Law Across Borders

The Extraterritorial Application of United Kingdom Law

Paul Arnell

• Publisher: Taylor & Francis
• Year: 2012
• Print ISBN: 9780415558617
• eBook ISBN: 9781136575198
• Edition: 1
• Topic: Law
• Subtopic: International Law
• Index: Law

This book examines the application of UK Criminal and Human Rights Law to people and circumstances outside the United Kingdom. Building upon previous analyses which have focused on a single aspect of extraterritorially, this book examines the fields of Criminal and Human Rights law as the two main areas of non-private law which are frequently applied across borders. Both fields are placed in context before being drawn together in a coherent and systematic way. The book examines recent law and practice, as well as historic developments and explores the concept of enforcement. The author's analysis includes coverage of topics such as the criminalisation of sex-tourism, the extradition of white-collar criminals and the application of human rights law to Iraq following American and British intervention in the region. Law Across Borders goes on to point the way forward in the development of the extraterritorial application of public law, and suggests ways in which greater coherence can be achieved.

This book will be of particular interest to practitioners, academics and scholars of International Law, Human Rights Law and Criminal Law. It is unique in its ambition to offer a comprehensive description and analysis of the extra-territorial application of UK Human Rights Law and Criminal Law in a single text.

1 Introduction

Introduction

Increased international intercourse by persons and states has given rise to an enhanced desire to apply law across borders. The United Kingdom is amongst the states acting on this desire. UK law is increasingly applied to persons and circumstances that in some way exist or occur outside its territory. Not only does it occur more frequently than in the past, but it also relates to a wider range of legal fields. Traditionally, the criminal law was the sole field of non-private law that was applied across borders. Today, human rights law is also not uncommonly considered to relate to persons or circumstances outside the UK. The position is complicated further by distinct institutions and component parts of the UK acting in the area, with the UK and Scottish Parliaments, domestic and European courts and the UK executive all playing a part. The increased frequency of law being applied across borders, human rights law joining the criminal law in being applied in this way and the number of actors involved heightens the necessity for clarity and consistency. This is in part because those possibly subject to UK law whilst outside it, be that a criminal sanction or human rights protection, deserve to be aware of that fact. Indeed, those persons possibly subject to the criminal law whilst outside the UK may have their right to be free from the non-retroactivity of the criminal law violated where the law is unclear.¹ Further, the need for consistency and clarity results from the degree of commonality between the criminal law and human rights law to the extent that they are being related to persons and events outside the UK. It is desirable that where the law operates in a similar way in different fields, it does so, as far as possible, in a kindred manner based upon common principles. Where the law does not apply in a like manner, this should be for clear and defensible reasons. There is undoubtedly a need for principle to run through the application of all UK law applied across borders. The law should as far as possible be predictable. Finally, clarity and consistency are called for because in most cases the locus of the person or circumstance to which UK law is applied across borders is within a third state. That state will almost certainly be entitled under international law to apply its own law in the circumstances, and so the issue of concurrent jurisdiction arises. A clear, consistent and principled approach within UK law can assist it not only in deciding whether to proceed and apply its law, but can also be used in coming to a decision as to where proceedings should take place in the face of concurrent jurisdiction. The factors supporting clarity and consistency in the law will become further evident throughout this book

Investigation into the application of UK law across borders serves to meet the demand for clarity and consistency. In addition, it addresses the basic question of why it is felt necessary by the UK Parliament, courts or executive to apply the law across borders in the first instance. Related to this is why a line is drawn at any particular point and why the UK does not take a more expansive approach than it does at present. The answer to these questions is found in the notion of the national interest. The UK largely applies its law across its borders in an effort to protect or secure its interests. As Jennings noted over half a century ago in regard to why states act and the limits of international law:

States claim extraterritorial jurisdiction in cases where they believe their legitimate interests to be concerned; whether that assumption be rationalized and expressed by means of the nationality claim, the objective territorial claim, the security claim, the passive personality claim or the universality claim. It is reasonable to say, therefore, that international law will permit a State to exercise extraterritorial jurisdiction provided that State’s legitimate interests (legitimate that is to say by tests accepted in the common practice of States) are involved … [A] State has a right to extra-territorial jurisdiction where its legitimate interests are concerned …²

