[COURT-MARTIAL APPEAL COURT AND HOUSE OF LORDS]

AND

Military Law - Civil offence - Abroad, committed - Driving without due care and attention - Whether civil offence within meaning of Army Act - Army Act, 1955 (3 & 4 Eliz. 2, c. 18), s. 70 - Road Traffic Act, 1960 (8 & 9 Eliz. 2, c. 16), ss. 3 (1), 257 (1).

Road Traffic - "Road" - Meaning - Overseas road - Road Traffic Act, 1960, ss. 3 (1), 257 (1).

By section 70 of the Army Act, 1955: "(1) Any person subject to military law who commits a civil offence, whether in the United Kingdom or elsewhere, shall be guilty of an offence against this section. (2) In this Act the expression 'civil offence' means any act or omission punishable by the law of England or which, if committed in England, would be punishable by that law; and in this Act the expression 'the corresponding civil offence' means the civil offence the commission of which constitutes the offence against this section. ..."

By section 3 (1) of the Road Traffic Act, 1960: "If a person drives a motor vehicle on a road without due care and attention, or without reasonable consideration for other persons using the road, he shall be liable on summary conviction to a fine not exceeding £40. ..."

By section 257 (1): "... 'road' means any highway and any other road to which the public has access, and includes bridges over which a road passes. ..."

The appellant, while serving with the British Army in Germany, was charged before a district court-martial held there with "committing a civil offence contrary to section 70 of the Army Act, 1955, that is to say, driving without due care and attention contrary to section 3 (1) of the Road Traffic Act, 1960, in that he at Sundern on September 15, 1960, drove a motor vehicle on a road without due care and attention." He was convicted: -

Held, (1) that section 70 of the Act of 1955 is an offence-creating section, providing that acts or omissions which apart from it would not be offences become offences by virtue of it (post, pp. 67, 71,72).

(2) That if the offence charged is one of a nature that can be committed only in England the section cannot operate (post, pp. 68, 72).

(3) That, even though the Road Traffic Act, 1960, had no application except to acts done on the roads of England (post, p. 72), the offence charged had a character of universality which brought it within the scope of section 70 of the Act of 1955 (post, pp. 68, 72).

Per Lord Reid. The question is not whether the road on which

the appellant was driving was a road within the meaning of the Road Traffic Act, but whether there was the requisite degree of similarity between what he did and an act done in England which would have been contrary to section 3 (1) of that Act (post, p. 70).

Reg. v. Martin [1956] 2 Q.B. 272; [1956] 2 W.L.R. 975; [1956] 2 All E.R. 86 and Reg. v. Naylor [1962] 2 Q.B. 527; [1961] 3 W.L.R. 898; [1961] 2 All E.R. 932 considered.

Attorney-General for Hongkong v. Kwok-a-Sing (1873) L.R. 5 P.C. 179 distinguished.

Decision of the Courts-Martial Appeal Court, sub nom. Reg. v. Cox. infra; [1962] 2 W.L.R. 126; [1961] 3 All E.R. 1194 affirmed.

The appellant, Sergeant Roy Ewart Cox, Royal Army Pay Corps, serving with the British Army of the Rhine, was convicted of a civil offence by a district court-martial held on January 20, 1961, at R.A.F. Sundern, Germany. He was charged with "committing a civil offence contrary to section 70 of the Army Act, 1955, that is to say, driving without due care and attention contrary to section 3 (1) of the Road Traffic Act, 1960, in that he at Sundern on September 15, 1960, drove a motor vehicle on a road without due care and attention." He was sentenced to be severely reprimanded and appealed to the Courts-Martial Appeal Court.

George Heseltine for the appellant.

David Lloyd for the Crown.

1961. Nov. 27. SLADE J. read the judgment of the court: On January 20, 1961, the appellant, Sergeant Roy Ewart Cox, Royal Army Pay Corps, serving with the British Army of the Rhine, was convicted in Germany by a district court-martial of "committing a civil offence contrary to section 70 of the Army Act, 1955, that is to say, driving a motor vehicle contrary to section 3 (1) of the Road Traffic Act, 1960, in that he at Sundern [Germany] on September 15, 1960, drove a motor vehicle on a road without due care and attention." He was sentenced to be severely reprimanded. From that conviction he appeals to this court by leave of the single judge.

His grounds of appeal are as follows: (1) that the charge as laid is not correct in law because it does not disclose an offence under section 70 of the Army Act, 1955, in that the act particularised is not an act contrary to section 3 (1) of the Road Traffic Act, 1960, nor is it an act which can be committed in England.

(2) that the charge as laid is not a civil offence within the meaning of section 70 of the Army Act, 1955.

Neither of these points was taken in Reg. v. Jennings,¹ which was an appeal to this court in similar circumstances. Indeed in that case it seems to have been assumed that the then corresponding section to the present section 70 of the Army Act, 1955, namely, section 41 (5) of the Army Act, 1881, was applicable to the Road Traffic Act of 1930, and the sole ground of appeal was that the conviction was invalid because the appellant had not received the warning of intended prosecution required by section 21 of that Act.

In addition to his grounds of appeal, Mr. Heseltine, who appeared for the appellant, urged that it was not a military necessity to frame the charge against the appellant under section 70 of the Act of 1955 in that the charge could have been laid under section 36, but the question which this court has to decide is whether the appellant was rightly convicted of the charge laid under section 70, and not whether he could have been convicted on some other charge.

In support of his grounds of appeal Mr. Heseltine made the following submissions: (1) that section 70 was not an "offence-creating" section. In support of this submission Mr. Heseltine cited Reg. v. Martin.² (2) that the Road Traffic Act, 1960, is in any event mere "domestic legislation" in the sense in which that expression was used by Lord Parker C.J. in Reg. v. Naylor.³ (3) that if, contrary to his contention, section 70 did create a new offence, the words in section 70 "if committed in England" precluded it from applying to an act which was incapable of being committed in England. (4) that if, contrary to his contention, the words of section 70 are capable of the construction put forward by the prosecution nevertheless so many and such strange anomalies would result from their being held to apply to the Road Traffic Act, 1960, that the court should hold that Parliament cannot have intended them to be so construed, and accordingly should put a narrower construction upon them. In support of this submission Mr. Heseltine cited Attorney-General for Hong Kong v. Kwok-a-Sing.⁴

1 [1956] 1 W.L.R. 1497; [1956] 3 All E.R. 429.

2 [1956] 2 Q.B. 272; [1956] 2 W.L.R. 975; [1956] 2 All E.R. 86; 40 Cr.App.R. 68.

