The defendant had been charged with attempting to obtain property by deception by fabricating his death by drowning in the sea off Miami in Florida. The final act alleged to constitute the offence occurred outside the jurisdiction of the English courts.
Held: The charge was justiciable in England. The defendant appealed conviction on counts of attempted obtaining by deception on the ground, among others, of judicial misdirection in the following words: ‘There is an attempt by the accused within the legal meaning of that word ‘attempt’ if you are satisfied that the matters I have stated to you are proved.’
Lord Diplock (minority) equated the judge’s power to direct a conviction with his power to direct an acquittal, regarding the contrary view as cynical and inconsistent with the proviso in section 2(1). Whether an activity forms part of an employer’s undertaking to make him liable under the Act is a question of fact to be left to the jury. As to jurisdiction where elements of the offence were committed abroad: ‘I see no reason for doubting the correctness of the decision in Reg v. Harden [1963] 1 Q.B. 8 if it was in that case right to conclude that the cheques were obtained in Jersey. The court in that case held, in my view correctly, following Reg. v. Ellis [1989] 1 Q.B. 230, that the gist of the offence lay in the obtaining, and as that in their view had occurred outside the jurisdiction, the convictions were quashed. It was not suggested in that case that the making of the false pretences in England gave the English courts jurisdiction. I doubt, however, whether it was right to hold that the jurisdiction of the English courts in respect of criminal offences depended on the narrow ground that the Post Office was the agent of the maker of the false pretences to obtain on his behalf the fruits of his fraud. Neither he nor the company in Jersey are likely to have considered or contemplated that the Post Office was acting as agent for one or other of them. The Post Office was just the vehicle for the transmission of the false pretences and the fruits of the fraud.
I can find no authority for the proposition that the English courts have jurisdiction in a case where the false pretences were made in this country and the obtaining of goods or money in consequence thereof occurred outside the jurisdiction. That the law might have so provided and that Parliament might make that the law, I acknowledge but I do not think that it is the law now. ‘
Lord Salmon said: ‘The criticism of that passage was that the judge should have explained to the jury the legal meaning of an attempt and directed them that if they were satisfied beyond a reasonable doubt that the facts proved established the attempt charged, then they should find the accused guilty, otherwise they should acquit him. I agree with that criticism. So did counsel for the Crown who conceded that there had been the technical misdirection of which counsel for the appellant had complained . . The learned judge conducted this trial lasting 70 days with outstanding ability and patience. The direction complained of came towards the end of a most fair, accurate and lucid summing up. It concerned a matter which was as plain as a pikestaff. No reasonable jury could have failed to find that the facts proved clearly established the attempt charged and convicted the appellant accordingly. It has never been suggested that when the appellant faked his death, he may not even have been giving his wife a thought and did what he did do solely to escape from being arrested and charged with the 13 other counts to which he had no defence and of which he was convicted . . Anyone in the judge’s position might easily have made the slip which he did of not leaving the jury to decide whether the facts proved amounted to the attempt charged. However obvious it may be that they did and that the accused was guilty, technically, the judge should still have left it to the jury to decide whether or not the evidence established the attempt charged and to have found him guilty or not guilty accordingly. The technical slip on the part of the judge certainly made no difference to the result of the trial. There is no possibility that any reasonable jury could have had the slightest doubt that the facts proved did establish the attempt charged and accordingly would certainly have brought in a verdict of guilty. I am completely satisfied that no miscarriage of justice could have resulted from what technically was a misdirection and that therefore the proviso to section 2(1) of the Criminal Appeal Act 1968 should be applied.
With the greatest respect to my noble and learned friends, Lord Diplock and Viscount Dilhorne and the Court of Appeal, I am afraid that I cannot agree with their views on this aspect of the case. Whilst there is no doubt that if a judge is satisfied that there is no evidence before the jury which could justify them in convicting the accused and that it would be perverse for them to do so, it is the judge’s duty to direct them to acquit. This rule, which has long been established, is to protect the accused against being wrongly convicted. But there is no converse rule – although there may be some who think that there should be. If the judge is satisfied that, on the evidence, the jury would not be justified in acquitting the accused and indeed that it would be perverse of them to do so, he has no power to pre-empt the jury’s verdict by directing them to convict. The jury alone have the right to decide that the accused is guilty. In any appropriate case (and this was certainly such a case) the judge may sum up in such a way as to make it plain that he considers that the accused is guilty and should be convicted. I doubt however whether the most effective way of doing so would be for the judge to tell the jury that it would be perverse for them to acquit. Such a course might well be counter-productive.’
Lord Edmund-Davies said: ‘Eveleigh J approached this part of his very onerous task as if he were interpreting a statute containing the word ‘attempt’ and regarded himself as entitled to direct the jury that, as a matter of pure law, the acts itemised (if proved) did constitute the ‘actus reus’. But just as it was for the jury and not the judge to decide whether the necessary mens rea had been established, so also it was for them to decide whether the proved acts of the accused were such as to constitute an attempt to commit the full offence of obtaining by deception . . . the erroneous direction in the instant case [to be] but one example of a prevalent (though fortunately not universal) tendency in our courts in these days to withdraw from the jury issues which are solely theirs to determine.’
