Jurisdiction

• Introduction
• The legal framework governing the jurisdiction in England and Wales
  • The common law
  • Statutory provisions
• Guidance where more than one jurisdiction for prosecution
  • Principles for engagement with other jurisdictions
• Extradition and forum bar
  • What is Forum and the Forum Bar
  • What happens when forum bar is raised
  • What options does the domestic prosecutor have?
  • Prosecutor’s belief statement
  • Policy position on issuing prosecutor’s belief statements
  • Factors to consider
  • If a belief statement is not going to be provided
  • If a belief statement is to be provided
  • Authorisation
  • Prosecutor’s certificate
  • Prosecution already proceeding
• Visiting Forces Act 1952
  • Waiver
  • In Favour of the Service Court
  • In Favour of the UK
• Concurrent UK-US jurisdiction
• NATO Status of Forces Agreement (SOFA)

Introduction

This prosecution guidance provides:

• an outline of the legal framework which governs whether there is jurisdiction to prosecute in England and Wales
• if there is jurisdiction to prosecute in England and Wales, guidance to apply where a decision needs to be taken as to the appropriate jurisdiction (also called forum) in which to try a suspect or defendant: England and Wales, or another jurisdiction
• it also covers how concurrent jurisdiction impacts upon subsequent extradition proceedings through the issue of forum bar

The legal framework governing the jurisdiction in England and Wales

The starting point for prosecutors is the common law. It is supplemented by statutory provisions, but in the first instance the jurisdictional basis for a prosecution should be articulated with regard to the common law.

The common law

 There is jurisdiction to prosecute in England and Wales where a substantial measure of the activities constituting a crime takes place within the jurisdiction, save only where it can seriously be argued on a reasonable view that these activities should, on the basis of international comity, be dealt with by another country. In particular, it was held that it is not necessary that the “final act” or the “gist” of the offence should occur within the jurisdiction: Smith (Wallace Duncan) (No.4) [2004] EWCA Crim 631; [2004] 2 Cr. App. R. 17.

Statutory provisions

Statutory provisions supplement concurrent jurisdiction by giving England and Wales extra-territorial reach in some cases. These include:

• terrorism offences: Suppression of Terrorism Act 1978, Terrorism Act 2000, Terrorism Act 2006
• violent and sexual offences: section 72 and schedule 3 Domestic Abuse Act 2021 (not limited to domestic abuse offending)
• sexual offences involving children: section 72 Sexual Offences Act 2003 (see section 7 Sexual Offences Act 1997 for offending 1997-2004)
• fraud, dishonesty, bribery and money-laundering: Part I, Criminal Justice Act 1993, Bribery Act 2010 and section 340(2)(b) Proceeds of Crime Act 2002
• offences at sea: Territorial Waters Act 1878
• offences at sea: Territorial Waters Act 1878 and Merchant Shipping Act 1995.

Prosecutors should be alert to whether the consent of the Director of Public Prosecutions, or the Attorney General, is required to prosecute. See the Consents prosecution guidance.

The Visiting Forces Act 1952 provides for circumstances in which there will be no jurisdiction to prosecute criminality in England and Wales where it was committed by a member of the visiting forces and falls instead to be dealt with by their service authorities and courts.

Guidance where more than one jurisdiction for prosecution

From the earliest possible stage and as part of their case strategy, prosecutors should consider whether there is another jurisdiction which might prosecute the suspect(s) and if so, which is the most appropriate jurisdiction to do so. There should be engagement with the authorities of the other jurisdiction, ideally face to face.

It is essential that the relevant law and guidance on concurrent jurisdiction generally, and any country specific guidance is applied by law enforcement and prosecutors. All decision making on jurisdiction related matters must be recorded clearly in case it becomes relevant to future domestic cases or investigations and potentially extradition proceedings at a later date, for example, if forum bar is raised it will need to be considered at that stage (see below).

Principles for engagement with other jurisdictions

Primacy (or forum) decisions and related engagement between CPS prosecutors and overseas counterparts should be informed by the following six principles which have been distilled from principles previously endorsed, separately, by Eurojust, and the Director of Public Prosecutions:

1. So long as appropriate charges can properly be brought which reflect the seriousness and extent of the offending supported by admissible evidence, a prosecution should ordinarily be brought in the jurisdiction where most of the criminality or most of the loss or harm occurred.
2. Where potentially relevant material may be held in another jurisdiction, the prospects of the material being (a) admissible and otherwise capable of being relied upon as evidence and/or (b) identified and provided to prosecutors in England and Wales for review in accordance with disclosure obligations in this jurisdiction will be an important consideration in deciding whether appropriate charges can properly be brought in England and Wales.
3. Provided it is practicable to do so and consistent with principles 1) and 2) above, where crime is committed in more than one jurisdiction, all relevant prosecutions should take place in one jurisdiction.
4. Other factors relevant to any determination by CPS prosecutors as to where a prosecution should take place include:
   • the location of the witnesses, their ability to give evidence in another jurisdiction and where appropriate, their right to be protected;
   • the location of the accused and their connections with the United Kingdom;
   • the location of any co-defendants and/or other suspects; and
   • the availability or otherwise of extradition or transfer of proceedings and the prospect of such proceedings succeeding
5. Where all other factors are finely balanced, any delay introduced by proceeding in one jurisdiction rather than another and the cost and resources of prosecuting in one jurisdiction rather than another may be relevant.
6. Although the relative sentencing powers and/or powers to recover the proceeds of crime should not be a primary factor in determining where a case should be prosecuted, CPS prosecutors should always ensure that there are available potential sentences and powers of recovery to reflect the seriousness and extent of the offending supported by the evidence.

A decision to prosecute where another jurisdiction may prosecute must address these principles. A decision not to proceed with an investigation or to prosecute, because another jurisdiction will do so, should also be clearly recorded in these terms.

What is Forum and the Forum Bar

Forum may also be raised in the context of extradition proceedings.  Under the Extradition Act 2003 (the ‘2003 Act’) a defendant may raise the ‘forum bar’ to contest extradition and argue that extradition would not be in the interests of justice and that proceedings should instead take place in the UK due to forum considerations. (For further guidance around bars to extradition see Extradition – From the UK guidance.)

The forum bar operates where a judge:

• decides that a substantial measure of D's relevant activity was performed in the United Kingdom, and
• decides, having regard to the “specified matters” relating to the interests of justice (and only those matters), that the extradition should not take place.

See sections 19B to 19F in Part 1 of the Extradition Act 2003 for EU cases and 83A to 83E in Part 2 of the Act for non-EU countries.

The specified matters are:

1. the place where most of the loss or harm resulting from the extradition offence occurred or was intended to occur
2. the interests of any victims of the extradition offence
3. any belief of a prosecutor that the United Kingdom, or a particular part of the United Kingdom, is not the most appropriate jurisdiction in which to prosecute D in respect of the conduct constituting the extradition offence
4. were D to be prosecuted in a part of the United Kingdom for an offence that corresponds to the extradition offence, whether evidence necessary to prove the offence is or could be made available in the United Kingdom
5. any delay that might result from proceeding in one jurisdiction rather than another;
6. the desirability and practicability of all prosecutions relating to the extradition offence taking place in one jurisdiction, having regard (in particular) to—
   1. the jurisdictions in which witnesses, co-defendants and other suspects are located, and
   2. the practicability of the evidence of such persons being given in the United Kingdom or in jurisdictions outside the United Kingdom
7. D's connections with the United Kingdom.

It is when the court approaches matter (c) above, that the dual role of the CPS is triggered (see below).

What happens when forum bar is raised

Prosecutors within the CPS Extradition Unit act on behalf of the foreign state or authority in the extradition proceedings, while prosecutors with CPS Areas, Special Crime and Counter Terrorism Division (SCCTD) or Serious Economic, Organised Crime and International Directorate (SEOCID) will act as domestic prosecutors. Notwithstanding that both sit within the CPS, these two roles are distinct and independent, with both serving to assist the court in different ways to decide whether the offences can be fairly and effectively tried in the UK, and whether it is in the interests of justice that the defendant should be extradited.

What options does the domestic prosecutor have?

In broad terms, when an Area / SCCTD / SEOCID is notified of extradition proceedings where forum has been raised, there are three possible steps for a domestic prosecutor:

• The domestic prosecutor may decline to express a view and take no further action (save for notifying CPS Extradition of that decision).
• Issue a prosecutor’s belief statement setting out their belief that the UK is not the appropriate jurisdiction for prosecution
• Issue a prosecutor’s certificate – a formal decision that prosecution should not take place in the UK

It is possible for the domestic prosecutor to write to the extradition court to seek further time to consider their position before coming to a settled position. If the court wishes to hear further from the domestic prosecutor efforts should be made to deal with it via correspondence directly with the court. If it cannot be settled via correspondence, the domestic prosecutor can apply to be joined as a party to the extradition proceedings (s.19B(5) or s.83A(5)). It is important to note that the domestic prosecutor is a separate party in the proceedings and is independent of the Extradition Unit prosecutor, who is representing the requesting state in the proceedings.