3 [1962] 2 Q.B. 527; [1961] 3 W.L.R. 898; [1961] 2 All E.R. 932; 45 Cr.App.R. 69.

4 (1873) L.R. 5 P.C. 179.

Martin's⁵ and Naylor's⁶ cases were both decided upon the construction of section 62 (1) of the Civil Aviation Act, 1949, which reads as follows: "(1) Any offence whatever committed on a British aircraft shall, for the purpose of conferring jurisdiction, be deemed to have been committed in any place where the offender may for the time being be." In Martin's⁷ case the defendants were charged on indictment with being in possession of raw opium on a British aircraft flying between Bahrein and Singapore contrary to regulation (3) of the Dangerous Drugs Regulations, 1953, made under the Dangerous Drugs Act, 1951.

In Naylor's⁸ case the defendant was charged on indictment with larceny on a British aircraft in flight over the high seas. In each case counsel for the defence moved to quash the indictment upon the ground that the court had no jurisdiction to try the offence charged. In Martin's⁹ case the prosecution conceded that the possession of raw opium was outside the United Kingdom, and further that regulation (3) of the Regulations of 1953 did not in itself make it an offence to have possession of drugs in a British aircraft abroad. The prosecution contended, however, that whenever an act which is an offence under English law if committed in England is committed on a British aircraft anywhere in the world, such act was made an offence under English law justiciable in this country by virtue of section 62 of the Act of 1949.

Counsel for the defendant in presenting his argument stated succinctly that the only question to be decided was whether section 62 was a "venue-creating" or an "offence-creating" section. Devlin J., in the course of the prosecution's argument, said¹⁰: "The question is what is meant by 'offence.' What about a confidence trick; that is not an offence unless committed in England. Really you say that 'offence' means any act which if done in England would be an offence."

In the course of his judgment quashing the indictment, Devlin J. said¹¹: "The prosecution say that, apart from these few "statutes," (for example, the Offences against the Person Act, 1861, sections 9 and 57, the Offences at Sea Act, 1536, section 1) "section 62 is the only enactment that can make a criminal act done in the air an offence. Accordingly, the prosecution say that section 62 must be given a construction which is wide enough to make it an offence-creating section. Since it starts

5 [1956] 2 Q.B. 272.

6 [1962] 2 Q.B. 527.

7 [1956] 2 Q.B. 272.

8 [1962] 2 Q.B. 527.

9 [1956] 2 Q.B. 272.

10 Ibid. 278.

11 Ibid. 283.

off by apparently assuming that the act to be considered is an offence before the words of the section operate on it - because it begins by saying: 'Any offence whatever committed on a British aircraft' - the prosecution say the word 'offence' must be construed as if it read 'any act which if done in England would be an offence.' No doubt so wide a construction would sustain the prosecution's submission." Again Devlin J. said¹²: "In my judgment, if the prosecution are to succeed, it can only be if a very free construction is applied to the words of the statute. It can only be if, as I say, in lieu of the words: 'any offence whatever' there is read 'any act which if done in England would be an offence.' That is a free construction. It is not a construction which emerges from the grammar of the Act and it is not one which I find myself willing to accept."

Later, Devlin J. said¹³: "I am not saying that section 62 applies to offences at common law. I have not heard that point argued and it may have to be argued hereafter. What I am saying is that section 62 does not apply to a statutory offence which by the terms of the statute that creates it is local and not universal in character, ... I wish, therefore, to make it clear that the decision which I have given is a decision which is to be regarded as applying to the particular offence which I have had to consider under the Dangerous Drugs Regulations."

In Naylor's case,¹⁴ Lord Parker C.J. said: "The two rival contentions are, on the one hand, that the subsection is saying in a shortened form what has already been provided in regard to British ships on the high seas, namely, that any act or omission which constituted an offence if committed in England constitutes an offence if committed on a British aircraft. On the other hand, it is said that it is only dealing with a matter of jurisdiction and venue, and that you must first of all find that under English law the acts complained of constitute offences if committed on a British aircraft.

"The matter was considered by Devlin J. in Reg. v. Martin,¹⁵ on a motion to quash an indictment containing counts concerning regulation 3 of the Dangerous Drugs Regulations, 1953. Before considering that case, I should say that I have come to the clear conclusion that the wide construction contended for should be put on section 62 of the Civil Aviation

12 [1956] 2 Q.B. 272, 284-285.

13 Ibid. 287, 288.

14 [1962] 2 Q.B. 527, 528.

15 [1956] 2 Q.B. 272.

Act. Although as I have said the language is not altogether as clear as it should be, I have little doubt that it does cover any acts or omissions which would constitute offences if committed in this country unless, and this is, I think, where Devlin J.'s case is in point, they are contrary to some purely domestic legislation."

Further on Lord Parker C.J. said¹⁶: "In my judgment, the approach to this matter is that any act or omission which would constitute an offence if done in England is made an offence if done on a British aircraft, subject to this, that if the offence in question is clearly one of domestic application only, then, as in Martin's case,¹⁷ section 62 does not cover that sort of offence. Accordingly I would dismiss the motion to quash." (An interesting note on Martin's case¹⁷ appears in 72 Law Quarterly Review, p. 318.)

Mr. Heseltine's next argument was that the words in section 70 "if committed in England" cannot apply to an act such as driving on a German road which is incapable of being committed in England. He says it is an essential ingredient of the offence under section 3 (1) of the Road Traffic Act, 1960, that the motor-vehicle should be driven on a road, and that "road" as defined by section 257 of the Act, means a road to which the public, i.e., the public in England, has access. It is self-evident that you cannot drive a motor-vehicle on a German road in England, but if that argument is carried to its logical conclusion it would seem that simple larceny in Germany would be a "civil offence" within the meaning of section 70, but larceny in a German dwelling-house would not. Before dealing with this argument, it is desirable to analyse section 70, which provides as follows: "(1) Any person subject to military law who commits a civil offence, whether in the United Kingdom or elsewhere, shall be guilty of an offence against this section. (2) In this Act the expression 'civil offence' means any act or omission, (a) punishable by the law of England, or (b) which, if committed in England, would be punishable by that law; and in this Act the expression 'the corresponding civil offence' means the civil offence the commission of which constitutes the offence against this section." The letters (a) and (b) have been introduced by this court to facilitate reference hereafter. "Civil offence" means, of course, a civil as opposed to a purely military offence. The words in (a) cover any act or omission

16 [1962] 2 Q.B. 527, 529.

