COUNSEL: Sir Reginald Manningham-Buller Q.C., A.-G., Neville Faulksand David Hurst for the Board of Trade.

Neil Lawson Q.C. and Sebag Shaw for the respondent Owen.

Alexander Karmel Q.C. and Ian Baillieu for the respondent Seth-Smith.

 

SOLICITORS: Solicitor to the Board of Trade; Stikeman & Co.; Galbraith & Best.

 

JUDGES: Viscount Simonds, Lord Morton of Henryton, Lord Radcliffe, Lord Tucker and Lord Somervell of Harrow.

 

DATES: 1956 Nov. 19, 20, 21, 22, 26.

1957 Jan. 29.

 

 

An appeal by the Board of Trade from a decision of the Court of Criminal Appeal Lord Goddard C.J., Ormerod and Ashworth JJ.) on October 2, 1956 ([1957] 1 Q.B. 174; [1956] 3 All E.R. 432), allowing in part an appeal by the respondents, Henry Geoffrey Owen, company director, and Patrick Sidney Ernest Seth-Smith, chartered accountant, against convictions at the Central Criminal Court before Donovan J.

 

 

[*621] Their Lordships took time for consideration.

 

Jan. 29, 1957. VISCOUNT SIMONDS. My Lords, I have had the advantage of reading the opinion which is about to be delivered by my noble and learned friend, Lord Tucker, and, fully agreeing as I do with his reasoning and conclusions, I shall satisfy myself by moving that this appeal be dismissed with costs.

 

LORD MORTON OF HENRYTON. My Lords, I too have had the advantage of reading the opinion which is about to be delivered by my noble and learned friend, Lord Tucker, and I agree that the appeal should be dismissed for the reasons which he gives.

 

LORD TUCKER stated the facts and continued: My Lords, it may be convenient at this stage, before passing to the principal question raised in this appeal, to make some observations with regard to these two counts and the nature of criminal conspiracy in English law.

 

The Court of Criminal Appeal (the Lord Chief Justice, and Ormerod and Ashworth JJ.) in their judgment delivered by Lord Goddard observed1: “It is not altogether easy to appreciate what offence it was intended to allege in count 3, as distinct from that alleged in count 5. The evidence would seem to be identical on both counts. Presumably, count 3 was intended to refer to the fraudulent representations as to the destination of the goods and to the false shipping documents used in support, while count 5 is confined to the forged end-user certificates subsequently produced in support of the earlier representations. With regard to count 3 the court has felt considerable doubt as to whether it was right to charge an intent to defraud and not an intent to deceive.” They expressed no concluded opinion on this point in view of their decision on the main question upon which the trial judge had granted his certificate of appeal, viz., as to whether a conspiracy in England to commit a crime or to effect an unlawful object abroad is indictable in this country. [*622] A good deal of argument was directed to your Lordships on the hearing of the appeal with regard to the words “with intent to defraud.” It is, however, to be observed that in count 3, with which alone your Lordships are concerned, the words “with intent” do not appear whereas, by contrast, in count 5 they do appear.

 

Whether or not the matters alleged in count 3 and the evidence adduced in support thereof are correctly described as a conspiracy to defraud, I have no doubt that they disclose a conspiracy which would be indictable here if the acts designed to be done and the object to be achieved were in this country. It is a conspiracy by unlawful means, viz., by making representations known to be false, to procure from a department of government an export licence which, but for such representations, could not have been lawfully obtained. It is an example of a conspiracy by unlawful means to achieve an object in itself lawful, i.e., the issue of an export licence. If, however, a conspiracy of this nature is aptly included in the wide category of conspiracies known as conspiracies to cheat and defraud and if it is necessary to aver and prove that the acts designed to be done or the object to be achieved will result in some person acting to his detriment, I feel little doubt that a government department so acts if it issues a licence which enables something to be done which the department is charged with the duty to prevent.

 

Although the count does not expressly state the locality where the fraudulent representations were to be made or the licence was to be obtained, the evidence showed, not only that the representations were in fact made in Germany and the licence was issued there, but that the circumstances were such that the conspiracy must have been one in which the representations were designed to be made in Germany and the licence obtained there. It is accordingly to be distinguished from count 5, where the crime designed to be committed was the uttering of a forged document in this country with intent to defraud, it being immaterial whether the person or persons to be defrauded were in Germany or elsewhere. Such a count is admittedly triable here.

