Director of Public Prosecutions v Doot

[HOUSE OF LORDS]

AND

[On appeal from REGINA v. DOOT]

Crime - Conspiracy - Abroad, to commit acts - Agreement made abroad to import cannabis into U.S.A. via England and Canada - Cannabis discovered by customs officers after its arrival in England - Defendants charged with conspiracy to import dangerous drug into United Kingdom - Whether triable in England

The respondents, American citizens, formed a plan abroad to import cannabis into the United States by way of England. In pursuance of the plan, two vans with cannabis concealed in them were shipped from Morocco to Southampton. The cannabis in one of the vans was discovered at Southampton; the other van was traced to Liverpool, from where the vans were to have been shipped to America, and the cannabis in it was found. The respondents were charged with, inter alia, conspiracy to import dangerous drugs. At the trial, they contended that the court had no jurisdiction to try them on that count since the conspiracy had been entered into abroad. Lawson J. overruled that submission, but the Court of Appeal quashed the respondents' convictions, holding that the offence of conspiracy was completed when the agreement was made.

On appeal by the Director of Public Prosecutions:-

Held, allowing the appeal, that although a conspiracy was complete as a crime when the agreement was made it continued in existence so long as there were two or more parties to it intending to carry out its design; that the English courts had jurisdiction to try the offence if the evidence showed that the conspiracy, whenever or wherever formed, was still in existence when the accused were in England; and that in the present case the acts of the respondents in England sufficed to establish the continuing existence of the conspiracy and their convictions had been right and should be restored (post, pp. 817G - 818E, 822H - 823A, E, 825B-D, 827D-H, 830C, 832E - 833A,835D-F).

Rex v. Brisac (1803) 4 East 164; Hyde and Schneider v. United States (1912) 225 U.S. 347 and Ford v. United States (1927) 273 U.S. 593 applied.

Reg. v. Best (1705) 1 Salk. 174 considered.

Decision of the Court of Appeal [1973] Q.B. 73; [1972] 3 W.L.R. 33; [1972] 2 All E.R. 1046 reversed.

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

Board of Trade v. Owen [1957] A.C. 602; [1957] 2 W.L.R. 351; [1957] 1 All E.R. 411, H.L.(E.).

Ford v. United States (1927) 273 U.S. 593.

Hyde and Schneider v. United States (1912) 225 U.S. 347.

Macleod v. Attorney-General for New South Wales [1891] A.C. 455, P.C.

Mulcahy v. The Queen (1868) L.R. 3 H.L. 306, H.L.(I.).

People v. Mather (1830) 4 Wend.(N.Y.) 230.

Poulterers' Case, The (1610) 9 Co.Rep. 55b.

Reg. v. Aspinall (1876) 2 Q.B.D. 48, C.A.

Reg. v. Best (1705) 1 Salk. 174.

Reg. v. Meany (1867) 10 Cox C.C. 506.

Reg. v. Murphy (1837) 8 C. & P. 297.

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

Rex v. Bowes (unreported), May 30, 1787.

Rex v. Brisac (1803) 4 East 164.

Rex v. Burdett (1820) 3 B. & Ald. 717; 4 B. & Ald. 95.

Rex v. Hardy; Rex v. Tooke (1794) 1 East P.C. 60, 99.

Rex v. Stone (1796) 6 Term.Rep. 527.

The following additional cases were cited in argument:

Reg. v. Baxter [1972] 1 Q.B. 1; [1971] 2 W.L.R. 1138; [1971] 2 All E.R. 359, Judge Lyons and C.A.

Reg. v. Ellis [1899] 1 Q.B. 230.

Reg. v. Pender (unreported), May 7-19, 1969, Winchester Assizes.

Reg. v. Robert Millar (Contractors) Ltd. [1970] 2 Q.B. 54; [1970] 2 W.L.R. 541; [1969] 3 All E.R. 247; [1970] 1 All E.R. 577, Fisher J. and C.A.

Rex v. Grahme (1691) 12 St.Tr. 645.

Rex v. Johnson (1805) 7 East 65.

Rex v. McKay [1939] N.Z.L.R. 454.

Rex v. Oliphant [1905] 2 K.B. 67.

Smith v. United States (1937) 92 F. 2d 460.

Vane's Case (1662) Kel. J. 14.

APPEAL from the Court of Appeal (Stephenson L.J., Cusack and Forbes JJ.).

This was an appeal by the Director of Public Prosecutions by leave of the Court of Appeal from their order dated May 5, 1972, quashing the convictions of the respondents, Robert Leroy Doot, Jeffrey Richard Loving, James Wesley Watts, Michael Augustus Fay and Thomas Shannahan, at Hampshire Assizes on December 15, 1971 (Lawson J.), on count 1 of an indictment charging them with conspiracy to import dangerous drugs. The Court of Appeal certified that the following point of law of general public importance was involved in their decision, namely, whether an agreement made outside the jurisdiction of the English courts to import a dangerous drug into England and carried out by importing it into England was a conspiracy which could be tried in England.

The particulars of offence under count 1 were that the respondents

"on divers days between January 1 and August 15, 1971, in Hampshire and elsewhere conspired together and with J. B. Evans and with other persons unknown fraudulently to evade the prohibition imposed by the Dangerous Drugs Act 1965 on the importation of a dangerous drug, namely cannabis resin, into the United Kingdom."

The respondents pleaded not guilty to count 1, and a submission was made on their behalf that the court had no jurisdiction to try it, on the ground

that the conspiracy had been formed outside England. Lawson J. overruled that submission. Doot, Loving, Watts and Fay thereupon changed their pleas to guilty on the basis that that in no way prejudiced their right to appeal on the point of law involved. Shannahan maintained his plea of not guilty, but was convicted. Counts 2, 3 and 4 charged Loving, Watts and Fay and Doot and Shannahan respectively with importing prohibited goods, contrary to section 304 of the Customs and Excise Act 1952. Loving, Watts, Fay and Doot pleaded guilty. Shannahan pleaded not guilty but was convicted. Doot was sentenced to 30 months' imprisonment on count 1 and three months consecutive on count 4, Loving to 12 months on count 1 and 9 months consecutive on count 2, Watts to 18 months on count 1 and nine months consecutive on count 3, Fay to a fine of �250 on count 1 and �50 on count 3, Shannahan to two years' imprisonment on count 1 and three months consecutive on count 4. All were recommended for deportation.

The facts are set out in the opinion of Viscount Dilhorne.

Sir Joseph Molony Q.C. and Martin Tucker for the Director of Public Prosecutions. There was a conspiracy formed abroad designed to bring about acts in this country which continued until the acts in this country were executed. With regard to the rule that the House is not bound by the terms of the question or of the certificate for leave, the prosecution is not so bound either, though perhaps more discretion should be used in departing from them.

Section 304 (a) and (b) of the Customs and Excise Act 1952 is a "sweeping up" provision open to the customs authorities. There are, however, many such offences where no such sweeping up provision would be available, so its availability in the present case ought not to be allowed to affect the question of principle.

The overt acts were evidence that the respondents were parties to a subsisting agreement and that the agreement was aimed at persons in this country. Rex v. Brisac (1803) 4 East 164 demonstrates the jurisdiction of the English courts to try a conspiracy abroad to do acts in this country if the conspiracy is demonstrated by acts in this country: Rex v. Bowes (unreported), May 30, 1787. Some commentators put Rex v. Brisac aside as being a case on venue only, but the Crown relies on the comment on its significance in Wright on Criminal Conspiracies (1873), at p. 73: see also Russell on Crime, 12th ed. (1964), vol. 1, p. 613, and Halsbury's Laws of England, 3rd ed., vol. 10 (1955), p. 318. The principle thus to be deduced is wide enough to cover the situation where the offence is in this country and the agreement abroad. The Crown accepts that the cases cited in Halsbury, apart from Rex v. Brisac, 4 East 164, do not turn on conspiracy, but they do indicate the correct approach: see also at p. 329, para. 607, with regard to venue. Archbold Criminal Pleading Evidence & Practice, 37th ed. (1969), para. 67, pp. 27-28, and para. 2299, p. 710, shows that the offence under section 3 of the Explosive Substances Act 1883 can be committed without any overt act (explosion) at all. This provides an example of specific legislation where one does not have to find an overt act. [Reference was made to Professor Glanville Williams, "Venue and the Ambit of Criminal Law," Part 3, (1965) 81 L.Q.R. 518,

534, 536; Board of Trade v. Owen [1957] A.C. 602; Rex v. McKay [1939] N.Z.L.R. 454; Reg. v. Pender (unreported), May 7-19, 1969, Winchester Assizes; Reg. v. Robert Millar (Contractors) Ltd. [1970] 2 Q.B. 54; Reg. v. Treacy [1971] A.C. 537; Reg. v. Baxter [1972] 1 Q.B. 1 (see Halsbury's Laws of England, 3rd ed., vol. 10, para. 581, pp. 318-319); Rex v. Oliphant [1905] 2 K.B. 67; Ford v. United States (1927) 273 U.S. 593; and Smith v. United States (1937) 92 F. 2d 460]. The Crown does not say that an overt act is necessary for a conspiracy to exist in this country, abut there must be an overt act here to give the English courts jurisdiction.

