The Dewani extradition has brought the importance of international cooperation in serious criminal cases to the fore once again.
But extradition is not the only issue involved in cases of this type – sometimes establishing where a crime took place can be important. For example, in the recent case against Rimas Venclovas, the victim was abducted from Peterborough by her Lithuanian ex-husband and her body was discovered in Poland. The case raised the question of whether the suspect should be tried in the English courts.
So how can the courts cope with cross-jurisdictional issues of this kind?
- English criminal law is territorial. The common law took the view that it would only punish criminal conduct that was committed within the geographical territory of England. The common law has adapted to changing times. It will now punish criminal conduct where the ‘essence’ of the conduct occurred within the territorial boundaries of the State and where there are no reasons of comity requiring that the crime should be punished elsewhere: R v. Smith (Wallace Duncan) (No 4)  QB 1418.
- Statutes have extended the geographical scope of the criminal law since at least the time of Henry VIII. These statutory expansions were, until recent times (see, for example, Criminal Justice Act 1993), confined to murder and manslaughter. A series of nineteenth century statutory provisions (see, for example, section 9 Offences Against the Person Act 1861) still make it an offence against English law for a British citizen to commit murder or manslaughter abroad and provide for English jurisdiction where a fatal blow was struck on one side of the territorial boundary of the State but the death occurred on the other.
- There was, however, thought by some to be a lacuna in the law as it applied to unlawful killing. This lacuna, had it existed, would have been a serious one given the free movement of persons permitted by European law and modern travel.
The presumed lacuna arose on the facts of a case which, when it reached the Court of Appeal, was reported as: R v. Venclovas  EWCA Crim 2182.
R v. Venclovas  EWCA Crim 2182
Mr Venclovas and his former wife were Lithuanian citizens who lived in Peterborough. After the marriage ended, Mr Venclovas went back to Lithuania; his wife and son remained here.
One night Mrs Venclovas went missing. Close circuit television showed that she had been abducted by her former husband but there was no trace of her or her body in England. There was evidence (from Mr Venclovas’ satellite navigation system) that Mr Venclovas had driven his van from Lithuania to Peterborough the night before the abduction and had driven back shortly afterwards, stopping in a forest in Poland on the way. Mrs Venclovas’ body was found in the Polish forest some months later.
Before the body was found, Mr Venclovas was arrested in Lithuania pursuant to a European arrest warrant alleging abduction and murder. He was returned to the United Kingdom. After the body was found it was argued that even if it could be established that Mr Venclovas deliberately killed his wife, it could not be established (to the criminal standard of proof) that he did so within England and Wales. He could, it was argued, have committed the act of murder anywhere between Peterborough and the Polish forest. That is to say, in France, Belgium, Germany or Poland.
The first response to that argument is that in fact there is no relevant lacuna in English law. The relevant statutory provisions do not appear to have been used before but section 4 Suppression of Terrorism Act 1978 extends the geographical scope of the English law of murder and manslaughter to inter alia encompass a killing by any person (regardless of citizenship) in any country which is designated by the Secretary of State as a party to the European Convention on the Suppression of Terrorism 1977. All the countries through which Mr Venclovas passed had been so designated. A prosecution using section 4 ordinarily requires the consent of the Attorney General. It states:
4.— Jurisdiction in respect of offences committed outside United Kingdom.
(1) If a person, whether a citizen of the United Kingdom and Colonies or not, does in a convention country any act which, if he had done it in a part of the United Kingdom, would have made him guilty in that part of the United Kingdom of—
(b) an offence of attempting to commit any offence so mentioned,
he shall, in that part of the United Kingdom, be guilty of the offence or offences aforesaid of which the act would have made him guilty if he had done it there.
(3) If a person who is a national of a convention country but not a citizen of the United Kingdom and Colonies does outside the United Kingdom and that convention country any act which makes him in that convention country guilty of an offence and which, if he had been a citizen of the United Kingdom and Colonies, would have made him in any part of the United Kingdom guilty of an offence mentioned in paragraph 1, 2 or 13 of Schedule 1 to this Act, he shall, in any part of the United Kingdom, be guilty of the offence or offences aforesaid of which the act would have made him guilty if he had been such a citizen.
…(4) Proceedings for an offence which [(disregarding the provisions of the Internationally Protected Persons Act 1978 [, the Nuclear Material (Offences) Act 1983 [, the United Nations Personnel Act 1997 and the Terrorism Act 2000] 6] 5)] 4 would not be an offence apart from this section shall not be instituted—
(b) in England and Wales, except by or with the consent of the Attorney General [.] 7
(7) For the purposes of this section any act done—
(a) on board a ship registered in a convention country, being an act which, if the ship
had been registered in the United Kingdom, would have constituted an offence within the jurisdiction of the Admiralty; or
(b) on board an aircraft registered in a convention country while the aircraft is in flight elsewhere than in or over that country; or
(c) on board a hovercraft registered in a convention country while the hovercraft is in journey elsewhere than in or over that country,
shall be treated as done in that convention country; [and subsection (4) of section 92 of the Civil Aviation Act 1982 (definition of 'in flight' or, as applied to hovercraft, 'in journey') shall apply for the purposes of this subsection as it applies for the purposes of that section.
[Section 5 gives the Secretary of State power, by order, to extend the 1978 Act to non-convention countries that are category 1 or 2 territories under the Extradition Act 2003].
The defendant then argued that the 1978 Act could not cure the position in his case. He said that if consent was given under the 1978 Act and proceedings commenced on an indictment for murder as a result, it would be necessary for the Crown to establish that the killing in fact occurred outside the UK and in one of those territories. This he said the Crown could not do to the relevant standard. It may have been, so the argument ran, that the killing occurred in the United Kingdom.
The defendant’s argument relied on the contention that the 1978 Act created a new offence or ‘a new dimension’ to the offence rather than simply extending the geographical reach of the existing common law offence of murder. This argument was rejected by the trial judge and the Court of Appeal relying on remarks by Lord Hope in R v. Bow Street Magistrate, ex parte Pinochet (No 3)  1 AC 147 at 232.
The landmark case against Venclovas illustrates the legal issues which can arise from modern travel and the increasing movement of populations. The little known provision used plugs an important gap in the geographical reach of the criminal law as it applies to conduct set out in the Suppression of Terrorism Act 1978.
David O’Mahony is a barrister at 7 Bedford Row who acted on behalf of the prosecution in the R v. Venclovas case.