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1 W.L.R.

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[HOUSE OF LORDS]

AIR-INDIA

APPELLANTS

AND

WIGGINS

RESPONDENT

1980 June 9; July 3

Lord Diplock, Lord Edmund-Davies Lord Keith of Kinkel, Lord Scarman and Lord Roskill

Animal - Transit of animal - Carrier's duty - Birds carried by Indian airline from India to England - Failure to ventilate aircraft causing unnecessary suffering - Failure occurring outside English airspace - Whether English courts having jurisdiction - Diseases of Animals Act 1950 (14 Geo. 6, c. 36), s. 23 (as amended by Agriculture (Miscellaneous Provisions) Act 1954 (2 & 3 Eliz. 2, c. 39), s. 11, Sch. 2, para. 1 (1)) - Transit of Animals (General) Order 1973 (S.I. 1973 No. 1377), arts. 3 (3), 5 (2)

Section 23 of the Diseases of Animals Act 1950, as amended by section 11 of and Schedule 2, paragraph 1 (1) to the Agriculture (Miscellaneous Provisions) Act 1954, provides, and the Act makes contravention an offence:

"The minister may make such orders as he thinks fit ...

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(b) for ensuring for animals carried by sea or by air a proper supply of food and water and proper ventilation during the passage and on landing; (c) for protecting them from unnecessary suffering during the passage and on landing."

Article 3 (3) of he Transit of Animals (General) Order 1973 provides:

"In relation to carriage by sea or air, the provisions of this order shall apply to animals carried on any vessel or aircraft to or from a port or airport in Great Britain whether or not such animals are loaded or unloaded at such port or airport."

Article 5 (2) provides:

"No person shall carry any animal by sea, air, road or rail, or cause or permit any animal to be so carried, in a way which is likely to cause injury or unnecessary suffering to the said animal."

The defendant airline carried a cargo of live birds consigned for transport from India to Heathrow Airport. Owing to lack of ventilation during a delay at Kuwait, the greater part of them probably died there of asphyxiation, being already dead when the aircraft entered British airspace. The defendants were charged with contravening article 5 (2) of the Transit of Animals (General) Order 1973 made by virtue of powers contained in section 23 (b) of the Diseases of Animals Act 1950 by carrying the birds in such a way as was likely to cause them injury or unnecessary suffering.

The justices convicted the defendants, holding that by virtue of article 3 (3) proceedings could be brought against foreign nationals for offences committed abroad. The Crown Court upheld the conviction. The Divisional Court of the Queen's Bench Division dismissed the defendants' appeal. The appeal was concerned only with the birds which had died.

On appeal by the defendants: -

Held, allowing the appeal, (per Lord Diplock, Lord Edmund-Davies, Lord Keith of Kinkel and Lord Roskill) that section 23 of the Act, on its true construction and having regard to the presumption that an offence-creating statute was not intended to cover conduct outside the Crown's territorial jurisdiction, did not confer on the minister the power to create extra-territorial offences and, since the birds were dead when they entered British airspace, no offence involving causing them suffering within the Act had been committed (post, pp. 819A, F, 820 A-C, D-E, 822H-823A).

Cox v. Army Council [1963] A.C. 48, H.L.(E.) and Reg. v. Jameson [1896] 2 Q.B. 425, D.C. applied.

Per Lord Scarman. The language of section 23 can be construed as covering extra-territorial conduct, provided the animals in question were on passage from, or landed at, a British port or airport. The act which founds the jurisdiction would be the landing, but the birds were dead on arrival only their carcases were landed, and article 5 (2) did not cover the landing of carcases (post, p. 822E-G).

Decision of the Divisional Court of the Queen's Bench Division [1980] 1 W.L.R. 102; [1980] 1 All E.R. 192, D.C. reversed.

The following cases are referred to in their Lordships' opinions:

Cox v. Army Council [1963] A.C. 48; [1962] 2 W.L.R. 950; [1962] 1 All E.R. 880, H.L.(E.).

Practice Statement (Judicial Precedent) [1966] 1 W.L.R. 1234; [1966] 3 All E.R. 77, H.L.(E.).