17 [1956] 2 Q.B. 272.

punishable by the law of England whether committed in the United Kingdom or abroad. The words in (b) "if committed in England would be punishable by that law" necessarily presuppose that the act or omission relied upon as constituting the civil offence (1) was committed abroad, and (2) but for those words could not be punishable by the law of England.

Indeed, if this were not so the act or omission would fall within (a) which covers acts or omissions punishable by the law of England whether committed in or outside the United Kingdom: (b) therefore necessarily involves the supposition that an act or omission was committed in England which in fact was not so committed.

Unless therefore (b) is mere surplusage as being covered by (a) it must create a new offence, namely, an act or omission committed abroad and not punishable by the law of England, but which if it had been committed in England would have been so punishable. That new offence necessarily involves the notional transfer to England of all the relevant circumstances surrounding the act or omission so that it may be determined whether the act or omission, if it had been committed in England, would have been punishable by English law. There are, no doubt, acts and omissions committed abroad which are by their very nature incapable of being committed in England, and vice versa, e.g., acts which relate solely to some specific place or object or which are indigenous to or inseparably connected with a particular locality. Illustrations of such would be, abroad, smoking in the Louvre, and at home, exceeding the speed limits in the Royal Parks. There may well be sections of the Road Traffic Act, 1960, which fall within this category. In the present case, however, the essence of the act alleged to constitute the civil offence is the driving of a motor-vehicle without due care and attention on a road to which members of the public have access. It is akin to the more serious acts of dangerous driving (section 2), causing death by dangerous driving (section 1) and driving under the influence of drink (section 6).

The definition of "road" in the Road Traffic Act, 1960, takes the form it does because Parliament was of course legislating for the roads of this country. It is to be observed that there are very few acts committed abroad even by a British subject which are punishable by the law of England and which would thus fall within the language of (a); moreover, as Mr. Heseltine pointed out, there are persons subject to military law who are not British subjects, and with the exception of piracy, which jure gentium

is justiciable anywhere, there is no offence committed by an alien abroad which is punishable in England.

To hold therefore that the language of (b) is not apt to cover acts or omissions abroad which if committed in England would r. constitute offences against, for example, sections 1, 2, 3 and 6 of the Road Traffic Act, 1960, would seem to deprive section 70 of the effect which, in the opinion of this court, Parliament in enacting it must have intended that it should have in order to regulate the conduct of persons subject to military law who are for the time being stationed abroad.

In construing section 70 of the Act of 1955 it is not irrelevant to observe that the corresponding section of the Army Act, 1881, namely, section 41 (5), uses the words "Any offence ... which when committed in England is punishable by the law of England" instead of the words "any act or omission" which are found in section 70.

We now turn to Mr. Heseltine's final submission. As instances of anomalies which would flow from holding that section 70 was applicable to the Road Traffic Act, 1960, and cognate legislation, Mr. Heseltine referred us to the Road Traffic Act, 1960, s. 4 (1). He said that speed limits in Germany might differ from those in England (Road Traffic Act, 1960, ss. 19 and 20: speeding on restricted roads) and he emphasised particularly the definition of a restricted road in section 20 (1). Road Traffic Act, 1960, s. 98 - driving without a licence issued by a British licensing authority. Road Traffic Act, 1960, ss. 201 and 203 (2) - driving without insurance against third-party risks. Mr. Heseltine says rightly that the policy so required must by section 203 (2) be issued by an authorised insurer, that is to say, a person or body of persons carrying on motor-vehicle insurance business in Great Britain. Highways Act, 1835, s. 78 - which requires drivers of wagons or carts, etc., to keep to the left or near side of the road. He says rightly that the rule of the road in Germany is to keep to the right.

The court recognises the force of Mr. Heseltine's argument based upon these anomalies. We have no doubt that if the scope of the inquiry were extended beyond the Road Traffic laws many more anomalies could be found of which it is unnecessary to give further examples. As I have already said, it may be that the Road Traffic Act, 1960, and the Highways Act, 1835, do contain provisions which are purely domestic in their application and which by their very nature are intrinsically incapable of being

committed abroad, or of being notionally transferred to England for the purpose of applying section 70 of the Army Act.

Any such provisions will fall to be dealt with if and when the need should arise. At the moment this court is concerned, and concerned only, with section 3 of the Road Traffic Act, 1960. In this connection it may be observed that when a statute requires that something shall be deemed to be that which it is not, it is frequently not difficult to conjure up illustrations which may seem to reduce to absurdity the requirement of the statute, but that does not relieve a court of its duty to make the hypothesis which the statute demands, that is, in the present case, that this motor-vehicle was being driven on a road in England whereas it was in fact being driven on a road in Germany.

Finally, in support of his argument on this point Mr. Heseltine cited to us the decision of the Privy Council in Attorney-General for Hong Kong v. Kwok-a-Sing.¹⁸ He asked us to apply the principle underlying that decision by substituting "and" for "or" in section 70 (2) of the Army Act, 1955, or by leaving the section as it stands, but placing a narrow construction upon it.

As to his first suggestion, it is true that there are cases in which the word "or" in an Act of Parliament has been construed as "and," and where "and" has been construed as "or," but to substitute "and" for "or" in the definition clause of section 70 of the Act of 1955 would seem to make nonsense of the expression "civil offence."

As to the second suggestion, it is to be borne in mind that the decision in Kwok-a-Sing's case¹⁸ was based upon the peculiar relationship of Hongkong to the mainland of China, and the reasoning underlying the judgment of the Board in that case seems to this court to be wholly inapplicable to the control of Her Majesty's Forces abroad through the instrumentality of military law.

Parliament may well have thought it better to give wide powers to those responsible for the maintenance of discipline and right conduct in the Army abroad, trusting them to act fairly and reasonably in the exercise of them, than to attempt what would have been the most difficult task of seeking to define with precision each of the acts which if committed abroad should be triable by court-martial as a civil offence.

This court accordingly holds that section 70 is upon its true

18 L.R. 5 P.C. 179.

construction an offence-creating section, and that it covers an act committed abroad by a person subject to military law which, if committed in England, would have constituted an offence under section 3 (1) of the Road Traffic Act, 1960. The appellant was, therefore, rightly convicted of the civil offence with which he was charged.

We have accordingly dismissed this appeal, but having regard first, to the importance of the points raised in it, secondly to the number of trials by courts-martial in which these points have been raised by the defence, and thirdly, to the opinion of the judge-advocate-general that these points deserved consideration by this court, we have already given leave to appeal to the House of Lords, and have certified in manner required by section 1 (2) of the Administration of Justice Act, 1960, as applied to this court by section 10 of that Act.

The appellant appealed to the House of Lords.

Mark Littman Q.C. and George Heseltine for the appellant. The Army Act, 1955, applies to every person subject to military law: see section 205 and the sections following. As to offences relating to property, see sections 44 to 46. As to disobedience to standing orders, see section 36. See also sections 59, 63 and 98 (4) and the definitions of "constable" and "civil offence" in section 225 (1). In the Road Traffic Act, 1960, see sections 3 (1), 253 and 254 and the definition of "road" in section 257 (1). Reliance is placed on Reg. v. Jennings¹; Reg. v. Martin² and Reg. v. Naylor.³ Offences such as larceny are brought by the Act within the province of military law, but section 70 of the Army Act does not apply to purely domestic legislation or to acts which are not wrong in themselves. That is the result of the cases just cited. There is no material difference between the

1 [1956] 1 W.L.R. 1497, 1498; [1956] 3 All E.R. 429.

2 [1956] 2 Q.B. 272; [1956] 2 W.L.R. 975; [1956] 2 All E.R. 86.

3 [1962] 2 Q.B. 527; [1961] 3 W.L.R. 898; [1961] 2 All E.R. 932.

effect of section 70 and that of section 62 of the Civil Aviation Act, 1949. In Acts of Parliament there are frequent changes of language, though substantially the same subject-matter is referred to.

The background of this branch of the law is that at common law offences committed outside the realm are not punishable in England, save in the case of treason. The reason lay in the difficulties arising from jurisdiction. Originally every offence was triable only in the county where it was alleged to have been committed, by a jury who had knowledge of the facts. Treason was within the jurisdiction of the Court of the High Constable, essentially a military tribunal and the precursor of courts-martial. This court applied the Civil Law and not the common law. It was abolished in 1521 when on the attainder of the last hereditary holder of the office, Edward Stafford, Duke of Buckingham, it became forfeited to the Crown. There was also the concurrent jurisdiction of the Court of Admiralty which also applied the Civil Law. See also the Offences at Sea Act, 1536 (28 Hen. 8, c. 15). Generally, a statute enacting offences will not be construed as having extraterritorial effect unless it is so expressed. But over the years there have been many Acts giving extraterritorial jurisdiction. See, for example, the Act 11 Will. 3, c. 12, to punish oppressions by colonial governors, the Dockyards, etc., Protection Act, 1772 (12 Geo. 3, c. 24), and sections 9 and 57 of the Offences against the Person Act, 1861 (24 & 25 Vict. c. 100). In such Acts there may be certain differences of language in referring to the same thing. Thus "theft" might be called "larceny" or "an act which, if done in England, would have amounted to theft." See also section 33 (4) of the Larceny Act, 1916 (6 & 7 Geo. 5, c. 50). As to offences committed afloat, see sections 286 and 287 of the Merchant Shipping Act, 1894 (57 & 58 Vict. c. 60), and Reg. v. Dudley and Stephens.⁴

The predecessor of the Army Act, 1955, was the Army Act, 1881 (44 & 45 Vict. c. 58), of which the relevant subsection is section 41 (4). Compare section 70 of the Act of 1955, which contemplates that there shall be brought within the definition of civil offence an act which would not be punishable by the law of England unless it were committed in England. It also contemplates an act which can be performed either in or out of

4 (1884) 14 Q.B.D. 273, 280-281; 1 T.L.R. 118.

England. Therefore, if the relevant act is that of driving carelessly on an English road, the section does not apply because it is not an act which is capable of being done outside England. The Road Traffic Act, 1960, has no application except to acts done on the roads of England: see sections 5, 7, 8, 12, 19, 20 (1), 22, 23, 24, 26-35, 41, 68, 98, 201-216, 241, 271. The whole system is inapplicable anywhere but in the United Kingdom. The Act is a system of road regulations rather than a part of the criminal law. In some sections roads can only mean roads in England, and other provisions (as those relating to the Menai Bridge) can only apply to a particular subject-matter.

There is no legitimate principle of construction on which it can be held that while the word "road" as used in some of the sections of the Act can comprise only roads inside Great Britain, in section 3 (1) it must be held to apply to roads both inside and outside Great Britain. In certain respects section 3 is linked up with other provisions of the Act. See, for example, the system of punishments, including the indorsement of driving licences. The correct approach is not to look at each individual offence or offence-creating section on its own, but to look at the legislation as a whole, of which each section forms a part, and see whether it is domestic and whether the Act which creates the offence is local or universal in character. It makes no difference that one may find one particular compartment of the Act dealing with a certain subject-matter which might be applied abroad. Larceny in a dwelling-house is not a localised offence so as to tie the meaning of "dwelling-house" to a dwelling-house in England; the Larceny Act is not domestic legislation in the same sense as the Road Traffic Act.

Section 36 (2) of the Army Act enables the army by standing orders to regulate the conduct of its troops in foreign territory. There are difficulties in applying to it sections 2 and 3 of the Road Traffic Act, which must be read against the background of the decisions of the courts. Under the English authorities no mens rea is required as an ingredient in the offence of careless driving and the degree of the driver's skill cannot be taken into consideration. The defence of error of judgment is not open any more than unskilfulness. Different views may be taken abroad about that sort of thing, for example, in some countries the traffic approaching from the right always has absolute priority. Again, the Highway Code, authorised by section 74 of the Road Traffic Act, prescribes many things which would be contrary to safety on a foreign road. The army can control the driving of

its soldiers under standing orders authorised by section 36 of the Army Act, whereby it can be ensured that they obey the German road traffic laws. See the Bonn Conventions of May 26, 1952 (Cmd. 8571), article 17 (3) of the Convention on the Rights and Obligations of Foreign Forces and their Members in the Federal Republic of Germany, whereby German traffic laws are to apply to the forces and their members. Under the relevant standing orders it is an offence to drive a vehicle otherwise than in accordance with German traffic laws. It is not to be assumed that the members of the British forces should not be obliged to obey German traffic laws. Under the Bonn Conventions it is for the British Government to see that its soldiers obey the German traffic laws and, although the Road Traffic Act does not apply, there are adequate alternative provisions for safeguarding the public in Germany. As to the incompatibility of the English and German road traffic systems, see the note to section 78 of the Highways Act, 1835 (5 & 6 Will. 4, c. 50), in Halsbury's Statutes of England, 2nd ed., vol. XI, p. 86.

The appellant does not press the argument unsuccessfully submitted in Reg. v. Martin,⁵ but where there is a definition clause like section 70 (2) of the Army Act the proper practice is similar to that applicable where under a statute something which is not a fact is to be deemed to be a fact: see Ex parte Walton.⁶ Section 70 should be given a construction which avoids absurdity. The acts referred to by the Road Traffic Act cannot be done outside the United Kingdom. Alternatively, one should understand an exception to the definition of "civil offence" in section 70 (2) of the Army Act to the following effect: "... except such part of that law which is merely made for the better order or government of England." That would leave out the Public Health Acts and the Merchandise Marks Acts. As to crimes which are limited territorially, see Reg. v. Martin.⁷ The right approach to the interpretation of general enactments is found in Attorney-General for Hong Kong v. Kwok-a-Sing,⁸ which shows that the extreme generality of words may be narrowed by surrounding circumstances. See also sections 104, 111 and 112 of the Road Traffic Act, which indicate that the provisions as to the withdrawal of driving licences may not be applicable where an English driving licence is not held.

The following are the appellant's submissions: (1) Section 70 of the Army Act does not on its true construction enable persons

5 [1956] 2 Q.B. 272.

6 (1881) 17 Ch.D. 746, 756, C.A.

7 [1956] 2 Q.B. 272, 285-286.

8 (1873) L.R. 5 P.C. 179, 197.

to which it applies to be punished by court-martial for every breach of every English law, for that would lead to many absurdities.

(2) It is accepted that it is not limited in its application to acts punishable by the law of England, but it covers by reason of its last words ("if committed in England, would be punishable by that law") offences, such as larceny, which are not purely domestic.

(3) The statute contemplates that the act in question is one which h can be done inside or outside England. If, therefore, upon a true view, the legislation creating the offences only applies to acts done inside England, it follows that section 70 will not take effect.

(4) The act in question in this case is driving carelessly on a road and the word "road" should be read as restricted to an English road, because the same word is used in other sections of the Road Traffic Act where it is inconceivable that they could have any sensible application outside England. There is nothing in this legislation which enables one to give a different interpretation to "road" in those sections. That legislation is only dealing with England. It is unlikely that such an expression would be used by Parliament to cover foreign roads, where different laws and standards for regulating traffic would prevail.

(5) Reg. v. Martin⁹ and Reg. v. Naylor¹⁰ support this. They decided that comparable words in the Civil Aviation. Act, 1949, must be construed to exclude offences against purely domestic legislation. They were correctly decided and there is no distinction between those cases and the present one.

(6) It is not sufficient to say that the only exclusions from section 70 are acts intrinsically incapable of being committed abroad in a factual sense, since that would not cover cases where the act is capable of being factually committed abroad but it would yet be anomalous to punish it.

(7) A construction of the general words should be adopted so as not to relate to purely domestic legislation. If, contrary to the appellant's contention, some qualification of the literal meaning is needed, it should be given.

(8) The appellant's contentions cause no practical inconvenience, because there are plenty of ways of dealing with situations which might, arise in such a case as this.

9 [1956] 2 Q.B. 272.

10 [1962] 2 Q.B. 527.

George Heseltine following. Section 3 (1) of the Road Traffic Act, being a penal section, must be construed strictly. In so doing "road" is an essential ingredient of the offence. No such offence is known to English law as careless or dangerous driving. It must be careless or dangerous driving on a road within the meaning of the Act. A public road can only mean an English public road, unless there is a qualifying phrase to the contrary. The charge here is driving without due care on a public road at Sundern in Germany. It must be shown that it is a road within the meaning of the Act. A German policeman's conception of a public road will not be the same as a public road within section 3 (1) of the Road Traffic Act. A road leading to a farm may or may not be a public road. Consider also the roads in docks or in Aldershot barracks. In an English court the difficulty of proving whether or not a particular road in Germany is a public road would be almost insuperable.

As an example of the difficulties arising from the contrasting laws of road traffic, take a charge of causing death by dangerous driving within section 1 of the Road Traffic Act, where a railway train at a level crossing in Germany hits a British motor-car driven by a soldier on duty, killing his passenger. The Germans give evidence from their point of view of the precautions necessary at the crossing and the engine driver is held blameless because he had the right of way.

In England, a charge under section 2 (1) of the Road Traffic Act is triable at quarter sessions, but, if it is held that it can be tried by court-martial, the accused may not be tried by the highest criminal tribunal, which is what the Act provides for, but by the lower, the nearest equivalent to quarter sessions. Thus the soldier would be deprived of the standard of justice to which the legislature considered a person so charged to be entitled. There are great difficulties in applying a domestic statute under the Army Act. It is sought to apply the rules and regulations of the Road Traffic Act to a man who is bound under the Army Act by others, namely, the German traffic regulations. One has the case of a young soldier who learnt to drive in Germany and knows only the German traffic laws. Again, a soldier's wife, although subject to military law may be a German who has never been in England. A British soldier is bound by the law of England, by military law and when he is in Germany, by German law. If it were right to say that the Road Traffic Act can be imported into Germany, then the game laws, the Shops Acts and English law regulating the employment of foreign servants should also be

imported. Thus if a member of the British forces or his German wife employed a German girl he or she might be charged with employing her without a proper permit. Again the game laws of Germany provide proper control there and it would not be right if, at the whim of a commanding officer, a soldier were charged with an offence arising out of the English game laws relating to close seasons. It becomes manifestly absurd if our laws of a domestic and regulatory character are to be imported into Germany.

Then there was the question of the differentiation of punishment under the Act. Until this year it was not possible to fine a soldier, so the court had no alternative but to apply Army Act penalties, not for a military offence but for a civil offence. Loss of seniority or rank might well amount to a fine of enormous proportions, since, if a sergeant was reduced to a corporal's rank, that might affect his pension rights for the rest of his life and set his career back for an offence for which in English law no mens rea was necessary, for example. careless or dangerous driving, for which the law provides a limited punishment much less severe.

If the Road Traffic Act were imported into Germany, a British soldier would have to have in mind both that Act and the German highway code, but he would be tried on the basis of the Act. There is no rule that there must be a Judge Advocate at his trial and the matter would be determined by a court composed of persons who were not in so good a position as even lay magistrates in England, who have the benefit of legal advice. It is important that such an extra disadvantage should not be put on a soldier. He and other persons subject to military law should be protected. Section 70 of the Army Act calls for definition and qualification on some principle and the principle on which Reg. v. Martin¹¹ and Reg. v. Naylor¹² were decided is sound, whatever the form of words used.

John Hobson Q.C., S.-G. and David Lloyd for the respondent. There is only one short question on the interpretation of section 70 of the Army Act, namely, the extent to which it incorporates section 3 of the Road Traffic Act. The argument based on Reg. v. Martin¹³ and Reg. v. Naylor¹⁴ is not in point, because there the question was the extent to which English criminal law could be given extraterritorial effect. Here one is considering a domestic tribunal, a court-martial, which is analogous to professional bodies which have to apply a special

11 [1956] 2 Q.B. 272.

12 [1962] 2 Q.B. 527.

13 [1956] 2 Q.B. 272.

14 [1962] 2 Q.B. 527.

law of their own. For example, the General Medical Council applies to all doctors, wherever they may be in the world, English law and the rules of professional conduct. The Road Traffic Act prescribes punishments for offences against the ordinary criminal law. Courts-martial apply their own military punishments, just as professional bodies have their own penalties. Soldiers are subject to special scales of penalties under the Army Act: see section 72.

Under section 70 a person subject to military law can only be tried for an act which would be an offence under English law, not the law of any other place If the appellant's argument were right, he could not be tried by count-martial in Scotland for an act contrary to the Road Traffic Act. The position would be the same in Northern Ireland and Commonwealth territories, some of which do not have the English system of law. Troops may be serving in countries with a system of criminal law different from the English or with different moral concepts or in uncivilised countries with no system of law at all, or in countries occupied by right of conquest or under agreement, for example, West Germany under the Bonn Conventions. See, for example, articles 2 and 6 of the Convention on the Rights and Obligations of Foreign Forces. Article 17 (3), of that Convention deals with liability under German traffic laws, but applies only for civil and not for criminal purposes. One of the ingredients of reckless driving under section 1 (1) of the Road Traffic Act is "having regard to all the circumstances of the case," and one of the circumstances is the regulation of German traffic under their laws. Germany is only one aspect of the problem. Courts-martial are the courts which enforce the criminal law on persons accompanying the British forces. Section 70 of the Army Act must be applied in diverse circumstances, and it should therefore be interpreted in the widest possible sense, so that no limitation is imposed on the words of the section. If one departs from that principle difficulties arise. This is an offence-creating section. English troops are expected to obey all the criminal law of their own country. If one tries to distinguish certain types of offences which British forces abroad can commit from others which they cannot, that would amount to reading into section 70 something which is not there. If one is driven to apply a limitation one must ask: What is the essential nature and quality of the English offence? What are the acts and omissions that are essential ingredients? Are any of those acts or omissions incapable of being committed outside England? Something of that sort

might properly have a limiting effect, but in this case one should not seek to draw a definite line. Under the Town and Country Planning Acts there are some offences created which could not be committed overseas, for example, failure to get licences from a local authority. In Reg. v. Martin¹⁵ Devlin J. held that regulation 3 of the Dangerous Drugs Regulations, 1953, only created an offence if the act constituting the offence was committed in England and that section 62 of the Civil Aviation Act, 1949, did not apply. But in the case of British forces serving overseas it might be sensible that the dangerous drugs legislation should apply. No reasonable line can be drawn which would put section 3 of the Road Traffic Act on the wrong side of it. The act of driving a motor vehicle on a road Without due care and attention falls precisely within section 70 of the Army Act.

Mark Littman Q.C. in reply. There should be no shrinking from the construction of section 70. If the House of Lords takes the view that some classes of statutory offences are not punishable by courts-martial under section 70, one must ask on what principle they are excluded. The suggestion that one should examine the essential ingredients of each particular offence to see whether it could be committed outside England, is not satisfactory. There must be many offences excluded which would not fall within that test. For example, it is physically possible to drive outside England without a licence. again, under the Shops Acts or the Factory Acts the essential ingredient of an offence may be said to be the employer's failure to take particular care in regard to a particular piece of machinery, and on the Solicitor-General's test one could not exclude a factory outside England. But his basis is not satisfactory and this matter should be dealt with as one of principle. The principle enunciated in Reg. v. Martin¹⁶ is sound, namely, to look at the Act under which the offence in question arises and ask whether that Act is meant to do more than deal with offences in England. That is sound in principle and gives rise to no difficulties in practice. On the Solicitor-General's contentions a foreign doctor Helping the British forces abroad could be prosecuted for being in possession of drugs contrary to British drugs legislation.

The British forces serve in varying conditions all over the world. That is an argument for confining the transfer of English statutes abroad to such of them as may fairly be said to be applicable in general conditions.

15 [1966] 2 Q.B. 272.

16 Ibid.

One should not start with the hypothesis that wherever the line is drawn, section 3 of the Road Traffic Act will be on the wrong side of it. An essential ingredient of an offence under that Act is that the road must be in England. Accordingly, there can be no offence under section 3 in driving without due care and attention on a German road and no civil offence is committed under section 70 of the Army Act.

Their Lordships took time for consideration.

1962. Mar. 15. VISCOUNT SIMONDS. My Lords, this appeal, the first that has been brought to this House under the Administration of Justice Act, 1960, on appeal from the Courts-Martial Appeal Court, raises an important question upon section 70 of the Army Act, 1955.

The appellant, a sergeant in the Royal Army Pay Corps serving with the British Army of the Rhine, was on January 20, 1961, convicted by a District Court-Martial sitting in Germany of an offence which was charged in these terms: "Committing a civil offence contrary to section 70 of the Army Act, 1955, that is to say, driving a motor vehicle contrary to section. 3 (1) of the Road Traffic Act, 1960, in that he at Sundern [Germany] on September 15, 1960, drove a motor vehicle on a road without due care and attention." He was sentenced to be severely reprimanded.

He appealed to the Courts-Martial Appeal Court on the grounds that the charge as laid was not correct in law because it did not disclose an offence under section 70 of the Army Act, 1955, in that the act particularised in the charge was not an act contrary to section 3 (1) of the Road Traffic Act, 1960, and was not an act which could be committed in England, and further was not a civil offence within the meaning of section 70 of the Army Act. I have stated the further ground of appeal, but it appears to add nothing to the first ground. The appeal was dismissed by the Courts-Martial Appeal Court on November 7, 1961, the reasons being given at a later date by the late Slade J.

Section 70 of the Army Act, 1955, provides as follows:

"(1) Any person subject to military law who commits a civil offence, whether in the United Kingdom or elsewhere, shall be guilty of an offence against this section. (2) In this Act the expression 'civil offence' means any act or omission punishable by the law of England or which, if committed in England, would be punishable by that law; and in this Act the expression 'the

corresponding civil offence' means the civil offence the commission of which constitutes the offence against this section ..."

