Friday, 16 November 2007

Cross-border jurisdiction

Yesterday, Peter Tobin appeared in Linlithgow Sheriff Court court charged with the murder of Vicky Hamilton, who disappeared in 1991 (a report is on the BBC News website). While Vicky Hamilton was last seen in Scotland, the court proceedings follow the discovery of her body at a house in Kent, meaning that two different jurisdictions are, in some form at least, involved in the case.

By statute, the Scottish courts have jurisdiction over homicides committed by British subjects outside the United Kingdom (Criminal Procedure (Scotland) Act 1995, s 11(1)). However, that provision does not give them jurisdiction over homicides committed in other parts of the United Kingdom. The position is similar in England, where statute also provides for extra-territorial jurisdiction over British subjects but no such jurisdiction in respect of other parts of the UK (Offences Against the Person Act 1861, s 9).

The cross-border problems resulting from these rather unsatisfactory statutory rules have been discussed extensively by Michael Hirst (see, amongst other publications, his book Jurisdiction and the Ambit of the Criminal Law (2003), 227-230). As Hirst notes, the issue seems to have been ignored in Robert Black’s 1994 trial, in Newcastle, for the murder of three girls. Black was a delivery driver working between London and Scotland. Two of his victims had been abducted in Scotland, and it was unclear where they had died. For whatever reason, the defence did not argue the jurisdictional point and Black was convicted of all three murders.

Whether the issue is actually a live one in respect of further proceedings in Peter Tobin’s case will depend on the evidence available to the Crown, which is not something on which it would be appropriate to speculate. If the matter does become the subject of argument (and again depending on the terms of any indictment) some reliance may be placed on Laird v HM Advocate 1985 JC 37, where the result of a fraudulent scheme (the payment of money) took place in England. The appeal court said that if steps which were required to bring that fraudulent plan to fruition and played a material part in the operation took place in Scotland, the Scottish courts would have jurisdiction. While the court was concerned only with fraud, there is no obvious reason why this reasoning should not be of broader application.


Scott Wortley said...

I have been slightly bemused as to why the Glasgow airport attack looks like being prosecuted in the English courts - with no complaints from the SNP government. Is there a special terrorism jurisdiction on this?

James said...

I think the charges have been brought under section 3 of the Explosive Substances Act 1883 which (amongst other things) makes it an offence for someone in the UK or a UK citizen elsewhere to conspire to cause "by an explosive substance an explosion of a nature likely to endanger life, or cause serious injury to property, whether in the United Kingdom or elsewhere".

(The Terrorism Act 2006 substituted "elsewhere" for what had been "the Republic of Ireland".)

That wording seems to avoid the jurisdictional problems which would otherwise arise here.