CHAPTER 7
STATE JURISDICTION
The concept of territorial jurisdiction of States
One of the pre-conditions for a State to be recognized as an International person is that it must have a defined territory over which its jurisdiction extends. We also know that the territory of a state can be viewed under international law in three dimensional contexts that is land, air and water. Within the limits as prescribed under international law, a state’s jurisdiction extends into sea what is called as territorial sea and space called as air space that falls within state’s jurisdiction.
In fact, the term ‘jurisdiction’ refers to the power of States to subject persons or property to their laws, judicial institutions, or enforcement capacity. This corresponds to the three types of jurisdiction, that is, legislative, judicial, and enforcement jurisdiction.
Given thus, the term state jurisdiction simply means the legal competence which a state enjoys over the territory which belongs to it. The expression competence includes all facets of competence right from legislative to judicial to administrative or so called executive competence.
A state cannot exercise jurisdiction in the territory of another state unless it is expressly permitted. In the famous LOTUS case of 1927, the PCIJ categorically held that “the first and foremost restriction imposed by International law upon a state- failing the existence of a permissive rule to the contrary----it may not exercise its power in any form in the territory of another state.”
Hence whatever has been noted above, it is clear that on the one hand, the first and foremost rule of international law is that a state may not exercise jurisdiction in the territory of another state unless, it is permitted by a contrary rule of international law and on the other hand, a state is entirely free to exercise its jurisdiction over the territory which belongs to it
Jurisdiction of a state may be broadly classified into two types. TERRITORIAL & EXTRATERRITORIAL JURISDICTION.
- TERRITORIAL JURISDICTION: As we already know that one of the essential attributes of statehood under international law is a defined territory over which it exercises absolute sovereignty. The concept of sovereignty desires that all other states must respect a state’s territorial integrity and should refrain from interfering in the internal affairs of a state.
By territorial jurisdiction, it is meant that a state enjoys civil and criminal jurisdiction over all persons and things who are found within its territory. This includes even aliens. This flows from the concept of sovereignty. We must note that the territory of a state under international law is a three dimensional concept encompassing not only land territory, but air space and aquatic territory up to the limit of 12 nautical miles too.
It is believed that the basis of the territorial jurisdiction rests on a theory which recognizes state territory as the constructive element of the concept of the state. According to this theory which also sometimes called as the AREA THEORY, the violation of the state territory is the violation of state personality itself and of the people living in the state.
EXTRA-TERRITORIAL JURISDICTION:
A state is competent not only to subject its people to its laws within its territory, but also when its citizens are for the time being out of its physical control. This is referred to as extra-territorial jurisdiction of a state to subject its citizens living or working abroad. This is justified on the principle of personal supremacy as asserted by Oppenheim as against the principle of territorial supremacy subjecting everyone to its laws and regulations found on its territory.
This extraterritorial jurisdiction can become a complicated matter when it comes to the exercise of criminal jurisdiction by a state.
CRIMINAL JURISDICTION: An analysis of the criminal codes and writings of the international publicists discloses FIVE general principles on which the criminal jurisdiction is claimed by states in present times. They are as follows:
- Territoriality principle- the concept of subjective & objective territoriality:
This is the simplest and least contentious form of criminal jurisdiction, even in respect of enforcement. It is generally established by the legislative and judicial practice of States in two alternative, but sometimes overlapping, ways. So-called subjective territorial jurisdiction is asserted by those States in which criminal conduct commences on their territory, although the crime is ultimately consummated, or produces effects, in the territory of a third State.
Equally, however, the State in the territory of which the effect was consummated has a legitimate interest in prosecuting the offenders. This interest will be exercised on the basis of so-called objective territorial jurisdiction. Case law suggests that this type of jurisdiction will be entertained where the criminal conduct has caused significant economic or other consequences within the territory of the affected State (United States v Aluminium Co of America [1945]; Mannington Mills Inc v Congoleum Corp [1979]).