I have already indicated the nature of the offence charged, but it is necessary, in order to understand the case for the appellant, to state the relevant section of the Road Traffic Act, 1960, more fully. It is as follows: "If a person drives a motor vehicle on a road without due care and attention, or without reasonable consideration for other persons using the road, he shall be liable on summary conviction to a fine not exceeding £40 ..." With this section must be read the definition of "road" in section 257 of the Act, which is: "... 'road' means any highway and any other road to which the public has access, and includes bridges over which a road passes ..." The argument for the appellant is then a very simple one. He says that "road" in section 3 of the Road Traffic Act, 1960, means a road in England, therefore he cannot have contravened the section by driving on a road in Germany with or without due care and attention. This argument did not prevail in the Courts-Martial appeal Court and is, in my opinion, unsound.

We may in the first place dispose of a contention which was raised in the cases of Reg. v. Martin¹ and Reg. v. Naylor² (to which I shall again refer) upon an essentially different section of the Civil Aviation Act, 1949, and was at one time raised also upon section 70 of the Army Act, namely, that the relevant section is not what has been called an "offence-creating section." It is clear that, whatever may be said of section 62 of the Civil Aviation Act, section 70 of the Army Act in the plainest terms provides that acts or omissions which apart from it would not be offences become by virtue of it offences which are punishable in the manner prescribed.

The question, then, is what are the acts or omissions for which the section thus provides. In construing the section two things must be borne in mind. First, 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 only with acts committed in England. Secondly, section 70 and the following sections have to be applied in diverse circumstances wherever the armed forces of the Crown happen to be, in developed or undeveloped countries, as conquerors or guests, and their purpose is, as the title to that Part of the Act in which they are to be found shows, disciplinary.

1 [1956] 2 Q.B. 272; [1956] 2 W.L.R. 975; [1956] 2 All E.R. 86.

2 [1962] 2 Q.B. 527; [1961] 3 W.L.R. 898; [1961] 2 All E.R. 932.

Bearing these considerations in mind, I cannot accept the simple argument that, if an act is committed on a German road, it cannot be a civil offence within section 70. Such a construction gives no content to the words "or which, if committed in England, would be punishable by that law," and frustrates the clear purpose of the Army Act, namely, to make those persons subject to military law who are serving abroad liable to punishment for offences which, though not military offences in a narrow sense, are yet prejudicial to discipline. Amongst these must be placed those acts which fall short of the standard of behaviour towards each other and the inhabitants of the occupied territory which military discipline traditionally demands. I know of no better way of describing such acts than that which I find in section 70 - "which, if committed in England, would be punishable by that law."

But it is, of course, obvious that the whole body of our criminal law cannot be thus translated to a foreign country, and attempts were made in the course of the argument to formulate a qualification which would be a guide to courts-martial before which a similar question might arise. The learned Solicitor-General deprecated any such attempt. He was content to urge that at any rate the act of driving a motor vehicle on a road without due care and attention fell precisely within the language of section 70. In this he was, in my opinion, clearly right. It is true that in the Road Traffic Act, "road" means a road in England. But the essence of the offence lies in driving without due care and attention on a road to which the public have access. I see no difficulty in at least this degree of translation. Nor should the issue be confused by saying that in England and (say) Germany the traffic regulations are different. A driver shows due care and attention by observing the regulations which prevail in the country where he is driving. Nor, again, does it appear to be relevant that the Road Traffic Act contains numerous provisions in which "road" can only have a sensible meaning if it is confined to roads in England, and other provisions, for example, in regard to the Menai Bridge, which by their nature can have no application except to a particular subject-matter. It appears to me that here at least in a negative sense is the test of the applicability of the section. If the act is of its nature one that can only be committed in England the section cannot operate. I need say no more than that it is otherwise with such acts as driving without due care or, it may be, dangerously on a highway or larceny from a dwelling-house or an offence against the person. All such acts have what, for want of a better expression, I will call a character of universality

which makes it sensible to bring them within the scope of section 70. I mean the same thing whether I refer to them being done at Sundern or at Surbiton.

I have mentioned the cases of Reg. v. Martin³ and Reg. v. Naylor.⁴ Both these cases were decided on the construction of section 62 of the Civil Aviation Act, 1949, which differs materially from section 70 of the Army Act. I will therefore say no more about the former case than that, assuming that Devlin J. correctly decided in that case that the possession of raw opium on a British aircraft flying between Bahrein and Singapore was not rendered an offence by the Civil Aviation Act, it by no means follows that a similar result would follow if a person serving in the British Army of the Rhine and therefore subject to military law w as found to be in possession of dangerous drugs within the meaning of the Dangerous Drugs Act, 1951, and the regulations made thereunder. As to the latter case I would make only one comment. With great respect to the learned Lord Chief Justice, I doubt whether the distinction which he makes between "purely domestic" and other legislation is a valid one. Or perhaps I should rather say that it is capable of being misunderstood. For, as I have already pointed out, with rare exceptions the whole body of our criminal law is "domestic" in the sense that it is made for the order and good government of this country and is applicable only to acts done on English soil. It is not necessary for your Lordships to review this decision and I would myself reserve consideration of it.

Reference was also made to the case of Attorney-General for Hongkong v. Kwok-a-Singh,⁵ but I do not get any assistance from this case for the purpose of construing section 70 of the Army Act. No authority is needed for the proposition that the extreme generality of words in a statute may be narrowed by the context.

I have made no mention of a point which may deserve consideration in some future case. It will have been observed that "civil offence" is defined by section 70 (2) as meaning not only any "act" but also any "omission" which, if committed in England would be punishable by the law of England. Committing an omission is not a happy phrase though it may suggest an intelligible idea. In any event it does not in any way reflect upon the meaning which the words "act committed" must bear.

I move that the appeal be dismissed.

3 [1956] 2 Q.B. 272.

4 [1962] 2 Q.B. 527.

5 (1873) L.R. 5 P.C. 179.

My noble and learned friend, Lord Jenkins, who is unable to be here, asks me to say that he has read and concurs in the opinion which I have just given.

LORD REID. My Lords, I agree that this appeal must be dismissed. The appellant is guilty of a "civil offence" within the meaning of section 70 of the Army Act, 1955, if his act or omission in Germany was of such a character that "if committed in England" it would be punishable by the law of England. Any act or omission committed abroad was committed there and nowhere else. So the statute requires us to imagine another act committed in England. It cannot require that that other act should be precisely the same in every detail because that would be impossible. So it must require that we can imagine another act committed in England which is similar in all relevant respects. With many types of offence that is easy. For example, murder and theft are the same all the world over. At the other end of the scale there are acts or omissions so closely connected with conditions which are peculiar to England, or at least which are absent in the place where the act was committed, that it would be impossible to find the necessary degree of similarity between the act or omission committed abroad and any act or omission which could be committed in England.

