Criminal Practice and Procedure

Year 1 Notes Faith Walke • Leah Mendoza • Candace Job • Danielle East
2017-2018 Joy La-Foucade • Rolana Cuffy-Bernard • Ayoola George

UNIT ONE
COURT’S JURISDICTION

Indictable Offence - An indictable offence is an offence where the defendant has the right to
trial by jury.

Summary Offence - A summary offence is a crime in some common law jurisdictions that can
be proceeded against summarily, without the right to a jury trial and/or indictment (required for
an indictable offence).

What is Jurisdiction?

The limit on the court’s powers.

It can also refer to several matters including, physical jurisdiction, local jurisdiction and statutory
limitation.

What is the basis of Jurisdiction?

The basis is Territoriality.

Territoriality relates to the physical jurisdiction. In order to ascertain whether courts have
criminal jurisdiction over a particular offence, the first step is the law/principles which govern
physical jurisdiction ( also known as territoriality) and it takes into account, land =, water and
airspace.

#1 Land

COX ( This establishes that the court as jurisdiction over offences on land, MOST
OFFENCES)

• In this case, the HOL considered the appeal of a British soldier from a conviction of
driving without due care and attention contrary to the English road Traffic Act.

• The incident itself occurred in Germany where the soldier was stationed. In upholding the
conviction, Viscount Simmons emphasized, “Apart from those exceptional circumstances
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.
Criminal Practice and Procedure
Year 1 Notes Faith Walke • Leah Mendoza • Candace Job • Danielle East
2017-2018 Joy La-Foucade • Rolana Cuffy-Bernard • Ayoola George

• On the facts of this case however, s70 of the Army Act 1955, which decreed that a person
subject to military law who commits a civil offence, whether in the United Kingdom or
elsewhere should be subject to punishment in accordance with the law of England was
applicable. Third was an example of specific provision to which Viscount Simmons
alluded.

DPP V STONEHOUSE

• An English Member of parliament was charged with attempting to obtain property by

deception. He had insured his life with five insurance companies in England and then
faked his death in the US. The following month, September. Subsequently, in December,
he was found alive in Australia.

• His wife in the mealtime had sought to cash his policies. She did not know that the death
was faked. He was extradited to England and prosecuted on several charges of dishonesty
and seeking to enable his wife to obtain money by deception contrary to s15 of the Theft
act.

• On an appeal, based on lack of jurisdiction, the HOL confirmed the convictions. The
House held that it had jurisdiction based on the fact that Stonehouse’s physical act
wherever done would have resulted in him obtaining property in England from the victim
insurance companies.

• This was because Stonehouse had taken out the policies in England.

• Although the full offence had not been completed, he had completed sufficient actus reus
in England to be liable in that country.

Liangsiriprasert v USA

• The Privy Council went even further in claiming jurisdiction for criminal process.

• The Judicial Committee held that on a charge of conspiracy to traffic heroin, even though
the agreement (the actus reus) may have been committed abroad, the conspirator was
liable in the country where it was intended that the constituents of the full offence were to
be committed.

• The Hong Kong court had jurisdiction to hear the case even though the conspiracy itself
had not yet occurred in Hong Kong.
Criminal Practice and Procedure
Year 1 Notes Faith Walke • Leah Mendoza • Candace Job • Danielle East
2017-2018 Joy La-Foucade • Rolana Cuffy-Bernard • Ayoola George

• Lord Griffith: “Their lordships can find nothing in precedent, country or good sense that
would inhibit the common law from regarding justiciable in England inchoate crimes
committed abroad which are intended to result in the commission of criminal offences in
England.

Therefore, in the Caribbean, an inchoate crime committed elsewhere is justiciable in any country
in the commonwealth Caribbean if the completed offence is to be committed in that country.

Regina v Smith (Wallace Duncan) No 4

Facts:

The appellant established a merchant bank, of which he was the chairman and managing director.
In 1991, the bank ceased trading and it was subsequently wound up, owing its unsecured
creditors approximately 92 million.

The appellant was charged with one count of fraudulent trading, contrary to section 458 of the
Companies Act 1985, and two counts of obtaining property by the deception, contrary to section
15(1) of the Theft act 1968, the allegation being that, working from England and using a group
of companies which he controlled, he had set up various bogus deals which boosted the size of
the bank’s profits.

The appellant was convicted. In 1995, the court of Appeal dismissed his appeal against
conviction after rejecting his argument that, in relation to counts 3 and 4, the trial courts had
lacked jurisdiction because, although the deception had taken place in London, the obtaining had
taken place outside the jurisdiction when the money was paid into a bank account in New York.

Following developments in the law as to the applicability of section 15(1) of the 1968 act in such
circumstances, the Criminal Cases Review Commission referred the appellant’s case to the Court
of Appeal pursuant to section 9 of the Criminal Appeal act 1995.

The Crown accepted that the convictions on counts 3 and 4 could not be sustained but contended
that the court should exercise its power under section 3 of the Criminal Appeal Act 1968 to
substitute convictions of offences obtaining services by deception, contrary to section 1 of the
Theft Act 1978.

