Prosecuting Tony Blair and others

SPECIAL CONTENTIONS

Contention 3:

Statutory authority is required to effect an “extra-territorial jurisdiction” in the courts of this country, even where a “universal jurisdiction” already exists under well established customary international criminal law.

It is the clearly established rule of the English common law that, as a starting position, all criminal law is local (1), so that where a crime is committed abroad (meaning thereby beyond the Realm or Her Majesty’s dominions and possessions overseas), even though committed by a British subject or national, the prosecution and punishment of that crime is the responsibility, in the first instance at least, of the authorities having territorial jurisdiction for the locus delicti (meaning the place where the crime was committed). The leading modern authority on the point remains the opinion of Lord Morris of Borth-y-Gest in the case of Treacy v. the DPP [1971] AC 537 (HL[E]) where he said @ pp.552-3

“ My Lords, the general principle of the common law of England is that the exercise of criminal jurisdiction does not extend to cover acts committed on land abroad. In general, therefore, acts committed out of England, even though they are committed by British subjects, are not punishable under the criminal law of this country. But, as Parliament is supreme, it is always open to Parliament to pass an enactment in relation such acts. It is, however, a general rule of construction that unless there is something which points to a contrary intention a statute will be taken to apply only to the United Kingdom. It would be open to Parliament to enact that if a British subject committed anywhere an act designated as blackmail he would commit an offence punishable in England. Such an enactment would, however, have to be in clear and express terms : specific provision would have to be made with regard to acts committed abroad.

The general rule as expressed by Lord Halsbury L.C. in Macleod v. Attorney-General for New South Wales [1891] AC 455 (PC) @ p.458 is that ‘All crime is local’ and that jurisdiction over a crime belongs to the country where it is committed. Unless, therefore, there is some provision pointing to a different conclusion, a statute which makes some act (or omission) an offence will relate to some act (or omission) in the United Kingdom. Even where a statute creating a criminal offence is clearly expressed so as to cover acts committed outside the jurisdiction, it will, in the absence of further clear provision only be regarded as covering acts when committed by British subjects.

. . . .

Without further elaboration it will suffice to quote the words of Viscount Simonds in Cox v. the Army Council [1963] AC 48 @ p.67, viz. :

“apart from those exceptional cases in which specific provision is made in regard to acts committed abroad, the whole body of the criminal law of England deals only with acts committed in England.”

Given that this is the “baseline position”, at common law (2), enjoyed by Englishmen, it is clearly correct, as a matter of domestic polity if nothing else, that before a British subject or national can be prosecuted in this country for a crime, which he is alleged to have committed overseas, the requisite “extra-territorial” jurisdiction (by which is meant overseas jurisdiction), to enable that to happen, should be granted by Parliament in statutory legislation. (3)

Whilst it is true to say that this rationale, need not necessarily apply to foreigners, who do not automatically enjoy all the same common law rights as Englishmen ; it would be invidious to place them in a different position, at least whilst peaceably resident within the Realm and dominions, and certainly whilst the state of which they are nationals is in amity with the Crown. It is manifestly true to observe that, where a well established “universal jurisdiction” (7) exists under settled customary international criminal law, then to exercise an extra-territorial municipal jurisdiction over foreigners would, at least in international legal theory, not risk any injury to international comity (4). However, it is submitted that, certainly as regards foreign nationals of countries with which the Crown is in amity, and who are resident within the Realm and dominions, the inequity of treating them differently to the position of British subjects and nationals, in an equivalent position, would itself constitute, at least the potential of a threat to international comity, in the sense of the bilateral relations between this country and the state whose national stood accused.

Accordingly, and for these reasons it is submitted that express statutory authorisation is always required, before a municipal criminal court, can exercise a special “extra-territorial jurisdiction”, so as to enable proceedings to be brought in this country, in respect of crimes, be they contrary to international law or not (5), committed abroad, either by British nationals (6) (etc.) or equally by foreign nationals. It is, of course, in keeping with the principles of international comity (4), not to be expected that Parliament would ever seek to create such a special jurisdiction, as respects foreign nationals (in respect of whom there would be no so-called ‘ratione personae’ to prosecute), save only where the crimes in question, attracted a recognised “universal jurisdiction” (7), either under well established customary international law (8) or by virtue of a specific conventional law provision (9), or perhaps both (10).