This corresponds to the effects doctrine, postulated by US courts, which was initially employed in anti-trust cases targeting cartels that threatened to harm rival US corporations. Following European protests over the far-reaching extraterritorial effects of the doctrine, it was held that jurisdiction under the doctrine had to be reasonable in that it should consider the economic interests of other States and the relationship between the US and the defendant (Timberlane Lumber Co v Bank of America [1976]). Objective territorial jurisdiction may also be justified on the basis of the continuing act doctrine, according to which a criminal act is not deemed to have ceased where it still produces results in the territory of a State. Transnational criminal conspiracies (Transnational Organized Crime) concerned with the trafficking of illicit substances or women and children (Narcotic Drugs and Psychotropic Substances; Human Trafficking) are by their very nature continuing crimes, and objective territorial jurisdiction is available to affected States (Director of Public Prosecutions v Doot)- [1973] .
The Ambit and Notion of Territory for the Purposes of Criminal Jurisdiction & what is not included in a State’s territory?
As we noted at the outset, when applying both subjective and objective territorial jurisdiction, the concept and ambit of territory is not confined solely to a State’s land boundaries. States enjoy absolute criminal jurisdiction for crimes committed anywhere in their internal waters, even if the offence took place on board a foreign merchant ship (Art. 27 (2) UN Convention on the Law of the Sea. Criminal jurisdiction, however, in respect of offences committed in the coastal State’s territorial waters on board a foreign merchant vessel is not unlimited. Its exercise is permissible only where it is demonstrated that a crime has disturbed or affected the coastal State’s land territory, or that the measures taken were aimed for the suppression of illicit drug trafficking, or that in any event the consent of the flag State was secured in accordance with Art 27 (1) UN Convention on the Law of the Sea. The jurisdiction of the coastal State in its contiguous zone is limited only to the enforcement of criminal legislation pertaining to fiscal, sanitary, immigration, or customs violations, or continuing offences that commenced on land territory or the territorial sea in accordance with Art 33 UN Convention on the Law of the Sea.
Jurisdiction of this nature in the aforementioned maritime belts does not apply to State ships or warships.
STATE JURISDICTION IN HIGH SEAS: On the high seas, the general rule is that only the flag State has jurisdiction over crimes occurring on vessels flying its flag (Art 97 (1) UN Convention on the Law of the Sea). Thus, the relevant part of the judgment in the case of The Lotus has now been discredited.
THE LOTUS CASE: The case concerned a high seas collision between a French and Turkish vessel. The Permanent Court of International Justice (PCIJ) justified the exercise of judicial jurisdiction by the Turkish courts by assimilating the Turkish vessel with Turkish territory. The correct rule, as also enshrined in Art 27 UN Convention on the Law of the Sea, is that flag State jurisdiction pertains to high seas collisions (→ Collisions at Sea).
The flag State jurisdiction principle is also applicable in respect of crimes committed in outer space by astronauts, in accordance with Art 8 of Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer Space, Including the Moon and Other Celestial Bodies of 1967 (Moon and Celestial Bodies).
There are three exceptions to flag State jurisdiction for offences committed on the high seas. The first concerns piracy iure gentium), which is subject to universal jurisdiction under both customary international law and Art 105 UN Convention on the Law of the Sea. The second relates to stateless vessels found on the high seas, in which case one strand of scholarship believes that the absence of nationality renders that vessel devoid of any national protection (Molvan v Attorney-General for Palestine- United Kingdom Privy Council [20 April 1948] United States v Marino-Garcia US Court of Appeal. Another strand of scholarship, however, refutes this position, although this has not been backed by case law or sustained practice.
Finally, a State may waive its exclusive judicial or enforcement jurisdiction under the flag State principle, whether by virtue of bilateral (e.g. Agreement to Stop Clandestine Migration of Residents of Haiti to the United States [1981] or multilateral agreements (Art. 8 (2) Protocol against the Smuggling of Migrants by Land, Sea and Air, Supplementing the UN Convention against Transnational Organized Crime [2000], which, however, requires flag State consent at all stages of enforcement). These agreements are evidently confined to particular offences and do not provide a general right of criminal jurisdiction for the intercepting, boarding, or arresting State. Jurisdiction for crimes committed in airspace is regulated by the various specialized anti-terrorist conventions (Terrorism) relevant to civil aviation (Aerial Incident Cases before International Courts and Tribunals; Civil Aviation, Offences against Safety). These uniformly provide jurisdiction to the territorial State, the State in which the aircraft was registered, the landing State, and the apprehending State; without excluding other jurisdictional claims (see e.g. Art 5 Convention for the Suppression of Unlawful Acts against the Safety of Civil Aviation [1971]). The general rule in such cases is that judicial criminal jurisdiction lies with the subjacent State (Smith v Socialist People’s Libyan Arab Jamahirya US Court of Appeals [2nd Cir 10 February 1997] This subjacent State jurisdiction principle was enforced in respect of the Lockerbie incident that involved the destruction of an aircraft in flight above the Scottish town of Lockerbie, despite the fact that the particular terrorist operation implicated numerous jurisdictions (→ Lockerbie Trial).
