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

Last Updated: 3 October 2012

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 their report: Inchoate Liability for Assisting and Encouraging Crime, Law Com. No. 300, in which the frequency with which inchoate offences involve jurisdictional issues was expressly considered.

5. Section 52 and Schedule 4 of the 2007 Act contain the relevant provisions. In overview, they extend the reach of the offences contrary to sections 44, 45 and 46 in three categories of conduct with a foreign element, namely where:

(i) The anticipated offence would occur within the jurisdiction but the assistance or encouragement occurs outside;

(ii) The assistance occurs within the jurisdiction but the anticipated offence would occur outside; and

(iii) Both the assistance and the anticipated offence occur outside the jurisdiction.

6. Section 52(1) applies where the principal offence might take place within the jurisdiction. It is relatively straightforward: encouraging or assisting an offence which would occur within the jurisdiction amounts to an offence triable before the English courts, regardless of where that assistance or encouragement occurs. Accordingly, an offence may be committed under section 44, say, where a defendant, 'D', in Los Angeles, urges a potential perpetrator 'P', in New York, to murder a victim, 'V', in London or Paris. (This example is based on one used by the Law Commission in their Report at paragraph 8.17.)

7. Section 52(2) applies where D does not know or believe that the anticipated offence might take place in England, in other words, the anticipated offence might occur outside the jurisdiction. Here D's liability is governed by paragraphs 1, 2 or 3 of Schedule 4.

8. Paragraph 2 of Schedule 4 is the least complex. It provides for the extra-territorial application of the offences where:

(i) D's act of assistance occurs within the jurisdiction;

(ii) D knows or believes that the anticipated offence might occur outside the jurisdiction; and

(iii) The anticipated offence would amount to an offence under the relevant foreign law.

9. In short, paragraph 2 requires a 'double-criminality' element. That is to say, the anticipated offence must amount to an offence recognised both within the jurisdiction and in the overseas territory. For example, where D, in London, encourages P, in Brisbane, to commit a robbery, D may be convicted of an offence: robbery being an offence in both England and Wales and New South Wales. (This example is also taken from the Law Commission's Report.) It was expressly intended by the Law Commission that this provision was to mirror section 1A of the Criminal Law Act 1977.

10. In addition, the 2007 Act provides for the extra-territorial application of sections 44, 45 and 46, in relation to a second type of conduct with a foreign aspect: that is where the anticipated offence would be triable within the jurisdiction notwithstanding that it would be committed abroad. It is this principle that underlies paragraphs 1 and 2 of Schedule 4.

11. Paragraph 1 of Schedule 4 extends jurisdiction where:

(i) D's act of assistance occurs within the jurisdiction;

(ii) D knows or believes that the anticipated offence will occur outside the jurisdiction; and

(iii) The anticipated offence could be tried in England and Wales either because -

(a) it is an offence of universal jurisdiction; or

(b) is an offence so triable because it includes certain conditions.

12. Hence D may be convicted for an offence where, within the jurisdiction, D encourages, for example:

(i) P, in Malaysia, to commit piracy on the high seas (an offence of universal jurisdiction); or

(ii) P, a British citizen, to murder V in France (an offence triable within the jurisdiction if the perpetrator is British: see section 9 of the Offences Against the Person Act 1861).

13. The difficulty which arises, however, is what exactly D must anticipate. Section 52(3) of the 2007 Act provides that, for the purposes of sections 44, 45 and 46, a reference to what D anticipates is a reference to an 'anticipated offence'. That term is not defined but on an ordinary reading must mean an offence contrary to the laws of England and Wales. Thus, for an offence to be committed extra-territorially, section 52(3) requires D to anticipate that P will commit an offence contrary to English law. Paragraph 1 of Schedule 4, however, by its nature contemplates acts of P which may only amount to offences under English law in certain circumstances, or if P has certain characteristics. What if P does not in fact possess those characteristics - does D anticipate an offence contrary to English law nevertheless?

