US journalist, James Foley, was seized by armed men in Syria in November 2012 and was killed by a man with an apparently British accent. David Cameron condemned the barbaric and brutal murder and confirmed that: “it looks increasingly likely that [the perpetrator] is a British citizen.” He explained that intentions of the British government were “…to arrest and prosecute those who take part in this extremism and violence.” So what are the powers of the English authorities to prosecute a murder committed abroad by a British citizen, and do any such powers extend to foreign accomplices in that murder?
The overseas reach of the criminal law
In respect of murder, English law has long recognised the possibility of extra-territorial jurisdiction. The historic origins of this extra-territorial jurisdiction were explored in R v Abu Hamza [2006] EWCA Crim 2918. The provision which remains in force today is s.9 of the Offences Against the Person Act 1861:
“Where any murder or manslaughter shall be committed on land out of the United Kingdom, whether within the Queen’s dominions or without, and whether the person killed were a subject of Her Majesty or not, every offence committed by any subject of Her Majesty in respect of any such case, whether the same shall amount to the offence of murder or of manslaughter… may be dealt with, inquired of, tried, determined, and punished… in England…”
The effect of this section is that the English criminal courts have jurisdiction over the killing of anyone by a British citizen anywhere in the world. However, can the English courts claim jurisdiction over murder committed abroad by a person who is not a British citizen?
The general principle is that acts committed abroad are not punishable under the English criminal law. Parliament may give an offence extra-territorial application but must do so expressly. In the absence of clear provision, a statute creating a criminal offence which gives extra-territorial jurisdiction will only be regarded as covering such acts when committed by British citizens.
However, there are numerous statutes which have made express provision for extra-territorial jurisdiction in relation to specified offences for example. These include hostage taking (the Taking of Hostages Act 1982), torture (the Criminal Justice Act 1988) and terrorism (the Terrorism Act 2000).
The Suppression of Terrorism Act 1978 (“STA”) gave effect to the European Convention on the Suppression of Terrorism 1977 and conferred jurisdiction in respect of certain offences committed outside the UK. Section 4 applies in relation to offences specified in Schedule 1 to the STA, which includes murder. Under s.4 of the Act, a person is guilty of an offence (or of attempting to commit an offence) as if it had been committed/attempted within the UK where:
- A person of any nationality commits/attempts to commit such an offence in any country covered by the convention; or
- A national of any country covered by the convention commits an act in any country (covered by the convention or otherwise) that would also be an offence in both his home county and the UK.
A “convention country” means a country designated by the Secretary of State as a party to the European Convention on the Suppression of Terrorism. There are currently 46 convention countries. However, the Secretary of State has power to direct that the provisions of the STA shall also apply to specific non-convention countries. At present the only designated non-convention country is the United States of America.
A prosecution relying on s.4 STA requires the consent of the Attorney General. Despite the STA’s title, there is no absolute requirement that the offence have any connection with terrorism. However, given that there is a requirement for the consent of the AG, it is arguable that there should be a terrorist connection or other comparable public or national interest that would justify a prosecution in the UK.
Case study: R v Venclovas
The only reported prosecution brought under the STA in recent years is R v Venclovas [2013] EWCA Crim 2182. The Appellant, Venclovas, was charged and convicted with kidnapping and murder. He applied for permission to appeal against his conviction. A Lithuanian national, he had been accused of murdering his former wife, also a Lithuanian national. It was alleged that he had travelled by ferry to England in his van on 11 August 2011. His wife went missing on 12 August 2011. A European arrest warrant was issued on 26 August 2011 alleging murder committed in England on 12 August 2011. The Appellant was arrested and returned to England. His wife’s remains were discovered in Poland on 31 October 2011, by which time the criminal proceedings for murder had already started in the UK. Analysis of satellite navigation data showed that the van had been close to where his wife lived at the time of her kidnap, and recorded the vehicle’s subsequent journey through Europe to where his wife’s body was found.
Following discovery of the body, the AG gave consent to a prosecution for murder under s.4 STA. The CPS brought a new indictment alleging murder on 12 or 13 August 2011, the days during which the van had travelled from England through various countries on its way to Poland. All the relevant countries were “convention countries” for the purposes of s.4 STA.
At trial, the judge directed that it was immaterial whether the murder had been committed in England or in another convention country. The Appellant appealed, arguing that there was no jurisdiction to try him for murder on the new indictment. The Court of Appeal dismissed the appeal, stating:
“It seems to us that… the true position is that section 4 of the 1978 Act does not create a new criminal offence or replace the common law jurisdiction or… add a new dimension to the offence of murder… The effect of the provision, in our judgment, is that it expands the existing common law jurisdiction in a way which enables a prosecution to proceed for an offence of murder committed in any convention country including England and Wales. A necessary check on the inappropriately wide use of the extension of jurisdiction by this means is the requirement for the Attorney General’s consent to the use of the expanded jurisdiction.”
Section 4 of the Suppression of Terrorism Act 1978 provides English criminal courts with jurisdiction over murder when committed
- in a country that has been designated as party to the European Convention on the Suppression of Terrorism 1977, or
- anywhere, if by a national of a party to the Convention.
The USA and American nationals are included within the jurisdiction of the Act, by order of the Secretary of State.
Seeking the consent of the Attorney General
The Crown Prosecution Service has produced a useful legal guidance document, accessible on its website, on how to seek the Attorney General’s consent. This provides that: “consent should be obtained (if AG’s consent) or given (if DPP’s) at the earliest reasonable opportunity.” S.25(2) of the Prosecution of Offences Act 1985 (POA) provides, inter alia, that the requirement for AG’s consent does: “not prevent the arrest without warrant, or the issue or execution of a warrant for the arrest, of a person for any offence, or the remand in custody or on bail of a person charged with any offence…”
The AG’s consent is not required for the extradition, arrest or initial charge of a suspect. However thereafter, the timely seeking of consent is crucial. Delays in seeking consent can derail a prosecution. An example is the case of R v Lambert (Goldan) [2009] EWCA Crim. 700. Lambert was charged with an offence contrary to s.12(2) of the Terrorism Act 2000 (“TA”). Section 117(2) of the TA provides that such proceedings are not to be instituted without the consent of the DPP. The necessary permission was not given until some weeks after the plea before venue hearing took place. The defendant argued that, since the plea before venue hearing had taken place before the DPP’s permission had been given, the proceedings had not been properly instituted and were a nullity. The Court of Appeal held that the time at which proceedings were “instituted” was: “the time at which the defendant was brought to court following the charging and when the charge was entered onto the court register.”
While s.25(2) of the POA permits the arrest, charge and remand of an offender in custody or on bail before permission or consent is obtained, it must be obtained before the plea before venue hearing.
Conclusion
The prosecution of British citizens for murder abroad has been recognised in legislation as far back as 1828. In more recent years numerous statutes have made express, but rather piece-meal, provision for extra-territorial jurisdiction in relation to specific, limited offences. For the offence of murder, the STA has extended jurisdiction to cover even some foreign nationals committing murder abroad. This will include offences of conspiracy, attempting, aiding or abetting murder (providing the foreign national’s own jurisdiction recognises a similar offence). Prosecutions under the STA require the AG’s consent. While this should be sought as soon as it is anticipated that an individual will be charged, the absence of such consent does not prevent the investigation, extradition, arrest and initial charging of a suspect.
This article was first published in Police Professional.