Jurisdiction

Updated 07 November 2019|Legal Guidance

Principle

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.

Where conduct has occurred in multiple jurisdictions, issues of forum will be considered by police authorities during the investigation, often in close co-operation with investigative authorities in the other country: e.g. in deploying resources, considering the availability and deployment of investigative techniques and in planning for arrests and searches. It is the prosecutors’ responsibility however to decide the issue of forum, and in which jurisdiction to prosecute the offender(s).

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.

General principles

There are several ways by which a state can exercise jurisdiction:

  • Statute and Criminal Codes (i.e. explicit reference in statute to the jurisdictional reach of the offences created in the statute);
  • Territory;
  • Active personality (i.e. the accused may  be prosecuted in the country of the nationality of the offender);
  • Passive personality (i.e. the accused may  be prosecuted in the country of the nationality of the victim); and
  • 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

Where the offence occurred on a single territory

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 (s. 72 of the Sexual Offences Act 2003, an amended 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 occurred as the terms of the substantive provisions and details of the offences they cover are not identical. For offences from 1st September 1997 to 30th April 2004 see s. 7 of the Sexual Offences Act 1997. For offences from 1st May 2004 to 13th July 2008 see s. 72 of the Sexual Offences Act 2003 as enacted);
  • Offences listed in schedule 1 of the Suppression of Terrorism Act 1978, this includes murder, manslaughter, kidnapping, GBH, rape and some firearms offences;
  • Fraud (the 2006 Act imposes extra-territorial jurisdiction in respect of offences in ss. 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 (ss. 59, 62-63 of the Terrorism Act 2000 and s.17 of the Terrorism Act 2006, and as amended  by the Counter Terrorism and Border Security Act 2019);
  • Bribery (The Bribery Act 2010 repeals the common law offences 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 Crime and Security Act 2001 still applies to provide extra-territorial jurisdiction in respect of offences committed wholly or partially before 1 July 2011).

Multiple Jurisdictions

In cases involving England and Wales and other jurisdictions (including non-EU countries), the common law position is that 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) [2004] 3 WLR 229, per Lord Chief Justice Woolf).

General Guidance

Where jurisdiction is identified as an issue 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 jurisdictions
  • The location and interests of the victim or victims
  • The location and interests of witnesses
  • The location and interests of the accused
  • Delays

These factors have been formulated into the Director's Guidelines on the handling of cases where the jurisdiction to prosecute is shared with Prosecuting Authorities Overseas.

In 2016 Eurojust updated their ‘Guidelines For Deciding Which Jurisdiction Should Prosecute?’. Prosecutors can refer to these guidelines when considering such issues both when dealing with EU and non-EU states. The ‘main factors’ when making a decision on which jurisdiction should prosecute can be found at Annex A. The full guidelines are available here.

Concurrent Jurisdiction with Scotland or 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 when considering cross-border cases between England and Wales and either 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".

Money Laundering

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 (S.340 (2)(b)) See the Proceeds of Crime and Money laundering legal guidance.

Ships at sea

The law is quite complex but in simple terms the courts in England and Wales have jurisdiction to try British citizens for offences committed on UK ships in the ‘high seas’ or in ‘any foreign port of harbour’ or committed  ‘on any foreign ship to which he does not belong’. The courts may also try foreign nationals for offences committed on UK ships in the ‘high seas’. The UK courts have jurisdiction over any offence committed in UK territorial waters regardless of the nationality of the offender or of the flag state that the ship is registered under.

Visiting forces

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. See the Visiting forces legal guidance.

Procedure

Eurojust

Eurojust's 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, involving two or more EU Member (and other) States. Jurisdiction and where best to prosecute are amongst key issues routinely addressed during Eurojust co-ordination meetings.

Annex A - Eurojust Guidelines For Deciding ‘Which Jurisdiction Should Prosecute?’ 2016.

Main factors

A number of factors should be considered when making a decision on which jurisdiction should prosecute. All of them can affect the final decision. The priority and weight which should be given to each factor will be different in each case.