 

My Lords, I will accordingly deal with count 3 on the basis that if the evidence adduced in support of it had established a conspiracy here to make false representations in this country and thereby obtain in this country a licence of this nature, it would have constituted a criminal conspiracy. [*623]

 

The question then remains whether the fact that the evidence disclosed a conspiracy here to make false representations in Germany and obtain a licence there renders the conspiracy one which cannot be made the subject of a criminal prosecution, and if the answer is that it is not indictable here, is that because it was not a conspiracy to commit a crime, or are all conspiracies to do acts abroad, whether criminal or only unlawful, outside the purview of the criminal courts of this country?

 

If such conspiracies are punishable in the criminal courts of England, it is, in any case, remarkable that in the long history of the English criminal law no case has been found in which anyone has ever been convicted of such an offence. I shall refer later to Reg. v. Warburton2 and explain why I do not consider that this case is an exception to this general statement. The matter has, however, been the subject of discussion for many years and different views have from time to time been expressed by judges and writers of legal textbooks.

 

Before passing to such authorities as there are, it may be helpful to refer to some observations of R. S. Wright J. in his Law of Criminal Conspiracies and Agreements, published in 1873. At p. 80 he prefaces his conclusions by posing the question: “What is the proper place or use in the criminal law of the mere mental act or state of agreement or concurrence; an act or state which in itself is plainly neutral and conveys no associated idea of praise or blame?” In attempting to answer the question he says the first step is to distinguish between (1) agreements for the commission of crimes; (2) agreements for minor offences; and (3) agreements for acts which in the absence of agreement would not be crimes or offences.

 

He treats the first class as being merely auxiliary to the law which creates the crime. As to agreements for minor offences, he says (at p. 83): “It is next to be considered in what manner agreements ought to be treated when they are for offences punishable only on summary prosecution and by minor penalties. There is great difficulty in discovering the principles which are here applicable; but the difficulty will be diminished by dismissing at the outset all offences which ought in a good penal system to be treated as crimes, but which happen to be treated only as minor offences in any particular penal system. These being eliminated, the remaining offences consist in the production of results which, ex [*624] hypothesi, are not in themselves of grave enough consequence to be matters for indictment; and, if so, it must in general be immaterial whether the results are produced by one person or by two or more persons. To permit two persons to be indicted for a conspiracy to make a slide in the street of a town, or to catch hedge-sparrows in April, would be to destroy that distinction between crimes and minor offences which in every country it is held important to preserve.”

 

In dealing with the third class, i.e., agreements for acts which in the absence of agreement would not be crimes or offences, after referring to two peculiar classes, i.e., (a) acts which are necessarily collective and cannot for physical reasons be committed by one person; and (b) certain frauds or perversions of justice which are not, but ought to be, punishable irrespective of agreement, he proceeds (p. 86): “Apart from cases falling within one or other of these two classes, there appear to be great theoretical objections to any general rule that agreement may make punishable that which ought not to be punished in the absence of agreement; for if the act is one which can be done by a person acting alone, and when so done ought not to be punished, it is difficult to see at what point and on what ground criminality can be generally introduced by the fact that two or more persons concur in the act.” And in the last paragraph of the book, in summarizing his conclusions he says, with reference to this last class of agreement: “In an imperfect system of criminal law the doctrine of criminal agreements for acts not criminal may be of great practical value for the punishment of persons for acts which are not, but which ought to be, made punishable irrespectively of agreement, and especially for some kinds of fraud; but this use of the doctrine involves an important delegation of a legislative power in a matter in which the exercise of such power ought to be carefully guarded, since the legislature admits its own inability to discover the principles on which legislation ought to proceed.”