The premises of diplomatic missions, including all objects found therein, are not susceptible to the territorial jurisdiction of the host State, in accordance with Art 22 Vienna Convention on Diplomatic Relations (1961). This is true not only in respect of judicial and legislative jurisdiction, but also enforcement jurisdiction, unless the government of the sending State has waived its right to inviolability of diplomatic premises. In cases where the diplomatic premises are seized by criminal elements that threaten the immediate security of the host State and the head of the diplomatic mission does not consent to police action, it is reasonable to assume, even if the VCDR is generally silent on the matter, that the host State is entitled to, at the very least, a basic enforcement jurisdiction. Given the absence of a general rule, the host State’s argument would certainly be reinforced if the police action was found to be proportionate to the threat and no object was subsequently removed as evidence or otherwise from the diplomatic premises. Equally, no person endowed with diplomatic immunity under the terms of the VCDR could thereafter be prosecuted in the courts of the host State in relation to said criminal acts perpetrated in the diplomatic premises. The only possible avenue as an alternative to the exercise of judicial jurisdiction is to expel a person enjoying diplomatic immunity as → persona non grata.
Crimes committed by members of military forces abroad stationed or in transit in the territory of another (host) State are not generally subject to the criminal jurisdiction of the host State because matters of criminal jurisdiction in such circumstances will be covered by status of armed forces on foreign territory agreements (SOFA). These agreements generally confer primary jurisdiction to the sending State and this is also true in respect of multinational forces stationed abroad (Peacekeeping Forces), as a matter of customary international law (UN Secretary-General ‘Observance by UN Forces of International Humanitarian Law’.
EXTRA-TERRITORIAL CRIMINAL JURISDICTION:
Nationality or Active Personality Principle of Jurisdiction & passive nationality principle:
The nationality principle confers on States the power to subject their own nationals to judicial and legislative criminal jurisdiction for crimes they have committed abroad. The mere fact of nationality does not give rise to this type of jurisdiction in respect of all crimes committed abroad; rather, it has to be preceded either by particular or general criminal legislation, otherwise it may be deemed to offend the principle against the application of retroactive legislation. This principle is expressed in Latin maxim: (Nulla poena nullum crimen sine lege) OR shortly as: nulla poena sine lege. This means simply: NO PENALTY WITHOUT LAW.
The historic origins of nationality jurisdiction can be traced to the prosecution of the crime of treason, which is quintessentially predicated on national allegiance and which is broken when the vow of allegiance is violated. Some courts have held that treason persists even where the assumption of nationality was made possible through fraudulent means (Joyce v Director of
Public Prosecutions UKHL. The granting of nationality itself is a matter that befalls the sovereignty of each State, albeit the effects (and possible conflicts arising) from the conferral of nationality in international relations are regulated by international law (Nationality Cases before International Courts and Tribunals; Nottebohm Case [Liechtenstein v Guatemala] [Second Phase] [1955] ICJ. Thus, it is very likely that a person with dual or multiple nationality may be indicted for an extraterritorial offence in one of his countries of nationality but not in another. There exists no general rule for resolving such conflicts and moreover one should not expect the non-prosecuting State (of which the accused is a national) to extradite the accused to the requested State because this would violate the nulla poena principle.
In practice, civil law States have been most proactive in exercising nationality-based jurisdiction, principally because traditionally they have been the most ardent opponents against extraditing their own nationals. As a result, they were compelled to prosecute every such crime committed abroad. This attitude has now changed to some degree, at least among European States, as a result of the European Arrest Warrant (Council Framework Decision- 2002, which obliges Member States to extradite their own nationals in respect of a mandatory list of offences. This led some States to amend their constitutions in order to accommodate the European Arrest Warrant (General Attorney of the Republic of Cyprus v Konstantinou [Supreme Court of Cyprus] [7 November 2005], or interpret their constitutions as being compatible with the extradition of nationals (Avis du Conseil d’État-2002]). Increasingly, the contemporary trend in justifying the exercise of nationality jurisdiction by developed States is the avoidance of impunity in respect of certain countries where particular behavior is either not qualified as criminal, or even if it is the authorities generally fail to prosecute the offenders. This is certainly true with regard to drugs and sexual offences, particularly against children, such as the 2003 United Kingdom’s Sexual Offences Act.