Some of the factors that should be considered are:

Territoriality

A preliminary presumption should be made that, if possible, a prosecution should take place in the jurisdiction in which the majority – or the most important part – of the criminality occurred or in which the majority – or the most important part – of the loss was sustained. Hence, both the quantitative (‘the majority’) and the qualitative (‘the most important part’) dimensions should be duly considered.

Location of suspect(s)/accused person(s)

A number of elements can be considered in connec¬tion with this factor, such as:

  • the place in which the suspect/accused person was found;
  • the nationality or usual place of residence of the suspect/accused person;
  • the possible strong personal connections with one Member State or other significant interests of the suspect/accused person;
  • the possibility of securing the surrender or extradition of the suspect/accused person to another jurisdiction;
  • the possibility of transferring the proceedings to the jurisdiction in which the suspect/accused person is located.

In situations in which several co-defendants can be identified, not only is their number relevant, but also their respective roles in the commission of the crime and their respective locations. Again, both the quantitative and the qualitative dimensions count.

The evaluation of these elements should also take into account all the applicable EU legal instruments, notably those relating to the principle of mutual recognition. Their application can affect the assessment of this factor and consequently the final decision on where to prosecute. For instance, the application of the Frame¬work Decision on mutual recognition of judgments imposing custodial sentences (2008/909/JHA), in combination with the Framework Decision on the European Arrest Warrant (2002/584/JHA), may render the location of the suspect/accused person a criterion of secondary importance because at a later stage the sentenced person can be transferred to another Member State to serve the custodial sentence.

Availability and admissibility of evidence

Judicial authorities can only pursue cases using reliable, credible and admissible evidence. The location and availability of evidence in the proper form as well as its admissibility and acceptance by the court should be considered. The quantity and quality of the evidence in the concerned Member States should also be taken into account, although the legal framework introduced by the European Investigation Order (Directive 2014/41/EU) can be expected to facilitate the gathering of evidence across borders.

Obtaining evidence from witnesses, experts and victims

Judicial authorities will have to consider the possibility of obtaining evidence from witnesses, experts and victims, including, if necessary, the availability for them to travel to another jurisdiction to give that evidence. The possibility of receiving their evidence in written form or by other means, such as remotely by telephone or videoconference, should also be taken into account.

Protection of witnesses

Judicial authorities 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, while another jurisdiction has no such possibility.

Interests of victims

In accordance with Directive 2012/29/EU on victims’ rights, judicial authorities must take into account the significant interests of victims, including their protection, 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.

Stage of proceedings

The stage of development of the criminal proceedings in the concerned Member States should be considered. When an investigation is already in an advanced stage in one jurisdiction, transferring the case to an¬other jurisdiction might not be appropriate.

Length of proceedings

While time should not be the determining factor in deciding which jurisdiction should prosecute, when other factors are balanced, then judicial authorities should consider the length of time that proceedings will take to be concluded in a particular jurisdiction (‘justice delayed is justice denied’).

Legal requirements

The existing legal framework, including obligations and requirements that are imposed in each jurisdiction, should be considered as well as all the possible effects of a decision to prosecute in one jurisdiction rather than in another and the potential outcome in each jurisdiction. However, judicial authorities should 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.

Sentencing powers

While it should be ensured that the potential penalties available reflect the seriousness of the criminal conduct that is subject to prosecution, judicial authorities should not seek to prosecute in one jurisdiction simply because the potential penalties available are higher than in another jurisdiction. Likewise, the relative sentencing powers of courts in the different jurisdictions should not be a determining factor in deciding in which jurisdiction a case should be prosecuted.

Proceeds of crime

The applicable EU and international legal instruments and, notably, the EU mutual recognition instruments on freezing and confiscation, should be taken into account when evaluating the powers available to restrain, recover, seize and confiscate the proceeds of crime. However, judicial authorities should not de¬cide to prosecute in one jurisdiction rather than another only because such prosecution would result in a more effective recovery of the proceeds of crime.

Costs and resources

While judicial authorities should be mindful of costs and resources, the costs of prosecuting a case, or its impact on the resources of a prosecution office, should not be a factor in deciding whether a case should be prosecuted in one jurisdiction rather than in another, unless all other factors are equally balanced.

Member States' priorities

Judicial authorities should not refuse to accept a case for prosecution in their jurisdiction because it is not considered a priority in their Member State.