A related comment is that the application of law across borders is ‘as a matter of law … presented as an issue of jurisdiction, the underlying problem is one of State interests’.³ Whilst this simple fact – that the UK applies its law across borders where it deems that its national interest requires it to do so – may seem axiomatic, there are instances where the law is applied in the absence of readily apparent interests. Indeed, it may at times be thought that the application of law is inimical to such interests. Examples here include the crime of torture abroad by non-UK nationals and residents under section 134 of the Criminal Justice Act 1988, the criminalisation of various child-sex offences committed abroad under the Sex Offenders Act 1997 and the application of Article 2 of the Convention to the death in Iraq of an Iraqi national.⁴ In these instances it is not wholly unreasonable to argue that the application of UK law is at odds with its national interest for reasons including that the victims are almost certainly non-nationals, the locus delicti or human rights violation was outside the UK, and that to do so would entail a not-insubstantial financial cost.

Discussion of the question of why the UK does not take an even more expansive approach to the application of its law across borders is perhaps even more illuminating than why it does so in specific cases. The answer is found in the interests of, and limits imposed by, international law and third states and practical difficulties. Public international law, whilst arguably vague and lacking in the provision of a clear and immediate legal deterrent, places limits on the range and nature of the applicability of domestic law. Related to the fact that the practice of states gives rise to rules of public international law is that the UK is one of approximately 200 equal and sovereign states. In order to be able to legitimately defend its own sovereignty and lawful ability to apply its law within and exceptionally outside its territory, it must act in a relatively limited and restrained manner. Perhaps as effective in limiting the scope of UK law is the fact that the enforcement of law across borders is inherently problematic. Procedural and evidential difficulties often conspire to affect its enforcement. Indeed, there exist indubitable legal and practical barriers to the application of UK law across borders The law applied in too wide a sense, even if lawful, may be ineffective and prohibitively expensive. These limitations on the application of UK law across borders raise an important underlying point. This is that the application of law across borders is and should be exceptional. The UK has traditionally and correctly taken a relatively narrow and conservative approach – generally applying its law only where there are material links between it and the crime, the criminal, the human rights victim or the violation. As will be argued in Chapter 5, there are strong and numerous reasons why this approach should be retained.

The fact that the application of UK law has been noteworthy in recent times because of its increasing frequency and breadth should not be construed to suggest that the phenomenon is novel. Indeed, the application of law across borders is almost as old as law itself. For example, the law has been applied across UK borders for as long as there have been diplomacy and piracy. The application of UK law to diplomats abroad – a concomitant of their immunity to host state jurisdiction – dates from 1698–9. An Act to Punish Governors of Plantations in this Kingdom for Crimes by them Committed in the Plantations extended the reach of English criminal law to Crown servants abroad.⁵ Today, section 31(1) of the Criminal Justice Act 1948 provides for the extension of the criminal law to Crown servants abroad. Article 31(4) of the Vienna Convention on Diplomatic Relations 1961 confirms the legality of such practice, providing that ‘The immunity of a diplomatic agent from the jurisdiction of the receiving State does not exempt him from the jurisdiction of the sending State’. In regard to piracy, in In Re Piracy Jure Gentium Viscount Sankey begins his narrative of the crime with the Act of Henry VIII enacted in 1536, entitled ‘An Act for the punishment of pirates and robbers of the sea’, after noting the previous deficiencies in the law as applied to pirates.⁶ Law and society, in many senses, have evolved considerably since 1536 – although piracy and diplomacy remain relevant subjects in the area. Over the centuries the state has chosen to regulate an ever-wider range of behaviour, and individuals have become considerably more active in a number of diverse ways internationally. Recent examples of situations in regard to which UK law has been applied include a meeting of representatives of private companies in Houston, Texas,⁷ a murder in Guyana 20 years after it was committed,⁸ and an individual’s possible medical treatment in Estonia.⁹ As these different examples illustrate, the historical scope of the law applied across borders has been widened considerably.