 

My Lords, I have thought it right to cite these passages to show how ill-defined and uncertain were the limits of this crime in 1873, and I may add that neither subsequent judicial decision nor legislation has helped to set limits or afford more certainty. It is the law on this subject which your Lordships are now asked to expound in relation to agreements to commit crimes or other unlawful acts out of the jurisdiction in a country where criminal conspiracy is, according to the evidence given at the trial, [*625] unknown to its own law. The gist of the offence being the Agreement, whether or not the object is attained, it may be asked why should it not be indictable if the object is situate abroad. I think the answer to this is that it is necessary to recognize the offence to aid in the preservation of the Queen’s peace and the maintenance of law and order within the realm with which, generally speaking, the criminal law is alone concerned. Furthermore, historically it appears to be closely allied in its development to the law with regard to attempts. Sir William Holdsworth, in volume V of his History of English Law, at p. 203, dealing with conspiracy, writes as follows: “Stephen remarks that ‘conspiracy has much analogy to an at‘tempt to commit a crime.’ And we shall see that this analogy at this period comes out clearly enough in the manner in which it was treated by the Court of Star Chamber. But we have seen that, historically, conspiracy is more closely connected with offences against the administration of justice; and that it was almost exclusively from this point of view that it was treated by the medieval common law. The modern law on this subject really springs from these two diverse yet connected roots.” After referring to the manner in which the Star Chamber punished conspiracies as well as false and malicious accusations made before itself or the Court of Chancery, he continues, at pp. 204-5, as follows: “But it is clear that under these circumstances the element of conspiracy will tend to evaporate. The gist of the offence will be rather the malicious attempt to ruin another by a false charge than the conspiracy to effect this result. It was inevitable therefore, as Stephen has said, that conspiracy should come to be regarded as a form of attempt to commit a wrong. It was so regarded in the sentence given in the Star Chamber against those who attempted to fight duels; and in the Poulterers’ case3 it was ruled in the Star Chamber that the mere conspiracy, though nothing was executed, was an offence. But, if a conspiracy is so regarded, why restrict it to conspiracies to commit some offence in relation to legal proceedings? The Star Chamber acted upon this view; and just as it punished all kinds of attempts to commit wrongful acts, so, a fortiori, it punished all kinds of conspiracies to commit the many varied offences punishable either by it or by the common law courts. When the Star Chamber was abolished, the two divergent streams [*626] of doctrine which resulted from the medieval precedents and the rules evolved in the Star Chamber, produced some very complex developments in the law of crime and tort.” As a footnote to the above he quotes (p. 205, n. 2) the following passage from Coke: “The usual commission of oyer and terminer gives power to the commissioners to enquire etc. de omnibus coadunationibus, confoederationibus, et falsis alligantiis … in these cases, before the unlawful act executed, the law punishes the coadunation, confederacy or false alliance, to the end to prevent the unlawful act” (my italics). “… And in these cases the common law is a law of mercy, for it prevents the malignant from doing mischief, and the innocent from suffering it.” (9 Co.Rep. at p. 56b.) Accepting the above as the historical basis of the crime of conspiracy, it seems to me that the whole object of making such agreements punishable is to prevent the commission of the substantive offence before it has even reached the stage of an attempt, and that it is all part and parcel of the preservation of the Queen’s peace within the realm. I cannot, therefore, accept the view that the locality of the acts to be done and of the object to be attained ale matters irrelevant to the criminality of the agreement.

 

Returning to the present case, the trial judge, in his summing-up, directed the jury as follows: “You have in particular to accept it from me, and this is what the argument was all about during one of the occasions when you were out, that if two people conspire in this country to do something unlawful by the law of this country, for example, commit a fraud, or utter forged documents, then it is an offence even if they agree to commit their fraud or their uttering of forged documents abroad.” After verdict and sentence and in granting a certificate of appeal, Donovan J. explained in detail his reasons for giving this direction. He said4: “I regard it as unlawful in English law to defraud a foreign subject in such a way that the foreign subject could sue the tortfeasor in this country - which I think Z.A.K. could have done, and could still do in the present case.” I think, however, his decision was really based on broader grounds, as shown by the passage which immediately follows5: “Then remembering that it is the agreement which constitutes the crime, whether the unlawful object is effected or not, I cannot on principle see how the conspiracy constituted by such an agreement becomes untriable here simply because

 

4 [1957] 1 Q.B. 174, 179-180.

 

5 Ibid. 180. [*627]

 

the crime or tort has been committed abroad. Logic does not compel such a conclusion. Considerations of the public weal do not compel it either. It would be of no benefit to this country if it became the sanctuary for conspirators, provided only that they concluded their unlawful plots abroad. Anomalies there may be, of course, but they exist whatever the true conclusion.” In the above passage I have no doubt that the learned judge in using the words “simply because the crime or tort has been committed abroad” meant “simply because the crime or tort is to be committed abroad.”