14. Although other interpretations are tenable, the better view of paragraph 1 is that it takes no account of P's characteristics, rather it focuses on the nature of the anticipated offence and the English courts' jurisdiction over that offence. Put shortly, D commits an offence where he assists or encourages an offence which is capable of being tried before the English courts notwithstanding that it occurs abroad. It is not necessary that P would, in fact, commit an offence contrary to English law.

15. A natural reading supports this broad approach, as does the symmetry it enjoys with paragraph 2: double-criminality does not require D specifically to anticipate that P's act would amount to an offence triable in the English courts, rather it focuses on the offence itself.

16. Paragraph 3 of Schedule 4 presents similar problems. It provides for extra-territorial application where:

(i) D's conduct occurs outside the jurisdiction;

(ii) D knows or believes that the anticipated offence might occur outside the jurisdiction; and

(iii) D may be tried in the jurisdiction if he were to commit the anticipated offence as principal in that place.

17. Thus, D, a British citizen in Canada, commits an offence where he encourages P, in France, to murder V, also in France. (This example is used in paragraph 191 of the Explanatory Notes to the 2007 Act.) D may be tried in England because he is a British citizen and the anticipated offence is one which could be tried in England because D is a British citizen. Adopting an approach analogous to that outlined above, D need not anticipate that P, in murdering V, will commit an offence contrary to English law (viz. that P is a British citizen).

Potential liability

18. If this construction of the 2007 Act is right, the ambit of its extra-territoriality provisions is striking and extends significantly beyond the reach of conspiracy (the ambit of which has been described by Simester and Sullivan as 'enormous'; they cite the example of two men on the London underground conspiring to fare evade on the Paris Metro).

19. It is also a matter of practical importance. Under paragraph 1 or 3 of Schedule 4, an English-incorporated company may commit an offence by advising a Dutch client, say, 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. Under the Zimbabwe (Financial Sanctions) Regulations 2009 (SI 2009/847), an offence may be committed by a perpetrator who is a British citizen or a body incorporated under the law of any part of the United Kingdom, but not if the perpetrator does not have these characteristics. It follows that, if a British advisor was to advise a foreign client to take certain steps in contravention of those Regulations, notwithstanding that the foreign client, if it took such steps, could not in fact commit any offence, the British adviser may be liable under the 2007 Act nonetheless. Moreover the conduct element of the offences contrary to sections 44, 45 and 46 is widely drawn. Encouragement or assistance might take any form: the mere provision of information for example.

20. A safeguard exists under section 53 of the 2007 Act in that proceedings for an offence punishable by virtue of Schedule 4 may only be instigated by, or pursued with the consent of, the Attorney General. While this may mitigate the risk of a prosecution being pursued however, it may be scant consolation for the company operating internationally for whom an alleged commission of an offence may trigger defaults in its financing arrangements or breach of its contractual terms.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Similar Articles
Relevancy Powered by MondaqAI
6 King's Bench Walk
 
In association with
Related Topics
 
Similar Articles
Relevancy Powered by MondaqAI
6 King's Bench Walk
Related Articles
 
Up-coming Events Search
Tools
Print
Font Size:
Translation
Channels
Mondaq on Twitter
 
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
 
Email Address
Company Name
Password
Confirm Password
Position
Mondaq Topics -- Select your Interests
 Accounting
 Anti-trust
 Commercial
 Compliance
 Consumer
 Criminal
 Employment
 Energy
 Environment
 Family
 Finance
 Government
 Healthcare
 Immigration
 Insolvency
 Insurance
 International
 IP
 Law Performance
 Law Practice
 Litigation
 Media & IT
 Privacy
 Real Estate
 Strategy
 Tax
 Technology
 Transport
 Wealth Mgt
Regions
Africa
Asia
Asia Pacific
Australasia
Canada
Caribbean
Europe
European Union
Latin America
Middle East
U.K.
United States
Worldwide Updates
Registration (you must scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.

Disclaimer

The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.

General

Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions