Widening the net: investigating and prosecuting offences overseas

1 May 2019

The Domestic Abuse Bill (currently at the Committee Stage) contains a significant set of provisions which has the effect of extending extra-territorial jurisdiction for a number of criminal offences.

The Courts of England and Wales have for centuries had extra-territorial jurisdiction over British citizens who commit murder or manslaughter outside the UK.  However, the proposed reforms extend extra-territorial jurisdictional to a number of different offences for UK nationals and residents.  The list of offences in the Bill currently includes:

  • Murder and manslaughter (by providing an extension to the existing provisions);
  • Assault occasioning actual bodily harm;
  • GBH;
  • Stalking;
  • Controlling and coercive behaviour;
  • Harassment;
  • Child destruction;
  • Administering a poison or noxious thing;
  • Rape;
  • Sexual assault;
  • Causing a person to engage in sexual activity without consent.

This proposed amendment to the extra-territorial jurisdiction seems to overlook the practical difficulty of the British police conducting criminal investigations overseas.  In particular, it does not appear that the Government has given any thought to the resourcing of investigations which are likely to require officers travelling overseas, interpreters and liaison with police and prosecutors abroad.  Both the Government’s paper Transforming the Response to Domestic Abuse and the Explanatory Notes to the Bill are silent on how the Government plans to ensure cooperation with law enforcement authorities abroad. 

Furthermore, there is no guidance in the Government papers on which jurisdictional authority should take precedence.  The Government appears to pre-suppose a fantasy circumstance where a serious offence is committed in a country overseas; and the local authorities choose to afford British police carte blanche to conduct an investigation or a prosecution.  This may happen on television, but it does not accord with reality.  Ordinarily, when an offence takes place in jurisdictions overseas, including member states of the European Union, a local authority will investigate and prosecute the conduct when they consider it appropriate to do so.  There is normally a reluctance to allow a police force from another country to assume such a responsibility.  

Police forces in the UK already have the ability to engage with foreign authorities under the Mutual Legal Assistance frameworks - and UK police forces have previously used the European Convention on Mutual Legal Assistance in Criminal Matters to prompt investigations overseas.  The effect of the amendments will be to extend the UK police’s powers, but also obligations to complainants of offences overseas at a time when UK police forces are struggling to resource domestic investigations. With Brexit on the horizon there is likely to be even more confusion and reticence from enforcement agencies abroad.

The Bill remains at an early stage. It is hoped that the Committee Stage will provide some much needed clarity to complex issues of cross border policing. 

Further information

Should you have any questions about the issues covered in this blog, please contact a member of our Criminal Law team.

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