Vol. 14 No. 4 (April 2004)

JURISDICTION AND THE AMBIT OF THE CRIMINAL LAW (Oxford Monographs on Criminal Law and Justice), by Michael Hirst.  Oxford: Oxford University Press, 2003.  410pp. Cloth $98.00.  £60.00.  ISBN: 0-199-24539-8.

 Reviewed by Donald W. Jackson, Texas Christian University. Email: d.w.jackson@tcu.edu .

Beginning with the Nuremberg trials following World War II, and continuing through the rise of prosecutions in national courts exercising universal criminal jurisdiction, followed by the creation of a permanent International Criminal Court in July 2002, it has become evident that certain serious criminal culpability can no longer be contained within the sovereign boundaries of nation states.  This book provides further evidence of that tendency.

Michael Hirst’s book is about the intricacies of the “territorial and extraterritorial jurisdiction of the English criminal law, however, its most important purpose is in developing the distinction between jurisdiction and the ambit of the law, and the implications of the distinction.  The jurisdictional competence of English courts is distinguished from ambit-the applicability of English criminal law to the conduct of which a defendant is accused.   Especially these days, ambit is not always confined by territoriality.  The most interesting discussion of the book is about the “reasons for the failure of English law to break free from ancient and obsolete historical constraints” (p.55).   Thus Hirst considers how the concepts of territoriality and venue no longer fit well the complexity of much contemporary criminal conduct, such as drug trafficking, internet crime and-especially prominent these days-international terrorism.  For example, he quotes Lord Halsbury, who in 1891 wrote that “All crime is local. The jurisdiction over crime belongs to the country where the crime is committed,” and compares it with Lord Griffiths, who wrote 100 years later, “Unfortunately in this century crime has ceased to be largely local in origin and effect.  Crime is now established on an international scale and the common law must face this new reality” (p.29). As is the case with many legal developments that transcend national boundaries, appropriate concepts and frameworks for understanding these movements are yet to be fully developed. 

Hirst’s discussion of the origins of the doctrine of criminal venue beautifully illustrates the distance we have traveled.  The common law originally required that indictable offenses be tried in the county in which the events occurred.  One reason for this was that presentment (grand) juries were to be composed of local men who were expected to rely on their own prior knowledge of the circumstances.  It does not take much imagination to understand how different the world must have been when such rules were developed.  English criminal venue rules were significantly altered in 1925 and abrogated in 1971, but Hirst considers the surviving influences of territoriality to have limited the capacity of the common law to adapt to changing times.

Hirst uses the case of REGINA v. KEYN (1876) to illustrate the difficulty.  The case involved a collision resulting in a fatality in the English Channel, two miles from the Kent coast.  The prosecution of the master of a German ship for manslaughter relied on customary international law, which allegedly gave all nations the right to exercise criminal jurisdiction within three nautical miles of their shores.  On appeal a bare majority of judges ruled that English law could not be applied to an incident that had occurred “aboard a foreign ship on the open sea” (p.38).  This ruling was made despite precedents as far back as 1737 which had held that customary international law could be viewed as “an integral part of English common law,” so long as it does not conflict with acts of Parliament or other binding common law precedents (p.35).   The difficulty for the majority of judges in KEYN was in demonstrating the content of customary international law.  How does a judge discover with certainty what customary international law contains?

One answer is to require statutory recognition of international law.  According to Hirst, the orthodox English view is that any extraterritorial extension of English criminal law must be statutory.  This was the key provision in the PINOCHET case in which the Criminal Justice Act of 1988 gave effect to the 1984 Torture Convention and allowed English courts to exercise extraterritorial criminal jurisdiction over General Pinochet.  The clear implication is that provisions of public international law must be formally incorporated by statute, rather than developing case-by-case as did the common law.  Thus the reticence represented by KEYN in 1876 has been cured by a 1987 statute that provides for the “widest territorial limits currently permissible under the international law of the sea” (p.43).

Although territoriality remains a key principle of jurisdiction over most criminal prosecutions, Hirst reviews a number of exceptions including cross-frontier offenses, the “effects” doctrine,” ^[1] the “protective” principle, ^[2] the right of a state to hold its own citizens accountable for acts done abroad, the right of a state of punish foreigners for crimes against its own citizens, or the exercise of jurisdiction concerning its ships or aircraft, wherever situated.  These exceptions are topped off, as we have seen by potential prosecution of crimes under universal jurisdiction (for example, war crimes, crimes against humanity, genocide and torture) and by the rise of criminal activity that is essentially international in character.

The particulars of the exceptions listed above and the details of the extraterritorial application of English criminal law make up the greater part of this book.   The several chapters with that purpose may be of interest to academic lawyers with a specialist interest, but they will have little appeal for political scientists.  However, the final chapter, “Rethinking the Ambit of the Criminal Law,” were it able to envision a set of concepts that would bring a new sensible order to the subject, would be well worth reading. Unfortunately, that may be an unreasonable expectation.

Hirst laments the complexity and the overlapping rules that share few common principles and have never been subject to comprehensive revision.  The ambit of the criminal law, he concludes, is “badly in need of clarification, simplification and reform” (p.324).  He then reviews the case for nationality-based jurisdiction to replace territorial jurisdiction-this is the common European continental solution.   Seemingly suitable examples are the assertion of U.K. jurisdiction over its football hooligans abroad and the prosecution of “sex tourists” abroad, as provided in the Sex Offenders Act 1997.  Nonetheless, Lord Griffith’s comment that crime has transcended nationality, and that the law must face this new reality (quoted above), does not lead logically to nationality-based jurisdiction, as Hirst duly acknowledges.

Probably the most interesting interim solution is a regional one, given the even greater difficulty of creating global institutions.   This proposal would define certain crimes as European offenses that would yet be prosecuted in national courts of EU members, but with a European Public Prosecution Service, “which would have jurisdiction to conduct investigations and prosecutions across the EU” (p.345).  Other regions may lack the institutional development of Europe, but there is no theoretical reason why advanced nations in other regions should not come together to deal with the reality of international crime.  It seems, however, that this solution has more to do with the development of international cooperation, and with the creation of appropriate institutions, than with the ambit of English criminal law.  Indeed, most advances are likely to flow from the consequences of multilateral or global conventions.   The statutory ratification of such conventions by Parliament would merely be a formality.

Endnotes