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The Case For Nationality Based Jurisdiction

  • P. Arnell (a1)

Extract

Various recent developments within and without the United Kingdom have strengthened the arguments in favour of the adoption of general nationality based criminal jurisdiction. These arise from problems in the application of territorial jurisdiction, increasingly frequent crime-specific reference to nationality based jurisdiction, the development of European Union law, the ever-greater mobility of nationals, the ability to commit crimes remotely, the incorporation of the European Convention of Human Rights and Fundamental Freedoms into United Kingdom law, an evolution in the citizen-state relationship, and the increasing internationalisation of criminal law. It is not suggested that territory should no longer find a central place in the criminal law rather that the original and present arguments in its favour have been greatly weakened and, at the same time, the arguments in favour of nationality based jurisdiction have been strengthened. This article details the present nature of criminal jurisdiction, highlights the deficiencies with territorial jurisdiction and outlines the case in favour of a general nationality based criminal jurisdiction.

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1. (1881) 4 Couper 438. It should be noted that criminal jurisdiction in Scotland is almost wholly common law whilst in England and Wales statute plays a greasster role.

2. Hume, ii, 52.

3. (1548) 2 and 3 Edw VI C. 24. Admittedly this provision governs venue not international jurisdiction. It was not until three centuries later (by (1828) 9 George IV C.31) that a similar provision replaced municipal applicability with that of international.

4. (1880–1) 8 SC (JC) 41.

5. Ibid, at 46.

6. Ibid. A similar modern English case is DPP v Stonehouse [1978] AC 55 for which see below.

7. Although piracy is now the subject of convention, the Law of the Sea Convention 1982 (1982) 21 ILM 1261 (previously the Geneva Convention on the High Seas 1958 (1963) 5 UKTS, Cmnd 1929), universal jurisdiction was notably assumed prior to conventional treatment in In Piracy Jure Gentium [1934] AC 586.

8. (1985) Cmnd. 9593, Misc 12.

9. The United Kingdom's legal involvement with Pinochet began on 17 Oct. 1998 with his arrest. It came to an end with his flight back to Chile on 2 Mar. 2000. The most pertinent judgments are the original decision of the Divisional Court on 28 Oct. 1998, The Times, 3 Nov. 1998 [2000] 1 AC 61, which was set aside as a result of the Committee not being properly constituted [2000] 1 AC 119, and the second substantive decision of the House of Lords on 24 Mar. 1999 [2000] 1 AC 147.

10. R v Page [1953] 2 All ER 1355 at 1356 per Lord Goddard CJ.

11. For treason being applied extraterritorially (and infamously) see Joyce v DPP [1946] AC 347.

12. See The Trial of Earl Russell [1901] AC 446.

13. This has relatively recently been applied to Mohan Singh Kular. He was convicted for the murder of his wife in the Punjab, see The Times, 4 Nov. 1997.

14. For an example of the extraterritorial application of the Act see R v Jameson [1896] 2 QB 431.

15. Section 2 as amended inter alia states ‘A person who in the United Kingdom or (being a citizen of the United Kingdom and Colonies) in the Republic of Ireland unlawfully and maliciously causes by any explosive substance an explosion of a nature likely to endanger life or cause serious injury to property … shall be guilty of an offence …’.

16. Section 15 (1) of the Official Secrets Act 1989 states ‘Any act- (a) done by a British citizen or Crown servant; or (b) done by any person in any of the Channel Islands or the Isle of Man or any colony, shall, if it would be an offence by that person under any provision of this Act … [with limited exceptions] … when done in the United Kingdom, be an offence under that provision,’

17. The Act enables the United Kingdom to ratify the Rome Statute of the International Criminal Court 1998, cited at <http://www.un.org/law/icc/index.html>. The Scottish Parliament is responsible for providing similarly in Scotland.

18. The historical rules of venue existed because ‘Jurors originally combined the functions of “know-ers” of facts and the prisoner was entitled to have his guilt determined by jurors drawn from an area where the inhabitants would be most likely to know the facts alleged to constitute the crime with which he was charged.’ R v Treacy [1971] AC 537 at 559 per Lord Diplock.

19. G. R. Watson, ‘Offenders Abroad: The Case for Nationality-Based Criminal Jurisdiction’, (1992) 17 Yale Journal of International Law 41 at 45. Here the author argues in favour of the United States adopting nationality jurisdiction to fill the jurisdictional gap where foreign States do not prosecute an American for a crime committed within its territory and the United States cannot for lack of jurisdiction.