In summary, the Crown submits that if a person initiates overseas an offence under English law which is intended to take effect in England he is amenable to English criminal jurisdiction (this is, in effect, the statement in Halsbury, 3rd ed., vol. 10, p. 318, approved in Reg. v. Baxter [1972] 1 Q.B. 1 and adopted by the editor of Archbold). The Crown also relies on Rex v. Brisac, 4 East 164, in support of its general proposition. The proposition is valid whether or not anything happens as a result of the conspiracy, but this appears from the meaning of "initiate." "Initiate" is not a word of art. It includes those who counsel and procure, persons who are accessories before the fact; in this case the crime must have been committed: Reg. v. Robert Millar (Contractors) Ltd. [1970] 2 Q.B. 54. It covers also those who incite. Thirdly, it covers those who attempt, as in Reg. v. Baxter [1972] 1 Q.B. 1, to commit a crime taking effect in England. Fourthly, it covers those who conspire. So far as the commission of the crime is concerned, in the case of an attempt one would assume that the offence was not committed. In the case of incitement or conspiracy there may or may not have been actual completion of the crime. In relation to conspiracy, however, and possibly also to incitement, it is necessary to find an overt act within the jurisdiction. This means an act done by any one of the conspirators in furtherance of the conspiracy, and, if that occurs within the jurisdiction, it implicates everybody who is a party to the conspiracy on whom hands can be laid. It is enough to found jurisdiction against all the others, even if the overt act is not enough by itself to show that there was a conspiracy. Of course, one has got to prove the conspiracy, in the sense of the agreement. An overt act may in practice be the commission of the crime or some step towards its commission. So long as the people involved stay abroad and do nothing here, then, albeit the agreement may be objectionable, it will probably not be justiciable anywhere.

A conspiracy endures until it is executed or abandoned by choice or necessity. A crime is complete as soon as the agreement is made, but it is not a thing of the moment. It continues in existence, and because its continuance is a threat to the society against which it is aimed it ought to be dealt with as soon as that jurisdiction can properly claim the power to do so. The overt act not merely points to the making of the conspiracy but also its continuance. The House should reject the theory of the need for a fresh agreement within the jurisdiction. This is a very unreal thing. It would be difficult to apply. It is much more objective and practical to see what the conspirators, or one of them, have done. A

reconnaisance visit by one of the conspirators would be enough if the connection could be proved.

Tucker following. Reg. v. Pender, May 7-19, 1969, is really the only modern case on conspiracy relating to jurisdiction. The facts of that case throw up a number of moot points and show how unsatisfactory the ruling of the Court of Appeal in the present case is: see also Browne J.'s direction in Reg. v. Pender that the jury must be satisfied that each defendant made his agreement partly in England. The facts of Reg. v. Pender throw up a number of possibilities as a basis for jurisdiction. Browne J. there had to deal with various possibilities which the jury might find as to where each person was, and so on. He could have said (Pender not being in England) that there would have been an agreement between two persons to commit a criminal offence in England and that one of them was in England, and that, therefore, it was an English agreement.

It was unnecessary to go into the question of where the agreement was made. It is English if the jury is satisfied that there was an agreement and that there was an overt act in England. The conspiracy continues as long as the conspirators remain in agreement. Unnecessary complications arise from the view of the law laid down by Browne J. in Reg. v. Pender, May 7-19, 1969. It is unsatisfactory to have to rely merely on the continuing nature of the agreement.

Ian Hill Q.C. and Ian Kennedy for the respondents. The submissions for the Crown pose the question: did this conspiracy take place in any form within the jurisdiction of these courts? It would be convenient if the law said either that conspiracy was in its nature a continuing offence, so that the execution of part of it brought it within the jurisdiction, or that territorial jurisdiction extended in this case to aliens abroad who agreed to do an act unlawful in this country and who did an act in furtherance of it here. If either of those are good propositions of law, then the respondents are guilty, but neither of them are. The respondents' submission was put very succinctly by Stephenson L.J. at [1973] Q.B. 73, 81-82. This is, as far as one can find one, a true statement of the law applicable to the facts here.

It is difficult to conceive of a set of circumstances where it would be necessary to extend the bounds of jurisdiction to cover conspiracies abroad, for every conspiracy means that the conspirator is a procurer or aider and abettor, and one is driven back to conspirators who conspire abroad but who never in fact come here and do anything. It is difficult to find circumstances other than those which would not enable the English courts to have jurisdiction. Therefore, if the law is as it appears to be at present, it is an unnecessary extension of territorial jurisdiction that an agreement entered into abroad followed by an overt act in this country should bring the agreement within the jurisdiction of the English courts: the conspiracy in fact harms nobody.

The appeal raises two questions. (1) What is the test as to whether the offence is triable in English courts under the common law? The test is whether the crime or an essential ingredient of it was committed in England. (2) If that is right, then what constitutes the offence of conspiracy, and, on the facts of the present case, was any part of the

offence committed in England? The facts of the present case are special, because without any overt act it is plain to everyone without the respondents' admissions that the offence took place abroad. Often there is a question as to where the offence took place, and overt acts are evidential with regard to two matters: was there a conspiracy, and where did it take place?

As to the limits of criminal jurisdiction, see Halsbury's Laws of England, 3rd ed., vol. 10, p. 316, para. 577. The basis of criminal jurisdiction at common law is that all crime is local, and jurisdiction in relation to crimes committed abroad only derives from statute. There are many good reasons for this. Different countries have different laws; for example, on the continent and in Morocco there is no offence of conspiracy. Also, a crime is against the peace of the Queen's realm. If this was a conspiracy abroad, it was not really contrary to the preservation of the peace of the Queen's realm. Thirdly, the nature of an act depends on the place where it is committed. Fourthly, the comity of nations requires a nation not to trespass into foreign fields. Thus, the territorial principle ought not to be enlarged to bring in foreigners who commit acts abroad. There is authority that all crime is local: Macleod v. Attorney-General for New South Wales [1891] A.C. 455.

If the territorial principle appertains in this country, it is not surprising that Parliament has had to make inroads into it by the Treason Acts, the Offences against the Person Acts, the Criminal Justice Act 1948, the Official Secrets Acts and, most recently, section 13 (d) of the Dangerous Drugs Act 1965. The Crown has referred to the Explosive Substances Act 1883: this is a very clear example of how Parliament has had by statute to find a means of bringing within the courts of this country a British subject - not an alien - who conspires abroad to commit an explosion in this country. If in fact the common law took in the offence of conspiracy abroad it would seem wholly unnecessary to have enacted section 3 of the Act of 1883. This is perhaps the only case so far, outside treason, in which Parliament has seen fit to deal with conspiracy or a like offence committed abroad against this country.

Going back to common law jurisdiction, one of the matters which have made the problem difficult is that in the 19th century the problem of venue was of considerable importance. It was important that crime should be tried by the appropriate jury, so one finds numbers of cases on venue, though venue can have little application to present-day conditions The law will be the same whatever the county, Cases do not help much here, but looking back to the cases, one finds that it was substantially where the offence was committed that the venue lay: see, for example, Reg. v. Ellis [1899] 1 Q.B. 230.

As to jurisdiction, the proposition is that it lies where, and only where, the offence or one of its ingredients took place. There is no authority contrary to this proposition; it can be found in the old cases (nearly all of statutory offences) time and time again. Those are ordinary offences, but when one comes to un-ordinary ("inchoate") offences: incitement, attempts, aiding and abetting and conspiracies, exactly the same principles apply. Reg. v. Ellis [1899] 1 Q.B. 230, 241, shows the importance of attaching the ingredients of the offence to the jurisdiction.

As to incitement, there is authority that if one sends a letter from abroad to England the person abroad is triable by the courts of this country: Rex v. Johnson (1805) 7 East 645. In the case of attempt the position is exactly the same: Reg. v. Baxter [1972] 1 Q.B. 1. An overt act is not a necessary ingredient of the offence of conspiracy. The essence of the offence is the agreement, and where the agreement takes place is the offence. The history of conspiracy is well set out by R. S. Wright in Wright on Criminal Conspiracies, pp. 1 et seq. The venue must be where the conspiracy was, not where the result of the conspiracy was put into execution: Reg. v. Best (1705) 1 Salk. 174. Archbold Criminal Pleading Evidence & Practice, 37th ed., para. 4051, pp. 1343-1344, is right: those are the ingredients of the offence of conspiracy. In the present case, none of them took place within the jurisdiction. [Reference was made to Reg. v. Aspinall (1876) 2 Q.B.D. 48.] Nowhere outside the American cases is there reference to conspiracy being a continuing offence, perhaps because it is too obvious that it is not. It has often been said that the offence is complete when the agreement is made. The offence is not to be in a conspiracy, but to agree.

Rex v. Brisac, 4 East 164 is cited in Halsbury's Laws of England, 3rd ed., vol. 10, para. 581, p. 318, for a proposition which is not disputed. Except in relation to a case on facts akin to those in that case it is no authority for the proposition for which the textbook writers cite it, namely, that a conspiracy committed abroad is justiciable in England if an act in furtherance of it, that is, an overt act, is done in this country. Rex v. Brisac is not an authority on jurisdiction or on aliens committing acts abroad. [Reference was made to Wright on Criminal Conspiracies, pp. 73, 74.] It is interesting to observe that Hawkins' Pleas of the Crown,8th ed. (1824), vol. 1, pp. 453-454, cites Reg. v. Best, 1 Salk. 174, not Rex v. Brisac, 4 East 164 as one would have expected if Brisac be authority for the proposition for which the Crown contends. Another reason why Brisac is not authority for the Crown's proposition is to be found in the dissenting judgment of Holmes J. in Hyde and Schneider v. United States (1912) 225 U.S. 347, 388.