General Subject Matter

The subject matter of this book is UK non-private law applied across borders. In broad terms, this entails the UK executive, legislature or judiciary acting in regard to, providing for or taking cognisance of a person, event or circumstance occurring at least in part outside UK territory. It is here useful to give several concrete examples. ‘Acting in regard to’ can include treatment meted out, or possibly meted out, by those acting on behalf of the UK, as in the case of R v Secretary of State for the Foreign and Commonwealth Office ex p B and others.¹⁰ Here the question was whether human rights law applied to the behaviour of consular officials in Australia. ‘Providing for’ denotes the enactment or issuance of legislative rules. Amongst the numerous examples in the criminal law are those crimes created under the International Criminal Court Act 2001 and the International Criminal Court (Scotland) Act 2001. Section 51(2)(b) of the International Criminal Court Act 2001 extends the application of the crimes of genocide, war crimes and crimes against humanity to acts committed ‘outside the United Kingdom by a United Kingdom national, a United Kingdom resident or a person subject to UK service jurisdiction’. A further example is the Export Control Order 2008, which prescribes the shipment of a number of weapons and other goods between two states outside the United Kingdom, where done by ‘United Kingdom persons’.¹¹ ‘Taking cognisance of’ signifies instances where courts or tribunals within the UK recognise and consider persons, events or circumstances not wholly within it. An example of this is the conviction and sentence in Southwark Crown Court of the ‘Dunlop Three’ for offences under section 188 of the Enterprise Act 2002, in part for cartel-related activity in the United States.¹² The provision giving the court ability to act was section 190(3), which states: ‘No proceedings may be brought for an offence under section 188 in respect of an agreement outside the United Kingdom, unless it has been implemented in whole or in part in the United Kingdom’.¹³ All of these examples are instances where UK law has been applied in some sense across its border. An important preliminary point to note is that in these cases the law has been extended geographically. This is distinct from the question of whether a court has the lawful ability to take cognisance of the person, event or circumstance. This distinction is described by Hirst as being between the ambit of the law and the jurisdiction of courts.¹⁴

Law Across Borders is not immediately and generally concerned with the lawful ability of a court (or the executive or legislature) to act in regard to a person or circumstance abroad according to UK law. Instead, its focus is upon the geographical scope or range of the law as applied to persons or circumstances in whole or part outside the UK. The two subjects, however, cannot be fully isolated from each other. They are often conflated by academic writers and courts, with the question of whether a court can lawfully take cognisance of an issue being indistinct from the question of whether the law applies at all. Part of the explanation for the confusion over this basic point is the usage of the term ‘jurisdiction’ to denote both subjects, and indeed more. ‘Jurisdiction’ is used in the sense of the lawful ability of a court to act, in regard to the Crown Court, by section 46(2) of the Senior Courts Act 1981, which provides:

The jurisdiction of the Crown Court with respect to proceedings on indictment shall include jurisdiction in proceedings on indictment for offences wherever committed, and in particular proceedings on indictment for offences within the jurisdiction of the Admiralty of England.

‘Jurisdiction’ here denotes a lawful ability, competence or power. Indeed, section 151 of the Senior Courts Act 1981 states that ‘jurisdiction’ includes ‘powers’. The second main meaning of jurisdiction relates to the geographical or territorial range of the law. This sense, more often than not, includes the legislature and executive and indeed the UK as a state itself, as well as courts. It originates and still largely remains in the realm of public international law. As will be discussed in Chapter 2 there is a somewhat well-developed body of rules which govern the application of a state’s law to persons and circumstances outside its territory. This issue is often phrased in terms of whether the UK has ‘jurisdiction’ over a certain situation, for example torture committed by a foreign national on the high seas. The word ‘jurisdiction’ in Article 1 of the Convention appears to have this sense. Article 1 provides that ‘The High Contracting Parties shall secure to everyone within their jurisdiction the rights and freedoms defined in Section I of this Convention’. Because of the different meanings of ‘jurisdiction’, Law Across Borders generally eschews the word. Instead, ‘application’ is used. This more accurately describes the subject matter of the book – UK criminal and human rights l...

Table of contents

• Cover
• Half Title
• Title Page
• Copyright
• Dedication
• Contents
• Table of cases
• 1: Introduction
• 2: The context
• 3: UK criminal law across borders
• 4: UK human rights law across borders
• 5: Synthesis: extra-legal context, criticisms, themes and conclusion
• Index