When assessing which of the three options above is the appropriate course, prosecutors should assess the factors set out below carefully.

Prosecutor’s belief statement

The decision of whether or not to declare "a belief" lies solely with the domestic CPS prosecutor and the fact that the Area / SCCTD / SEOCID has been invited to consider issuing a belief statement should not be taken as an indication that one should be issued.

A prosecutor’s belief statement, when issued, might have the effect of supporting the extradition request but it is not evidence called by the requesting state. Its status is akin to third-party material supplied to assist the court in its judgment on forum bar.

A 'prosecutor's belief' is akin to a point of view, or a conclusion based upon the reasoned consideration of sufficient information. It is not dependent upon a Full Code Test. The belief must be a firm one in the sense that the prosecutor must have concluded that the UK is not the most appropriate jurisdiction in which to prosecute the person whose extradition is sought. Therefore, even though it may be possible to prosecute the matter in the UK, it would not be, in the belief of the prosecutor, the most appropriate jurisdiction to do so.

To be relevant to the question of forum in extradition proceedings the belief must relate to the conduct and activity alleged to have been performed by the D specified in the extradition request, not other offences or other conduct that might be involved.

The domestic prosecutor considering whether to issue a belief statement need not be the same prosecutor who had been previously engaged with the matter but it is essential that the domestic prosecutor is fully sighted on the material available and that their knowledge of the matters is current.

Policy position on issuing prosecutor’s belief statements

A prosecutor's belief should only be considered where: 

• There has been a previous or ongoing domestic investigation into the same conduct and the same individual(s) as contained within the extradition request; AND
• The CPS has been formally engaged to provide advice in connection to that investigation; AND
• That investigation resulted in (or will result in) advice being given by the CPS that no further action should be taken in respect of the matter(s) involving the individual(s) concerned; or, following formal advice from the CPS, the law enforcement agency makes the decision to take no further action; AND
• The decision making has, amongst any other matters, clearly taken account of the principles relating to the concurrent jurisdiction guidance (see above) and is recorded as such; AND
• In cases where the investigation in the other jurisdiction has developed since the CPS gave formal advice in relation to the domestic investigation, the prosecutor must also be satisfied that they are sufficiently familiar with those developments (including any relevant connected prosecutions) and particularly in respect of any material that has been obtained from the UK (i.e. if a decision was made some years ago, does that decision still remain the right one in light of all of the developments arising since the original decision was made).

If a case satisfies the above criteria, the prosecutor must consider the factors outlined below (see ‘Factors to consider’) and come to a firm and well-reasoned belief that the UK is clearly not the most appropriate jurisdiction for a prosecution before providing a belief statement. Where a decision is finely balanced, a belief statement should not be provided.

Where further information is needed before a decision can be made, it is appropriate to take account of the proportionality of making requests for further information within the context of that particular case. Such considerations around proportionality could take into account the resources required to obtain and review any information sought, the likely time to be taken and any other relevant matter (to be determined by the domestic prosecutor). Where it would be disproportionate to obtain all relevant further information, a belief statement should not be provided.

If the domestic prosecutor decides not to provide a belief statement, the CPS Extradition prosecutor must be informed.  The CPS Extradition prosecutor will then inform the judge that a prosecutor's belief will not be provided.

If a prosecutor's belief is not provided, the court must treat that as a neutral factor when considering the issue of forum.

Factors to consider

As outlined in the policy position above, a domestic prosecutor must be satisfied that there is sufficient information available to them and that they are familiar with it. It is expected that the information available will include:

• The prosecution / advice file(s) held by the CPS including -
  1. Details of the domestic investigation (including any material obtained via international cooperation such as MLA, JITs, etc.)
  2. Advice provided
  3. Key decisions made within it
• If the domestic investigation was not in possession of all the material now available to the requesting state’s investigation agencies, the domestic prosecutor must be familiar with that additional information.  
• Where there have been linked investigations and/or prosecutions in any jurisdiction, the location and stage of those proceedings should be known.

Where further information is needed, it may be contained within the documents provided by CPS Extradition. If it is not, a request for further information can be made through the relevant Liaison Prosecutor covering the requesting state. Such a request would not be in the form of an MLA request and is an informal enquiry.

The domestic prosecutor should then firstly familiarise or refresh themselves with the decision(s) that led to the ceding of jurisdiction in the course of the CPS’s previous formal engagement. It is essential that there is a clear record of that decision(s) which sets out how the concurrent jurisdiction guidance was applied at that time. In the absence of such a record, it will not be appropriate to provide a prosecutor’s belief statement.