 

These observations have great force and it was on this foundation that the Attorney-General based his case before your Lordships. The Court of Criminal Appeal, after considering the authorities and pointing out that by statute certain acts are crimes punishable in England wherever committed, e.g., murder, bigamy, offences against the Foreign Enlistment Act, the Official Secrets Act and the Merchant Shipping Act, proceeded6: “In our opinion the true rule is that a conspiracy to commit a crime abroad is not indictable in this country unless the contemplated crime is one for which an indictment would lie here. That does not mean that there must always be found a statutory provision declaring that the crime is punishable here because if persons do acts abroad for the purpose of defrauding someone in this country, they are indictable here and accordingly a conspiracy to do such an act would be indictable. For instance, if two persons agreed here to stage a sham burglary abroad in order to collect insurances from English underwriters the conspiracy would be indictable here though the overt act was to be done abroad, because if the plot were carried out the obtaining or attempting to obtain the insurance money would be clearly indictable. In the present case the plot, though formed here, was carried out in Germany and assuming, as we have, that Z.A.K. were defrauded and not only deceived, the persons defrauded were Germans in Germany. In our opinion no offence was committed in Germany for which the appellants could have been indicted in England and consequently in our opinion the conspiracy is not indictable.”

 

Referring to section 4 of the Offences against the Person Act, 1861, which makes a conspiracy in this country to murder any person abroad whether within the Queen’s domains or not, and whether the person is or is not a subject of the Queen, a misdemeanour punishable with a maximum of 10 years’ imprisonment,

 

6 [1957] 1 Q.B. 174, 191. [*628]

 

the court observed that as at any rate since 33 Henry 8, c. 23, a British subject had been indictable in this country for murder committed abroad and the Offences against the Person Act, 1828, expressly provided for the trial of any of His Majesty’s subjects charged in England with murder committed on land out of the United Kingdom, whether within the King’s dominions or without, it followed that being an accessory to murder abroad or conspiracy to murder abroad was triable here. They were accordingly of opinion that section 4 of the Act of 1861 did not alter the common law but provided a special penalty and made it clear that such a conspiracy by anyone in this country was indictable. This reasoning was not contested before your Lordships by either side and is clearly right.

 

In this connexion it should perhaps be noted that further statutory recognition of conspiracies to commit crimes is to be found in the Quarter Sessions Act. 1842, the Criminal Justice Act, 1925, and the Administration of Justice (Miscellaneous Provisions) Act, 1938, whereby Courts of Quarter Sessions have jurisdiction to try (1) conspiracies to commit any offence which such court can try when committed by one person; (2) conspiracies to cheat and defraud; and (3) conspiracies to commit offences punishable on summary conviction.

 

My Lords, I turn now to refer to some of the authorities, but none of them is decisive and as there is no dispute as to the essential elements of the crime if everything is to take place within the jurisdiction, I have not been able to derive a great deal of assistance therefrom. In Reg. v. Bernard7 the defendant, an alien, was indicted as an accessory before the fact to the murder in Paris of one Nicolas Batty, who had been killed in the Orsini plot to assassinate the Emperor Napoleon III. He was charged under 9 Geo. 4, c. 31, s. 7, which provided that “if any of His Majesty’s subjects shall be charged in [this country] with any murder … or with being accessory before the fact to any murder … the same being … committed on land out of the United Kingdom, whether within the King’s dominions or without” he might be tried here under a Special Commission. Lord Campbell in his charge to the grand jury told them that the accused, although an alien residing here, was as much amenable to this provision as a native-born subject. He was acquitted, and an indictment against him for conspiracy which had been found against him at the Central Criminal Court and removed into

 

7 (1858) 1 F. & F. 240. [*629]

 

the Queen’s Bench was not proceeded with. In the same year there is to be found reference to the case of Reg. v. Tchorzewski8 in which the defendant was indicted for publishing in French a seditious libel justifying the attempt to murder the Emperor. The defendant having expressed his regret, the Crown was willing to accept a verdict of “Not Guilty,” but Lord Campbell C.J. made the following observation at the conclusion of the proceedings9: “But those who find an asylum here must ever bear in mind that while they have the protection of the law of England they are bound to obey that law, and that they are equally liable with the subjects of Her Majesty for any crime which may be committed by them while they are resident within the realm. I hope they will bear this in mind and will understand that it is a crime on the part of a British subject, or for a foreigner owing temporary allegiance to the Crown of England, to plot and conspire for the commission of a crime in a foreign country, or for the commission of a crime in this country.” There had, of course, been no argument on the matter and the defendant had not been charged with conspiracy.