Reg. v. Jameson [1896] 2 Q.B. 425, D.C.

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The following additional case was cited in argument:

Reg. v. Treacy [1971] A.C. 537; [1971] 2 W.L.R. 112; [1971] 1 All E.R. 110, H.L.(E.).

Appeal from the Divisional Court of the Queen's Bench Division.

This was an appeal from the Divisional Court of the Queen's Bench Division (Lord Widgery C.J., Eveleigh L.J. and Kilner Brown J.) dated October 15, 1979, dismissing an appeal from a decision of the Middlesex Crown Court on October 28, 1976. The order of the Crown Court was made on the hearing of appeals by the appellants, Air-India, against conviction by the justices of the peace for the petty sessional division of Uxbridge sitting at Uxbridge Magistrates' Court on June 17, 1976, on the hearing of summonses preferred by the respondent, Geoffrey Stuart Wiggins, as prosecutor under the Transit of Animals (General Order) 1973 and the Diseases of Animals Act 1950.

The facts are stated in the opinion of Lord Diplock.

Keith Evans, Frank Panford and J. Downing for the appellants.

E. A. Machin Q.C. and Roger Cox for the respondent.

Their Lordships took time for consideration.

July 3. LORD DIPLOCK. My Lords, in September 1975 Air-India, the national air line of India and a subject of that sovereign state, carried a cargo of some 2,000 live parakeets upon a flight from India to London, Heathrow, which involved a scheduled stop at Kuwait. While the aircraft was at Kuwait a fault was discovered in an engine. In consequence of this the aircraft was delayed for 31 hours on the tarmac at Kuwait. The 12 crates in which the parakeets were being transported remained in the hold untended throughout this period. As a result only 89 were found to be alive when the aircraft eventually arrived at Heathrow. The remainder, nearly 2,000 of them, were found to have died from asphyxiation. It was subsequently found by the Crown Court that it was highly probable that these deaths occurred as a result of the heat and lack of ventilation to which the birds were subjected in Kuwait and that they were already dead before the aircraft entered British airspace.

Air-India were charged before the Uxbridge Magistrates' Court with 36 offences under the Transit of Animals (General) Order 1973. For the purposes of this Order "animals" include all species of birds. Your Lordships are concerned only with the 12 charges of contraventions of article 5 (2) of that Order, which provides:

"No person shall carry any animal by sea, air, road or rail, or cause or permit any animal to be so carried, in a way which is likely to cause injury or unnecessary suffering to the said animal."

Each of these charges related to birds packed in a single crate. All the crates contained dead birds on arrival at Heathrow, but there was no evidence to identify which of them contained any of the 89 birds that survived.

Air-India were convicted on each of these 12 charges by the magistrates' court as well as on the other 24 charges. They appealed to the Middlesex Guildhall Crown Court. That court allowed the appeal on the other 24 charges but upheld the 12 convictions under article 5 (2)

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of the Order. It stated for the opinion of the High Court the following question of law:

"Were we correct in holding that the provisions of the Transit of Animals (General) Order 1973 apply to acts done by foreign nationals in foreign territory provided that the vessel or aircraft in which such acts are done lands or docks in Great Britain during or at the conclusion of the same voyage?"

The Divisional Court in a short extempore judgment answered that question: "Yes,"; and dismissed Air-India's appeal but certified as a point of law of general public importance a redrafted version of the question stated by the Crown Court, viz.:

"Is there an offence punishable in England under the Diseases of Animals Act 1950 and regulations made thereunder if an airline carries animals from India to London Airport in conditions which constitute a breach of such regulations but the animals are dead before the aircraft enters English airspace?"

The matter comes before your Lordships by leave granted by this House.

My Lords, article 5 (2) of the Transit of Animals (General) Order 1973 was made by the Minister of Agriculture, Fisheries and Food, in the exercise of powers conferred upon him by section 23 (b) and (c) of the Diseases of Animals Act 1950, as amended and applied to air transport by section 11 of and Schedule 2, paragraph 1 (1) to the Agriculture (Miscellaneous Provisions) Act 1954. The relevant empowering provisions in the Act of 1950 as so amended read as follows:

"23. The minister may make such orders as he thinks fit ... (b) for ensuring for animals carried by sea or by air a proper supply of food and water and proper ventilation during the passage and on landing; (c) for protecting them from unnecessary suffering during the passage and on landing."