Secondly, the domestic prosecutor should proceed to conduct a fresh assessment of the information, consisting of the original material updated by any further information gained from the extradition request and any further requests as appropriate. Again, the assessment is against the concurrent jurisdiction considerations to determine whether there remains a firm decision that the UK is not the most appropriate jurisdiction for a prosecution of the relevant conduct against the individual(s) contained within the extradition request. As stated within the policy position above, if the decision is finely balanced, a prosecutor’s belief statement would not be appropriate.

In assessing whether the UK is not the most appropriate jurisdiction for a prosecution, prosecutors will consider whether, based upon the information available to them, a prosecution would be viable in this jurisdiction within a reasonable time. Prosecutors must be mindful of issues around:

• The likely admissibility of the material available (or that would be available)
• Any likely delay that will be caused by the prosecution taking in place in one jurisdiction over the other
• The ability to meet disclosure duties which will include (but not be limited to) prosecutors being satisfied that all reasonable lines of enquiry have been or would be followed, and any relevant material being made available to the prosecution team were the matter to be proceed in the UK.

Having considered the above factors in addition to the policy position carefully, if it is the firm belief of the domestic prosecutor that the UK would not be the most appropriate jurisdiction for a prosecution to take place, a prosecutors belief statement could be taken forward.

If a belief statement is not going to be provided

As set out in the policy position above, the domestic prosecutors should only provide a prosecutor’s belief statement where they are satisfied that they have sufficient information to form a firm belief that it is clearly the case that England or Wales is not the most appropriate jurisdiction for prosecution (otherwise a belief statement is not appropriate).

Where a decision is made to decline to express a belief, the domestic prosecutor must inform the Extradition Unit who will, in turn, inform the court.

If a belief statement is to be provided

Where the domestic prosecutor forms the view that it would be appropriate to provide a prosecutor’s belief, they should draft a written prosecutor's belief statement for use in the extradition proceedings, setting out that:

• The domestic prosecutor has been asked to comment upon whether a prosecution is viable within the UK
• A decision has previously been taken, based on the available material, not to pursue the possibility of a UK prosecution (any reasons for this decision should be set out);
• At the current time and on the material before them, it is believed that the UK is not the most appropriate jurisdiction for prosecution;
• No inferences should be drawn about the possibility of a future UK prosecution.
   
• The belief statement should set out its reasoning in detail and should relate to the conduct in totality, not just to some individuals and not others. All previous decisions made by the CPS that are relevant to the prosecutor’s belief, will need to be set out. It will usually suffice to set out how the Code was applied e.g. if a prosecution did not proceed on evidential, or public interest, grounds and why in short that was.

It should not address a belief that the UK is the most appropriate jurisdiction: the way to do this is to apply to join the extradition proceedings as a party (s.19B(5) or 83A(5)). The prosecutor may wish to do this if there is an imminent intention to prosecute the defendant for the same matters as contained within the extradition request and considers that England or Wales is the appropriate jurisdiction to do so.

Generally, domestic prosecutors will not be summonsed or required to provide third party disclosure in relation to the domestic case file, whether or not a prosecutor’s belief statement is made. This may not be the case where a certificate is issued.

Authorisation

The decision to issue a prosecutor’s belief must be authorised by the relevant Director of Legal Services before it is provided to the CPS Extradition prosecutor or the court. It is advisable that if a prosecutor is considering a belief statement that they contact the DLS Team at an early stage to ensure DLS are aware of the intention to provide a prosecutor’s belief.

Once authorised, the belief statement should be supplied directly to the extradition court (the details of which will have been supplied by CPS Extradition) and a copy sent to CPS Extradition for their awareness.

Prosecutor’s certificate

A prosecutor’s certificate (section 19D/section 83D of the Act) takes the issue of forum out of the jurisdiction of the court of first instance. It requires a decision not to prosecute, applying the Full Code Test, to the whole of the conduct.

Cases involving forum bar are commonly appealed to the High Court. Where a certificate has been issued, the High Court may review the rationality of the decision making in accordance with judicial review principles. In effect, this means that a defence request for disclosure in relation to prosecutorial decision-making may need to be addressed and that the prosecutor may have to give evidence. 

If it appears to the prosecutor with conduct of the domestic prosecution that it may be appropriate to issue a certificate, they will draft a briefing note outlining why a certificate is appropriate together with a draft certificate using the template “Forum Bar Prosecutor's Certificate” (template is available separately). Once reviewed at Deputy Chief Crown Prosecutor (DCCP) level, this should be sent to the relevant Director of Legal Services to authorise the issuing of the certificate. If authorised, it will be signed by the DCCP.