The appellant contended that the decision as to jurisdiction in his first appeal was wrong and that
that of another constitution of the court in the later case was right and that, therefore the trial
court had no jurisdiction to try counts 3 and 4 and it would have had no jurisdiction to try the
proposed substituted offences.

Held:
Criminal Practice and Procedure
Year 1 Notes Faith Walke • Leah Mendoza • Candace Job • Danielle East
2017-2018 Joy La-Foucade • Rolana Cuffy-Bernard • Ayoola George

Quashing the convictions on counts 3 and 4 but substituting convictions under section 1 of the
Theft Act 1978, that on the facts, convictions for offences of obtaining services by deception
could be substituted for the conviction on counts 3 and 4 provided that the trail court would have
had jurisdiction to try an offence of obtaining services by deception where the obtaining took
place outside the jurisdiction but a substantial part of the deception took place within the
jurisdiction, provided that there was no reason of international comity why the court should not
do so, and that accordingly, the trial court would have jurisdiction to try the substituted offences.

EXTENSION OF TERRITORY

The area of a particular country can be extended to give jurisdiction to that country by
prerogative of the executive head of the country or by Parliament. Thus, although a state usually
has jurisdiction only within its borders, those borders may be artificially extended by the
decision of the Head of State or more usually by statute, as has been done in the case of
territorial waters.

R V KENT

- It was argued that the Red Sands Tower, in which the offence of unlawfully using
wireless telegraphy apparatus was alleged to have been committed, did not fall within
the country of Kent, England.

- It was found that territorial waters meant in the absence of a definition in the relevant
act, water over which the crown, The English Head of State, declared sovereignty,
invariably in conformity with international law.

• Effects Principle – Country that has effects of the crime has jurisdiction
• Initiatory Theory – The country in which you have committed the act has jurisdiction

#2 H20

• Internal

R V ANDERSON

- The Admiralty jurisdiction of England extends over British vessels, not only when
they are sailing on the high seas, but also when they are in the rivers of a foreign
Criminal Practice and Procedure
Year 1 Notes Faith Walke • Leah Mendoza • Candace Job • Danielle East
2017-2018 Joy La-Foucade • Rolana Cuffy-Bernard • Ayoola George

territory at a place below bridges, where the tide ebbs and flows, and where great
ships go.

- All seamen, whatever their nationality, serving on board British vessels, are amenable
to the provisions of British law.

Facts

- An American citizen, serving on board a British ship, caused the death of another
American citizen, serving on board the same ship, under circumstances amounting to
manslaughter, the ship at the time being in the river Garonne, within French territory,
at a place below bridges where the tide ebbed and flowed and great ships went:-

Held

- That the ship was within the Admiralty jurisdiction, and that the prisoner was rightly
tried and convicted at the Central Criminal Court.

• Territorial Sea

In the Commonwealth Caribbean jurisdictions, the State boundaries have been extended by
statute, in most cases by 12 nautical miles. This is called the territorial sea or territorial waters.

Across the region, there is specific statute on point as to jurisdiction in territorial seas or
territorial waters.

If one country is closer than 24 nautical miles to another, the territorial water pf each is
determined by agreement. In the absence of statute, common law prevails and at common law
jurisdiction extends to three miles from the nearest point of the baselines.

R V PIANKA (A ship that is within territorial waters of a country is within that country’s
jurisdiction.

- In this case, a boat registered in the US carrying US citizens was intercepted in the
territorial waters of Jamaica with over 300lbs of marijuana.

- Two US citizens were charged with possession of the drug.

- Upon conviction, on appeal, it was argued that the magistrate lacked jurisdiction. It
was contended that the s4 of the Jamaica Territorial Sea Act 1971, extending the
territorial waters to 12 miles applied to indictable offences only and this was a
summary trial. It was held that the 1971 act did apply to resident magistrates’ courts
Criminal Practice and Procedure
Year 1 Notes Faith Walke • Leah Mendoza • Candace Job • Danielle East
2017-2018 Joy La-Foucade • Rolana Cuffy-Bernard • Ayoola George

and the extension of territorial waters of Jamaica was the same for jurisdiction as
regards all offences.

This case also highlights some of the problems with territorial jurisdiction of summary courts
where jurisdiction depends on the statute, that is the relevant summary procedure legislation,
since magistrates are creatures of statute. This compares to the High Court where judges have
jurisdiction based on common law. Thus in most summary procedure legislation in the region,
there can be found a provision stating that for criminal acts committed with the territorial sea, the
magistrate of the closes magisterial district has jurisdiction, or any magistrate may have
jurisdiction.