20. See Holm v Sweden (1993) EHRR Series A, No. 279-A.

21. International law has seen an explosion in mutual assistance treaties. In Europe the European Convention on Mutual Assistance in Criminal Matters 1959 had thirty-nine parties as at 5 Mar. 2001, including the United Kingdom, see <http://conventions.coe.int/treaty/>. The Model Treaty on Mutual Assistance in Criminal Matters was adopted by the General Assembly in Dec. 1990 (GA Res. A/Res/45/117).

22. A notable English example is the conviction under the War Crimes Act 1991 of Anthony Sawoniuk on 1 Apr. 1999 (appeal dismissed 9 Feb. 2000) for murder in Domachevo, Belarus, in Sept. 1942. For a discussion of Canadian and Australian prosecutions that suffered from difficulties in space and time see P. Arnell, ‘War Crimes—A Comparative Opportunity’ (1996) 13 (3) International Relations 29.

23. Related to the above, the Maastricht Treaty provided for the so-called Third Pillar of the European Union. It made co-operation in criminal matters a matter of high priority for all Member States of the European Union.

24. [2000] SC (JC) 555. The case is found at the Scottish Courts' website, <http://www.scotcourts.gov.uk/html/main.htm>.

25. On 31 Jan. 2001, the judgment was posted on the Scottish Courts' website, Ibid. Of course Megrahi was Libyan, not a UK national. As such this case lends weight to the argument in favour of an explicit acceptance by UK courts of so-called protective jurisdiction, as the territorial connection to Scotland was tenuous. See P. Arnell, Her Majesty's Advocate v Megrahi and Fhimah, 8 Dec. 1999 [2000] Juridical Review 395.

26. Articles 6, 5 and 7 respectively.

27. Information pertaining to many of these can be found on the charity Prisoners Abroad's website at: <http://www.prisonersabroad.org.uk/>

28. See the BBC News website, <http://news.bbc.co.uk/> 5 Feb. 2001.

29. By s. 21(5) of the Human Rights Act 1998.

30. Not to mention the perspective of the suspect, who can be assumed to favour United Kingdom justice and, if convicted, incarceration in his own country nearer to family and acquaintances.

31. Watson, above n. 19 at 46, citing Kassan, S., Extraterritorial Jurisdiction in the Ancient World (1935) 29 AJIL 237 at 240.

32. Article 2 of the Fourth Protocol to the European Convention on Human Rights provides for the freedom of movement within a State and the freedom to leave any State. The United Kingdom is not a party.

33. Labour Party Consultation Paper: Bringing Rights Home: Labour's Plans to Incorporate the European convention on Human Rights into United Kingdom Law, December 1996.

34. Ibid.

35. In 1959 Lord Devlin stated: ‘The State must justify in some other way (than by reference to the moral law) the punishments which it imposes on wrongdoers and a function for the criminal law independent of morals must be found. This is not difficult to do. The smooth functioning of society and the preservation of order require that a number of activities be regulated …’, cited in Walker, N., Punishment, Danger and Stigma (Blackwell, Oxford, 1980, at 18). The history and solidity of the territorial principle has been explained as being unsurprising as the ‘beginning of our criminal justice in the troublous days of the dawn of civilization in the British Isles was concerned so exclusively with the problem of keeping the peace.’, Perkins, R. M., The Territorial Principle in Criminal Law (1971) 22 Hastings Law Journal 1155 at 1157.

36. Baroness Blatch at second reading of the Bill stated: ‘The Government are seriously concerned that people from this country are among those who travel to countries for the sole purpose of sexually abusing young children there: so called “child sex tourists” ’ … These provisions will supplement the other activities the government is undertaking to discourage child prostitution and exploitation worldwide. Hansard, HL, col. 548 (14 Mar. 1997).

37. It is plausible to argue that the nationality based offences cited above such as murder and manslaughter are intended to forestall the possibility of recidivism within the United Kingdom not harm done to foreign nationals. Admittedly the similar argument can be made in relation to sexual tourism offences.

38. (1998) Cmnd. 3990.

39. In DPP v Stonehouse, above n. 6, it was held that the media was the conveyor of an effect inducing insurance companies within the United Kingdom to act or possibly act, giving United Kingdom courts jurisdiction.

40. The practice of other States indicates how the United Kingdom might alter its law. French law, for example, contains a general nationality based criminal jurisdiction provision that distinguishes between crimes on the basis of their severity. It provides that in crimes of the most serious character no reference to the law of the lex loci delicti is required, whereas in relation to lesser crimes it is. See C. L. Blakesley, ‘A Conceptual Framework for Extradition and Jurisdiction over Extraterritorial Crimes’ [1984] Utah LR 685.

The Case For Nationality Based Jurisdiction

  • P. Arnell (a1)

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