Defending Christian Arabs, R (On the Application Of) v

English criminal law does not ordinarily extend to conduct outside England and Wales. Extra-territorial jurisdiction requires specific statutory provision. A statutory provision applying to Crown employees did not extend to the Prime Minister, who was an office-holder rather than an employee.

A magistrate considering a private summons must examine jurisdiction, the prima facie ingredients of the alleged offence, and whether the application is vexatious, abusive or otherwise improper. The threshold requires rigorous analysis and is not low. A victims’ rights directive and the right to an effective remedy do not create criminal jurisdiction where none otherwise exists.

Defending Christian Arabs sought judicial review of a District Judge’s refusal to issue a summons against Tony Blair under section 1(1)(a) of the Magistrates Courts Act 1980. The proposed charge was administering a noxious substance, contrary to section 23 of the Offences Against the Person Act 1861, based on the alleged use of depleted uranium during the 2003 invasion of Iraq.

The District Judge refused the summons for want of territorial jurisdiction. Permission for judicial review was refused on the papers and the claimant renewed the application. The central issues were whether the Surrey justices had jurisdiction, whether there was prima facie evidence of the offence, and whether the proposed prosecution was improper or vexatious.

1. Permission refused. The District Judge was correct to conclude that the Surrey justices lacked jurisdiction over an alleged section 23 offence committed in Iraq.
2. English criminal law ordinarily applies only to acts committed in England. Specific statutory language is required for extra-territorial application. Section 31 of the Criminal Justice Act 1948 did not apply. The Prime Minister was an office-holder, not a person employed under the Government in the service of the Crown, and the section’s wording was directed to civil servants.
3. Directive 2012/29/EU established minimum standards for victims of crime but did not confer jurisdiction over extra-territorial offences where jurisdiction did not otherwise exist. The alleged offence occurred in Iraq, outside the Union. The claimant had applied for a summons for a domestic section 23 offence, not an international crime, so any issue of jurisdiction under international law did not arise.
4. In deciding whether to issue a private summons, the magistrate must consider whether the offence is known to law, whether its essential ingredients are prima facie present, limitation, jurisdiction, the informant’s authority, and the wider circumstances, including vexatiousness, abuse of process or impropriety. The analysis must be rigorous, particularly for an indictable-only offence.
5. There was no prima facie evidence that Mr Blair ordered the use of depleted uranium, that he administered or caused it to be administered to the alleged victim within one of the three modes recognised for section 23 offences, or that the use of the weapons caused lung cancer sixteen years later.
6. The proposed prosecution was also improper. The evidence indicated a purpose of pursuing alleged war crimes rather than the specific section 23 offence, and there had been an unexplained delay of about sixteen years. Permission to appeal was likewise refused because the matter concerned a criminal cause or matter and the application was totally without merit.

• Guildford Magistrates’ Court: on 1 July 2019, the District Judge refused to issue the summons for want of territorial jurisdiction.
• High Court (Administrative Court): Garnham J refused permission on the papers on 13 March 2020. Mrs Justice Cutts refused the renewed application and permission to appeal.