It is submitted that, consequently, this is the reason, as a matter of legal theory, which explains the one or two instances where Parliament has found it necessary and expedient to pass legislation, in respect of the commission of offences under customary international criminal law (11). Such examples of legislation, therefore, are not to be taken as authority for the quite different, and incorrect proposition, that offences, under well established and settled customary international criminal law, are not capable of being adopted by the English common law (12), so as to be punishable by the criminal courts in this country, but instead first require statutory legislation, even though committed in this country (or at least within the ordinary territorial jurisdiction of our courts), whether by British nationals or otherwise.

The common law offence of piracy jure gentium (piracy under international law) is a special exception to this rule. This on account of the fact that (i) the crime is considered not merely to be contrary to the jus cogens, but more especially committed by those who are themselves hostis humani gentium (13) (enemies of all mankind), and (ii) the locus delicti, by definition, being upon the high seas (i.e. in international waters) (14), and therefore out with the territorial jurisdiction of any other nation state, for both reasons there is no danger of insult to international comity which is thereby endangered.

1 see Macleod v. A-G for New South Wales [1891] AC 455 (PC) @ p.458-9 per Lord Halsbury L.C. as quoted below in Treacy (see following text)

2 see esp. on the common law position Board of Trade v. Owen [1957] AC 602 (HL) . Also for authorities on the well established rule or presumption of statutory construction, which holds against the “extra-territorial” application of the criminal law, in the absence of specific statutory provision. Archbold, Criminal Pleading, Evidence & Practice (2001) Para. 19-352, McLean and Morrish, Harris’s Criminal Law (1973), p.161.

3 The need for statutory authority to extend the ‘territorial jurisdiction’ of the criminal courts, as respects the conduct of foreigners, was central to the decisions in the notorious case of the ‘Franconia’ (1875) , where manslaughter was charged against a German national (Herr Kapitan Keyn) whilst on a foreign ship, but as respects a collision which occurred within the so-called “littoral seas” (cf ‘Territorial Waters’), which was subsequently covered by the Territorial Waters Jurisdiction Act 1878, see the infamous judgement of Cockburn CJ. in R.v. Keyn (1876) 2 Ex D 63 @ 229-231

4 Refer to the maxim par in parem non habet imperium the effect of which is that one sovereign state will not adjudicate upon the conduct of another, including the way in which it deals with crimes committed within its territory.

5 e.g. s.9 of the Offences Against the Persons Act, 186, creating an “extra-territorial” jurisdiction to prosecute for the common law crimes of murder and manslaughter, entirely unrelated to war crimes, but only when committed abroad by British subjects.

6 see e.g. s.31(1) Criminal Justice Act, 1948, in relation to an extra-territorial jurisdiction to prosecute British subjects, who are servants or agents of the Crown, for official conduct performed whilst overseas.

7 as to which see the authorities cited by the Supreme Court of Israel in the case of Eichmann v.the State of Israel 56 AJIL (1962) 805; (1961) 36 ILR 5, @ p.447 et seq.

8 e.g. “war crimes” and “crimes against humanity” in the Nuremberg sense, which are “jus cogens erga omnes” peremptory norms binding on all states.

9 e.g. Art. 5 of the International Convention Against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment, 1984, leading to s.134(1) of the Criminal Justice Act, 1988.

10 e.g. Where official state torture is committed as part of a ‘wide spread or systematic attack upon whole populations’, it may follow that it constitutes both a breach of the Torture Convention, 1984, and a ‘crime against humanity’ under customary international law.

11 see The War Crimes Act, 1991, in relation to murder etc. “contrary to the laws and customs of war” (s. 1(1)(b) ).

12 Pursuant to the “doctrine of adoption” as to which see Sir William Blackstone “Commentaries on the Laws of England” (1769) Book IV (Public) Chpt.V p.67; and more recently, Roger O’Keefe “Customary International Crimes in English Courts” 72 BYIL 293-335 (2001).

13 see the comments of Moore J. in the “ss Lotus” PCIJ (Ser.A) No.9 (1927) @ p.70, and In re Piracy Jure Gentium [1934] AC 586 (PC) @ p.589 per Lord Sankey LC.

14 see now the provisions of Art. 105 of the UN Convention on the Law of the Sea (1982).

Back to top