The requisite degree of similarity must depend on the nature of the offence. In this case the appellant was found guilty of driving a motor-vehicle on a road without due care and attention contrary to section 3 (1) of the Road Traffic Act, 1960. But the question is not whether that Act applies to Germany, or whether the road on which he was driving was a road within the meaning of that Act. The question is whether there is the requisite degree of similarity between what the appellant did and an act done in England which would be contrary to that section. I can see no relevant difference between the two. No doubt traffic regulations are different in Germany from those in England. But conditions vary greatly in England and the essence of the offence is failure to drive with due care and attention having regard to all the circumstances at the particular place and time. I therefore find no difficulty in equating failure to drive with due care and attention in particular circumstances in Germany with a similar failure in England. And that is sufficient to dispose of this case.

I would only add that the cases of Reg. v. Martin⁶ and Reg. v. Naylor⁷ were dealing with an entirely different question and I

6 [1956] 2 Q.B. 272.

7 [1962] 2 Q.B. 527.

express no opinion as to whether or not these cases were rightly decided.

LORD RADCLIFFE. My Lords, I am in full agreement with the speech that has been delivered by my noble and learned friend, Viscount Simonds. I think that it demonstrates clearly why it is that this appeal cannot succeed. I add a few words only because the ambit of section 70 of the Army Act, 1955, is so very wide and yet we are forced to leave the line of its boundaries undefined. It is, I think, beyond question that this is an "offence creating" section. It would be impossible to read it otherwise, having regard to the words of subsection (2), "any act or omission ... which, if committed in England, would be punishable by that law." Therefore, what we have in this section is the general application of the entire corpus of the law of England as to punishable offences, subject to the necessary qualification (1) that there must be some acts or omissions punishable if done in England which cannot be reproduced by any equivalent occurrence taking place outside this country, and (2) there must be some acts or omissions occurring outside England which are so much identified with their locality that they cannot be translated into any equivalent English offence.

It is a formidable thought that this great body of criminal law is thus made potentially applicable without it being possible to find or lay down any useful definition of what is to be excluded, which will aid those whose duty is to frame charges under this section. I agree that the situation is unavoidable, but it is nonetheless unfortunate.

It may help, perhaps, to stress one or two points that seem to me to be involved in the requirements of section 70. First, we can put on one side the act or omission which is punishable by the law of England anyway. This must denote either offences actually committed in England or those very few offences which we punish wherever committed. Then there come the "created" offences, and these can only be ascertained by a process of translation; as in all translations, the problem is to find a fair and proper equivalent, since there cannot be literal reproduction. Secondly, the occurrence that is said to constitute the offence is always the actual occurrence itself as it took place outside England and that means importing into the hypothetical English occurrence the circumstances and conditions that prevailed at the place where and the time when the thing that is complained of was done or omitted. The difficult question, as I see it, is to

decide in any particular case how far those circumstances and conditions are an essential element of the act which it is said would have constituted an offence if committed in England, and how far the English offence is capable of being applied to the non-English occurrence.

For instance, in the present case, the appellant must be envisaged as driving along a German road, possibly observing the local rule to be on the right of the road, and under whatever system of traffic control and direction may have been locally operative on that road. Do these circumstances or conditions make it wrong to say that if he had shown in England the lack of care and attention which he showed in Germany he would have been punished in England? In my opinion, they do not, for there is nothing in the case to suggest that what occurred in Germany is not fairly translatable into the conditions of the equivalent English offence.

The appellant's argument centred round the proposition that in the Road Traffic Act, 1960, the word "road" means by construction English road or the Queen's highway, and therefore the offence of driving on it without due care and attention could not be committed in Germany. This is perhaps a picturesque way of putting his position but, logically, it is, I think, indefensible. First, it is, in my opinion, an abuse of language to say that in this statute "road" means English road "as a matter of construction." It means, I think, road pure and simple, as defined by the Road Traffic Act, and the more correct proposition is to say that the statute itself has no application except to acts done on the roads of England. But, secondly, it is just because the Road Traffic Act, in common with virtually every other offence-creating enactment, has this limited application that section 70 requires the making of the hypothesis that the act, which did not in fact take place on an English road, was committed in England where what takes place on roads is subject to the provisions of the Road Traffic Act.

LORD MORRIS OF BORTH-Y-GEST. My Lords, I entertain no doubt that section 70 of the Army Act, 1955, is an offence-creating section. A person who is subject to military law will be guilty of an offence against that section if either in the United Kingdom or elsewhere he commits an act punishable by the law of England or if either in the United Kingdom or elsewhere he commits an act which if committed in England would be punishable by the law of England. It follows that a person who is subject to military

law may commit an act outside England and be guilty of an offence under section 70 if, had the act been committed in England, he would have been punishable by the law of England. It is to be observed that the section does not contain words of exception.

My Lords, I can see no reason for excluding from its operation an act which if it had been committed in England would have been punishable under section 3 (1) of the Road Traffic Act, 1960. The appellant drove a motor vehicle at Sundern. If he drove it at Sundern on a road (meaning by that word any highway and any other road to which the public had access including any bridge over which a road passes - see section 257) and if having regard to all relevant circumstances he drove it without due care and attention then, on the assumption that the road had been in England, there would have been an offence under section 3 (1) and on that basis there was an offence under section 70 of the Army Act of 1955.

My Lords, I cannot think that this reasoning is refuted by observing that the Road Traffic Act was enacted in reference to traffic on roads in this country. It clearly was. In the same way most penal statutory provisions have reference to offences committed in the United Kingdom and there are but few acts committed abroad which are punishable by the law of England. For the purposes of applying section 70, which requires an assumption or may involve a notional transfer, I can see no difficulty either in assuming that a road in some other territory had been in England or, for example, in assuming that a dwellinghouse in some other territory had been in England.

As section 70 does not contain any words of exception I see no justification for the submission that the Road Traffic Act as a whole must be excluded from the operation of the section. A perusal of that Act shows, however, that there are certain offences which could only be committed in or by reference to some particular place in the United Kingdom. This circumstance does not warrant a failure to apply section 70 to the present case or to other situations in which the section can operate.

I would dismiss the appeal.

Solicitors: Church, Adams, Tatham & Co.; The Director of Army Legal Services.

F. C.