Ratifying the Istanbul Convention
The Criminal Law (Extraterritorial Jurisdiction) Act 2019 was enacted in Ireland a few weeks ago. The primary purpose of the Act was to introduce the final legislative measures necessary to enable Ireland to ratify the Council of Europe’s Istanbul Convention on preventing and combating violence against women and domestic violence. Most of the legislative measures necessary to ratify the Convention are already contained in the Domestic Violence Act 2018. Significantly, in implementing the outstanding measures, the 2019 Act also extends the extra-territorial jurisdiction of Irish courts to a range of violent offences irrespective of whether they specifically entail violence against women or domestic violence. This reflects a growing trend towards expanding extra-territorial jurisdiction in criminal matters.
Up until the 2019 Act, extra-territorial jurisdiction in criminal matters has been felt primarily in respect of serious crimes that pose a common threat to States because of their cross-border character. Typical examples concern terrorism, drug-trafficking and certain sexual offences. Arguably, the 2019 Act is different in that it extends extra-territorial jurisdiction to a wider range of offences against the person (see below), some of which (such as assault causing harm) might not be considered to be at the serious end of criminal offending. This, of course, reflects the fact that a primary purpose of the Act is to combat violence against women and domestic violence. In line with the Istanbul Convention, it is concerned to ensure that national borders do not operate as barriers to prosecutions for these offences.
Violent and sexual offences
Much of the Act applies to certain violent offences, namely: assault causing harm; causing serious harm; threats to kill or cause serious harm; coercion; harassment; sexual assault (indecent assault); aggravated sexual assault; rape; and rape under section 4 of the Criminal Law (Rape)(Amendment) Act 1990. Each of these constitutes a “relevant offence” for the purposes of the Act.
Conduct amounting to one of the relevant offences can be prosecuted in Ireland where it occurs outside the State on board an Irish ship or on an Irish registered aircraft. It does not matter whether the accused or the victim is an Irish citizen or resident. The same applies where a person aids, abets, counsels or procures (secondary participation) another person to engage in conduct on board an Irish ship or registered aircraft, or on the territory of another State party to the Convention. In this event, the conduct must amount to one of the relevant offences if it occurred in Ireland, and the secondary participation must occur in Ireland or on board an Irish ship or Irish registered aircraft.
Such assumption of extra-territorial jurisdiction is not novel in Ireland. There are several statutory provisions asserting criminal jurisdiction over specified conduct that occurs on board an Irish ship or Irish registered aircraft. However, the 2019 Act also confers jurisdiction in respect of conduct that occurs wholly in another Convention State in certain circumstances. This arises where an Irish citizen, or person ordinarily resident in Ireland, engages in conduct in another Convention State, and the conduct in question constitutes an offence in that Convention State and would, if it occurred in Ireland, constitute a relevant offence (listed above) in Ireland. The 2019 Act makes prosecution in Ireland a possibility where these requirements are satisfied. It is worth noting that there does not have to be an identity between the definition of the offence in the other Convention State and the “relevant offence” in Irish law. It will be sufficient that the conduct in question amounts to an offence in the law of the other Convention State, irrespective of how it is defined there.
The Act also confers jurisdiction on an Irish court in respect of aiding, abetting, counselling or procuring (secondary participation) conduct in another Convention State in these circumstances. The secondary participation must occur in the other Convention State and the conduct being assisted or encouraged must concern conduct in that State. The secondary participation must constitute an offence in the other Convention State, the secondary party must be an Irish citizen or ordinarily resident in Ireland and the conduct being assisted or encouraged must constitute a relevant offence in Ireland if it occurred there.
Murder and manslaughter
The Act makes separate provision for murder and manslaughter. Irish courts already have jurisdiction over murder and manslaughter committed outside the State by an Irish citizen. The 2019 Act extends this further to a person who is ordinarily resident in Ireland. If such a person engages in conduct outside the State and that conduct would, if it occurred in Ireland, constitute murder or manslaughter, he can be prosecuted in Ireland. It is not necessary for the conduct to occur in another Convention State. It can occur anywhere in the world outside Ireland. Moreover, it is not necessary for the conduct to amount to an offence in the place where it occurred.
The Act also extends the jurisdiction of Irish courts to aiding, abetting, counselling or procuring conduct in a place outside Ireland where the conduct in question would, if it occurred in Ireland, amount to murder or manslaughter. This applies where the secondary party is either an Irish citizen or a person ordinarily resident in Ireland, and the secondary participation itself occurred outside Ireland (and not on an Irish ship or Irish registered aircraft).
It is also worth noting that the 2019 Act makes it a specific offence under Irish law for any person (irrespective of nationality or ordinary residence) to aid, abet, counsel or procure murder or manslaughter outside Ireland. The act of secondary participation must occur in Ireland or on board an Irish ship or Irish registered aircraft. The conduct being assisted or encouraged must be such as to amount to the offence of murder or manslaughter if it occurred in Ireland. However, it need not amount to such an offence under the law of the place where it is intended to occur.
Northern Ireland
Some of the offences covered by the 2019 Act are subject to the extra-territorial jurisdiction provisions of the Criminal Law (Jurisdiction) Act 1976 which relates to Northern Ireland. The primary offences in this context are murder, manslaughter and causing serious harm. Where extra-territorial jurisdiction is being considered in respect of such offences committed in Northern Ireland, it is the 1976 Act (rather than the 2019 Act) that applies.