The Act provides by section 78 (1) (v) that any person shall be guilty of an offence against the Act "if he does or omits anything, the doing or omission whereof is declared ... by an order of the minister to be an offence by him against this Act; ..." So section 23 empowers the minister to make orders creating criminal offences.

Article 5 (2) of the Transit of Animals (General) Order 1973, the terms of which I have already cited, was made in exercise of the powers conferred upon the minister by section 23. Non-compliance with its provisions is declared to be an offence against the Act by article 11 of the Order. So what the minister is purporting to do by article 5 (2) is to make the conduct therein described a criminal offence; but there is nothing in that article itself to suggest that it was intended to have extra-territorial effect.

Article 3 (3) which deals with the interpretation of the Order, contains the provision relied on by the Divisional Court as making things done or omitted to be done by foreign nationals in foreign countries offences under the Act. It is in the following terms:

"In relation to carriage by sea or air, the provisions of this order shall apply to animals carried on any vessel or aircraft to or from a port or airport in Great Britain, whether or not such animals are loaded or unloaded at such port or airport."

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1 W.L.R.	Air-India v. Wiggins (H.L.(E.))	Lord Diplock

My Lords, in construing Acts of Parliament there is a well-established presumption that, in the absence of clear and specific words to the contrary, an "offence-creating section" of an Act of Parliament (to borrow an expression used by this House in Cox v. Army Council [1963] A.C. 48, 67) was not intended to make conduct taking place outside the territorial jurisdiction of the Crown an offence triable in an English criminal court. As Viscount Simonds put it, at p. 67:

"... apart from those exceptional cases in which specific provision is made in regard to acts committed abroad, the whole body of the criminal law of England deals with acts committed in England."

Cox v. Army Council was concerned with a statute which in the plainest possible words made acts committed abroad by serving members of the British Army offences triable by court-martial. The presumption against a parliamentary intention to make acts done by foreigners abroad offences triable by English criminal courts is even stronger. As Lord Russell of Killowen C.J. said in Reg. v. Jameson [1896] 2 Q.B. 425, 430:

"One other general canon of construction is this - that if any construction otherwise be possible, an Act will not be construed as applying to foreigners in respect to acts done by them outside the dominions of the sovereign power enacting."

Two consequences follow from these principles of statutory construction: the first is that if the minister had power to make an Order under the statute, making acts done by foreigners abroad offences triable in English criminal courts, such power must have been conferred upon him by words in the statute so clear and specific as to be incapable of any other meaning; the second is that the words of the Order must themselves be explicable only as a clear and unambiguous exercise of that power. If either the empowering words of section 23 (b) of the Act or the enacting words of article 3 (3) of the Order would have a sensible content if restricted to acts done within the territorial jurisdiction of the Crown, they must be so construed.

So far as section 23 (b) is concerned it clearly has a sensible content if the passage of the vessel or aircraft there referred to is over the territorial airspace or waters of the United Kingdom and not beyond and the landing is at a port or airport in the United Kingdom. So no power to create extra-territorial offences is conferred on the minister by the Act. If he had purported to do so by article 5 (2) of the Order read in conjunction with article 3 (3) he would have acted ultra vires: but upon its true construction read in the light of the presumptions to which I have referred the effect of article 3 (3) is not to extend but, on the contrary, to limit the ambit of article 5 (2). Article 5 (2) if it were not subject to qualification, would apply to animals carried by aircraft overflying United Kingdom airspace without landing here at all, although there would be practical difficulties in detecting and punishing contraventions of the article in cases of carriage of this kind. What article 3 (3) does is to confine the application of article 5 to carriage of animals in aircraft which actually land at an airport in Great Britain whether for the purpose of loading or unloading the animals or merely in transit from one foreign airport to another.

