Extraterritorial jurisdiction is the legal ability of a government to exercise authority beyond its normal boundaries and has for an ample amount of time been a possibility recognised by English law, especially in respect to murder as England and wales have for centuries had extra-territorial jurisdiction over British citizens who commit murder or manslaughter. The historic origins of this was explored in the case of R v Abu Hamza .
“Where any murder or manslaughter shall be committed on land out of the United Kingdom, whether within the Queen’s dominions or without, and whether the person killed were a subject of Her Majesty or not, every offence committed by any subject of Her Majesty in respect of any such case, whether the same shall amount to the offence of murder or of manslaughter, … may be dealt with, inquired of, tried, determined, and punished…in England…”. This provision was first recited as the Offences Against the Person Act 1861 and remains in force up till today.
This consequently means that the English criminal courts have jurisdiction over any victim of murder, killed by a British citizen anywhere in the world.
When may extra-territorial jurisdiction be exercised?
In most cases an offence will only be tried in the jurisdiction in which the offence takes place. Nonetheless, this is not always the case when there is a specific provision to ground jurisdiction. For instance, these specific statutes enable the UK to exercise extra-territorial jurisdiction:
- Sexual offences against children (s. 72 of the Sexual Offences Act 2003). This section states that any UK national or resident who commits sexual acts prohibited by UK law whilst abroad, is guilty of that offence in the UK;
- Offences listed in Schedule 1 of the Suppression of Terrorism Act 1978, includes murder, manslaughter, kidnapping, GBH, rape and some firearms offences;
- Fraud (the 2006 Act imposes extra-territorial jurisdiction in respect of offences in ss. 1, 6, 7, 9 and 11 of the Fraud Act 2006) and dishonesty (Criminal Justice Act 1993 Part 1 still applies to the remaining unrepealed sections of the Theft Act 1968);
- Terrorism (ss. 59, 62-63 of the Terrorism Act 2000 and s.17 of the Terrorism Act 2006, and as amended by the Counter Terrorism and Border Security Act 2019);
- Bribery (The Bribery Act 2010 repeals the common law offences and the statutory offences of corruption for offences committed wholly on or after 1 July 2011).
Multiple factors are considered when making decisions on which jurisdiction should prosecute all of which may affect the final outcome. Factors can include: territoriality, location of suspect(s)/accused person(s), availability and admissibility of evidence, obtaining evidence from witnesses, experts and victims, protection and interests of witnesses, stage and length of proceedings, legal requirements, sentencing powers, proceeds of crime, costs and resources, member States’ priorities.
Section 4 of the Suppression of Terrorism Act 1978 provides English criminal courts with jurisdiction over murder when committed:
- in a country that has been designated as party to the European Convention on the Suppression of Terrorism 1977, or
- anywhere, if by a national of a party to the Convention.
- The USA and American nationals are included within the jurisdiction of the Act, by order of the Secretary of State.
Evidently, the power to exercise extra-territorial jurisdiction is a thoroughly thought through and carefully considered process and provenly the effect of this is that the English criminal courts have jurisdiction over the killing of anyone by a British citizen anywhere in the world.
R v Abu Hamza 
In 2004, Hamza was arrested by British police after the US requested he be extradited to face charges. He was later charged by British authorities with sixteen offences for inciting violence and racial hatred. In 2006, a British court found him guilty of inciting violence, and sentenced him to seven years’ imprisonment. On 5 October 2012, after an eight-year legal battle, he was extradited from the UK to the United States to face terrorism charge and on 14 April 2014 his trial began in New York On 19 May 2014, Hamza was found guilty of eleven terrorism charges by a jury in Manhattan. On 9 January 2015, he was sentenced to life in prison without the possibility of parole.
Two central questions arise from his case; whether the UK and US acted lawfully under international law in applying their criminal law against Hamza and whether that application of law was appropriate.
Nonetheless, Hamza could not face the death penalty when extradited to the United States because the UK is a signatory to the European Convection on Human Rights (ECHR), which goes to show the true extent of British criminal law.
- Edward Pleeth, The police law blog, https://ukpolicelawblog.com/index.php/9-blog/84-murder-abroad 13th October 2014
- Wikipedia, https://en.wikipedia.org/wiki/Extraterritorial_jurisdiction 23rd July 2020
- CPS, https://www.cps.gov.uk/legal-guidance/jurisdiction 07 November 2019
- Paul Arnwell https://www.researchgate.net/publication/312204730_The_Legality_and_Propriety_of_the_Trials_of_Abu_HamzaJanuary 2017
- Wikipedia https://en.wikipedia.org/wiki/Abu_Hamza_al-Masri 2nd August 2020