the nationality of the offender);
- Passive personality (i.e. the accused will be prosecuted in the country of the nationality of the victim);
- Universal jurisdiction (i.e. the state will be able to prosecute regardless of the nationality of the offender, the victim, and where the offence was committed, e.g. torture).
Resolving jurisdictional conflicts
Generally, an offence will only be triable in the jurisdiction in which the offence takes place, unless there is a specific provision to ground jurisdiction, for instance where specific statutes enable the UK to exercise extra-territorial jurisdiction:
- sexual offences against children (section 72 of the Sexual Offences Act 2003) A new section 72 was substituted by the Criminal Justice and Immigration Act 2008 which came into effect from 14 July 2008 onwards. It is important to ensure that any prosecution is brought under the provision in force at the time the alleged conduct occured as the terms of the substantive provisions and details of the offences they cover are not identical;
- murder and manslaughter (subsection 9 and 10 of the Offences Against the Person Act 1861)
- fraud (the 2006 Act imposes extra territorial jurisdiction in respect of offences in subsections 1, 6, 7, 9 and 11 of the Fraud Act 2006) and dishonesty (Criminal Justice Act 1993 Part 1 still applies to the remaining unrepealed sections of the Theft Act 1968);
- terrorism (subsection 59, 62-63 of the Terrorism Act 2000 and section 17 of the Terrorism Act 2006);
- bribery (The Bribery Act 2010 repeals the common law and the statutory offences of corruption for offences committed wholly on or after 1 July 2011. For those offences the Bribery Act imposes extra-territorial jurisdiction. Section 109 of the Anti-Terrorism and Security Act 2001 still applies to provide extre-territorial jurisdiction in respect of offences committed wholly or partially before 1 July 2011.
For a list of particular offences with an extra-territorial reach see Archbold.
In cross-border cases involving England and Wales and other jurisdictions (including non-EU countries), an offence must have a "substantial connection with this jurisdiction" for courts in England and Wales to have jurisdiction. It follows that, where a substantial number of the activities constituting a crime takes place within England and Wales, the courts of England and Wales have jurisdiction unless it can be argued, on a reasonable view, that the conduct ought to be dealt with by the courts of another country. (R v Smith (Wallace Duncan) (No.4)  3 WLR 229, per Lord Chief Justice Woolf).
See the Extradition legal guidance.
In cross-border cases involving England and Wales and other jurisdictions, the best practice is for prosecutors and investigators of the relevant jurisdictions to meet face to face to consider and balance the different factors that should be considered when reaching a decision where to prosecute. Prosecutors should consider the following factors:
- Whether the prosecution can be divided into separate cases in two or more jurisdiction;
- The location and interests of the victim or victims;
- The location and interests of witnesses;
- The location and interests of the accused;
These factors have recently been formulated into the Director's Guidelines on the handling of cases where the Jurisdiction to prosecute is shared with Prosecuting Authorities Overseas
The Eurojust Annual Report 2003 has produced some guidelines that prosecutors can refer to when considering such issues. Prosecutors can also use them as guidance when dealing with non-EU Member States. A copy of these guidelines can be found at Annex A. For the full report, see http://www.eurojust.europa.eu/press_annual.htm
Cross-border cases between Scotland and Northern Ireland
The criminal legal system that operates in England and Wales has remained entirely separate from that of Scotland and Northern Ireland and they are considered as separate jurisdictions. Prosecutors should therefore refer to the principles above apply to cross-border cases between England and Wales and Scotland or Northern Ireland.
Concurrent UK-US jurisdiction
Prosecutors should note that some offences may come within US extra-territorial jurisdiction even though none of the criminality occurred within US territory.
Prosecutors dealing with cases which have a factual nexus with the United States of America should refer to the "Agreement for Handling Criminal Cases with Concurrent Jurisdiction between the United Kingdom and the United States of America".
For the purpose of Part 7 the Proceeds of Crime Act 2002, offences which were committed abroad are relevant predicate crimes if laundering acts are committed within our jurisdiction where the predicate offence committed abroad (from which proceeds were generated) would also constitute an offence in any part of the United Kingdom if it occurred here (section 340 (2)(b)) (see Archbold ). See the Proceeds of Crime and Money Laundering legal guidance.
The state whose flag is flown by a ship can claim jurisdiction. See the International Enquiries legal guidance.
The Visiting Forces Act 1952 together with the Visiting Forces and International Headquarters (Application of Law) Order 1999 make provision for dealing with offences committed by members of visiting naval, military and air forces from certain listed countries by their own service authorities and service courts rather than by United Kingdom authorities and courts. See the Visiting Forces legal guidance.
Eurojusts role is to stimulate and facilitate co-operation in the investigation of serious cross-border crime, particularly organised crime. As such it deals with large and complex cross-border cases, usually involving more than two EU Member States. In such cases, where prosecutors cannot reach an agreement, they may refer the case to Eurojust, which can be used as a final arbiter.
In such cases, prosecutors should consult with the Eurojust National Member for the UK. If prosecutors consider there is anything of significance the International Division should be informed.
For further details on Eurojust, see the International Enquiries legal guidance.