My Lords, it is conceded by the prosecution that the offence created by article 5 (2) is a "conduct crime" not a "result crime." It was no

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doubt a continuing offence so long as the parakeets were being carried on the aircraft in such a way as to cause or to be likely to cause suffering to them; but the commission of the offence ceased at the moment when their suffering and all likelihood of their further suffering ended with their death. It is conceded by the prosecution that, except in the case of the 89 survivors, this must have occurred at Kuwait and before the aircraft entered United Kingdom airspace. So no offence was committed by Air-India in respect of the birds which were dead on arrival at Heathrow. It is not disputed by Air India that offences were committed in respect of the 89 birds that were still alive; but it is not possible to identify the individual crates which contained any live birds and consequently it is not possible to identify which counts charged offences in which any live birds were involved. In these circumstances it is common ground that if the appeal is allowed and the question of law stated by the Crown Court is answered "No," all 12 convictions must be quashed.

I would allow the appeal, answer in the negative both the question certified by the Divisional Court and stated by the Middlesex Guildhall Crown Court, and accordingly would quash the convictions.

LORD EDMUND DAVIES. My Lords, for the reasons indicated in the speech of my noble and learned friend, Lord Diplock, which I have had the advantage of reading in draft and with which I am in complete agreement, I would quash the convictions and allow this appeal.

LORD KEITH OF KINKEL. My Lords, I agree with the speech of my noble and learned friend, Lord Diplock, which I have had the opportunity of considering in draft, and would accordingly allow the appeal and quash the convictions.

LORD SCARMAN. My Lords, the facts I need not repeat: they are set out in the speech of my noble and learned friend, Lord Diplock. It is with regret, and a sense of frustration, that I agree that the House must allow the appeal. Unfortunately it is not a case in which the House can invoke the Practice Statement (Judicial Precedent) [1966] 1 W.L.R. 1234. If a rule is to be formulated which will solve the problem raised by the case, it can only be done by creating an exception to a generally sound principle of the common law: and that is legislative, not judicial, work. My Lords, I would think it wrong to be led by the shock of the present case to undermine in any way the general principle that the criminal law of England "deals only with acts committed in England": Viscount Simonds, Cox v. Army Council[1963] A.C. 48, 67. The difficulty of the case is that the neglect which caused unnecessary suffering and injury to the 2,000 parakeets and mynah birds on passage with Air-India occurred in Kuwait, and led to their death long before they entered British air space. Indeed the overwhelming probability is that they died on the ground (but in the hold) at Kuwait.

There are, as my noble and learned friend, Lord Diplock, has said, two canons of construction to be observed when interpreting a statute alleged to have extra-territorial effect. The first is a presumption that an offence-creating section was not intended by Parliament to cover conduct outside the territorial jurisdiction of the Crown: Cox v. Army Council[1963] A.C. 48. The second is a presumption that a statute will not be construed as applying to foreigners in respect of acts done

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by them abroad: Reg. v. Jameson [1896] 2 Q.B. 425. Each presumption, is, however, rebuttable: and the strength of each will largely depend upon the subject matter of the statute under consideration. Certainly, Viscount Simonds, in Cox's case at p. 67, used words to suggest that specific provision in regard to acts committed abroad is necessary to rebut the presumption against extra-territoriality. But I do not think this will always be so: and, specifically, I do not think it is the correct approach when the courts are faced, as in this case, with a statute which imposes, or authorises a minister to impose by order, criminal liability in respect of movements to, from, or through British ports by sea or air. In order to determine whether such a statute imposes, or authorises the imposition by order, of criminal liability in respect of conduct outside territorial limits, it is necessary to put a fair and reasonable construction upon the language used in the statute, bearing in mind not only the two presumptions, which are to be treated as a general guide to Parliament's purpose, but also the nature of the specific purpose served by the statute.

This is, in my judgment, the correct approach to the interpretation of section 23 of the Diseases of Animals Act 1950. The section as amended in 1954, has been set out by my noble and learned friend, Lord Diplock: and section 78 of the Act of 1950 empowers the minister to create, by order, criminal offences for infringements of the Act - which the minister has done in the Transit of Animals (General) Order 1973. The ambit of any offences created by the minister must depend upon the extent of the power conferred upon him by the Act. The offences, of which Air-India, a foreign corporation, was convicted, were created by article 5 (2) of the Order. Upon a broad construction of the article, read together with article 3 (3), an offence would be committed even if the suffering or injury was caused abroad, provided always that the animals were carried to or from a British port or airport. Upon a narrow construction, the offence would be limited to suffering or injury inflicted within British air space or territorial waters or on landing. Which is correct depends upon the construction to be put upon section 23 of the Act.