It is emphasised that the offence of conspiracy is committed and is complete when two or more persons agree. The offence is the actual agreement between two or more persons to do something. It has no further consequences, unlike an incitement or an attempt; it puts nothing in train. An overt act is merely a piece of evidence to help to establish whether there was a conspiracy, or the time when or the place where it occurred.

As to the American authorities, the majority decision in Hyde and Schneider v. United States, 225 U.S. 347 was that an overt act was an ingredient of the offence. In Ford v. United States, 273 U.S. 593 not only were the overt acts carried on in the United States but also the conspiracy was carried on there in the peculiar circumstances of that case.

The place of agreement is where jurisdiction to charge the offence of conspiracy lies.

As to Board of Trade v. Owen [1957] A.C. 602, Lord Tucker succinctly puts what has been the Crown's argument in the present case in the first seven lines of the first paragraph on p. 633. It is not proposed to refer to

all the cases cited by the Crown since they do not assist on the present question. Reg. v. Baxter [1972] 1 Q.B. 1 and Reg. v. Robert Millar (Contractors) Ltd. [1970] 2 Q.B. 54 were plainly correct decisions, but are of no assistance here.

To summarise the argument for the respondents: (1) the true definition of conspiracy is best found in the speech of Lord Chelmsford in Mulcahy v. The Queen (1868) L.R. 3 H.L. 306, 328; (2) the offence is complete and takes place where there is the meeting of minds and their mutual agreement; (3) historically, the overt act was part of the offence, namely, making the mutual consultation and agreement; (4) acts done in furtherance of the conspiracy are no more than evidence of the agreement and/or evidence of where the agreement took place; (5) evidence that the substantive offence took place in England may be evidence that the agreement was in England unless the contrary is proved; (6) if the conspiracy was formed and completed abroad, then the only type of overt act capable of bringing the offence within the jurisdiction would be evidence which enlarges the scope or membership of the agreement so as effectively to make it a new agreement; (7) there is no authority which runs counter to the above, Rex v. Brisac, 4 East 164 not being an authority for the proposition put forward by the Crown; (8) conspiracy is in itself a harmless offence which should not be encouraged to spread when the law completely provides jurisdiction over the procurer, the attempter, the inciter and the person who commits the offence.

On the facts of the present case the conspiracy took place abroad and is not justiciable in this country.

Kennedy following. (1) There is no analogy which can be drawn between the offences of conspiracy and treason which would lead to the conclusion that an act done in furtherance of a conspiracy founds jurisdiction (2) on making an illegal agreement there arises guilt in each conspirator but no continuing justiciable plot; (3) support for the respondents' submissions generally is to be found in the way in which indictments are normally drawn in the active sense and not in the passive; (4) the acceptance of the Crown's contentions leads to unacceptable consequences.

(1) The Treason Act 1351 provided for certain specific types of treason and their proof by certain overt acts. As to the supposed venue in cases of treason, Halsbury's Laws of England, 3rd ed., vol. 10, para. 606, p. 329, cites two cases, Vane's Case (1662) Kel.J. 14, 15 and Rex v. Grahme (1691) 12 St.Tr. 645 in support of the proposition there laid down. But Rex v. Grahme, at pp. 726, 727, 740, does not support Halsbury, for that case states that the offence is justiciable in the place where the agreement occurred and not where an overt act takes place. Vane's Case and Rex v. Grahme are reconcilable in that compassing the King's death is a matter which plainly lies in the intent, but the offence can only be tried when the intent is manifested and the person who intends this must have this intent wherever he may be.

Mulcahy v. The Queen, L.R. 3 H.L. 306 shows that the offence of conspiracy lies in the fact of agreement. If it had been intended to lay down the proposition that the offence of conspiracy consisted in the existence of a continuing state of agreement, Willes J., delivering the

opinion of the judges, and Lord Chelmsford would have so stated and not concentrated so precisely on the moment of agreement.

(2) A conspiracy will pass through three stages, but because it does so pass it does not follow that it is continuous. An unlawful agreement has no existence, because the only existence which any agreement can have is recognition. There is no continuing thing and therefore it can have no location save the place where the agreement took place.

Reliance was placed on certain American authorities for the statement that certain conspiracies were self-renewing. This is a fiction and has no useful place in English criminal law. Fictions are not acceptable to juries. The concept of a continuing conspiracy may arise in a jurisdiction where there is a statute of limitations relating to crime. The American authorities are therefore distinguishable.

Continuing offences are unusual in English law except for certain offences under the Public Health Acts.

(3) There are principally two types of charge: those which allege the commission of an act and those which allege the existence of a certain state of affairs: contrast the offence of receiving stolen goods with that of the illegal possession of a firearm.

(4) If it be that the offence of conspiracy can arise when an agreement is made abroad and an overt act is done in England, this leads to unsatisfactory consequences. If conspiracy is confined to cases of malum in se there is no difficulty, but what of the case where an Englishman makes an agreement here and commits an overt act abroad? This could lead to injustice.

Sir Joseph Molony Q.C. in reply. The basic question here is whether a conspiracy endures after it has been entered into. The unreality of the idea that a conspiracy does not continue after there has been a meeting of minds is made patent by a consideration of the judgment of the Court of Appeal [1973] 1 Q.B. 73, 81-82.

An agreement continues until it is ended. These passages are inconsistent with the continuing nature of the offence. A conspiracy can normally only be terminated by fulfilment.

It is conceded that the Crown could have confined its case to bringing charges under sections 45 and 304 of the Customs and Excise Act 1952, but, if it had done, evidence could not have been adduced of the wider plot.

The Crown accepts that conspiracy consists of a meeting of minds. But the symbol of conspiracy is not so much of persons sitting round a table but of someone raising a banner and crying: "March with me!" The whole point of conspiracy is to effect a certain object, and, when there occurs an overt act, the jurisdiction where it arises should, under the comity of nations, be allowed to prosecute for the conspiracy and thus "nip it in the bud."

Reg. v. Best, 1 Salk. 174, on which the respondents rely, is very shortly reported.

Rex v. Brisac, 4 East 164 is the only authority on this issue. It is good authority. It is accepted by judges and textbook writers on both sides of the Atlantic. In a sense it was a case of competing jurisdictions, but the judge was not taking jurisdiction away from the Admiralty but stating

that where there was a conspiracy entered into abroad and overt acts in Middlesex the conspiracy was justiciable in the Court of King's Bench. If the respondents are contending that Rex v. Brisac is authority for any proposition less than the above then most of the report is wrong and the headnote is wrong and the report of the argument is perverse.

There is an analogy between treason and conspiracy. Both exist in the mind only. Treason requires overt acts, conspiracy does not, but if there is an overt act the conspiracy is justiciable in that place where the act occurs.

The majority decision in Hyde and Schneider v. United States, 225 U.S. 347 was the authority for the decision in Ford v. United States, 273 U.S. 593. The reason why Holmes J. dissented in Hyde and Schneider's case was that he disliked the concept of constructive presence. He dissented not only from his brethren but also from the statute law of the United States.

As to proposition (4) of the respondents' summary, these are evidence not merely of the making of the agreement but also of its continued existence. As to (5), in practice one does infer a conspiracy from the commission of the substantive offence. The present case is unusual in that there were confessions and therefore other evidence was available. As to (6), this leads to inevitable difficulties because it is stating that if there is an alteration in plan or an additional member joins the original group of conspirators then it must be regarded as a new conspiracy. But if a conspiracy be regarded as a march under a banner a person may join or drop out from the march without the necessity of a change of text on the banner.

If a conspiracy is a thing of the mind it must move with the mind and bodies of those in whose mind the agreement rests.

Their Lordships took time for consideration.

March 21. LORD WILBERFORCE. My Lords, the question of law which has been certified, under section 33 (2) of the Criminal Appeal Act 1968, as fit for consideration by this House is as follows:

"Whether an agreement made outside the jurisdiction of the English courts to import a dangerous drug into England and carried out by importing it into England is a conspiracy which can be tried in England."

The question so stated is precise, and necessarily so. For it was upon the basis of a ruling by the learned judge who tried the case, answering this question in the affirmative, that four of the respondents pleaded guilty to and the fifth was convicted on count 1 of the indictment which embodied the conspiracy charge. It was equally this question which the Court of Appeal (Criminal Division) answered in the negative, and consequently quashed the convictions upon count 1. This House is not called upon, or entitled, to consider what the position would have been had a different view of the evidence, or admitted facts, been presented at the trial. We must deal with the question - the only question before us - as it is stated, with one addition inherent, though not expressed, namely, that to import a

dangerous drug is a statutory offence under English law (Dangerous Drugs Act 1945, section 2; Customs and Excise Act 1952, sections 45 and 304).

I have had the benefit of reading in advance the opinion of my noble and learned friend, Lord Pearson. I agree with it, and with his examination of the authorities which it contains. I desire only to add some brief observations.

The basis of the Court of Appeal's judgment, the starting point of legal discussion in this case, is the proposition that all crime is territorial. In following this principle derived from the Digest and modernised by Huber, common law jurisdictions have been consistent - more so, I believe, than systems of the civil law. It has been applied both as a principle for the construction of statutes (e.g. Macleod v. Attorney-General for New South Wales [1891] A.C. 455) and as a principle determining the reach of the common law. It has also a reflection in disputes between states, where international law is concerned. The present case involves international elements - the accused are aliens and the conspiracy was initiated abroad - but there can be no question here of any breach of any rules of international law if they are prosecuted in this country. Under the objective territorial principle (I use the terminology of the Harvard Research in International Law) or the principle of universality (for the prevention of the trade in narcotics falls within this description) or both, the courts of this country have a clear right, if not a duty, to prosecute in accordance with our municipal law. The position as it is under international law is not, however, determinative of the question whether, under our municipal law, the acts committed amount to a crime. That has to be decided on different principles. If conspiracy to import drugs were a statutory offence, the question whether foreign conspiracies were included would be decided upon the terms of the statute. Since it is (if at all) a common law offence, this question must be decided upon principle and authority.