 

Reg. v. Kohn10 is undoubtedly the most relevant case, though it is by no means easy to determine from the report what was or was not decided expressly or by inference by Willes J. The prisoner was indicted for conspiring at Ramsgate with the owner and master and mate of a ship named the Alma to cast away or destroy the vessel with intent to prejudice Belgian underwriters. The prisoner was a foreigner and the ship a Prussian merchant vessel. She was loaded at Ramsgate. Six days from the date of sailing she was scuttled and sunk far from the English coast and out of the jurisdiction of the court sitting at Maidstone Assizes. Evidence of the conspiracy to which the accused was alleged to have been a party consisted of a number of statements made by him to the mate of the British vessel Helena by which the crew of the Alma had been rescued, and to a clerk to the Salvage Association of Lloyds and other persons after his arrest. He said that on the captain’s orders he had cut a piece out of the side of the ship at Ramsgate and bored holes in her and then plugged the holes; later when the Helena was hailed he removed the plugs. He spoke to a conversation with the mate in which the latter had stated the vessel would never reach her destination and spoke of making away with her. The prisoner had then remarked: “Then you may as well sink her at once on the bar.”

 

8 (1858) 8 St.Tr.N.S. 1091.

 

9 Ibid. 1095.

 

10 (1864) 4 F. & F. 68. [*630]

 

To this the mate had replied that it would be too close to land. It is clear that there was no express agreement one way or the other as to whether the vessel was to be scuttled within or without territorial waters, but she was in fact destroyed outside. On this evidence Willes J. directed the jury as follows11: “The ship was a foreign ship, and she was sunk by foreigners far from the English coast, and so out of the jurisdiction of our courts. But the conspiracy in this country to commit the offence is criminal by our law. And this case does not raise the point which arose in Reg. v. Bernard12 as to a conspiracy limited to a criminal offence to be committed abroad. For here, if the prisoner was party to the conspiracy at all, it was not so limited, for it was clearly contemplated that the ship might be destroyed off the bar at Ramsgate, which would be within the jurisdiction. The offence of conspiracy would be committed by any persons conspiring together to commit an unlawful act to the prejudice or injury of others, if the conspiracy was in this country, although the overt acts were abroad. The parties who concocted the conspiracy, it is obvious, could only have an object to prejudice or injure some other persons. For the principal offence committed, the destroying or casting away the vessel, the prisoner could not be indicted in this country, as he is a foreigner, and the ship was foreign, and the offence was committed on the high seas. The question then is, was it agreed and consented to by and between the prisoner and any other person at Ramsgate, that the ship should be destroyed, whether at sea or in port? The prisoner’s confession places it beyond a doubt that he was a party to the act of scuttling the ship; but was he a party to a previous conspiracy to that end?” The jury returned a verdict of “Not Guilty.” I think it is clear that Willes J. took the view that on the evidence it was not possible for the jury to find that the conspiracy was limited to scuttling on the high seas. He says in terms: “Here it was not so limited.” Accordingly, it was not necessary for him to direct them as to the law applicable to a conspiracy so limited. On the other hand, if he had thought that a conspiracy limited to scuttling in territorial waters would alone have been indictable, he no doubt would have directed the jury to acquit. He left it to the jury to decide whether the prisoner was party to a conspiracy which on the evidence was one which left open where the scuttling was to take place. This he regarded as a criminal conspiracy because it was not limited

 

11 4 F. & F. 68, 72-73.

 

12 1 F. & F. 240. [*631]

 

to the high seas. The case is, in my opinion, therefore inconclusive as to the law with regard to conspiracies so limited.