Court area
Proceedings for an offence under the 2019 Act can be taken in any place in Ireland, and the offence will be treated as having occurred in that place for the purposes of the proceedings. This provision reflects the fact that, under Irish law, the jurisdiction of a court over an offence is closely connected to the court area in which the offence is alleged to have occurred. For an offence that occurs outside Ireland, therefore, it is necessary to have provision treating it as if it occurred in the Irish court area where the proceedings are commenced. A technical complication arises in respect of those offences covered by the Act which are actually committed in Ireland. It is arguable, that the effect of the Act is to permit them to be prosecuted anywhere in Ireland, rather than in the locality where they were actually committed.
Proving citizenship and residency
Since the citizenship or residency status of a person is central to most situations covered by the Act, there is express provision for that to be proved. Evidence of citizenship can be provided by a certificate signed by an officer of the Minister for Foreign Affairs and Trade and stating that a passport was issued to the person concerned on a specified date by that Minister. This, together with a certificate signed by an officer of the Minister stating that to the best of his knowledge and belief the person concerned has not ceased to be an Irish citizen, shall be evidence (unless the contrary is shown) that the person was an Irish citizen on the date that the offence in question was alleged to have been committed.
For the purposes of these provisions, a person is deemed to have been ordinarily resident in Ireland if he has had his principal residence in the State for the period of 12 months immediately preceding the commission of the offence concerned.
Significance in practice
As noted above, the extension of extra-territorial jurisdiction effected by the 2019 Act is not confined to the commission of offences in the context of violence against women or domestic violence. It extends to the specified offences generally, irrespective of the context in which they were committed. Accordingly, the Act can be interpreted as a significant extension of extra-territorial jurisdiction in Irish criminal law. It is also possible, of course, that other parties to the Istanbul Convention will implement these aspects of the Convention in their law in a similar manner. This would mean that their courts would have extra-territorial jurisdiction over the offences concerned when committed in Ireland by one of their citizens or residents.
Given the nature of the offences covered by the 2019 Act, it might be expected that the need for Ireland to exercise extra-territorial jurisdiction in respect of them will not be a regular occurrence. It is highly likely that murder or manslaughter, or any of the sexual offences or other offences against the person, will be prosecuted in the other Convention State where they occurred. Even if the suspected offender attempted to evade justice there by coming to Ireland, it is likely that he could be prosecuted in the other Convention State in his absence or that he would be returned for trial there pursuant to an extradition request or European Arrest Warrant (where applicable). Presumably, prosecution in Ireland would only be a consideration if, for some reason, the other Convention State concerned refused or failed to prosecute, or the circumstances were such that a prosecution in Ireland would be more appropriate than an extradition. In that event, the provisions of the Criminal Justice (Mutual Assistance) Act 2008 will be available where it is necessary to procure assistance from the other Convention State in respect of evidence or witnesses located there.
Double Jeopardy
It is also important to note that the exercise of extra-territorial jurisdiction pursuant to these provisions is subject to the ‘double jeopardy’ principle. Accordingly, where a person has been acquitted of an offence in a place outside Ireland, he cannot be prosecuted again in Ireland under the Act for an offence consisting of the alleged conduct constituting the first offence. The same applies where he has been convicted of such an offence outside Ireland.
Status of accused rather than victim
Finally, it is worth noting that the 2019 Act confers extra-territorial jurisdiction by reference to the citizenship or ordinary residence of the alleged offender. The jurisdiction is not triggered by the citizenship or ordinary residence of the victim. It follows that if a person, who is not an Irish citizen or ordinarily resident in Ireland, commits an offence covered by the Act against an Irish citizen (or person ordinarily resident in Ireland) outside Ireland, an Irish court would not have jurisdiction over that offence under the 2019 Act. This focus on the status of the alleged offender, as distinct from the victim, reflects the fact that Irish criminal law approaches extra-territorial jurisdiction on the basis of what is known as the ‘active personality principle’; in other words, on the basis of the status of the alleged offender.
Ian Bailey case
Some States exercise jurisdiction on the basis of the status of the victim in certain circumstances. An ongoing, controversial, example of this concerns the French prosecution of English citizen (but Irish resident), Ian Bailey, for the 1996 murder in Ireland (West Cork) of French citizen, Sophie Toscan du Plantier, who was also resident in Ireland at the time. The Irish DPP has decided against prosecution because of the lack of admissible evidence. Despite the fact that the murder occurred in Ireland, the victim was resident in Ireland, the accused is resident in Ireland, the evidence (such as it is) is located in Ireland, and the Irish DPP has decided there is an insufficient basis for prosecution, the French authorities are pursuing a prosecution in France as the murder of a French citizen anywhere in the world is a crime under French law. A prosecution could not normally be sustained in Ireland for the murder of an Irish citizen in France in comparable circumstances. When enacting the 2019 Act, Ireland decided not to include the status of the victim as a trigger for extra-territorial jurisdiction, as to do so would constitute a major change in Irish law. Any such dramatic change would require much more deliberation than was necessary to satisfy the Istanbul Convention.