In the search for a principle, the requirement of territoriality does not, in itself, provide an answer. To many simple situations, where all relevant elements occur in this country, or, conversely, occur abroad, it may do so. But there are many "crimes" (I use the word without prejudice at this stage) the elements of which cannot be so simply located. They may originate in one country, be continued in another, produce effects in a third. Some constituent fact, the posting or receipt of a letter, the firing of a shot, the falsification of a document, may take place in one country, the other necessary elements in another. There is no mechanical answer, either through the Latin maxim or by quotation of Lord Halsbury L.C.'s words in Macleod v. Attorney-General for New South Wales [1891] A.C. 455 or otherwise, which can solve these. The present is such a case.

In my opinion, the key to a decision for or against the offence charged can be found in an answer to the question why the common law treats certain actions as crimes. And one answer must certainly be because the actions in question are a threat to the Queen's peace, or, as we would now perhaps say, to society. Judged by this test, there is every reason for, and none that I can see against, the prosecution. Conspiracies are intended to be carried into effect, and one reason why, in addition to individual prosecution of each participant, conspiracy charges are brought is because criminal action organised, and executed, in concert is more dangerous

than an individual breach of the law. Why, then, refrain from prosecution where the relevant concert was, initially, formed outside the United Kingdom?

Often in conspiracy cases the implementing action is itself the only evidence of the conspiracy - this is the doctrine of overt acts. Could it be said, with any plausibility, that if the conclusion or a possible conclusion to be drawn from overt acts in England was that there was a conspiracy, entered into abroad, a charge of conspiracy would not lie? Surely not: yet, if it could, what difference should it make if the conspiracy is directly proved or is admitted to have been made abroad? The truth is that, in the normal case of a conspiracy carried out, or partly carried out, in this country, the location of the formation of the agreement is irrelevant: the attack upon the laws of this country is identical wherever the conspirators happened to meet; the "conspiracy" is a complex, formed indeed, but not separably completed, at the first meeting of the plotters.

A legal principle which would enable concerting law breakers to escape a conspiracy charge by crossing the Channel before making their agreement or to bring forward arguments, which we know can be subtle enough, as to the location of agreements, or, conversely, which would encourage the prosecution into allegation or fiction of a renewed agreement in this country, all this with no compensating merit, is not one which I could endorse.

In addition to these considerations, there is substantial authority, both English and American, that jurisdiction exists to try in our courts conspiracies entered into abroad but implemented here. My noble and learned friend, Lord Pearson, has quoted the English and some of the United States cases - there are others there which could be cited. I adopt and do not repeat his analysis. It establishes, in my opinion, that under existing principles of common law, supported by authority, the offence charged was triable in England.

I would add that the further question whether a conspiracy formed abroad to do an illegal act in England, but not actually implemented here, could be tried in the courts of this country is not before us and I express no opinion on it.

The appeal must be allowed, the question submitted answered in the affirmative and the convictions on count 1 restored. I do not feel able or entitled to comment on the sentences imposed as to which we were not supplied with argument or background information. They were, of course, not the subject of appeal.

VISCOUNT DILHORNE. My Lords, the five respondents, all Americans, were, according to the statements made by four of them, all parties to a conspiracy to import cannabis resin into the United States of America. In pursuance of that conspiracy Volkswagen vans were bought in Europe, taken to Belgium and there fitted out with beds in which hashish could be concealed. The vans were then driven to Morocco by different routes. There hashish was bought and loaded into two of the vans and concealed in the beds. Two vans, one driven by the respondent, Loving, and the other by the respondents, Watts and Fay, were shipped on the Eagle to Southampton. A third van in the charge of Doot and Shannahan was driven to Ostend and brought to Dover, the intention being that the vans

carrying the cannabis resin should be driven to Liverpool and shipped across the Atlantic.

Section 2 of the Dangerous Drugs Act 1965 makes it unlawful to import into this country inter alia cannabis resin, and section 3 of that Act makes it illegal to export it, in each case without a licence. So the conspiracy to import cannabis resin into the United States through the United Kingdom comprehended a conspiracy to import into and also a conspiracy to export from the United Kingdom.

On August 5, 1971, the two vans shipped on the Eagle arrived at Southampton. Watts and Fay got their van through customs and drove to Liverpool. On August 6 customs officers at Southampton found 64 kilogrammes of cannabis resin in the bed in the van driven by Loving. Watts' and Fay's van was traced to Liverpool from where it was to be shipped on August 10 and in the bed in it were found 65 kilogrammes of cannabis resin. Doot and Shannahan arrived with their van at Dover on August 13. They were seen in London and when their van was examined it was found that there was no cannabis resin in the bed but 138 grammes of cannabis resin and 247 grammes of cannabis were found in a polythene bag, a tobacco pouch and a carrier bag in the van.

The five respondents were charged at Winchester Assizes on an indictment which contained four counts. The first charged them with conspiracy to import dangerous drugs, the particulars of offence alleging that between January 1 and August 15, 1971, "in Hampshire and elsewhere" they had conspired together

"fraudulently to evade the prohibition imposed by the Dangerous Drugs Act 1965 on the importation of a dangerous drug, namely cannabis resin, into the United Kingdom."

The second count charged Loving with importing prohibited goods contrary to section 304 of the Customs and Excise Act 1952, the particulars of offence alleging that in relation to 64 kilogrammes of cannabis resin he was knowingly concerned in a fraudulent evasion of the prohibition on importation imposed by the Dangerous Drugs Act 1965.

The third count charged Watts and Fay with a similar offence in relation to 65 kilogrammes of cannabis resin and the fourth count charged Doot and Shannahan with a similar offence in relation to 138 grammes of cannabis resin and 247 grammes of cannabis.

Section 304 of the Customs and Excise Act 1952 is in the following terms:

"Without prejudice to any other provision of this Act, if any person - (a) knowingly and with intent ... to evade any prohibition or restriction for the time being in force under or by virtue of any enactment with respect thereto, acquires possession of, or is in any way concerned in carrying, removing, depositing, harbouring, keeping or concealing or in any manner dealing with any goods which have been unlawfully removed from a warehouse or Queen's warehouse, ... or with respect to the importation or exportation of which any prohibition or restriction is for the time being in force as aforesaid, ... he may be detained and, save where, in the case of an offence in connection with a prohibition or restriction, a penalty is

expressly provided for that offence by the enactment or other instrument imposing the prohibition or restriction, shall be liable to a penalty of three times the value of the goods ..., or to imprisonment for a term not exceeding two years, or to both."

In the first count the statement of offence alleges a conspiracy to import dangerous drugs, which can be read as alleging a conspiracy to commit an offence against section 2 of the Dangerous Drugs Act 1965. The language of the particulars of offence to this count is culled from section 304 of the Customs and Excise Act 1952 and, it could be argued, alleges a different conspiracy, one to commit the offence created by that section. Rule 4 (4) of the Indictments Act 1915, Schedule 1 provides that "After the statement of the offence, particulars of such offence shall be set out in ordinary language, ..." So the particulars given should have been of the conspiracy to import and not of a conspiracy fraudulently to evade the prohibition imposed by the Dangerous Drugs Act 1965. They should not allege the commission of any other offence than that stated in the statement of offence. No point was taken by the respondents as to this and the Court of Appeal, as did Lawson J., treated this count as alleging a conspiracy to import dangerous drugs into England in breach of the Dangerous Drugs Act 1965. The inclusion of words from section 304 in this count and the preferment in the other counts of charges of offences against section 304 and not charges under section 45 of the Customs and Excise Act 1952 were apparently made in the belief that their inclusion would facilitate the task of the prosecution.

To count 1 all the respondents pleaded not guilty. It was submitted that the offence of conspiracy alleged had not been committed within the jurisdiction of the courts of this country. Lawson J. rejected this submission made on behalf of the first four respondents, saying that he was satisfied that there was an agreement between the accused

"to import dangerous drugs into England in breach of the Dangerous Drugs Act, and that the English element in that agreement consisted in conduct on the part of one or more of these accused who were party to the agreement, of conduct in England which was conduct in furtherance or implementation of the agreement to import illegally into England."

All the respondents other than Shannahan then changed their pleas to count 1 to pleas of guilty on the basis that it was open to them on appeal to contend that the court had no jurisdiction with regard to count 1.

Shannahan, who pleaded not guilty to both charges against him, was found guilty on both, Lawson J. directing the jury on count 1 in accordance with his ruling on the submission made on behalf of the other respondents. The others charged in counts 2, 3, and 4 pleaded guilty. Doot, who was regarded by Lawson J. as "the chief man in this conspiracy," was sentenced to 30 months imprisonment on count 1 and three months consecutive on count 4. Loving, the driver of one of the two vans, each containing �30,000-worth of cannabis resin, received a sentence of 12 months imprisonment on count 1 and three months concurrent on count 2. Watts, one of the drivers of the second van containing cannabis resin, received a sentence of 18 months imprisonment on count 1 and nine months concurrent

on count 3. Fay, the other driver of that van, was fined �250 on count 1 and �50 on count 3. Shannahan was sentenced to two years imprisonment on count 1 and three months consecutive on count 4. All were recommended for deportation.