If the power conferred by the section is limited to acts occurring within territorial limits, so also is the Order. If the power is to be construed as allowing the inclusion of extra-territorial conduct, the words of the Order are wide enough to include such conduct.

Section 20 of the Act, as amended, covers the transit of animals by land, sea, or air, within the territorial limits of the United Kingdom. Unless section 23 has some extra-territorial effect, it serves, therefore only a very limited purpose, if any at all. International carriage by sea of live animals has been a well-known traffic for a very long time: and it is to be presumed that Parliament was well aware of its existence, when it first enacted the provision, which now appears as section 23 of the Act of 1950. When Parliament added carriage by air to the section in 1954, it did so, one must infer, because it intended that the minister should be enabled to impose the same duties upon air carriers engaged in the same sort of traffic. And I would think it inconceivable that Parliament did not have in mind the need to impose a measure of control upon international sea and air carriage which included a stop in the United Kingdom.

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A more general look at the legislation, of which section 23 is part, certainly does not negative, and might be thought to support, this approach to the construction of the section. The Diseases of Animals Act 1950 is a consolidating Act. The provisions now to be found in paragraphs (b) and (c) of section 23 found a place in the Contagious Diseases (Animals) Act 1878. Part II of that Act dealt with England (Parts III and IV with Scotland and Ireland). It contained elaborate provisions prohibiting the landing of diseased foreign animals and requiring the slaughter or quarantine of any that were landed, all of which provisions, with some amendment, are to be found in the Act of 1950. It included a section empowering the Privy Council to make orders for a number of purposes, including (h) and (c) of section 23 of the Act of 1950: see section 32 (xxiii) and (xxiv). There was a consolidating Act in 1894, in which these provisions and others were re-enacted: see Diseases of Animals Act 1894, section 22 (xxiii), (xxiv) and (xxv), which included paragraph (a) as well as (b) and (c) of section 23. It is impossible to read this legislation without appreciating the importance Parliament must have attached to ensuring that animals, on arrival in the United Kingdom, not only were free of disease, but also had not suffered unnecessarily by neglect during their passage and landing. Jurisdiction would not - indeed could not - arise until the animals were landed: but, once landed, the inference may fairly and reasonably be drawn that Parliament intended that events or conduct, wherever occurring, could properly be included in an offence created by ministerial order, provided always that it was conduct occurring during passage to or from Britain. There is, therefore, good reason for doubting whether the presumptions against extra-territoriality are to have full force and effect when construing section 23. And the section can be construed as covering extra-territorial conduct, provided always the animals were on passage from, or landed at, a British port or airport. So to construe the section gives it a fair and reasonable meaning and, while permitting an exception, maintains the general rule that criminal jurisdiction is territorial in character. The act which founds the jurisdiction in a case such as the present would be the landing of the animals in England.

But the animals in this case never were landed here: only their carcases arrived, a tragic memorial that they had once lived. All, therefore, that can be established is that in consequence of their treatment at an airport far distant from England the birds died - almost certainly while at the airport.

Had the birds in this case, therefore, arrived at London Airport, I would have held that offences were proved under article 5 (2) of the Order. But they did not. They died before they entered British air space. Their carcases arrived: but I find it impossible to construe either article 5 (2) or the section as covering the landing of carcases. Both are concerned with the living: and to extend either to cover the dead would be to destroy the territorial link which enables the presumption against extra-territoriality to be modified in construing the section and the Order.

For these reasons I would allow the appeal.

LORD ROSKILL. My Lords, I have had the advantage of reading in draft the speech of my noble and learned friend, Lord Diplock. For

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the reasons therein contained, I agree that this appeal should be allowed and the relevant convictions quashed.

Appeal allowed.

Solicitors: Bulcraig & Davis; Comptroller and City Solicitor.

F. C.