 

The Court of Criminal Appeal interpreted this case as authority for the following four propositions: (1) That an alien who scuttled a foreign ship out of the jurisdiction is not indictable here; (2) that to conspire to scuttle out of the jurisdiction is not indictable; (3) to conspire to scuttle whether the ship should be within or without the jurisdiction is indictable as the ship might be scuttled in an English port or within English territorial waters; (4) that to conspire to injure persons within by doing an act out of the jurisdiction is indictable. I agree as to (1) and (3) but I do not think it is an authority for (2) and (4).

 

Stephen J., in referring to this case in the seventh edition of Roscoe’s Criminal Evidence, at p. 244, expressed a view similar to that which I have indicated above as to what was actually decided, but added “but on principle it ought to be criminal.” In his History of the Criminal Law of England, vol. II, at pp. 13 and 14, dealing with the question of conspiracies in England to commit crimes abroad (other than murder), he regards the law as unsettled and expresses the view that it is the duty of the legislature to remove all doubt by putting such conspiracies, subject to certain possible exceptions, on the same footing as crimes committed in England. Rex v. Brisac13 was a case of conspiracy in a British ship on the high seas and turned on the question of the venue necessary to found the jurisdiction for trial at Westminster, it having been contended that the offence was only triable under the Admiralty Commission. It is accordingly of no assistance in this case. In Reg. v. Warburton14 the defendant was indicted for conspiring with Joseph Warburton and W. H. Pepys to cheat and defraud his partner Lister. The partnership was English but part of the business was carried on at Urbigau in Saxony. The defendant had given notice for dissolution of the partnership between himself and Lister which would necessitate the taking of an account of the partnership property and its division, after payment of liabilities, between the partners. The conspiracy was by false documents and false entries in the books in Saxony to make it appear that Pepys was a creditor of the firm so that certain partnership property was to be withdrawn and handed to Pepys or otherwise abstracted and kept back for division between the defendant, Pepys and Joseph Warburton to the exclusion of Lister.

 

13 (1803) 4 East 164.

 

14 L.R. 1 C.C.R. 274. [*632]

 

Although the fraudulent acts were to be performed abroad the ultimate taking of the account and division of the partnership property would take place in England.

 

No objection was raised on the ground that the fraudulent acts were to be performed abroad. The only point taken was that the fraud at that date was one which, apart from conspiracy, was neither actionable nor criminal, and therefore the conspiracy could not be criminal. It was held that the acts agreed to be done constituted a civil wrong and therefore the conspiracy was criminal. As the final act necessary to effect the fraud was to be carried out in this country on a person here, this also is a case from which I am unable to derive much assistance.

 

One further case must be mentioned, viz., Reg. v. Whitchurch.15 In this case three persons, one of whom was Elizabeth Cross, were charged with conspiring to procure the abortion of the said Elizabeth Cross. The offence of administering to herself any poison or other noxious thing or unlawfully using any instrument or other means with intent to procure her abortion requires that the woman should be with child. Elizabeth Cross was in fact not pregnant. In the case, however, of persons other than the woman herself, 24 & 25 Vict. c. 100, s. 58, enacts: “and whosoever with intent to procure the miscarriage of any woman, whether she be or be not with child, shall unlawfully administer … shall be guilty of felony.” All the accused were convicted. In the case of Elizabeth Cross, Willes J., the trial judge, stated a case for the Court of Crown Cases Reserved. In it he stated his opinion that although it was not criminal for a woman not pregnant to do such acts to herself intending thereby to procure abortion which was actually impossible, it was none the less criminal in her to conspire to commit a felony (which the administration of drugs and the use of instruments would have been in her as well as in the men if she had been pregnant) because the commission of the felony was rendered impossible by circumstances unknown to her. But he went on to state his further opinion that for the woman to conspire with the men to have certain things done to her, the doing of which constituted a felony on the part of the men, was criminal, although the object to be attained, if effected by herself alone and without the help of the men, might not have been criminal. He had accordingly directed the jury, if they believed the evidence, to convict the prisoners.

 

The conviction was upheld, but none of the judgments indicate whether this was on the basis of the first part of Willes J.’s

 

15 (1890) 24 Q.B.D. 420; 6 T.L.R. 177. [*633]

 

opinion or of the second. If either was correct, the conviction had to stand. It is true that no distinction is drawn between the two alternative bases for the judge’s opinion, but I do not think this case affords a very firm ground for drawing any fundamental conclusions with regard to the law of criminal conspiracy.