Annex A - Eurojust Guidelines, Annual Report 2003, Making the Decision - "Which Jurisdiction Should Prosecute?"
There should be a preliminary presumption that, if possible, a prosecution should take place in the jurisdiction where the majority of the criminality occurred or where the majority of the loss was sustained. When reaching a decision, prosecutors should balance carefully and fairly all the factors both for and against commencing a prosecution in each jurisdiction where it is possible to do so.
There are a number of factors that should be considered and can affect the final decision. All these factors should be considered at the meeting of prosecutors from the relevant states affected by the criminality concerned. Making a decision will depend on the circumstances of each case and this guidance is intended to bring consistency to every decision-making process.
Some of the factors which should be considered are:
The Location of the Accused
The possibility of a prosecution in that jurisdiction and whether extradition proceedings or transfer of proceedings are possible will all be factors that should be taken into consideration.
Extradition and Surrender of Persons
The capacity of the competent authorities in one jurisdiction to extradite or surrender a defendant from another jurisdiction to face prosecution in their jurisdiction will be a factor in deciding where that defendant may be prosecuted.
Dividing the Prosecution into Cases in Two or More Jurisdictions
The investigation and prosecution of complex cases of cross border crime will often lead to the possibility of a number of prosecutions in different jurisdictions.
In cases where the criminality occurred in several jurisdictions, provided it is practicable to do so, prosecutors should consider dealing with all the prosecutions in one jurisdiction. In such cases prosecutors should take into account the effect that prosecuting some defendants in one jurisdiction will have on any prosecution in a second or third jurisdiction. Every effort should be made to guard against one prosecution undermining another. When several criminals are alleged to be involved in linked criminal conduct, whilst often it may not be practicable, if it is possible and efficient to do so, prosecutors should consider prosecuting all those involved together in one jurisdiction.
The Attendance of Witnesses
Securing a just and fair conviction is a priority for every prosecutor. Prosecutors will have to consider the willingness of witnesses both to give evidence and, if necessary, to travel to another jurisdiction to give that evidence. In the absence of an international witness warrant, the possibility of the court receiving evidence in written form or by other means, such as remotely (by telephone or video-link), will have to be considered. The willingness of a witness to travel and give evidence in another jurisdiction should be considered carefully as this is a factor likely to influence the decision as to where a prosecution is issued.
The Protection of Witnesses
Prosecutors should always seek to ensure that witnesses or those who are assisting the prosecution process are not endangered. When making a decision on the jurisdiction for prosecution, factors for consideration may include, for example, the possibility of one jurisdiction being able to offer a witness protection programme when another has no such possibility.
A maxim recognised in all jurisdictions is that: "Justice delayed is justice denied". Whilst time should not be the leading factor in deciding which jurisdiction should prosecute, where other factors are balanced then prosecutors should consider the length of time which proceedings will take to be concluded in a jurisdiction. If several states have jurisdiction to prosecute, one consideration should always be how long it will take for the proceedings to be concluded.
Interests of Victims
Prosecutors must take into account the interests of victims and whether they would be prejudiced if any prosecution were to take place in one jurisdiction rather than another. Such consideration would include the possibility of victims claiming compensation.
Prosecutors can only pursue cases using reliable, credible and admissible evidence. Evidence is collected in different ways and often in very different forms in different jurisdictions. Courts in different jurisdictions have different rules for the acceptance of evidence often gathered in very diverse formats. The availability of evidence in the proper form and its admissibility and acceptance by the court must be considered as these factors will affect and influence the decision on where a prosecution might be brought. These are factors which prosecutors must consider when reaching any decision on where a prosecution should be instituted.
Prosecutors must not decide to prosecute in one jurisdiction rather than another simply to avoid complying with the legal obligations that apply in one jurisdiction but not in another.
All the possible effects of a decision to prosecute in one jurisdiction rather than another and the potential outcome of each case should be considered. These matters include the liability of potential defendants and the availability of appropriate offences and penalties.
The relative sentencing powers of courts in the different potential prosecution jurisdictions must not be a primary factor in deciding in which jurisdiction a case should be prosecuted. Prosecutors should not seek to prosecute cases in a jurisdiction where the penalties are highest. Prosecutors should however ensure that the potential penalties available reflect the seriousness of the criminal conduct which is subject to the prosecution.
Proceeds of Crime
Prosecutors should not decide to prosecute in one jurisdiction rather than another only because it would result in the more effective recovery of the proceeds of crime. Prosecutors should always give consideration to the powers available to restrain, recover, seize and confiscate the proceeds of crime and make the most effective use of international co-operation agreements in such matters.
Resources and Costs of Prosecuting
The costs of prosecuting a case, or its impact on the resources of a prosecution office, should only be a factor in deciding whether a case should be prosecuted in one jurisdiction rather than in another when all other factors are equally balanced. Competent authorities should not refuse to accept a case for prosecution in their jurisdiction because the case does not interest them or is not a priority for the senior prosecutors or the Ministries of Justice. Where a competent authority has expressed a reluctance to prosecute a case for these reasons, Eurojust will be prepared to consider exercising its powers to persuade the authority to act.