Passive Personality Principle of Jurisdiction:
This principle focuses on the nationality of the victims and entails the exercise of jurisdiction by the victim’s country of nationality. It is generally considered the weakest of all jurisdictional links with the prosecuting State, particularly in those cases where the territorial State is willing to prosecute the accused. In practice it was rarely utilized prior to the advent of contemporary terrorism and the case that is usually cited in respect of its condemnation is the Cutting incident in which a US citizen was arrested and prosecuted in Mexico in respect of a libel charge against a Mexican national, committed in the form of a book. The book, for which offence was taken, had been authored wholly in the US and the case was resolved through diplomatic means with the US vehemently opposing this form of criminal jurisdiction.
Ever since the eruption of terrorist activities directly related to the Palestinian struggle and later to militant Islam, even the most fervent opponents of passive personality jurisdiction, particularly the US, began to apply it extensively. Given that sophisticated security in the territory of developed nations initially precluded the launching of terrorist attacks thereon, terrorist groups thereafter targeted US and other Western nationals abroad. The victimization of its nationals as a matter of terrorist policy led US lawmakers in the aftermath of the Achille Lauro Affair (1985) (Palestine Liberation Organization [PLO]) to adopt the Omnibus Diplomatic Security and Antiterrorism Act of 1986, and later others, by which it firmly set out passive personality jurisdiction, not only in terms of law and prosecution, but more importantly as a matter of extraterritorial enforcement (United States v Yunis [1988].
This principle of jurisdiction is now a consistent and permanent feature of the vast majority of general international criminal law treaties, besides anti-terrorist treaties, such as Art. 5 (1) (c) of 1984 Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (‘1984 UN Torture Convention’)
Moreover, it was the principal legal basis for the Spanish extradition request to the United Kingdom in respect of ex-President Pinochet of Chile. Given its prevalence in contemporary international relations it should not be considered merely as a subsidiary form of jurisdiction. This result has been achieved because the inability of States generally to respond to terrorist crimes taking place on their territory against aliens, coupled with the rapid movement of the culprits across international frontiers before the local authorities have had a chance to react and investigate, renders territorial jurisdiction no more useful than passive personality jurisdiction. Under such circumstances, the territorial sovereignty of the locus delicti commissi (the country where the offence took place) cannot claim to have been violated.
Protective Principle of Jurisdiction:
The protective principle of jurisdiction confers on a State power to prosecute offenders and enforce its laws in respect of extraterritorial acts that threaten or harm its national security interests. This type of jurisdiction allows for a broad unilateral construction of national interests. This varies from destruction of critical infrastructure, including military and diplomatic missions located, abroad (destruction of the USS Cole by terrorists in Yemen) and it may also involve extraterritorial acts of espionage against the prosecuting country’s national interests.
There is no general consensus as to the location where the harmful effects must be targeted, felt, or perpetrated (in the case of continuing crimes or crimes in motion) before the State concerned can exercise enforcement or other jurisdiction. Some courts have held that the threat can take place on both home soil and abroad (Nusselein v Belgium Cour de Cassation [Belgian Court of Cassation.] It is reasonable for countries with extensive coastlines and in fear of waves of illegal immigration, smuggling, and trafficking to enforce their relevant laws beyond the outer edge of their contiguous zone, or against their embassies abroad (United States v Pizzarusso [1968]; United States v Bin Laden [2000] 197.
The State of Israel even invoked the protective principle, among others, in order to justify its abduction and prosecution of Eichmann, at a time when it did not possess any statehood.
Although the legislative and judicial jurisdictional elements of the protective principle are not in conflict with general international law, enforcement jurisdiction is evidently problematic. The bombing of US embassies in Kenya and Tanzania in the late 1990s provoked military action by the US against alleged Al Qaeda targets in different parts of the world. The regulation of military action under such circumstances is governed by the United Nations Charter’s provisions relating to the use of force and should not be dictated by the unilateral designation and application of the protective principle. Certainly, the best avenue for exercising the protective principle without recourse to armed force is through mutual legal assistance channels.