 

The Attorney-General based his case principally on the contention that, the essence of the crime being the agreement, it is immaterial where it is intended to be carried out or on whom the crime or fraud is to be perpetrated. It is, he said, unnecessary to allege in the count the locality of the scene of the designed operations, while it is necessary to state the locality of the agreement to give jurisdiction to the court of trial. But, alternatively, while saying he was not concerned to show in what particular category of conspiracy the present case came, he submitted that, being a conspiracy to defraud, it came within the class of conspiracies to do acts which are mala in se and, as such, clearly criminal in their nature, irrespective of locality. He contended that acts which were criminal at common law, such as murder and theft, although subsequently made statutory offences, were to be regarded as crimes, even if, for procedural or other reasons, they were not punishable here. And in this category he sought to include “frauds.” By way of illustration he cited certain passages from the judgment of Devlin J. in the recent case of Reg. v. Martin.16

 

My Lords, this argument is an attractive one and it accords to some extent with the views expressed by Wright J. in the passages already cited from his Law of Criminal Conspiracies and Agreements, where he refers more than once to acts which “ought to be” regarded as “crimes” although they may not in fact be punishable and suggests this as the test for determining whether a particular conspiracy should be regarded as criminal. But it is significant that he also considered the task of classifying the acts which would determine the criminality of conspiracy was one for the legislature.

 

Ideas as to what acts are mala in se vary widely in different periods of time and in different parts of the civilized world. This classification is none the less one which may still be of assistance in certain spheres of the law, but the criminal law requires the maximum degree of definition and so uncertain a test as this seems to me ill-suited for the determination of the limits of criminality in the field of conspiracy. Moreover, I think the

 

16 [1956] 2 Q.B. 272, 285-286; [1956] 2 All E.R. 86. [*634]

 

following passage in Halsbury’s Laws of England, 3rd ed., vol. X, p. 271, “A crime is an unlawful act or default which is an offence against the public, and renders the person guilty of the act or default liable to legal punishment,” correctly defines the nature of a crime in the criminal law.

 

My Lords, I share the views of R. S. Wright J. and Stephen J. that the task of determining what conspiracies, if any, in this already indeterminate field are to be triable and punishable in this country when the acts planned would not themselves have been indictable here if carried out abroad is not one which is suitable for your Lordships sitting in your judicial capacity. In this connexion I would make further reference to Sir William Holdsworth. At p. 277 of volume III he wrote: “Moreover, at all periods of our history it has been far more difficult to extend the criminal law by a process of judicial decision than any other branch of the law. There has always been a wholesome dread of enlarging its boundaries by anything short of an Act of the legislature.” No one has ever been convicted of such a conspiracy, and if it is in the public interest that such conspiracies should be triable and punishable here, it is, I think, for the legislature so to determine. The comity of nations can hardly require the acceptance of the Crown’s contentions in the present case, having regard to the non-recognition of conspiracy as a crime in Germany. Moreover, in the field of criminal law the comity of nations can best be served by treaties of extradition.

 

I have reached the conclusion that the decision of the Court of Criminal Appeal that a conspiracy to commit a crime abroad is not indictable in this country unless the contemplated crime is one for which an indictment would lie here is correct, and from what I have already said it necessarily follows that a conspiracy of the nature of that charged in count 3 as proved in evidence - which, in my view, was a conspiracy to attain a lawful object by unlawful means, rather than to commit a crime - is not triable in this country, since the unlawful means and the ultimate object were both outside the jurisdiction. In so deciding I would, however, reserve for future consideration the question whether a conspiracy in this country which is wholly to be carried out abroad may not be indictable here on proof that its performance would produce a public mischief in this country or injure a person here by causing him damage abroad.

 

My Lords, for these reasons I would dismiss this appeal. [*635]

 

My Lords, my noble and learned friend, LORD RADCLIFFE, who is unable to be present today, has asked me to say that he concurs in the opinion that I have just delivered.

 

LORD SOMERVELL OF HARROW. My Lords, I agree that this appeal should be dismissed for the reasons given by my noble and learned friend. Lord Tucker.

 

Appeal dismissed.