Regina v Keyn: 13 Nov 1876

The court considered the significance of the existence of an academic consensus as to the meaning of an international convention. Cockburn CJ said: ‘even if entire unanimity had existed in respect of the important particulars to which I have referred, in place of so much discrepancy of opinion, the question would still remain, how far the law as stated by the publicists had received the assent of the civilized nations of the world. For writers on international law, however valuable their labours may be in elucidating and ascertaining the principles and rules of law, cannot make the law. To be binding, the law must have received the assent of the nations who are to be bound by it. This assent may be express, as by treaty or the acknowledged concurrence of governments, or may be implied from established usage . . ‘ and
‘Nor, in my opinion, would the clearest proof of unanimous assent on the part of other nations be sufficient to authorize the tribunals of this country to apply, without an Act of Parliament, what would practically amount to a new law. In so doing we should be unjustifiably usurping the province of the legislature. The assent of nations is doubtless sufficient to give the power of parliamentary legislation in a matter otherwise within the sphere of international law; but it would be powerless to confer without such legislation a jurisdiction beyond and unknown to the law, such as that now insisted on, a jurisdiction over foreigners in foreign ships on a portion of the high seas.’
The prisoner was indicted at the Central Criminal Court for manslaughter. He was a foreigner and in command of a foreign ship, passing within three miles of the shore of England on a voyage to a foreign port; and whilst within that distance his ship ran into a British ship and sank her, whereby a passenger on board the latter ship was drowned. The facts of the case were such as to amount to manslaughter by English law.
Held: By the majority of the Court (Cockburn, C.J., Kelly, C.B., Bramwell, J.A., Lush and Field, JJ., Sir R. Phiilimore, and Pollock, B.; Lord Coleridge, CJ, Brett and Amphlett, JJ.A., Grove, Denman, and Lindley, JJ., dissenting), that the Central Criminal Court had no jurisdiction to try the prisoner for the offence charged.
By the whole of the majority of the Court, on the ground that, prior to 28 Hen. 8, c. 15, the admiral had no jurisdiction to try offences by foreigners on board foreign ships, whether within or without the limit of three miles from the shore of England; that that and the subsequent statutes only transferred to the Common Law Courts and the Central Criminal Court the jurisdiction formerly possessed by the admiral; and that, therefore, in the absence of statutory enactment, the Central Criminal Court had no power to try such an offence.
By Kelly, C.B., and Sir R. Phiilimore, also, on the ground that, by the principles of international law, the power of a nation over the sea within three miles of its coasts is only for certain limited purposes; and that Parliament could not, consistently with those principles, apply English criminal law within those limits.
Held, contra, by Lord Coleridge, C.J., Brett and Amphlett, JJ.A., Grove, Denman, and Lindley, JJ., on the ground that the sea within three miles of the coast of England is part of the territory of England; that the English criminal law extends over those limits; and the admiral formerly had, and the Central Criminal Court now has, jurisdiction to try offences there committed although on board foreign ships.
By Lord Coleridge, C.J., and Denman, J., on the ground that the prisoner’s ship having run into a British ship and sank it, and so caused the death of a passenger on board the latter ship, the offence was committed on board a British ship, and, therefore, the Central Criminal Court had jurisdiction.
Cockburn CJ
(1876) 2 Ex D 63, (1876-1877) 2 ExD 63, [1876] UKLawRpExch 73, [1876] UKLawRpExch 73, (1876-1877) 2 ExD 63
England and Wales
Cited by:
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Lists of cited by and citing cases may be incomplete.
Updated: 07 August 2021; Ref: scu.220674