No CrossRef data available.
We use cookies to distinguish you from other users and to provide you with a better experience on our websites. Close this message to accept cookies or find out how to manage your cookie settings.
We use cookies to distinguish you from other users and to provide you with a better experience on our websites. Close this message to accept cookies or find out how to manage your cookie settings.
Published online by Cambridge University Press: 01 March 1999
In R. v. Kelly [1982] AC 665 the House of Lords held that by virtue of s. 686(1) of the Merchant Shipping Act 1894 a British subject may be tried in any English court within whose jurisdiction he or she is found for any crime under English law alleged to have been committed on the high seas on board a foreign ship to which he or she does not belong. After analysing the statutory predecessors of s. 686(1) in the light of archival documents previously unexamined, the article concludes that their Lordships' finding that it not only provided a venue but also extended the ambit of the criminal law is an example of creative interpretation.
1 [1982] A.C. 665.
2 See, e.g., Liangsiriprasert v. United States [1991] 1 A.C. 225, 244.
3 Oteri v. R. [1976] 1 W.L.R. 1272, at pp. 1276 and 1277, passim (Lord Diplock). The Judicial Committee was of the view that the Admiralty jurisdiction comprised at common law “all and every offence and offences”. Writing earlier, Glanville Williams had considered that the position in respect of summary offences was unclear where the statute creating them contained no express words of territorial extension (Williams, Glanville, “Venue and the Ambit of Criminal Law” (1965) 81 L.Q.R. 395, 412–413Google Scholar).
4 For a concise account of this transfer, see Holdsworth, W., A History of English Law, 7th ed. by Goodhart, A.L. and Hanbury, H.G. (London, 1956), vol. I, pp. 550–552Google Scholar.
5 12 & 13 Vict., c. 96. For accounts of the transfer to colonial courts, see, e.g., G. Marston, “Historical Aspects of Colonial Criminal Legislation applying to the Sea” (1980) 14 University of British Columbia Law Review 299, 300–315; M.J. Prichard, “Admiralty Sessions and the Background to Later Colonial Jurisdiction” (1984) 8 Dalhousie Law Journal 43.
6 18 & 19 Vict., c. 91 (the whole Act was repealed by the Merchant Shipping Act 1894, s. 745 (22nd Schedule)).
7 E.g., R. v. Cunningham (1859) Bell 72 (Bristol Channel).
8 (1876) L.R. 2 Ex. D. 63, 161. See generally G. Marston, “Crimes on Board Foreign Merchant Ships at Sea: some Aspects of English Practice” (1972) 88 L.Q.R. 357, to which the present article forms a lengthy and belated addendum.
9 [1981] Q.B. 174.
10 57 & 58 Vict., c. 60.
11 Glanville Williams’ analysis of this dichotomy in “Venue and the Ambit of Criminal Law” (1965) 81 L.Q.R. 276, 395, 518, was discussed in all the hearings.
12 30 & 31 Vict., c. 124 (s. 11 was repealed by the Merchant Shipping Act 1894, s. 745 (22nd Schedule)).
13 The House was told by the Crown that over the years there had been similar cases heard in magistrates’ courts on the east and north-east coasts of England.
14 [1982] A.C. 665, 678.
15 The sub-section is used routinely to base a court's competence in respect of charges of crimes committed on board British ships at sea; e.g., R. v. Liverpool Justices, ex parte Molyneux [1972] 2 Q.B. 384, where the question of law was the ambit of the concept of “high seas”.
16 (1989) 89 Cr. App. R. 187.
17 Ibid., p. 190.
18 17 & 18 Vict., c. 104 (the whole Act was repealed by the Merchant Shipping Act 1894, s. 745 (22nd Schedule)).
19 (1884) 24 Q.B.D. 273.
20 Transcript, 4 December 1884: DPP 4/17. This and other references to Crown Copyright materials are to archives preserved in the Public Record Office, London.
21 See note 18 above.
22 See G. Marston, “Crimes on Board Foreign Ships at Sea: Section 685(1) of the Merchant Shipping Act 1894” [1971] Criminal Law Review 520.
23 41 & 42 Vict., c. 73.
24 (1876) L.R. 2 Ex. D. 63.
25 Parliamentary Debates, 3rd series, vol. 188, col. 851.
26 HO 45/6990.
27 Ibid.
28 FO 27/1362.
29 A copy is in HO 48/46, Case No. 26.
30 Ibid.
31 TS 25/1125.
32 Ibid.
33 The original report is in HO 48/46, Case No. 26.
34 HO 45/6990.
35 S. 458, referring to “Salvage within the United Kingdom”, used the words “on the Shore of any Sea or Tidal waters situate within the Limits of the United Kingdom”.
36 FO 27/1411.
37 Ibid.
38 HO 45/6990.
39 Ibid.
40 Ibid.
41 A copy is in MT 4/77, letter 1055.
42 HO 45/6990.
43 Ibid.
44 FO 27/1411.
45 A copy is in HO 49/10, p. 213.
46 The original report is in HO 48/48, Case No. 36.
47 Ibid.
48 Ibid.
49 Ibid. (original emphasis).
50 The original report is in HO 45/7184.
51 The original report is in HO 48/48, Case 38. See further G. Marston, op. cit., 88 L.Q.R. 367, 363–364.
52 (1861) 5 Law Reporter 365, 366.
53 FO 27/1509 (Baron Gros to Foreign Office, 23 February 1863). Edmund Hammond, Permanent Under-Secretary at the Foreign Office, minuted that the incident was “an outrageous attack on a French boat on pretence of rendering salvage services”. See also HO 34/16, p. 357 (Home Office to Foreign Office, 30 March 1863); HO 45/6990.