Lord Keith of Kinkel ‘In the second place it was argued that the trial judge misdirected the jury in respect that he failed to leave it to them to decide whether in their view the appellant’s acts were sufficiently proximate to constitute an attempt or were merely preparatory. The learned trial judge did indeed direct the jury that if they were satisfied that the appellant falsely staged his death by drowning, dishonestly intending that a claim should be made and the policy moneys obtained in due course, then in law there had been an attempt to commit the offence. I am of opinion that it should properly have been left to the jury to say whether what the appellant did amounted to an attempt, and indeed this was accepted by Mr Tudor Price for the [Crown]. It is the function of the presiding judge at a trial to direct the jury upon the relevant rules of law. This includes the duty, if the judge takes the view that the evidence led, if accepted, cannot in law amount to proof of the crime charged, of directing the jury that they must acquit. It is the function of the jury, on the other hand, not only to find the facts and to draw inferences from the facts, but in modern practice also to apply the law, as they are directed upon it, to the facts as they find them to be. I regard this division of function as being of fundamental importance, and I should regret very much any tendency on the part of presiding judges to direct juries that, if they find certain facts to have been established, they must necessarily convict. A lawyer may think that the result of applying the law correctly to a certain factual situation is perfectly clear, but nevertheless the evidence may give rise to nuances which he has not observed, but which are apparent to the collective mind of a lay jury. It may be suggested that a direction to convict would only be given in exceptional circumstances, but that involves the existence of a discretion to decide whether such circumstances exist, and with it the possibility that the discretion may be wrongly exercised. Thus the field for appeals against conviction would be widened. The wiser and sounder course, in my opinion, is to adhere to the principle that, in every case where a jury may be entitled to convict, the application of the law to the facts is a matter for the jury and not for the judge. I see no reason to doubt that the good sense and responsible outlook of juries will enable them to perform this task successfully.’ As to the principle that an offence is committed within the jurisdiction if the effects of the act operate within it: ‘This would be the situation if a bomb or a letter sent from abroad were found anywhere within the jurisdiction. Its presence at that spot would be an intended effect of the act of despatching it. In my opinion it is not the present law of England that an offence is committed if no effect of an act done abroad is felt there, even though it was the intention that it should be. Thus if a person on the Scottish bank of the Tweed, where it forms the border between Scotland and England, were to fire a rifle at someone on the English bank, with intent to kill him, and actually did so, he would be guilty of murder under English law. If he fired with similar intent but missed his intended victim, he would be guilty of attempted murder under English law, because the presence of the bullet in England would be an intended effect of his act. But if he pressed the trigger and his weapon misfired, he would be guilty of no offence under the law of England, provided at least that the intended victim was unaware of the attempt, since no effect would have been felt there.’
Lord Diplock discussed the ‘terminating’ thery of jurisdiction: ‘The basis of the jurisdiction under the terminatory theory is not that the accused has done some physical act in England, but that his physical acts, wherever they were done, have caused the obtaining of the property in England from the person to whom it belonged.’ If a judge is satisfied that there is no evidence which could justify the jury in convicting the defendant and that it would be perverse for them to do so, it is the judge’s duty to direct them to acquit.
Judges:
Lord Dilhorne, Lord Edmund-Davies, Lord Diplock
Citations:
[1978] AC 55, [1977] 2 All ER 909, (1977) 65 Cr App R 192
Statutes:
Health and Safety at Work etc Act 1974, Criminal Appeal Act 1968 2(1)
Jurisdiction:
England and Wales
Citing:
Cited – Regina v Ellis 1899
In the case of what is a result crime in English Law, the offence is committed in England and justiciable by an English court if any part of the proscribed result takes place in England. The gist of the offence of obtaining by false pretences lies . .
Cited – Regina v Harden 1962
The appellant, in England, sent false hire purchase agreements to a company in Jersey, who posted back cheques to him. The court analysed the transaction in contractual terms, and held that as the post office was the appellant’s agent to carry the . .
Cited by:
Cited – Regina v Associated Octel Ltd HL 14-Nov-1996
The appellants operated a chemical plant. When the plant was shut down for its annual maintenance, an independent firm repaired a tank lining. An employee of that firm was working by electric light. He had to clean the tank with acetone and resin. . .
Cited – Regina v Manning CACD 24-Jun-1998
The defendant appealed his conviction for obtaining property by deception where part of the offence had taken place abroad.
Held: Smith should be overturned. The last act or terminatory theory remains the binding common law of England and . .
Cited – Regina v Manning CACD 24-Jun-1998
The defendant appealed his conviction for obtaining property by deception where part of the offence had taken place abroad.
Held: Smith should be overturned. The last act or terminatory theory remains the binding common law of England and . .
Cited – Wang, Regina v HL 10-Feb-2005
The appellant was waiting for a train when his bag was stolen. After a search, the thief tried to deter the appellant from calling the police by suggesting that the bag contained items the appellant should not be carrying. From the bag the appellant . .
Applied – Regina v Thompson 1984
The appellant, in Kuwait, had fraudulently caused a bank there to credit his bank balances in England.
Held: The court discussed its jurisdiction: ‘It is of course a basic principle of our criminal law that no British subject can be tried . .
Cited – Regina v Challinor CACD 1984
. .
Cited – Regina v Gordon (Note) CACD 1987
. .
Cited – Kelleher, Regina v CACD 20-Nov-2003
The defendant, out of strong conviction, entered an art gallery and knocked the head from a statue of Margaret Thatcher.
Held: The court examined the breadth of the defence of ‘lawful excuse’ to a charge of criminal damage, and whether a court . .
Cited – Office of the King’s Prosecutor, Brussels v Cando Armas and others HL 17-Nov-2005
The defendant resisted extradition to Brussels saying that the offence had been committed in part in England. He had absconded and been convicted. Application was made for his return to serve his sentence. The offences associated with organisation . .
Cited – Regina v Latif; Regina v Shahzad HL 23-Jan-1996
The defendant had been lured into the UK by the unlawful acts of customs officers. He claimed abuse of process.
Held: The category of cases in which the abuse of process principles can be applied is not closed. A customs officer committing an . .
Lists of cited by and citing cases may be incomplete.
Crime
Updated: 21 June 2022; Ref: scu.184759