UNITED NATIONS LAW OF THE SEA – ARTICLE 27

Article 27

Criminal jurisdiction on board a foreign ship

1. The criminal jurisdiction of the coastal State should not be exercised on board a foreign ship
passing through the territorial sea to arrest any person or to conduct any investigation in
connection with any crime committed on board the ship during its passage, save only in the
following cases:

(a) if the consequences of the crime extend to the coastal State;

(b) if the crime is of a kind to disturb the peace of the country or the good order of the territorial
sea;

(c) if the assistance of the local authorities has been requested by the master of the ship or by a
diplomatic agent or consular officer of the flag State; or

(d) if such measures are necessary for the suppression of illicit traffic in narcotic drugs or
psychotropic substances.

2. The above provisions do not affect the right of the coastal State to take any steps authorized by
its laws for the purpose of an arrest or investigation on board a foreign ship passing through the
territorial sea after leaving internal waters.

3. In the cases provided for in paragraphs 1 and 2, the coastal State shall, if the master so
requests, notify a diplomatic agent or consular officer of the flag State before taking any steps,
and shall facilitate contact between such agent or officer and the ship's crew. In cases of
emergency this notification may be communicated while the measures are being taken.
Criminal Practice and Procedure
Year 1 Notes Faith Walke • Leah Mendoza • Candace Job • Danielle East
2017-2018 Joy La-Foucade • Rolana Cuffy-Bernard • Ayoola George

4. In considering whether or in what manner an arrest should be made, the local authorities shall
have due regard to the interests of navigation.

5. Except as provided in Part XII or with respect to violations of laws and regulations adopted in
accordance with Part V, the coastal State may not take any steps on board a foreign ship passing
through the territorial sea to arrest any person or to conduct any investigation in connection with
any crime committed before the ship entered the territorial sea, if the ship, proceeding from a
foreign port, is only passing through the territorial sea without entering internal waters.

• High Seas

The convention of the High Seas specifies that a ship is subject to the jurisdiction of the State
whose flag it bears.

ADMIRALTY JURISDICTION

English law provides that courts may also rely on Admiralty jurisdiction in respect of ships in the
High seas. This jurisdiction stems from the inherent jurisdiction of the English Court of
admiralty and also statute, the Administrative of Justice Act 1956.

The court is said to have inherent power to execute jurisdiction in certain cases of injury to
person or property on the High Seas. If a ship is owned by a British subject and is on the High
Seas or foreign rivers, it is subject to British law. Admiralty applies to ships whether they fly the
flag or not.

#3 Airspace

The country in whose airspace the aircraft is flying has jurisdiction.

Different considerations apply if an aircraft is flying in open airspace. Usually, offences

committed on board such aircraft may be prosecuted in the country in which the plane is
registered.

On the other hand if an aircraft that is flying over one country’s airspace is registered in another
country, both countries may claim jurisdiction.

EXTRADTION

This is a field of growing importance today as offenders frequently seek to avoid prosecution by
leaving the State in which they committed an offence. The question arises as to how they are to
be tried, since the State to which they flee may have no jurisdiction to try the offence.
Criminal Practice and Procedure
Year 1 Notes Faith Walke • Leah Mendoza • Candace Job • Danielle East
2017-2018 Joy La-Foucade • Rolana Cuffy-Bernard • Ayoola George

The answer lies in extradition. By treaty, incorporated in local statute, States undertake to return
or send offenders to the country that has jurisdiction. This is based on the principles of
reciprocity and the Rule of Specialty. Reciprocity relates to the need for reciprocal legislation
between the two countries that must also clarify which crimes are extraditable. The Rule OF
Specialty prohibits the receiving State from trying the returned offender other than that for which
he was extradited.

SEMINAR 1 TUTORIAL QUESTION

Explain how the concept of territoriality has been extended by statute and treaty.

• Trinidad and Tobago Territorial Sea Act

Section 3

The territorial sea of Trinidad and Tobago comprises those areas of the sea having as their inner
limits the base-lines defined in section 5 and as their outer limits, a line measured seaward from
that baseline, every point of which is distant twelve nautical miles from the nearest point of the
baseline so, however, that where the outer limits of the territorial sea of Trinidad and Tobago
intersect foreign territorial waters the outer limits thereof shall be resolved through agreements
or other means recognized by international law.

• UNCLOS
• Extradition

Trinidad and Tobago Extradition Act

Section 4

Where a treaty has been concluded, whether before or after the commencement of this Act,
between Trinidad and Tobago and any foreign territory in relation to the return of fugitive
offenders, the Attorney General may, by Order subject to negative resolution of Parliament,
declare that territory to be a foreign territory (hereafter referred to as a declared foreign territory)
in relation to which this Act applies, and where any such Order so declares, this Act applies in
relation to that territory; and any such Order may provide that this Act applies in relation to that
territory subject to such exceptions, adaptations, modifications or other provisions as may be
specified in the Order and, where any such Order so provides, this Act applies in relation to that
territory subject to such exceptions, adaptations, modifications or other provisions.
Criminal Practice and Procedure
Year 1 Notes Faith Walke • Leah Mendoza • Candace Job • Danielle East
2017-2018 Joy La-Foucade • Rolana Cuffy-Bernard • Ayoola George