No question arose in this appeal as to the propriety of the sentences imposed by the learned judge and I, therefore, do not think it right to comment on them. The determination of the proper sentence to impose is often a most difficult task and without going fully into the respondents' circumstances and antecedents, which was not done on the hearing of this appeal, I would not think it right to criticise. But I think I can, without impropriety, repeat what I have said before, that in my opinion it would be a very desirable change in the law if the Court of Appeal (Criminal Division) were given power on the hearing of an appeal, whether against conviction or sentence, to review the sentence passed at the trial and, if thought right, to increase it. Now they can only reduce it. Such a power would not only lead to greater uniformity in sentences but also might be a deterrent against frivolous appeals.

The Court of Appeal (Criminal Division) [1973] Q.B. 73 allowed the respondents' appeal, holding that there was no jurisdiction to try the conspiracy charged in count 1. Stephenson L.J., delivering the judgment of the court, after referring to Lawson J.'s ruling said, at p. 81-82:

"We think that this ruling assumes that conspiracy is a continuing offence and that this particular conspiracy was not completed as long as anything remained to be done in furtherance or implementation of it. But, in our judgment, the ruling ignores the peculiar nature of the offence of conspiracy and the distinction between two kinds of conspiratorial agreement to which we shall refer, and confuses the offence itself and its essential elements with overt acts in furtherance of it and with acts which are merely evidence of its existence. The essence of the offence is the agreement to do the unlawful act. The offence is completed when the agreement is made. It matters not that it is never carried out. Acts in performance of it go to prove the offence but are not constituent or essential parts of it. They may be substantive offences committed in England and so triable in England, but they do not make the agreement to commit them itself triable in England. The agreement does, of course, continue until ended and the conspiracy remains in existence and may be joined by others or be varied, or lose some of its participants, as long as it continues to exist. If the conspirators come within the jurisdiction while their agreement still exists and then do acts in furtherance of it there is much to be said for the English courts having jurisdiction to try them for the conspiracy. Perhaps that ought to be the law, but in our view, it is not the law and if it is to be the law Parliament or the House of Lords, not this court, must declare it to be so."

The court certified that the following question involved a point of law of general public importance and granted leave to appeal to this House:

"Whether an agreement made outside the jurisdiction of the English courts to import a dangerous drug into England and carried out by

importing it into England is a conspiracy which can be tried in England."

If the law be as the Court of Appeal held it was, that law can only be changed by Parliament. This House in its judicial capacity cannot alter the law so as to bring offences not triable in the courts of this country within the jurisdiction. If an offence committed out of this country and not now triable in this country is to be made triable in this country that must be done by statute.

It has long been settled law that the agreement of two or more to do an unlawful act constitutes a conspiracy. It matters not, as Stephenson L.J. said, that the agreement is never carried out. To establish the guilt of an accused all that is necessary is to prove that he was a party to such an agreement.

If it be the case that it is the country in which the agreement is made which is the country having jurisdiction to try the charge of conspiracy, it would not be easy in this case to determine in which country the agreement was initially made. According to Doot's statement the plan to import hashish in Volkswagens was initially made between him and a man called Evans in the United States. Doot then flew to Canada and enlisted Watts. Next he approached Shannahan in New York, who later telephoned him when he was in Luxemburg. Fay later joined Doot and Watts in Frankfurt and from Frankfurt Doot telephoned to Loving in Miami and enlisted him. No part of the agreement to import the cannabis resin was made in England and if it be the law that the offence of conspiracy is only triable in the country in which the agreement to do the unlawful act is made, this history of the sequence of events in this case indicates the difficulties which the prosecution may encounter.

A conspiracy is usually proved by proving acts on the part of the accused which lead to the inference that they were acting in concert in pursuance of an agreement to do an unlawful act. Here the acts of the respondents in bringing into this country three Volkswagen vans fitted with beds constructed for the concealment of hashish and with two of the vans containing substantial quantities of it gave rise to a very strong inference that they were acting in concert and in pursuance of an agreement which involved the importation of cannabis resin into this country.

In Reg. v. Aspinall (1876) 2 Q.B.D. 48, Brett J.A. said, at p. 58:

"In order to apply these rules to the present case it is necessary next to determine what are the essential facts to be alleged in order to support a charge of conspiracy. Now, first, the crime of conspiracy is completely committed, if it is committed at all, the moment two or more have agreed that they will do, at once or at some future time, certain things. It is not necessary in order to complete the offence that any one thing should be done beyond the agreement. The conspirators may repent and stop, or may have no opportunity, or may be prevented, or may fail. Nevertheless the crime is complete; it was completed when they agreed."

I see no reason to criticise this passage unless it be interpreted to mean that the crime, though completed by the agreement, ends when the agreement is made. When there is agreement between two or more to commit an

unlawful act all the ingredients of the offence are there and in that sense the crime is complete. But a conspiracy does not end with the making of the agreement. It will continue so long as there are two or more parties to it intending to carry out the design. It would be highly unreal to say that the conspiracy to carry out the Gunpowder Plot was completed when the conspirators met and agreed to the plot at Catesby.

In Reg. v. Murphy (1837) 8 C. & P. 297 Coleridge J. said in the course of his direction to the jury, at p. 311:

"It is not necessary that it should be proved that these defendants met to concoct this scheme, nor is it necessary that they should have originated it. If a conspiracy be already formed, and a person joins it afterwards, he is equally guilty. You are to say whether, from the acts that have been proved, you are satisfied that these defendants were acting in concert in this matter."

This statement of Coleridge J. has not been questioned and I take it to be well established that it is a correct statement of the law. If it is, it is not easy to reconcile it with the view expressed by the Court of Appeal, for the man who joins a conspiracy after it has been formed was not a party to the conspiracy when it was "completed." The fact that a man who later joins a conspiracy may be convicted of it shows that although the offence is complete in one sense when the conspiracy is made, it is nevertheless a continuing offence.

If it is as in my opinion it is, a continuing offence then the courts of England, in my view, have jurisdiction to try the offence if, and only if, the evidence suffices to show that the conspiracy whenever or wherever it was formed was in existence when the accused were in England. Here the acts of the respondents in England, to which I have referred, suffice to show that they were acting in concert in pursuance of an existing agreement to import cannabis, to show that there was then within the jurisdiction a conspiracy to import cannabis resin to which they were parties.

In Rex v. Brisac (1803) 4 East 164, where the captain and purser of a man-of-war were charged with conspiracy to cheat the Crown by the use of false vouchers, the planning and fabrication of the vouchers was done on the high seas. Brisac was found guilty at Middlesex and when he was brought up for judgment it was objected that as the conspiracy was committed on the high seas it was only triable under the statute 39 Geo. 3, c. 37 [Offences At Sea Act 1799]. It was contended, at p. 169, that it made no difference that:

"the ultimate object and completion of the conspiracy was to operate on shore, as all the acts of the defendants themselves which constituted the offence of conspiracy were committed out of the jurisdiction of the common law."

Grose J. delivering the opinion of the court said, at p. 171:

"... it would be to be recollected that conspiracy is a matter of inference, deduced from certain criminal acts of the parties accused, done in pursuance of an apparent criminal purpose in common between them, and which hardly ever are confined to one place; and that from analogy, there seems no reason why the crime of conspiracy, ...

may not be tried wherever one distinct overt act of conspiracy is in fact committed, as well as the crime of high treason in compassing and imagining the King's death, or in conspiring to levy war."

He then referred to the unreported case of Rex v. Bowes, May 30, 1787. There, he said:

"... no proof of actual conspiracy embracing all the several conspirators was attempted to be given in Middlesex, where the trial took place, and where the individual actings of some of the conspirators were wholly confined to other counties than Middlesex: but still the conspiracy as against all having been proved from the community of criminal purpose, and by their joint cooperation in forwarding the objects of it, in different places and counties, the locality required for the purpose of trial was holden to be satisfied by overt acts done by some of them in prosecution of the conspiracy in the county where the trial was had."

Grose J. went on to say, at p. 172, that the delivery of the false vouchers and of the bills of exchange was in Middlesex and held that the act of delivery was the act of the defendants "... for the persons who innocently delivered the vouchers were mere instruments in their hands for that purpose; ..."

In Russell on Crime, 12th ed. (1964), vol. 1, p. 613 this decision is cited and it is then stated:

"It would, therefore, seem that if there was a conspiracy on land abroad, a jury might try it in any place in England where an overt act in pursuance of it was done."

Why, one may ask, if the offence of conspiracy is completed when the agreement to do the unlawful act is made, should the conspiracy made abroad or on the high seas be triable at common law in any place where an overt act takes place? This, in my view, can only be on the basis that the overt act, coupled, it may be, with evidence of overt acts in other parts of England, shows that there was at the time of the overt act a conspiracy in England, no matter when or where it was formed.

In the United States of America it appears to be recognised that conspiracy may be a continuous offence for in Ford v. United States (1927) 273 U.S. 593 Taft C.J., delivering the opinion of the court, said, at p. 601: "The petitioners and 55 others were indicted in November 1924 for carrying on a continuous conspiracy ..." At p. 602: "The charge is unitary in relating to one continuous conspiracy, ..." At p. 620: "The conspiracy was continuously in operation ..." And at pp. 621 - 622:

"Generally the cases show that jurisdiction exists to try one who is a conspirator whenever the conspiracy is in whole or in part carried on in the country whose laws are conspired against."

In Reg. v. Best (1705) 1 Salk. 174, a case which was very briefly reported, it is stated that "The venue must be where the conspiracy was, not where the result of the conspiracy is put in execution: ..."

