The Long Arm Of The Law: Extra-Territoriality And The Serious Crime Act 2007

Article by Katherine Hardcastle, pupil at 6 Kings Bench Walk.

Introduction

1. One aspect of the debate surrounding the Bribery Act 2010 has been its broad extra-territorial reach. By contrast, little attention has been paid to the extra-territorial ambit of the Serious Crime Act 2007 and the offences of encouraging or assisting an offence. This might be thought surprising given these offences possess an equally striking jurisdictional scope to the bribery offences and may be equally important in an international business context. Liability under sections 44, 45 or 46 of the 2007 Act may arise where an English-incorporated company advises a Dutch client, for example, on the execution of a financial transaction in Zimbabwe, even though the client could commit no offence if it was to carry out that transaction (see paragraph 19 below). This article offers an overview of the extra-territoriality provisions of the 2007 Act and aims to highlight some of the issues they raise.

   The nature of extra-territorial jurisdiction

2. Before turning to the 2007 Act, however, it is helpful, briefly, to say something about the ambit of the English criminal law. Traditionally the position at common law has been that jurisdiction is inherently territorial. Absent express terms, a strong presumption arises that statutory offences are similarly constrained. Different principles have developed in relation to offences occurring across jurisdictions. Prior to the case of Director of Public Prosections v Treacy [1971] AC 537, the orthodoxy was that the final element completing the offence needed to occur within England and Wales to establish jurisdiction. Since then a less rigidly technical approach has emerged, (see for example R v Smith (Wallace Duncan) (No.4) [2004] EWCA Crim 631). As a separate strand again there exist a number of offences of 'universal jurisdiction', triable before the English courts regardless of the nationality of the offender or the victim, or where the offence is committed.

3. Inchoate offences present particular difficulties in the context of jurisdiction. Both the inchoate offence and the principal, or 'anticipated', offence are to be considered. At common law the general rule for conspiracy is that the location of the principal offence is determinative: a conspiracy formed abroad to commit an offence within the jurisdiction is justiciable, while a conspiracy formed within the jurisdiction to commit an offence abroad is not (see for instance Board of Trade v Owen [1957] AC 602). This latter position is, however, reversed by section 1A of the Criminal Law Act 1977. Though no authority exists on the point, it may be assumed that prior to the 2007 Act, jurisdiction over incitement at common law followed the position at common law in relation to conspiracy.

   Overview of the 2007 Act

4. It was intended from the outset that the new statutory offences of encouraging or assisting an offence in the 2007 Act would have extra-territorial effect. The provisions derive largely from the recommendations of the Law Commission in...