ENGLAND & WALES Law and Practice Contributed by: Steven Kay KC, Richard Paton-Philip, Kabir Sondhi and Lucy Kinder, 9BR Chambers
The General Rule on Territoriality The general rule is that a criminal offence under the law of England & Wales applies within the realm of England & Wales only. For a criminal offence to have extraterritorial effect in law, this must be specifically provided for by statute. However, R v Smith (Wallace Duncan) (No 4) [2004] EWCA Crim 631 established that a crime may be regarded as having been committed in England & Wales if a “substantial part” of the offence took place within the jurisdiction. There are specific rules governing cross-frontier incho - ate offences, such as conspiracy and attempt. Extraterritorial Effect of the Bribery Act As set out above, the Bribery Act has broad extraterritorial reach, specifically provided for in the statute. In relation to Section 1, 2 and 6 offences, conduct anywhere in the world is justiciable in England & Wales if the person in question satisfies the “close connection to the UK” test. The Section 7 offence covers conduct anywhere in the world if the company (or part - nership) involved is incorporated (or formed) in the UK or carries on a business practice there. 3.3 Corporate Liability Corporate Criminal Liability Generally In England & Wales, corporations can be liable for criminal offences of strict/absolute liability as well as those that require a “fault” element (eg, intention, recklessness, knowledge or neg - ligence). Where an offence involves a requisite fault element, a corporation can be held crimi - nally liable by way of the “identification principle” for acts and omissions committed by a natural person if that person is “identified” with the cor - porate (ie, the individual is the “directing mind and will” of the corporate). The long-standing test by which individuals could be “identified” with a corporate was set
• the exercise of any other function of the gov - ernment. A person is prohibited from carrying on the business of consultant lobbying unless they are entered in the Register. Breach of that prohibi - tion is an offence under Section 12 of the Act.
3. Scope of Application 3.1 Limitation Period
For summary offences (those triable only in the summary jurisdiction of the Magistrates’ Courts), an information (ie, charge) must be served on the Magistrates’ Court within six months of the time that the offence was committed. However, offence-creating statutes may specify a differ - ent starting point, such as the date when the prosecutor has sufficient evidence to justify a charge (see, for example, Section 1128 of the Companies Act 2006). Otherwise, there is no statute of limitations or other overarching limitation rule in the criminal law of England & Wales. A prosecution for indict - able offences (those triable in the jurisdiction of the Crown Court) can be commenced at any time and address offending conduct of any age, but undue delay in bringing a case can, in some circumstances, amount to an abuse of process. 3.2 Geographical Reach of Applicable Legislation The General Rule on Jurisdiction The criminal courts have the jurisdiction to try any offence under the law of England & Wales, wherever in the world that offence may have been committed. Whether the offending conduct amounts to a criminal offence depends upon the extraterritorial provisions of the law in question.
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