Cross-Border Jurisdiction for Domestic Abuse Courses of Behaviour under the Domestic Abuse (Scotland) Act 2018

1. Introduction

Anas Bani Almarjeh against His Majesty's Advocate ([2026] HCJAC 7) is an appeal under section 74(1) of the Criminal Procedure (Scotland) Act 1995 against a preliminary hearing ruling repelling a plea of no jurisdiction. The appellant faced an indictment in the High Court containing eight charges, including rape, sexual assault, sending indecent messages, attempting to defeat the ends of justice, and (critically) a charge under section 1 of the Domestic Abuse (Scotland) Act 2018.

The jurisdictional challenge focused on Charge 3, framed as a single statutory offence: engaging in a course of behaviour abusive of a partner/ex-partner, alleged to have occurred across several addresses in Glasgow and one address in Durham, England, over a multi-year period. The appellant argued that Scotland lacked jurisdiction because some alleged conduct occurred in England (and the Crown had indicated that sexual conduct within the narrative was in England).

The core issue was whether, and on what basis, Scots law permits prosecution in Scotland of a section 1 Domestic Abuse (Scotland) Act 2018 course-of-behaviour charge where constituent conduct spans Scotland and England.

2. Summary of the Judgment

The Appeal Court refused the appeal and affirmed jurisdiction. The court held that this case concerns cross-border jurisdiction (not extra-territorial jurisdiction) and that, under longstanding Scots common law, Scottish courts may try offences whose preparation, commission, continuance, or effects span jurisdictions within the United Kingdom.

Because the essence of a section 1 offence is the course of abusive behaviour as a single crime, it may constitute a continuing crime (crimen continuum) across Scotland and England. Jurisdiction was also supported on two additional bases: (i) a material part of the offence occurred in Scotland, and (ii) the harmful/practical effects were experienced in Scotland. The court rejected alleged unfairness in disclosure and witness procurement, noting ordinary disclosure duties and available procedural tools (including commission and diligence).

The court further clarified that a jury could not competently return an alternative verdict of rape on Charge 3, partly because part “s” did not libel rape and partly because Scots courts have no jurisdiction to indict and try the English-only conduct as a separate indictable offence within paragraph 9(2) of Schedule 3 to the 1995 Act.

3. Analysis

3.1 Precedents Cited

(a) Lauchlan and O'Neill v HM Advocate (No. 2) 2015 JC 75

This authority anchored the proposition that it is competent to libel, in a Scottish indictment, events and even criminal acts occurring in a foreign jurisdiction when they form part of a continuing crime. The quotation at paragraph [29] is pivotal: it links modern practice to Macdonald’s statement that loci outside Scotland are not a good objection where a crimen continuum is partly carried out abroad.

The court used Lauchlan and O'Neill v HM Advocate (No. 2) 2015 JC 75 to demonstrate that cross-border jurisdiction is neither novel nor confined to particular offences, and that statutory offences can be treated similarly where the nature of the offence supports a continuing-crime analysis.

(b) Laird v HM Advocate 1985 JC 37

Laird v HM Advocate 1985 JC 37 supported jurisdiction where steps in two jurisdictions collectively completed a single scheme; it sufficed that events in Scotland played a material part in fulfilment of the whole. The court analogised that reasoning to a section 1 course-of-behaviour: Scottish incidents were said to be a material part of the unitary abusive course, even if other incidents occurred in England.

(c) Clements v HM Advocate 1991 JC 62

Clements v HM Advocate 1991 JC 62 articulated a cross-border approach based on the harmful or practical effect being felt in Scotland. It also addressed the “comity” concern within the UK’s constitutional structure: territorial limitation between UK jurisdictions “depended on constitutional practice, not on international comity.” The court invoked this to rebut the appellant’s argument that absent express statutory provision, prosecution would offend principles of comity or Scottish constitutional autonomy.

The judgment treats Clements as establishing a pragmatic, public-interest basis for jurisdiction: where criminality is a single enterprise and Scotland is where harm is experienced, Scottish trial may best serve justice. Applied here, the complainer experienced abusive effects in Scotland regardless of where particular acts occurred.

(d) CA v HM Advocate 2023 JC 8 and Bain v HM Advocate 2024 JC 326

These cases were used to characterise the nature of the section 1 offence. In CA v HM Advocate 2023 JC 8 the court stated that “the course of behaviour … is the core of the offence.” In Bain v HM Advocate 2024 JC 326 it reaffirmed that section 1 creates an offence of engaging in a course of abusive behaviour towards a partner or former partner.

This characterisation was decisive: if the offence is the course itself (and not a bundle of separately triable incidents), it naturally fits cross-border doctrine, including crimen continuum.

