Murder abroad

US journalist James Foley was seized by armed men in Syria in November 2012 and was recently killed by a man with an apparently British accent.

David Cameron condemned the barbaric and brutal murder and confirmed that “it looks increasingly likely that [the perpetrator] is a British citizen”.

He explained that intentions of the British Government were “to arrest and prosecute those who take part in this extremism and violence”. So what are the powers of the English authorities to prosecute a murder committed abroad by a British citizen, and do any such powers extend to foreign accomplices in that murder?

The overseas reach of the criminal law

In respect of murder, English law has long recognised the possibility of extra-territorial jurisdiction. The historic origins of this extra-territorial jurisdiction were explored in R v Abu Hamza [2006] EWCA Crim (Court of Appeal Criminal Division) 2918. The provision which remains in force today is section 9 of the Offences Against the Person Act 1861:

“Where any murder or manslaughter shall be committed on land out of the UK, 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.”

The effect of this section is that the English criminal courts have jurisdiction over the killing of anyone by a British citizen anywhere in the world. However, can the English courts claim jurisdiction over murder committed abroad by a person who is not a British citizen?

The general principle is that acts committed abroad are not punishable under the English criminal law. Parliament may give an offence extra-territorial application but must do so expressly. In the absence of clear provision, a statute creating a criminal offence that gives extra-territorial jurisdiction will only be regarded as covering such acts when committed by British citizens.

However, there are numerous statutes which have made express provision for extra-territorial jurisdiction in relation to specified offences, for example. These include hostage taking (the Taking of Hostages Act 1982), torture (the Criminal Justice Act 1988) and terrorism (the Terrorism Act 2000).

The Suppression of Terrorism Act 1978 (STA) gave effect to the European Convention on the Suppression of Terrorism 1977 and conferred jurisdiction in respect of certain offences committed outside the UK. Section 4 applies in relation to offences specified in Schedule 1 to the STA, which includes murder. Under section 4 of the Act, a person is guilty of an offence (or of attempting to commit an offence) as if it had been committed/attempted within the UK where:

•A person of any nationality commits/attempts to commit such an offence in any country covered by the convention; or

•A national of any country covered by the convention commits an act in any country (covered by the convention or otherwise) that would also be an offence in both his home county and the UK.

A ‘convention country’ means a country designated by the Secretary of State as a party to the European Convention on the Suppression of Terrorism. There are currently 46 convention countries.

However, the Secretary of State has power to direct that the provisions of the STA shall also apply to specific non-convention countries. At present the only designated non-convention country is the US.

A prosecution relying on section 4 STA requires the consent of the Attorney General. Despite the STA’s title, there is no absolute requirement that the offence have any connection with terrorism.

However, given that there is a requirement for the consent of the Attorney General, it is arguable that there should be a terrorist connection or other comparable public or national interest that would justify a prosecution in the UK.

Case study: R v Venclovas<