I cannot reconcile this statement with the decision in Rex v. Brisac, 4 East 164 or with the observations of Grose J. in relation to Rex v. Bowes

(unreported) and I do not think that in the light of the decision in Rex v. Brisac it is accurate to say that this is the first time this question has come before the courts of this country. Further I do not think that if this House relies on the decision in that case it can be said that it is extending the application of the criminal law.

The conclusion to which I have come after consideration of these authorities and of many others to which the House was referred but to which I do not think it is necessary to refer is that though the offence of conspiracy is complete when the agreement to do the unlawful act is made and it is not necessary for the prosecution to do more than prove the making of such an agreement, a conspiracy does not end with the making of the agreement. It continues so long as the parties to the agreement intend to carry it out. It may be joined by others, some may leave it. Proof of acts done by the accused in this country may suffice to prove that there was at the time of those acts a conspiracy in existence in this country to which they were parties and, if that is proved, then the charge of conspiracy is within the jurisdiction of the English courts, even though the initial agreement was made outside the jurisdiction.

For the reasons I have stated, in my opinion this appeal should be allowed and the convictions of the respondents on count 1 restored.

LORD PEARSON. My Lords, at some place on land outside England - in Belgium or Morocco - six American citizens agreed that they would secretly import cannabis from Morocco to England and transport it across England and over to Canada and into the United States. That was an agreement to break the law of England by illegal importation of dangerous drugs, and therefore it was, if and in so far as English law applied to it, a conspiracy. I will refer to the six American citizens who were parties to it as "the conspirators." The conspirators had Volkswagen vans fitted with wooden sleeping beds containing secret compartments in which the cannabis could be hidden. The secret compartments of three of these vans were loaded with substantial quantities of cannabis - for instance, 64 kilogrammes in one and 65 kilogrammes in another. The loading was done in Morocco, and then the vans were taken by car ferry from Morocco to Southampton. The first of the three vans was taken by a conspirator named Evans. He was not detected and he succeeded in importing the cannabis and transporting it across and out of England. A second van, with its secret load of cannabis, was taken by another conspirator named Loving. He achieved the importation but afterwards the cannabis was found and he was arrested in England. Similarly the third van, with its secret load of cannabis, was taken by two other conspirators, named Watts and Fay, and they achieved the importation but were afterwards detected and arrested. The two remaining conspirators, Doot and Shannahan, also had a van but there was no cannabis loaded in its secret compartment, and they did not take the car ferry from Morocco to Southampton. They had in the van only a small quantity of cannabis, said by Doot to be for his own use, and they travelled from ostend to Dover and drove the van to London.

The five conspirators who did not escape were prosecuted in England. In the first count of the indictment all five were charged with conspiracy

to import dangerous drugs. In the second, third and fourth counts respectively Loving, Watts and Fay and Doot and Shannahan were charged with importing prohibited goods, contrary to section 304 of the Customs and Excise Act 1952. Loving, Watts, Fay and Doot pleaded guilty to the counts which concerned them, but did so without prejudice to their contention that the English court had no jurisdiction to try the count of conspiracy. Shannahan pleaded not guilty and was tried and convicted on the count of conspiracy as well as on the fourth count.

After hearing argument on the question of jurisdiction the trial judge, Lawson J., gave his ruling. He said:

"My ruling is this: that I reject the submissions of the defendants that this court has no jurisdiction to try the offence charged in count 1 which is a conspiracy to import dangerous drugs in breach of the prohibition imposed by the Dangerous Drugs Act 1965. ... The grounds, briefly, upon which I so ruled are, first of all, that I am satisfied on the evidence adduced by the prosecution that there was an agreement between these accused and others (I will deal with the case of Shannahan separately in a moment) to import dangerous drugs into England in breach of the Dangerous Drugs Act, and that the English element in that agreement consisted in conduct on the part of one or more of these accused who were party to the agreement, of conduct in England which was conduct in furtherance or implementation of the agreement to import illegally into England. For those reasons, therefore, I hold that I have jurisdiction to try count 1."

This ruling was reversed by the Court of Appeal [1973] Q.B. 73, who said, at pp. 81-82:

"We think that this ruling assumes that conspiracy is a continuing offence and that this particular conspiracy was not completed as long as anything remained to be done in furtherance or implementation of it. But, in our judgment, the ruling ignores the peculiar nature of the offence of conspiracy and the distinction between two kinds of conspiratorial agreement to which we shall refer, and confuses the offence itself and its essential elements with overt acts in furtherance of it and with acts which are merely evidence of its existence. The essence of the offence is the agreement to do the unlawful act. The offence is completed when the agreement is made. It matters not that it is never carried out. Acts in performance of it go to prove the offence but are not constituent or essential parts of it. They may be substantive offences committed in England and so triable in England, but they do not make the agreement to commit them itself triable in England. The agreement does, of course, continue until ended and the conspiracy remains in existence and may be joined by others or be varied, or lose some of its participants, as long as it continues to exist. If the conspirators come within the jurisdiction while their agreement still exists and then do acts in furtherance of it there is much to be said for the English courts having jurisdiction to try them for the conspiracy. Perhaps that ought to be the law, but in our view, it is not the law and if it is to be the law Parliament or the House of Lords, not this court, must declare it to be so."

The Court of Appeal certified that a point of law of general importance was involved in their decision to quash the appellants' convictions on the first count, namely:

"Whether an agreement made outside the jurisdiction of the English courts to import a dangerous drug into England and carried out by importing it into England is a conspiracy which can be tried in England."

The Court of Appeal held that the point appeared to be one which might be considered in your Lordships' House and they granted leave to appeal.

In my opinion, the ruling of the learned judge that he had jurisdiction to try the count of conspiracy was correct, and the Court of Appeal's reversal of his ruling was erroneous. With respect I am unable to agree with the Court of Appeal's view as to what the existing law is.

A conspiracy involves an agreement expressed or implied. A conspiratorial agreement is not a contract, not legally binding, because it is unlawful. But as an agreement it has its three stages, namely (1) making or formation (2) performance or implementation (3) discharge or termination. When the conspiratorial agreement has been made, the offence of conspiracy is complete, it has been committed, and the conspirators can be prosecuted even though no performance has taken place: Reg. v. Aspinall, 2 Q.B.D. 48, per Brett J.A., at pp. 58-59. But the fact that the offence of conspiracy is complete at that stage does not mean that the conspiratorial agreement is finished with. It is not dead. If it is being performed, it is very much alive. So long as the performance continues, it is operating, it is being carried out by the conspirators, and it is governing or at any rate influencing their conduct. The conspiratorial agreement continues in operation and therefore in existence until it is discharged (terminated) by completion of its performance or by abandonment or frustration or however it may be.

On principle, apart from authority, I think (and it would seem the Court of Appeal also thought) that a conspiracy to commit in England an offence against English law ought to be triable in England if it has been wholly or partly performed in England. In such a case the conspiracy has been carried on in England with the consent and authority of all the conspirators. It is not necessary that they should all be present in England. one of them, acting on his own behalf and as agent for the others, has been performing their agreement, with their consent and authority, in England. In such a case the conspiracy has been committed by all of them in England. Be it granted that "All crime is local" and "The jurisdiction over the crime belongs to the country where the crime is committed, ...": per Lord Halsbury L.C. in Macleod v. Attorney-General for New South Wales [1891] A.C. 455, 458. The crime of conspiracy in the present case was committed in England, personally or through an agent or agents, by all the conspirators.

The balance of authority is in favour of the view that the English courts have jurisdiction in a case such as this.

There is indeed an early authority which tends the other way. That is Reg. v. Best, 1 Salk. 174 where:

"It was agreed by the court, 1st, that several people may lawfully meet and consult to prosecute a guilty person; otherwise if to charge one that is innocent, right or wrong, for that is indictable. That so it is here, that the conspiracy is the gist of the indictment, and that though nothing be done in prosecution of it, it is a complete and consummate offence of itself; and whether the conspiracy be to charge a temporal or ecclesiastical offence on an innocent person, it is the same thing. ... The venue must be where the conspiracy was, not where the result of the conspiracy is put in execution: and confederacies are one of the articles in the commission of oyer and terminer, to be inquired of."

But the prevalent authorities are Rex v. Brisac, 4 East 164 and Rex v. Bowes (unreported), 1787. Grose J. delivering the opinion of the court said, at p. 171:

"If it were necessary on this occasion to consider how far every count in this information has been established by the evidence adduced, so as to bring every one of them within the jurisdiction of this court, it would be to be recollected that conspiracy is a matter of inference, deduced from certain criminal acts of the parties accused, done in pursuance of an apparent criminal purpose in common between them, and which hardly ever are confined to one place; and that from analogy, there seems no reason why the crime of conspiracy, amounting only to a misdemeanour, may not be tried wherever one distinct overt act of conspiracy is in fact committed, as well as the crime of high treason in compassing and imagining the King's death, or in conspiring to levy war. In Rex v. Bowes the trial proceeded upon this principle; where no proof of actual conspiracy embracing all the several conspirators was attempted to be given in Middlesex, where the trial took place, and where the individual actings of some of the conspirators were wholly confined to other counties than Middlesex: but still the conspiracy as against all having been proved from the community of criminal purpose, and by their joint cooperation in forwarding the objects of it, in different places and counties, the locality required for the purpose of trial was holden to be satisfied by overt acts done by some of them in prosecution of the conspiracy in the county where the trial was had. But upon this occasion it is not necessary to go at large into this point; ..."