Prosecution already proceeding

Where a prosecution is already proceeding, the Extradition Act 2003 provides that extradition proceedings will be adjourned until the domestic proceedings have concluded. The extradition prosecutor will need to understand the domestic case in order to appreciate whether double jeopardy might be a bar to extradition.

Visiting Forces Act 1952

The Visiting Forces Act 1952 ("the Act") together with the Visiting Forces and International Headquarters (Application of Law) Order 1999 (“the Order”) make provision for dealing with offences committed by members of visiting forces (as defined by section 2(2)) from listed countries by their own service authorities (naval, military and air authorities) and service courts rather than by UK authorities. Although section 3 of the Act places restrictions on offences which may be prosecuted by UK authorities, the Act nonetheless retains jurisdiction to prosecute visiting forces by UK authorities. As a result, the potential exists for conflict regarding which jurisdiction should deal with offences committed in the UK by members of a visiting force.

Section 1 of the Act and Schedule 1 of the Order lists the countries to which the legislation applies. In general, if the service court does not have jurisdiction then the UK court will deal with the case. Section 3 sets out when the service court will have the primary right to exercise jurisdiction to deal with a case involving members of visiting forces. Essentially this will only apply where a member of the visiting force is alleged to have committed an offence against the person (as defined in the Schedule to the Act) where the victim has a “relevant association” (see section 12(2)) with the visiting force.

The UK court does not have primary jurisdiction where the offence arose out of and in the course of the service person's duties as a member of the visiting force (see section 3(1)). Under section 11 the appropriate authority of the visiting force in respect of such offences is able to issue a certificate as to the service person having been on duty at the time of the alleged offence and that the offence arose out of and in the course of that duty. This certificate constitutes sufficient evidence of that fact unless the contrary is proved.

The UK court retains jurisdiction against members of visiting forces where an offence against the person is committed against a dependant UK citizen. However, where relevant, prosecutors should have regard to the NATO Status of Forces Agreement (SOFA) to the North Atlantic Treaty (1951).  The effect of the Act and the NATO SOFA means dual jurisdiction exists in cases involving an offence against a dependant who is a UK citizen or ordinarily resident in the UK.

Waiver

In Favour of the Service Court

UK jurisdiction may be waived in favour of the service court for a number of reasons, including: 

• Drug offences committed on the base; 
• Minor drug offences committed off the base not involving any UK citizen;
• Cases where but for the involvement of service personnel a caution or diversion from prosecution would have been considered. In this case the appropriate service authority should be advised as to the likely disposal in the case of a UK citizen.
• In cases where the NATO SOFA is engaged.

Where waiver of jurisdiction is agreed the appropriate service authority should provide the results of the service court hearing.

There will also be circumstances where it would not be appropriate to waive jurisdiction in favour of the service court, this includes where: 

• Damage has been caused to the person or property of a UK citizen ; 
• There are a number of civilian witnesses; 
• A child is a victim/an important witness;
• There is a possibility of a ‘special’ penalty being imposed by domestic law (e.g. disqualification from driving).

In Favour of the UK

The service authority may be asked to waive jurisdiction in favour of the UK, for example where:

• UK citizens and service personnel are jointly involved in the commission of an offence; 
• A serious offence against the person or property of a UK citizen has been committed;
• The offence involves mandatory disqualification;
• The NATO SOFA is engaged, and UK prosecutors consider a UK prosecution to be of particular importance.

The decision as to whether to waive or retain jurisdiction is an ongoing responsibility. If, after proceedings have been commenced information comes to light, which affects the decision to retain jurisdiction (e.g. where the visiting forces member is due to imminently depart the UK for duty elsewhere) a further review should be conducted. Where it is decided to change jurisdiction to the service court, the UK proceedings should be discontinued and notification letter from the relevant CCP issued to allow the service court to assume jurisdiction.

Concurrent UK-US jurisdiction

Prosecutors dealing with cases which have a factual nexus with the United States of America should refer to the "Agreement for Handling Criminal Cases with Concurrent Jurisdiction between the United Kingdom and the United States of America".

NATO Status of Forces Agreement (SOFA)

The NATO Status of Forces Agreement 1951 address the jurisdictional issues that arise whenever foreign military personnel are suspected of committing criminal offences on British soil. Where, having applied these provisions, England and Wales nonetheless have jurisdiction to prosecute, the question of whether jurisdiction might be exercised or be waived may arise. This may be where the suspect’s criminality did not arise out of or in the course of their duties as a member of the visiting forces, or where an offence was committed against a dependant UK citizen. When giving a heightened level of consideration to a request to waiver in a “particular importance” case, the question of waiver in all cases may be approached by applying principles of engagement with other jurisdictions set out above.