High Court affirms cross-border jurisdiction rules in refusal of pre-trial appeal on alleged domestic abuse

About this case:

• Citation:
  [2026] HCJAC 7
• Judgment:
  External link
• Court:
  Appeal Court of the High Court of Justiciary
• Judge:
  Lord Pentland

Appellant Anas Almarjeh was indicted in the High Court on 8 charges including rape and sexual assault of the complainer AB, his ex-partner. Charge 3, which concerned a course of domestic abuse from November 2019 to December 2022 contrary to section 1 of the Domestic Abuse (Scotland) Act 2018, was challenged on the basis that some of the conduct was libelled to have taken place at addresses in Glasgow and Durham.

The appeal was heard by the Lord Justice General, Lord Pentland, with Lord Doherty and Lord Clark. The appellant was represented by Green, advocate, and Reid, solicitor advocate, while Harvey, advocate depute, and Loosemore, advocate depute ad hoc, appeared for the Crown.

Commenced in Scotland, ended in Scotland

Charge 3 libelled that the appellant had on various occasions between 21 November 2019 and 25 December 2022 abused AB by acting in an aggressive manner towards her, monitoring her appearance, diet, and contact with family and friends, compelling her to marry him, and controlling her finances. He also was accused of controlling what AB could feed her daughter and of specific incidences of physical harm and sexual assault. The alleged criminality flowed from the various specified instances of conduct forming part of a course of behaviour.

Subsequent to the preliminary hearing, the complainer gave evidence on commission that she started her relationship with the appellant when they both lived in Glasgow. She lived at various addresses in Glasgow and Barrhead for a year and six months after that and then moved to Durham for about four months before returning to Glasgow. On the basis the Crown argued that a material part of the offending had taken place in Scotland, and the complainer has not spoken to the police in England about the appellant’s behaviour.

In repelling the appellant’s plea of no jurisdiction, the preliminary hearing judge reasoned that the circumstances of the case fell to be distinguished from those where a crime was committed abroad by a UK national. Statutory provision intervened to allow such conduct to be prosecuted in Scotland or elsewhere in the UK. The Crown intended to prosecute a crime said to have commenced in Scotland, continued in England, and then ended in Scotland, with the focus of a charge under section 1 of the 2018 Act being the course of abusive behaviour rather than the individual elements within it.

For the appellant it was submitted that the PH judge erred in holding that the intention of the 2018 Act was to provide for cross-border jurisdiction. No provision in the Act indicated that Parliament intended to extent its provision beyond Scotland save for the express provision on conduct occurring outside the UK. The fact that Scotland had a separate legal system meant that there had to be express provision to justify an exception as had been done in other Acts such as section 54 of the Sexual Offences (Scotland) Act 2009.

The Crown submitted that in the present case the Crown Prosecution Service had effectively assented in informal discussions to there being a prosecution in Scotland following consultation between the two authorities on how to proceed. Where the commission of a crime spanned borders, it would be illogical to suggest that the principle of comity required that the default position was that neither jurisdiction could prosecute it for fear of interfering with the other jurisdiction’s sovereignty.

No practical sense

Delivering the opinion of the court, Lord Pentland said of the common law of cross-border jurisdiction: “The institutional writers did not limit the application of the cross-border principle to particular types of case. They stated the principle in broad and general terms. Thus Hume refers to the Scottish courts having jurisdiction in the case of offences having a ‘continuance of time and succession of acts, whereof part may happen here and part abroad’. He gives as examples: composing or printing a libel in England and circulating it in Scotland; writing an incendiary letter in England and arranging for it to be received by the addressee in Scotland; and the forcible abduction of a woman from England to Scotland.”

He added: “Case law supports the view that there are a number of bases on which cross-border jurisdiction can arise. In Laird v HM Advocate (1985) this court held that where various steps were taken in two jurisdictions to complete a fraudulent scheme, it was sufficient to found jurisdiction in one jurisdiction if the events in that jurisdiction played a material part in the fulfilment of the scheme as a whole. The position in the present case is similar: the Crown alleges that the events said to have occurred in Scotland constituted a material part of the single course of abusive behaviour perpetrated by the appellant against the complainer on both sides of the border.”

Applying these principles to the present case, Lord Pentland said: “It would be absurd if a single course of behaviour of the type featuring in charge 3 had to be prosecuted in multiple jurisdictions. Such an approach would unnecessarily and unjustly magnify the traumatic impact of the prosecution on the complainer. It would make no practical sense and would be clearly detrimental to the interests of justice and to the public interest.”

He concluded: “The Scottish Parliament must be presumed to have been aware of the common law rule; indeed it is notable that the minister referred to it at stage 2 during the Parliamentary passage of the Bill when moving an amendment to provide for extra-territorial jurisdiction for offending outside the United Kingdom. The amendment became section 3 of the 2018 Act. Section 3 has nothing to do with cross-border jurisdiction. It deals with the entirely different issue of extra-territorial jurisdiction. Express provision was needed to create extra-territorial jurisdiction. It was not required to confer cross-border jurisdiction because the common law already provided for such jurisdiction.”

The appeal was therefore refused, allowing the case to proceed to trial on the already appointed date.