Universal Jurisdiction:
The principle of universal jurisdiction is said to apply to two categories of offences: (a) certain crimes that are universally considered heinous and repugnant; and (b) crimes committed in locations that are beyond the exclusive authority of any State. Proponents of the principle claim that any and all countries in the world should possess legislative, judicial, and enforcement jurisdiction over (a) and (b) above, irrespective of any link between themselves and the crime, the accused, or the victim.
It is crucial, therefore, and evident that the establishment of universal jurisdiction can only encompass a very limited number of international crimes. The next logical question is how one may identify the range of crimes subject to universal jurisdiction. Two schools have generally made claims over this sensitive matter. The conservative school has relied on treaty-based universal jurisdiction and has thereafter sought either concrete evidence of State practice that justifies expansion by means of customary international law, or has relied on the Lotus case principle, according to which the lack of prohibition in relevant treaties regarding the
exercise of a particular jurisdiction entails its acceptance.
The expansionist school, reflected best in the so-called ‘Princeton Principles of Universal Jurisdiction’, espouses the view that universal jurisdiction has been conferred upon the majority of international crimes by virtue of rapid developments in State practice since the early 1990s.
Two crimes are clearly subject to treaty-based universal jurisdiction. The first concerns grave breaches of the provisions of the Geneva Conventions - (1949) (War Crimes).
While grave breaches are clearly susceptible to the exercise of universal jurisdiction by any State, war crimes that do not qualify also as grave breaches do not attract universal jurisdiction, at least under the Geneva Conventions. The other treaty-based international offence that is expressly subject to universal jurisdiction is piracy iure gentium, on the basis of Art 105 UN Convention on the Law of the Sea. Both of these offences have been subjected to universal jurisdiction at least since the 19th century under customary international law, each on a different theoretical basis. Flag State jurisdiction and the existence of stateless pirate vessels on the high seas that posed an immediate menace to the merchant vessels of all nations clearly rendered the relevant jurisdictional avenues redundant. Hence, the subjection of piracy iure gentium to universal jurisdiction was justified by virtue of the location wherein it is perpetrated, the high seas, which is not subject to the criminal jurisdiction of any State. On the other hand, grave breaches are not perpetrated on locations beyond the jurisdictional reach of States; however, their heinous and repugnant nature sufficed in order for the international community to consent to clad them with universal jurisdiction. Besides grave breaches it is true that there are also other crimes that are equally, if not more, heinous and repugnant, but which are not expressly subject to treaty-based universal jurisdiction. For some this is because no relevant global convention exists, as is the case with crimes against humanity, whereas for others, such as torture, the adoption of the 1984 UN Torture Convention in the midst of the Cold War (1947–91) rendered a possible consensus on universal jurisdiction on such a sensitive issue impossible to reach.
Nonetheless, there are two ways of justifying the exercise of universal jurisdiction over these international crimes, absent an express provision to this effect in the treaties in which they are contained.
First, none of the relevant conventions expressly prohibit the exercise of universal jurisdiction. In fact, they advocate significantly broad jurisdictional bases for Member States. Art 5 (3) of the 1984 UN Torture Convention stipulates that it ‘does not exclude any criminal jurisdiction exercised in accordance with internal law’. This means that if a Member State has adopted domestic legislation subjecting extraterritorial acts of torture to universal jurisdiction, this would be wholly consistent with the other jurisdictional bases contained in the 1984 UN Torture Convention. This observation reinforces the Lotus principle that any jurisdiction is permissible, so long as it is not expressly rejected by treaty or custom and to the extent that it does not clash with a pre-existing rule of international law. In this manner, treaty-based universality may arise not by virtue of express but implied permissibility. The International Court of Justice (ICJ) has noted that the 1948 Convention on the Prevention and Punishment of the Crime of Genocide only obliges States to exercise territorial criminal jurisdiction. Nonetheless, while it does not impose other types of jurisdiction, it does not prohibit them either (Application of the Convention on the Prevention and Punishment of the Crime of Genocide Case [Bosnia and Herzegovina v
Serbia and Montenegro] [Judgment] [2007] ICJ Yugoslavia, Cases before the ICJ). Secondly, an international crime may be subjected to universal jurisdiction by means of customary international law. In practice, our ascertainment of customary universal jurisdiction is derived from judicial determinations. The customary nature of universal jurisdiction over particular international crimes should best be judged on the basis of opinio juris.
