Transforming the response to domestic abuse

Closes 31 May 2018

The Istanbul Convention

Prosecuting offences committed abroad (extraterritorial jurisdiction)

The Council of Europe Istanbul Convention [1] is an international set of standards designed to address domestic violence and violence against women.

The UK has signed the Convention and the government is committed to ratifying the Convention into our national law as soon as possible.

A key element of the Convention is making sure that ratifying states can use their national law to prosecute offences required by the Convention [2] when they are committed by their nationals overseas.[3]

Generally, in the UK a crime is only prosecutable if the offending behaviour takes place in our territory. The legal term for powers to allow prosecution of offences in the UK when committed by nationals overseas is ‘extraterritorial jurisdiction’.

Taking such powers requires primary legislation.[4] Generally, government policy on extraterritorial jurisdiction is that criminal offending is best dealt with by the criminal justice system of the state where the offence occurred.

This is because it is the law of that state which has been violated and that is where the community that has been wronged is located, where the victim will often reside and where the necessary evidence will normally be found. This is in keeping with the general international legal framework.

To address certain serious forms of offending effectively it may, however, be necessary for states to assume extraterritorial jurisdiction. An international obligation to put in place extraterritorial jurisdiction reflects the consensus that there may be exceptional instances where a crime is not prosecuted in the state where it occurs but should be brought to justice elsewhere, for example serious violence against women and domestic violence.

In these instances, states should be able to use extended jurisdictional powers to step in, where appropriate, and prosecute such exceptional offences when committed in another country by one of their nationals or by a non-national ordinarily resident in their national territory.

It is not generally considered to be fair to convict a person in this country for something that is not a crime in the country where it happened.

Consequently, extraterritorial powers usually apply only when the offending behaviour is a criminal offence in the country where it happened as well as in England and Wales. This is known as dual criminality. 

The courts of England and Wales already have extraterritorial jurisdiction over some of the offences required by the Convention: the common-law offence of murder; certain sexual offences where the victim of the crime is under 18; offences of forced marriage; and offences of female genital mutilation.

These laws provide partial compliance with the extraterritorial jurisdiction requirements of the Convention. New legislation would, therefore, extend extraterritorial jurisdiction in England and Wales to other offences required by the Convention that are not currently subject to such jurisdiction.

The Convention requires domestic law to be able to prosecute relevant offences when committed outside the UK. As with all criminal offences, however, the decision to prosecute would be a matter for the Crown Prosecution Service. 

The government proposes to take extraterritorial jurisdiction over each of the offences listed in the table below when the offence is committed outside the UK by a UK national or a UK resident; and (except for the offences marked with a *) there is dual criminality.[5]



Putting people in fear of violence*: section 4 of the Protection from Harassment Act 1997

Controlling or coercive behaviour in an intimate of family relationship*: section 76 of the Serious Crime Act 2015


Stalking involving fear of violence or serious alarm or distress*: section 4A of the Protection from Harassment Act 1997

33, 34

Actual bodily harm: section 47 of the Offences Against the Person Act 1861

33 [6], 35, 39

Grievous bodily harm: section 20 of the Offences Against the Person Act 1861

33, 35, 39

Grievous bodily harm with intent: section 18 of the Offences Against the Person Act 1861

33. 35, 39

Procuring abortion: section 58 of the Offences Against the Person Act 1861


Rape:  section 1 of the Sexual Offences Act 2003


Assault by penetration: section 2 of the Sexual Offences Act 2003


Sexual assault: section 3 of the Sexual Offences Act 2003


Causing a person to engage in sexual activity without consent: section 4 of the Sexual Offences Act 2003


We believe these offences are of a sufficient level of seriousness to be in keeping both with the intention of the Convention and the UK’s general position on extraterritorial jurisdiction.


[1]  The coalition Government signed this Convention in 2012. See also the Explanatory Memorandum

[2] Articles 33-39

[3] Article 44 read with Article 78 (reservations)

[4] The draft Domestic Abuse Bill will include the necessary legislation for England and Wales. Legislation necessary for compliance with the Convention in Scotland and Northern Ireland is a matter for the devolved administrations

[5] The offences marked * involve a pattern of behaviour or course of conduct rather than a single act and a dual criminality requirement could limit the ability to prosecute such offences in certain circumstances, for example where a course of conduct is committed across multiple jurisdictions

[6] ABH and GBH cover psychiatric (but not psychological) injury

[7] Defined at Article 40 as “… any form of unwanted verbal, non-verbal or physical conduct of a sexual nature with the purpose or effect of violating the dignity of a person, in particular when creating an intimidating, hostile, degrading, humiliating or offensive environment …”

[8] Section 1(1)

[9] Sections 2 and 3

49. Do you agree that taking extraterritorial jurisdiction over these offences is sufficient to satisfy the requirements of the Convention?

50. If you answered 'No' to question 49 what additional offences do you think we should take extraterritorial jurisdiction over and why?

Sexual harassment

The Convention also requires that sexual harassment [7] is subject to criminal or other (for example civil) legal sanctions. 

The Protection from Harassment Act 1997 prohibits a person from pursuing a course of conduct which amounts to harassment, and which the person knows or ought to know amounts to harassment[8]; and it provides both criminal and civil law remedies for breach of that prohibition.[9]

The “course of conduct” requirement also accords with the intention of the Convention to cover repeated behaviour rather than single incidents of harassment.  

The government believes that the definition of harassment in the Protection from Harassment Act 1997 is wide enough to satisfy the Convention.

Where a person is (in the terms of the Convention) engaging in “verbal, non-verbal or physical conduct of a sexual nature” to create an intimidating or offensive environment, the person “ought to know” (in the terms of the definition in the 1997 Act) that their behaviour amounts to harassment.

Accordingly, the government proposes to rely on the civil law remedy in the 1997 Act to satisfy the Convention obligations in this regard.

51. Do you agree that relying on the civil law remedy in the Protection from Harassment Act 1997 is sufficient to satisfy the sexual harassment requirements of the Convention?

52. If you answered 'No' to question 51, what do you think is necessary to satisfy those requirements?