He went on to say in effect that both defendants had caused false vouchers to be delivered in Middlesex through innocent agents, and on that ground they could be held to have committed offences in Middlesex. There seems to be no report of Rex v. Bowes (1787) but there is a reference to it in Rex v. Stone (1796) 6 Term.Rep. 527. The Attorney-General in argument said, at p. 528:

"that, as the overt act charged was a conspiracy of which proof was before the court, the act of each conspirator in the prosecution of such conspiracy was evidence against all: that it had been so determined by Buller J. in the case of Rex v. Bowes, May 30, 1787, who were convicted for a conspiracy to carry away Lady Strathmore; and

that the same principle had been also settled in Rex v. Hardy, and Rex v. Tooke, at the old Bailey in 1794."

The trial of Hardy and Tooke is referred to in East's Pleas of the Crown [1 East P.C. 60, 99].

In Rex v. Burdett (1820) 3 B. & Ald. 717 there was cited in argument. at pp. 736, 737, a passage from Starkie, A Treatise on Criminal Pleading (1814), p. 26 referring to Rex v. Brisac, 4 East 164 and Rex v. Bowes (unreported), 1787, and in the same case, at 4 B. & Ald. 95, Abbott C.J. in his judgment, at pp. 178-179, cited the passage in the judgment of Grose J. in Rex v. Brisac, 4 East 164, 171 from "... there seems no reason ..." to "... where the trial was had." In Starkie on Criminal Pleading, 2nd ed. (1828), vol. 1, pp. 27-28 it is said:

"An indictment for a conspiracy may be tried in any county, in which an overt act has been committed in pursuance of the original illegal combination and design; so that when several conspired upon the high seas to fabricate false vouchers to defraud certain commissioners in Middlesex, and in consequence those vouchers were delivered by innocent persons, their agents in Middlesex, the court intimated an opinion, that the offence had been properly tried in Middlesex, in analogy to the case of treason, which offence may be tried in any county in which an overt act has been committed. So several defendants were holden to have been properly convicted upon an indictment for a conspiracy, though no joint conspiracy had been proved in the county where they were tried, but only overt acts done in consequence of a general conspiracy, evidenced by various acts in other counties."

This paragraph was evidently based on Rex v. Brisac, 4 East 164 and Rex v. Bowes (unreported).

In the case of Reg. v. Meany in the Irish Court for Crown Cases Reserved (1867) 10 Cox C.C. 506 there was a difference of opinion, but the view of the majority was that a member of the Fenian brotherhood who had acted in pursuance of the conspiracy in America could be tried in Ireland for treason felony under the Treason Felony Act 1848 because fellow conspirators had committed in Ireland overt acts in pursuance of the conspiracy. The statute, however, required an overt act to be proved. Some of the judgments refer to the cases of Rex v. Brisac, 4 East 164 and Rex v. Bowes (unreported).

Also in the majority opinion of the Supreme Court of the United States in Hyde and Schneider v. United States (1912) 225 U.S. 347 after citation of a passage referring to Rex v. Brisac and Rex v. Bowes approval was given, at p. 365, to this statement by Marcy J. in People v. Mather (1830) 4 Wend. (N.Y.) 230, 261 as to the position at common law:

"If conspirators enter into the illegal agreement in one county, the crime is perpetrated there, and they may be immediately prosecuted; but the proceedings against them must be in that county. If they go into another county to execute their plans of mischief, and there commit an overt act, they may be punished in the latter county without any evidence of an express renewal of their agreement. The law considers that wherever they act, there they renew, or perhaps, to

speak more properly, they continue their agreement, and this agreement is renewed or continued as to all whenever any one of them does an act in furtherance of their common design."

Having regard to the balance of authority as well as to considerations of principle, I would allow the appeal and restore the convictions on the first count.

On the question of prosecuting policy whether it was appropriate to include the count of conspiracy in addition to the charges of specific offences, I would say that it was appropriate because it provided for each conspirator being held responsible, as morally and legally he was responsible, for each of the illegal importations effected in pursuance of the conspiracy.

LORD KILBRANDON. My Lords, it is not, I believe, necessary that I should do more than express my concurrence with the opinion that the question of law put by the Court of Appeal should be answered in the affirmative. I limit my observations to this the more readily since I understand that the criminal law of conspiracy is at this time under review by the Law Commission. Such review is much to be desired.

LORD SALMON. My Lords, I will not repeat the facts which are fully set out in the speeches of my noble and learned friends, Viscount Dilhorne and Lord Pearson.

Section 2 of the Dangerous Drugs Act 1965 enacts that:

"It shall not be lawful for a person to import into the United Kingdom a drug to which this Part of this Act applies except under a licence granted by a Secretary of State."

Section 3 contains a similar provision in respect of exportation. The Act of 1965 does not, however, create an offence in respect of any breach of section 2 or section 3. These sections constitute statutory prohibitions or restrictions within the meaning of sections 45, 56 and 304 of the Customs and Excise Act 1952. Section 45 makes it an offence punishable amongst other things with imprisonment for not more than two years to import or to be concerned in importing any goods contrary to any prohibition or restriction for the time being in force. Section 56 creates a similar offence in respect of exportation. Section 304 enacts that:

"Without prejudice to any other provision of this Act, if any person - (a) knowingly and with intent ... to evade any prohibition or restriction for the time being in force under ... any enactment with respect thereto, ... is in any way concerned in carrying, ... keeping or concealing or in any manner dealing with any goods ... with respect to the importation or exportation of which any prohibition or restriction is ... in force ..."

he shall be liable to the same term of imprisonment as that specified in sections 45 and 56. This term was increased to 10 years by section 7 of the Dangerous Drugs Act 1967. Section 304 is obviously a long stop for sections 45 and 56 to catch anyone against whom actual importing, exporting or being concerned in actual importing or exporting cannot be proved

although no doubt it is wide enough to cover importing and exporting also. In the present case the evidence established importing and being concerned in importing or nothing. Indeed, in all the counts save the conspiracy count the respondents were charged with "importing prohibited goods." I do not understand why they were not charged under section 45 which deals directly with importation rather than under the more complicated section 304 which deals only obliquely with it. The evidence of importing was overwhelming. Indeed, all the respondents save Shannahan pleaded guilty to it. The respondent Doot admitted that he had planned and directed the whole smuggling operation and the evidence established that Shannahan was his chief lieutenant. These two were actively concerned in concealing and dealing with all the goods and participating in their unlawful importations and therefore guilty of offences under sections 45 and 304. The doctrine of qui facit per alium facit per se applies no less in criminal than in civil cases. The respondent Loving unlawfully imported 64 kilogrammes of cannabis resin. The respondents Watts and Fay unlawfully imported 65 kilogrammes of cannabis resin. The total value of these consignments was not less than �60,000. This was not a case of merely being in possession of a small quantity of dangerous drugs for one's own use or that of one's friends. It was a case of trading on a vast scale in dangerous drugs for gain. The minimum sentence normally imposed for unlawfully importing �30,000-worth of cannabis alone is certainly not less than four years' imprisonment for a defendant with a clean record. Indeed, I have known the Court of Appeal on more than one occasion to refuse leave to appeal against a sentence of six years' imprisonment for such an offence. These were carefully planned crimes involving in all at least �60,000-worth of cannabis. Doot and Shannahan had also participated in the unlawful importation of a further �30,000 load of cannabis by Evans. Loving and Watts were sentenced respectively to 12 months' and 18 months' imprisonment on the conspiracy count and concurrently to nine months' imprisonment each on the counts for unlawfully importing the vast quantities of cannabis to which I have referred. Doot, who master-minded the whole operation, was sentenced to 33 months' imprisonment in all and Shannahan, his chief lieutenant, to 27 months in all. So far as I am concerned these sentences pass all understanding. No factor mentioned when the sentences were pronounced in any way explains them. It is surely no mitigation that the defendants intended to commit further crimes by exporting the prohibited drugs from this country. There is unfortunately a ready market in this country for these dangerous drugs. I do not doubt that if the respondents had received an acceptable offer for them here it would have been accepted. However this may be, it hardly seems in accordance with the rules of international comity that our courts should treat the defendants with special leniency because their crimes were more likely to ruin young lives in the United States of America than in this country. In these circumstances, I think it right and indeed necessary to take the exceptional course of commenting on these sentences lest silence might mislead courts, in the future, into the belief that such sentences could be appropriate for crimes of this extreme gravity.

I will now consider whether there was jurisdiction to try the conspiracy

count since the conspiracy was entered into abroad. The learned trial judge ruled that such jurisdiction existed. Stephenson L.J. in delivering the powerful judgment of the Court of Appeal [1973] Q.B. 73 referred, at p. 82, to the absence of direct authority on the point. Indeed, this was the first time that the point had ever come before the court for decision. He came to the conclusion that since there was no authority which recognised that our courts have jurisdiction over a conspiracy entered into abroad to commit a crime in this country even if any act had been done here in furtherance of the conspiracy, such jurisdiction ought not to be assumed by our courts until Parliament or the House of Lords declared otherwise.

I recognise that if your Lordships were to hold that our courts are invested with jurisdiction in circumstances such as the present your Lordships would in a sense be extending the application of the criminal law since such a case as the present has never yet been decided in our courts. I bear in mind and respectfully endorse what Sir William Holdsworth said in his History of English Law, vol. 3, 3rd ed. (1923), p. 277:

"Moreover, at all periods of our history it has been far more difficult to extend the criminal law by a process of judicial decision than any other branch of the law. There has always been a wholesome dread of enlarging its boundaries by anything short of an Act of the legislature."