(e) R (Rottman) v Metropolitan Police Commissioner [2002] 2 AC 692 (HL)

The appellant argued the absence of express cross-border wording in the 2018 Act precluded such jurisdiction. The court relied on R (Rottman) v Metropolitan Police Commissioner [2002] 2 AC 692 (HL) for the fundamental interpretive principle that common law rules are not extinguished by statute unless that is made clear by express provision or clear implication. This reframed the argument: the question was not whether Parliament conferred cross-border jurisdiction in 2018, but whether it disapplied the existing common law rules—something it did not do.

(f) Institutional writers and embedded authorities

The court treated the institutional writers not as historically interesting but as legally weighty statements of enduring principle:

• Hume (Commentaries on Crime, Vol II, page 53): jurisdiction over offences with “continuance of time and succession of acts, whereof part may happen here and part abroad.”
• Alison (Practice of the Criminal Laws of Scotland, pages 74 to 77): crimen continuum and jurisdiction where the crime takes its “destined effect” in Scotland.
• Macdonald: Criminal Law in Scotland (5th ed): jurisdiction not requiring all acts to occur in Scotland; jurisdiction where an out-of-Scotland act takes “practical effect” in Scotland; and explicit reference to crimen continuum.

The judgment also referenced, via Lauchlan and O'Neill, earlier authorities: John Mackay (1866) 5 Irv 329, Will E Bradbury (1872) 2 Couper 311, and Ernest Joseph 1929 JC 55, with HM Advocate v Joseph (supra) described as a “classic example” of a continuing crime involving steps in Scotland and elsewhere.

3.2 Legal Reasoning

(a) The structural distinction: cross-border vs extra-territorial jurisdiction

The court’s starting point was conceptual clarity: extra-territorial jurisdiction concerns acts or omissions done entirely outside the jurisdiction (normally requiring express statutory conferment). Cross-border jurisdiction concerns offences whose preparation, commission, continuance, or effects straddle borders. The present appeal fell into the latter category.

This distinction mattered because the appellant’s submissions effectively imported the stringent “express statutory authority” expectation from extra-territorial cases into cross-border situations—an analytical category error the court rejected.

(b) Three bases for cross-border jurisdiction

Drawing from institutional writers and case law, the court identified (and endorsed) three bases on which Scottish jurisdiction may arise in cross-border offending:

1. Material part in Scotland (Laird v HM Advocate 1985 JC 37).
2. Harmful or practical effect in Scotland (Clements v HM Advocate 1991 JC 62).
3. Continuing crime (crimen continuum) spanning jurisdictions (Lauchlan and O'Neill v HM Advocate (No. 2) 2015 JC 75).

Importantly, the court held that section 1 cases will often satisfy multiple bases simultaneously, especially where relationships and living arrangements cross borders over time.

(c) The nature of the section 1 offence drives the jurisdictional answer

The court treated section 1(1) of the 2018 Act as creating a single offence: engaging in a “course of behaviour” abusive of a partner/ex-partner. With section 10(4) confirming that a course of behaviour requires conduct on at least two occasions, the statutory structure itself anticipates plurality of acts. The court’s key move was to treat geographical plurality (Scotland + England) as legally analogous to temporal or situational plurality within Scotland: the offence is not fragmented by place if it remains one continuing course.

This explains the court’s rejection of the appellant’s suggestion that English conduct should be relegated to a docquet or treated as merely corroborative. On the court’s view, if the Crown alleges one continuing course, the English incidents are not mere “background”; they are alleged components of the single statutory crime.

(d) Pragmatism, policy, and the 2018 Act’s purpose

The judgment contains an explicit policy/practicality strand: it would be “absurd” if a single domestic abuse course had to be prosecuted in multiple jurisdictions, multiplying trauma to complainers and undermining the interests of justice and the public interest (paragraph [32]). The court’s examples (a weekend in England amidst Scottish abuse; abusive texts whose impact is felt in Scotland regardless of where sent) illustrate how modern domestic abuse patterns would make rigid territorial slicing both unrealistic and unjust.

(e) Statutory construction: Parliament is presumed to legislate against the background common law

The appellant sought to infer from the 2018 Act’s silence that Parliament did not intend cross-border jurisdiction. The court reversed the inference: by R (Rottman) v Metropolitan Police Commissioner [2002] 2 AC 692 (HL), common law persists unless clearly removed. Section 3 of the 2018 Act (extra-territorial jurisdiction for conduct outside the UK) was treated as confirming the distinction: express provision was needed for extra-territorial reach, not for cross-border application within the UK, which the common law already supplied.