Criminal Jurisdiction: Three Salient Conflicts & exceptions
- The primary legitimate bar to the exercise of criminal jurisdiction by national courts is the principle of immunity. This is a procedural impediment to criminal jurisdiction and persists as such as long as the immunity under consideration continues to shield the accused person. As a result, the principle of immunity does not extinguish the crime or the liability of the accused; thus, when the accused no longer enjoys immunity, he or she may legitimately be subjected to the criminal jurisdiction of any interested States.
In particular, persons enjoying immunity ratione personae, such as the Heads of State or Government and foreign ministers, Heads of Diplomatic Missions; Heads of Governments and Other Senior Officials) cannot be prosecuted for any international crime before national courts (Arrest Warrant of 11 April 2000 [Democratic Republic of Congo v
Belgium] [Judgment] [2002] ICJ. The scope of immunity ratione materiae has undergone a process of considerable limitation since the mid-1990s, in the sense that criminal activity is no longer considered a public act and thus the perpetrators of such acts can be prosecuted before national courts (R v Bow Street Metropolitan Stipendiary Magistrate and others, ex p Pinochet Ugarte . As already stated, the UN Security Council through a resolution, or the community of States via multilateral treaty may circumvent the immunity restriction and indict such persons before specially constituted international tribunals.
- The second bar to the exercise of criminal jurisdiction by national courts relates to possible concurrent jurisdiction enjoyed by international criminal tribunals. The granting of criminal jurisdiction to international tribunals does not extinguish the relevant jurisdiction of national courts. Unlike the lack of hierarchical rules resolving jurisdictional conflicts between national criminal courts, concurrent conflicts of criminal jurisdiction with international tribunals are usually settled by reference to express provisions in the instrument that created them. In the case of the ICTY (international criminal tribunal for Yugoslavia) it has been conferred primacy over national courts in accordance with Art. 9 (2) of its Statute. The ICC, on the other hand, enjoys concurrent, albeit secondary jurisdiction, vis-à-vis ICC Member States on the basis of the so-called principle of complementarity ( International Criminal Courts and Tribunals, Complementarity and Jurisdiction), as enshrined in Art 17 (1) (a) Rome Statute of the International Criminal Court (‘Rome Statute’). This means that in practice national courts enjoy primacy of jurisdiction with respect to crimes falling within the ambit of the ICC. As a result, the ICC may only prosecute where the State enjoying jurisdiction surrenders the accused person (Art 14 (1) Rome Statute), or where that State is genuinely unable or unwilling to prosecute (Art 17 (1) (a) Rome Statute). In every case, the UN Security Council may dispense with complementarity and confer primary jurisdiction to the ICC (Art 13 (b) Rome Statute; UNSC [31 March2005], in which the Council referred the Darfur situation to the ICC Prosecutor; Sudan).
Although resolutions of the UN Security Council are binding on UN Member States, it is the subject of academic debate whether, in the absence of specific names from the resolution, the relevant State may invoke the principle of complementarity in order to avoid surrendering the accused. Finally, it is queried whether national courts may entertain their criminal jurisdiction in respect of accused persons that have suffered extraterritorial abduction by agents of the forum State. This issue should be approached without sweeping generalizations, nor even definitive claims in respect of the practice of individual States, given its political ramifications. Despite the fact that Israel paid compensation to Argentina for damage (which gave rise to State responsibility) caused as a result of the abduction of Adolf Eichmann from the latter’s territory, the Israeli Supreme Court confirmed the legality of the Jerusalem District Court’s jurisdiction (Attorney-General of the Government of Israel v Eichmann [1962]). The current position of the US is depicted in the judgment of the US Supreme Court in United States v Alvarez-Machain (1992; especially 2197), where it was held that unless a bilateral extradition treaty prohibited abductions, there was no rule in customary international law that prevented the prosecution of an accused before a national criminal court once brought to it in this manner (male captus bene detentus principle).
English law takes a wholly different approach. In Bennett v Horseferry Road Magistrate’s Court, the House of Lords pointed out that if the national enforcement authorities had acted in serious abuse of their powers the courts could stay proceedings, because the maintenance of the → rule of law ought to prevail over the public interest in the prosecution of the crime. It should be noted that this is an evolving concept and the courts are willing to allow for exceptions either way on the basis of the facts of each case.
The end