Conflicts Of Laws In The United Kingdom
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by
Sally Ramage
13 July 2006
Cases-
Turner v
State of Louisiana 379 US 466-3 [1964]
Pointer v
Texas 380 US 400 [1965].
Somchai Liangsiripraseri, v United States Government et al [1990] 2
All ER 806,
Re State of
Norway’s Applications (No 1) [1987] QB 433 and No 2 [1989]1 All ER 701
Statutes –
Foreign
Tribunals Evidence Act 1856
Offences
Against The Person Act 1861
Extradition
Act 1870
Aviation
Security Act 1982
Taking of
Hostages Act 1982
Criminal
Justice Act 1988
Criminal
Appeal Act 1995
Geneva
Conventions (Amendments) Act 1995
Criminal
Justice Act 2003
Archbold,
Criminal Pleading, Evidence and Practice, states the United Kingdom position
thus:
"Subject to statutory exceptions to the contrary, a person whether
English or not, who commits crime abroad is not indictable here. In construing
Acts of Parliament there is a well-established presumption that, in the absence
of clear and specific words to the contrary, an "offence-creating section"
of an Act is not intended to make conduct taking place outside the territorial
jurisdiction of the Crown an offence triable in England. The presumption
against a Parliamentary intention to make acts done by foreigner’s abroad
offences triable in English criminal courts is even stronger".
The
functions of English criminal courts are linked to the fact that English
criminal law is primarily territorial as juries are summoned from the locality
where the incident occurred. This is because juries are supposed to decide the
case from their own local knowledge. English law is also territorial due to the
hearsay evidentiary rules and the reliance on oral testimony. These factors
would prohibit the prosecution of an extraterritorial offence, for it would
necessitate the appearance in person of all foreign witnesses, posing
logistical and financial problems. But only to a point, because video – linked
evidence is now allowed in English courts<SUP1< SUP> but does not
apply to defendants, as the three ex-NAT WEST Bankers. Before video – links,
the United Kingdom was willing to allow its citizens to be extradited, to stand
trial abroad for an extra-territorial offence, even when no reciprocal
extradition treaty existed, as evidenced in section 15 of the UK’s Extradition
Act, which allows any laizzez faire extradition
arrangements.
In the
United States also, the evidence against a defendant shall come from a witness
stand in a public courtroom where there is full judicial protection of the
defendant’s right of confrontation, of cross-examination and of counsel,
precedents cases being Turner v State of Louisiana 379 US 466-3 [1964] and
Pointer v Texas 380 US 400 [1965].
In the
Privy Council case, Somchai Liangsiripraseri,
v United States Government et al [1990] 2 All ER 806,
Lord Griffiths
said that "crime has ceased to be local in origin and effect. Crime is now
established on an international scale and the common law must face this new
reality".
It must be
kept in mind that the provision of assistance to the prosecution authorities of
another country does NOT amount to indirect enforcement of that country’s penal
laws. This is why in the case Re State of Norway’s Applications, the letters of
request seeking evidence about unpaid tax, for use in proceedings in a
Norwegian court, the British authorities argued that this contravened the
principle that one state will not take cognizance of another’s penal laws.
A 1996 Home
Office Report stated that "In the age of the Internet and other
technological advances, it may be inevitable that the law will be left to catch
up with new developments in crime. The question is whether there needs to be a
consistent basis for making exceptions to the principle of territoriality, and
whether it is defensible in the long term to maintain a territorial policy to
which it is known that many exceptions will have to be made, particularly where
there is no established principle against which the case for these exceptions
can be judged."
One point
that must be remembered in the current issue of the extradition on the three
"NAT WEST EX-BANKERS" tied up with the ENRON debacle is that the UK
Parliament is not limited in its powers by any doctrine of territory because
there are several statutes that extend English criminal procedure in respect of
specific crimes. Most of these statutes are constructed to deal with offences
against national interests. The, establishes jurisdiction over serious physical
harms committed anywhere in the world by British citizens and the UK Parliament
continues to enact statutes with universal application, acts such as the
Aviation Security Act 1982, the Taking of Hostages Act 1982, the Criminal
Justice Act 1988 and the Geneva Conventions (Amendments) Act 1995. These Acts,
as examples, provide that serious offences, such as aircraft hijacking,
hostage-taking, and torture by whomever committed, in the United Kingdom or
outside the United Kingdom, may be prosecuted in English Courts, so long as the
foreign suspect is temporarily, voluntarily, in the United Kingdom, although
British policy is that a foreign suspect is returned to the territorial state
if this is possible.
The taking
of evidence in England for use in foreign proceedings where such evidence would
be admissible has been recognised in the UK ever since the Extradition Act
1870, section 24 , which stated that "the testimony of any witness may be
obtained in relation to any criminal matter pending in any court or tribunal in
a foreign state in like manner as it may be obtained in relation to any civil
matter under the Foreign Tribunals Evidence Act 1856, and the provisions of
that Act shall be construed as if the term civil matter included a criminal
matter."
Fortunately,
the United Kingdom adheres to the common law rule that all crime is local and
relies on extradition for extraterritorial crimes, although this is piecemeal
and even ad hoc and the executive retains absolute discretion. Unfortunately,
the United States adheres to a similar common law rule.
Footnotes
1. Criminal
Justice Act 2003
Live links
in criminal proceedings
(1) A
witness (other than the defendant) may, if the court so directs, give evidence
through a live link in the following criminal proceedings.
(2) They
are-
(a) a summary trial,
(b) an appeal to the Crown Court arising out of such a trial,
(c) a trial on indictment,
(d) an appeal to the criminal division of the Court of Appeal,
(e) the hearing of a reference under section 9 or 11 of the Criminal Appeal Act
1995 (c. 35),
(f) a hearing before a magistrates' court or the Crown Court which is held
after the defendant has entered a plea of guilty, and
(g) a hearing before the Court of Appeal under section 80 of this Act.