54 HO 45/6990.
55 Baron Gros to Foreign Office, 4 March and 23 April 1863 (FO 27/1509).
56 The original report in HO 48/49, Case No. 63 (Atherton A.-G., Palmer S.-G. and Phillimore, Queen's Advocate). The gist of the report was passed to the French Embassy on 6 May 1863 (FO 27/1509).
57 Forwarded to the Foreign Office on 22 February 1867 (FO 27/1677).
58 MT 9/36/M4376/1867 [Paper M1159].
59 FO 97/447. The paper itself is not preserved in this file. The Foreign Office, by letter dated 1 February 1867 (FO 27/1677), brought the attention of the Board of Trade to the French Minister's “memorandum” but this memorandum is not found in that file either. There is the possibility that the memorandum might have been the printed complaint of the Comité des Assurances Maritimes de Paris preserved in FO 27/1677.
60 The original is in FO 27/1676.
61 MT 9/36/M4376/1867 [Paper M4684].
62 Ibid. [Paper M4454].
63 Ibid. [Paper M4340].
64 Ibid. [Paper M4376].
65 Ibid.
66 House of Commons Sessional Papers, 1867, vol. 1, p. 33 (paper 28).
67 Parliamentary answer of 23 May 1867 (Parliamentary Debates, 3rd series, vol. 187, col. 939).
68 FO 27/1676.
69 MT 9/36/M4376/1867 [Paper M4652].
70 House of Lords Sessional Papers, 1867, vol. 4, p. 745 (Paper 180).
71 House of Lords Journals, vol. 99, p. 429; House of Lords Sessional Papers, 1867, vol. 4, p. 755 (Paper 180a).
72 House of Lords Sessional Papers, 1867, vol. 4, p. 759 (Paper 219); House of Commons Sessional Papers, 1867, vol. 4, p. 77 (Paper 274).
73 Ibid., p. 87 (Paper 299).
74 House of Commons Journals, vol. 122, p. 441.
75 An identical passage appeared in an editorial in the daily Shipping and Mercantile Gazette of 28 June 1867 of the same publisher. A cutting of this editorial is preserved in the Duke of Richmond's private papers relating to the Bill (West Sussex Record Office, Chichester: Goodwood MS 823).
76 Parliamentary Debates, 3rd series, vol. 218, cols. 1512–13.
77 An identical passage had appeared in an editorial in The Shipping and Mercantile Gazette for 7 August 1873.
78 Paper 446 (House of Commons Sessional Papers, 1893–94, vol. 5, p. 251).
79 West Sussex Record Office, Chichester: Goodwood MS 823. These papers indicate that the draftsman of the Merchant Shipping Bill 1867 was F.S. Reilly, a barrister whose services as a legislative draftsman were much in demand at this period.
80 See note 25 above.
81 This apprehension was justified. The Bill was withdrawn on 22 July 1867. In a letter to the Foreign Office of 21 November 1867, the Board of Trade stated that “it was dropped in consequence of the pressure of public business” (FO 27/1678).
82 There is no record of any correspondence on the matter passing between the Board of Trade and the Colonial Office in the “Colonies General” register between May and August 1867 (CO 378/4).
83 CO 854/8, ff. 599–600.
84 See. e.g., Oppenheim's International Law, vol. I, 9th ed. by Sir R. Jennings and Sir A. Watts (London, 1992), p. 462; Brownlie, I., Principles of Public International Law, 5th ed. (Oxford, 1998), p. 306Google Scholar.
85 See, e.g., S.S. Lotus (France v. Turkey) before the Permanent Court of International Justice in 1927 (P.C.I.J., Series A, No. 10, pp. 18–19).
86 This point was made in the Appellants’ Petition for leave to appeal to the House of Lords.
87 United Kingdom Treaty Series, No. 29 of 1963.
88 It should be pointed out, however, that Glanville Williams’ view, written in 1965, was: “Read literally, the section is capable of being held to extend the territorial ambit of the law” (G. Williams, op. cit., at p. 411). Like Lord Roskill in Kelly, he thought that the sub-section would be reduced to a nullity if it were construed as a venue provision only.
89 Section 686(1) as so interpreted by the House of Lords raises another question which was not relevant in Kelly. The sub-section covers two quite distinct matters, crimes on board British ships committed by either British subjects or foreigners, and crimes on board foreign ships committed by British subjects not belonging to the ship. The substantive criminal law for the former is clearly the law of England, as reflecting the historic jurisdiction of the Admiral. Thus in Oteri v. R. [1976] 1 W.L.R. 1272, the District Court of Western Australia was held to have been correct when it applied the Theft Act 1968 to conduct on board a British-owned fishing boat 22 miles from the Australian coast. But the Admiral's historic criminal jurisdiction did not apply to foreign ships, nor does the sub-section, unlike other statutory provisions (e.g., section 687 of the same Act), deem the Admiral's criminal jurisdiction to have been so extended. What therefore is the substantive criminal law to be applied to a British subject on board a foreign ship to which he does not belong, the criminal law applicable in England or the criminal law applicable in whatever part of Her Majesty's dominions the accused is “found”? As the Judicial Committee observed in Oteri v. R. (op. cit., p. 1277): “As with Australia, there is not a single criminal law that is common to the whole of the United Kingdom …”. The point would have arisen for determination if, for example, the Winston Churchill had landed the accused in a port in Scotland. In the absence of enlightenment in the terms of the sub-section itself, and as it cannot be presumed that the legislature intended that the historic jurisdiction of the Admiral should be expanded without express provision, it is submitted that a court within whose jurisdiction such an accused is “found” must apply the substantive criminal law applicable in that place even if it is not English law.