From famine to feast: The prosecution of multi‐jurisdictional financial crime in the electronic age

Abstract

Purpose

The purpose of this paper is to explore the development of the common law test for asserting criminal jurisdiction over financial crimes. Historically, the British courts at the turn of the twentieth century strongly advocated the territoriality principle to strictly limit the assumption of criminal jurisdiction to crimes which occurred entirely within the jurisdiction. With the rapid advance of telecommunications technologies during the latter half of the century, such a narrow approach to jurisdiction became unworkable, as the majority of financial crimes assumed multi‐jurisdictional aspects.

Design/methodology/approach

This paper traces the gradual liberalization of criminal jurisdiction over financial crime within the common law until the eventual emergence of the much more permissive comity theory of jurisdiction, which sanctions the assumption of criminal jurisdiction over any conduct which causes harmful consequences or effects in the territory of the country seeking to prosecute an accused.

Findings

While this is a welcome and necessary development in an age of global money laundering and organized crime, it is argued in this paper that unless a consistent and rational manner of prioritizing the claims of competing jurisdictions over the same criminal conduct is adopted, there is a risk that the first jurisdiction to be in a position to make an arrest may not necessarily be the correct or most appropriate one. As the double jeopardy principle operates to bar multiple prosecutions for the same criminal conduct, it is recommended that the doctrine of forum non conveniens, a familiar and developed concept in civil law, be applied to criminal prosecutions to maximize prosecutorial efficiency.

Originality/value

The paper is of value in discussing factors to be considered by law enforcement agencies in determining the most prudent sequence of legal proceedings that may be brought in different jurisdictions.

Citation

Hodgson, T.W. (2008), "From famine to feast: The prosecution of multi‐jurisdictional financial crime in the electronic age", Journal of Financial Crime, Vol. 15 No. 3, pp. 320-337. https://doi.org/10.1108/13590790810882900