There may, however, be most exceptional cases, and I think that this is one of them, in which a new point falls to be decided and accordingly a development of the law in accordance with principle becomes permissible and indeed necessary. The crime of conspiracy is the creation of the common law and peculiar to it. In essence it consists of an agreement between two or more persons to do an unlawful act or a lawful act by unlawful means: Mulcahy v. The Queen (1868) L.R. 3 H.L. 306. The offence is complete as soon as the agreement is made. This is so because the law recognises that once people go so far as to agree to act unlawfully there is a serious risk that they will carry out their agreement. The agreement is in itself made an offence in order to preserve the Queen's peace by preventing the offence which the conspirators have agreed to perpetrate before it reaches even the stage of an attempt. This has been the basis of the law of conspiracy since the earliest times.

"Also the usual commission of oyer and terminer gives power to the commissioners to inquire, etc. de omnibus coadunationibus, confoederationibus, et falsis allegantiis; ... in these cases before the unlawful act executed the law punishes the coadunation, confederacy or false alliance, to the end to prevent the unlawful act, ... and in these cases the common law is a law of mercy, for it prevents the malignant from doing mischief, and the innocent from suffering it." (9 Co.Rep. [55b (The Poulterers' Case),] 56b.)

It is obvious that a conspiracy to carry out a bank robbery in London is equally a threat to the Queen's peace whether it is hatched, say, in Birmingham or in Brussels. Accordingly, having regard to the special nature of the offence a conspiracy to commit a crime in England is, in my

opinion, an offence against the common law even when entered into abroad, certainly if acts in furtherance of the conspiracy are done in this country. There can in such circumstances be no doubt that the conspiracy is in fact as well as in theory a real threat to the Queen's peace.

I recognise that the proposition that a conspiracy entered into abroad to commit a crime in England may be an offence under our law appears perhaps to be an exception to the well established general rule that "All crime is local" and that our criminal law does not, as a rule, extend to acts done abroad: Macleod v. Attorney-General for New South Wales [1891] A.C. 455, 458. Such acts may or may not be criminal under the law of the state in which they are committed. If they are not criminal under that law and do no harm here nor amount to a conspiracy to commit a crime here it would be contrary to the rules of international comity to punish a foreigner and pointless to punish a British subject who had committed such an act abroad and then come to this country. The criminal law of England exists to protect this realm and all those within it, for example, an agreement made in England to commit an unlawful act constitutes the crime of conspiracy only if the act is unlawful by the laws of England. It is not enough that it is unlawful only by the law of the country in which it is to be committed: Board of Trade v. Owen [1957] A.C. 602.

If a conspiracy is entered into abroad to commit a crime in England, exactly the same public mischief is produced by it as if it had been entered into here. It is unnecessary for me to consider what the position might be if the conspirators came to England for an entirely innocent purpose unconnected with the conspiracy. If, however, the conspirators come here and do acts in furtherance of the conspiracy, for example, by preparing to commit the planned crime, it cannot, in my view, be considered contrary to the rules of international comity for the forces of law and order in England to protect the Queen's peace by arresting them and putting them on trial for conspiracy whether they are British subjects or foreigners and whether or not conspiracy is a crime under the law of the country in which the conspiracy was born. It was unusual until recently to have any direct evidence of conspiracy. Conspiracy was usually proved by what are called overt acts, being acts from which an antecedent conspiracy is to be inferred. Where and when the conspiracy occurs is often unknown and seldom relevant. Today, however, it is possible to have direct evidence such as tape recordings of oral agreements. Suppose a case in which evidence existed of a conspiracy hatched abroad by bank robbers to raid a bank in London, or by terrorists to carry out some violent crime at an English airport, or by drug pedlars to smuggle large quantities of dangerous drugs on some stretch of the English coast. Suppose the conspirators came to England for the purpose of carrying out the crime and were detected by the police reconnoitring the place where they proposed to commit it, but doing nothing which by itself would be illegal, it would surely be absurd if the police could not arrest them then and there but had to take the risk of waiting and hoping to be able to catch them as they were actually committing or attempting to commit the crime. Yet that is precisely what the police would have to do if a conspiracy entered into abroad to commit a

crime here were not in the circumstances postulated recognised by our law as a criminal offence which our courts had any jurisdiction to try.

I do not believe that any civilised country, even assuming that its own laws do not recognise conspiracy as a criminal offence, could today have any reasonable objection to its nationals being arrested, tried and convicted by English courts in the circumstances to which I have referred. Today, crime is an international problem - perhaps not least crimes connected with the illicit drug traffic - and there is a great deal of cooperation between the nations to bring criminals to justice. Great care also is taken by most countries to do nothing which might help their own nationals to commit what would be crimes in other countries: see, for example, section 3 (2) of the Dangerous Drugs Act 1965.

I am not impressed by the argument that certain statutory enactments would have been unnecessary if the view which I have propounded is correct, for example, the Explosive Substances Act 1883, section 3, which makes it a crime for any British subject abroad to conspire to cause an explosion in the United Kingdom. The purpose of these statutes may well have been to underline the heinousness of crimes which at the time it was considered particularly important publicly to discourage. In any event, the rules of international comity are not static and I do not believe that in the modern world nations are nearly as sensitive about exclusive jurisdiction over crime as they may have been formerly. I do not derive much assistance from Rex v. Brisac, 4 East 164 or Reg. v. Best, 1 Salk. 174 nor from any of the other old cases which were concerned with what are now obsolete questions of venue. Nor do I think that much help can be derived in the present case from the learned judgments in the American authorities to which this House has been referred. There are some passages in the judgments which appear to help the appellant and others which seem to favour the respondents. The most important and relevant of these cases is Hyde and Schneider v. United Stales, 225 U.S. 347 in which the Supreme Court divided five to four. The decision seems to have turned chiefly on the point that since section 5440 of the Revised Statutes made an overt act an essential ingredient in the crime of conspiracy, the conspirator could be tried in the state in which the overt act was committed even although the agreement had been made in a different state.

It seems to me that these American cases were concerned like the old English cases with questions of venue and also with the constitutional rights of the citizen relating to the state in which he could be brought to trial. They had nothing to do with the rules of international comity with which, in my view, the present appeal is largely concerned.

I agree with and adopt what my noble and learned friend, Lord Diplock, said in Reg. v. Treacy [1971] A.C. 537, 564:

"... the rules of international comity, in my view, do not call for more than that each sovereign state should refrain from punishing persons for their conduct within the territory of another sovereign state where that conduct has had no harmful consequences within the territory of the state which imposes the punishment."

There can be no doubt but that the respondents' conduct in conspiring

in Belgium or Morocco to commit crimes in England caused harm in this country because the respondents carried out those very crimes in furtherance of that conspiracy. No one suggests that to charge the respondents with those crimes in our courts could violate the rules of international comity; nor do I think that anyone could suppose that the inclusion of a charge in respect of the conspiracy could offend those rules whatever other criticisms might be made of it.

It is, unfortunately, by no means unlikely that cases may arise in the future in which there will be conclusive evidence of persons having conspired abroad to commit serious crimes in England and then having done acts here in furtherance of the conspiracy and in preparation for the commission of those crimes yet none of these acts will in itself be unlawful. Although such a case would be very different from the present, if the reasoning upon which I have based this opinion is sound it follows that such persons could properly be arrested and tried for conspiracy in our courts.

My Lords, even if I am wrong in thinking that a conspiracy hatched abroad to commit a crime in this country may be a common law offence because it endangers the Queen's peace, I agree that the convictions for conspiracy against these respondents can be supported on another ground, namely, that they conspired together in this country notwithstanding the fact that they were abroad when they entered into the agreement which was the essence of the conspiracy. That agreement was and remained a continuing agreement and they continued to conspire until the offence they were conspiring to commit was in fact committed. Accordingly, when Watts, Loving and Fay sailed into English territorial waters they were still agreeing and conspiring to import into this country the dangerous drugs which a little later they smuggled ashore. Moreover, they were agreeing, not only on their own behalf but also on behalf and with the authority of Doot and Shannahan. Therefore, they were, all five of them, guilty of conspiring in England. It is irrelevant for this purpose that they had originally entered into the conspiracy abroad and that an offence of conspiracy is committed at the moment when the agreement to commit a crime is first made.

If, however, a conspiracy is entered into abroad by a number of conspirators to commit a series of crimes in England and only one conspirator comes to this country and commits one of the planned crimes, it would, I think, be unrealistic to regard him as agreeing with himself, whilst here, on behalf of each of the other conspirators. It is true that he would be committing an act in furtherance of the conspiracy, indeed, one of the very crimes which, whilst abroad, all the conspirators had conspired to commit. The act, however, would not be an ingredient of the crime of conspiracy, but only evidence of the existence of the conspiracy entered into abroad. If another of the conspirators who had perhaps masterminded the whole conspiracy later came here to obtain information useful to enable the other planned crimes to be committed, he would be immune from a charge of conspiracy however overwhelming the evidence of conspiracy might be if conspiracy abroad to commit a crime in England cannot be a common law offence: neither he nor anyone on his behalf would have conspired in England. This is why I have taken up time in

explaining why, on principle, conspiracy abroad to commit a crime in England may, in my view, be a common law offence certainly when acts in furtherance of it are committed in this country.

My Lords, for the reasons I have indicated, I would allow the appeal.

Solicitors: Director of Public Prosecutions; J. E. Baring & Co. for Bernard Chill & Axtell, Southampton.

M. G.