(f) Fair trial concerns: disclosure and witnesses

The appellant’s unfairness arguments were rejected as speculative and unsupported by identified prejudice. The court noted:

• the Crown remains subject to ordinary disclosure duties under the Criminal Justice and Licensing (Scotland) Act 2010;
• commission and diligence may be used to recover evidence in England if necessary;
• the 1995 Act provides powers to cite and take evidence from witnesses in another UK jurisdiction.

This reflects a broader judicial tendency: jurisdiction is not denied merely because cross-border fact patterns may generate logistical complexity; the system’s procedural tools are expected to address it.

(g) Limits: alternative verdicts and jurisdictional boundaries

Although the court upheld jurisdiction over the section 1 offence, it drew a clear line: Scottish courts could not use the inclusion of English sexual conduct within the narrative to permit a separate conviction for a distinct English-only offence (such as rape) via paragraph 9(2) of Schedule 3 to the 1995 Act. This is an important limiting principle: cross-border jurisdiction for a continuing Scottish offence does not convert Scottish courts into a general forum for stand-alone English crimes.

3.3 Impact

(a) Practical consolidation of domestic abuse prosecutions

The decision reinforces that section 1 domestic abuse charges can be prosecuted as a single course even where the relationship’s geography shifts between Scotland and England/Wales, avoiding multiple proceedings. This is likely to be influential in cases involving:

• partners who relocate temporarily or permanently across the border;
• abuse occurring on trips, holidays, or during periods of separation;
• digital abuse where “location” is fluid but “effect” is experienced in Scotland.

(b) Doctrinal clarification: three routes to jurisdiction in cross-border crime

While the principles were not new, the judgment consolidates and restates them in a modern statutory context, expressly identifying the trio of bases (material part, harmful effect, continuing crime) and explaining their application to a course-of-behaviour offence. That framing is likely to be cited in future jurisdictional debates beyond domestic abuse, especially for offences built around patterns of conduct.

(c) Interpretive guidance: silence in devolved legislation does not disapply common law

The decision is a reminder in devolved Scots criminal law that legislative silence about cross-border jurisdiction is not a denial of it; courts will presume the persistence of common law cross-border rules absent express/necessary implication. This may affect how jurisdictional arguments are framed in future challenges to newer Holyrood offences.

(d) Comity and constitutional practice within the UK

By aligning with Clements v HM Advocate 1991 JC 62, the court emphasised that cross-border jurisdiction within the UK is managed by constitutional practice and pragmatic allocation, not international comity rules. This supports cooperative prosecutorial practice (the judgment notes the 2024 Memorandum of Understanding between the Crown and the Crown Prosecution Service), and reduces the force of arguments suggesting “sovereignty interference” merely because conduct occurred in another UK jurisdiction.

4. Complex Concepts Simplified

Cross-border jurisdiction

The ability of Scottish courts to try a crime where parts of it happen in Scotland and parts happen elsewhere (e.g., England), or where the crime’s effects are felt in Scotland. This differs from trying a crime committed wholly abroad.

Extra-territorial jurisdiction

The power to try in Scotland conduct done entirely outside Scotland (often entirely outside the UK). This usually needs explicit statutory authority (e.g., provisions like section 3 of the 2018 Act for conduct outside the UK).

Crimen continuum (continuing crime)

A single crime that unfolds over time through multiple acts; some acts can occur in different places. If the crime is “one continuing offence,” a court can have jurisdiction even if not every act happened within its territory.

Course of behaviour (Domestic Abuse (Scotland) Act 2018, section 1)

The offence is not each incident by itself but the overall pattern (at least two occasions) of abusive behaviour. That “course” is treated as one crime.

Material part / practical effect

Two alternative jurisdictional anchors: Scotland can prosecute if key components of the offence occurred in Scotland (material part), or if the harmful impact of the conduct was experienced in Scotland (practical effect).

Commission and diligence

A court-authorised procedure to obtain evidence (including from outside Scotland) where necessary for a fair trial.

5. Conclusion

The court’s central holding is that a section 1 Domestic Abuse (Scotland) Act 2018 offence—being a single “course of behaviour”—may be tried in Scotland under established common law cross-border jurisdiction principles even where some constituent conduct occurred in England, provided there is a real Scottish jurisdictional anchor (continuing crime, material part in Scotland, and/or harmful effect in Scotland). The judgment decisively rejects the notion that express statutory wording is required for cross-border reach within the UK, reaffirming that common law persists unless clearly displaced.

Practically, the decision enables coherent, single-forum prosecution of domestic abuse courses spanning the border, reducing duplication and potential retraumatisation of complainers, while preserving jurisdictional limits by preventing Scottish courts from returning stand-alone convictions for distinct English-only offences merely because they appear within the narrative of a Scottish continuing offence.