ENRON CASE
CONTINUES…
by
SALLY RAMAGE
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[1]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.
Citations
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
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
ENDS
click below to
[1] 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.