Linlithgow District Procurator Fiscal Adrian Cottam has claimed that Scotland has no jurisdiction to prosecute CACI -the company awarded the Scottish census contract, embroiled in allegations of war crimes- or its employees, despite both Scottish and UK precedent which suggests otherwise.

Cottam says the case has been passed to Edinburgh's Crown Office "for consideration and advice", but nevertheless insists "the allegations of war crimes at Abu Ghraib involve American nationals and crimes allegedly committed in Iraq. There is therefore no traditional base of jurisdiction in Scotland."

"There have been instances where States have asserted jurisdiction to prosecute persons accused of international crimes regardless of their nationality, the place of commission of the crime, the nationality of the victim, and even of whether or not the accused is in custody in the forum State. This does, however, require specific enacting legislation and there is no domestic legislation conferring such wide-reaching jurisdiction in the United Kingdom." 

In the Gecas case of 1991, proceedings were initiated against Lithuanian Anton Gecas, resident in Scotland, who was alleged to have comitted war crimes in Lithuania during world war two. The case fell due to lack of evidence, rather than the issue of jurisdiction. No enacting legislation was initiated. In 1998, the UK considered an extradition request for Chilean dictator Augusto Pinochet on the basis of extant international law.

CACI were awarded the Scottish Census contract for 2011, which may constitute a basis to found jurisdiction in Scotland.

"As the alleged crimes were committed outwith Scotland, by non-Scottish nationals, involving non-Scottish victims and the alleged perpertrators are not in custody in Scotland, there exists no legal jurisdiction for a prosecution by the Crown Office and Procurator Service," Cottam concluded.

The Crown Office have been requested to explain the inconsistency in the jurisdiction decisions of the CACI and Gecas cases. The Firm pointed out that in the Gecas case, the alleged crimes were committed by a foreign national on foreign soil, and Gecas was a resident in Scotland: in the CACI case, the alleged crimes were committed by foreign nationals on foreign soil, and CACI have been awarded a contract in Scotland.

The Crown Office have also been unable to confirm who made the decision not to proceed. They have also been asked to confirm whether the decision not to prosecute was made on the basis of jurisdiction, or policy.

It is also unclear whether the decision apprently made by Cottam was made on a strictly local basis, given the international scope of the allegations.