Director of Public Prosecutions v Stonehouse

[HOUSE OF LORDS]

AND

Crime - Attempt - Obtaining property by deception - Life insurance in England - Appearance of death fabricated abroad - Moneys payable to wife of accused - Whether crime justiciable in England - Proper direction to jury - Theft Act 1968 (c. 60), s. 15

Soon after having insured his life in England for the benefit of his wife the defendant, a man prominent in English public life, fabricated the appearance of his death by drowning abroad. He was charged in England with attempting to obtain in England property by deception. At his trial the judge in directing the jury told them, not that the conduct of the defendant could constitute an attempt, but that it did. The jury convicted the defendant and the Court of Appeal upheld the conviction.

On appeal:-

Held (1) that the charge was justiciable in England, since the basis of the jurisdiction in a case of obtaining property by deception was, not that the defendant had done some physical act in England but that his acts, wherever they were done, had caused the obtaining of the property in England from the person to whom it belonged, and the principle covered the inchoate offence of attempting to obtain the property (post, pp. 66H - 67D, 75A - D, 78B-D, 84B-G, 92B-D, 93G).

Reg. v. Baxter [1972] 1 Q.B. 1, C.A. considered.

(2) That the acts of the defendant abroad were sufficiently proximate to the complete offence of obtaining property by deception to be capable in law of constituting an attempt to commit the offence (post, pp. 68D-F, 71G-H, 76H - 77B, 85F-G,87B-C, 93H - 94A).

(3) (Per Lord Salmon, Lord Edmund-Davies and Lord Keith of Kinkel) that the judge should have left it to the jury to decide whether or not the evidence established the attempt charged and should not have directed them that it did, but that, since no miscarriage of justice resulted from the technical misdirection, the proviso to section 2 (1) of the Criminal Appeal Act 1968 should be applied (post, pp 79C-80A, 87F,H - 88A, 94F-95A).

Per Lord Diplock and Viscount Dilhorne. The judge is not forbidden to tell the jury that particular acts of the defendant, if established, are so closely connected with the offence that they amount in law to an attempt to commit it, if a verdict to the contrary would be perverse (post, pp. 70B-C,G-H, 74B-D).

Decision of the Court of Appeal affirmed.

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

Chandler v. Director of Public Prosecutions [1964] A.C. 763; [1962] 3 W.L.R. 694; [1962] 3 All E.R. 142, H.L.(E.).

Comer v. Bloomfield (1970) 55 Cr.App.R. 305, D.C.

Cox v. Army Council [1963] A.C. 48; [1962] 2 W.L.R. 950; [1962] 1 All E.R. 880, H.L.(E.).

Davey v. Lee [1968] 1 Q.B. 366; [1967] 3 W.L.R. 105; [1967] 2 All E.R. 423, D.C.

Hope v. Brown [1954] 1 W.L.R. 250; [1954] 1 All E.R. 330, D.C.

Joshua v. The Queen [1955] A.C. 121; [1955] 2 W.L.R. 8; [1955] 1 All E.R. 22, P.C.

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

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

Reg. v. Clemo (Note) [1973] R.T.R. 176, C.A.

Reg. v. Cook (1963) 48 Cr.App.R. 98, C.C.A.

Reg. v. Doot [1973] A.C. 807; [1973] 2 W.L.R. 532; [1973] 1 All E.R. 940, H.L.(E.).

Reg. v. Dudley and Stephens (1884) 14 Q.B.D. 273.

Reg. v. Eagleton (1855) Dears.C.C. 515.

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

Reg. v. Guttridge [1973] R.T.R. 135, C.A.

Reg. v. Harden [1963] 1 Q.B. 8; [1962] 2 W.L.R. 553; [1962] 1 All E.R. 286, C.C.A.

Reg. v. Jones (E. J. M.) [1970] 1 W.L.R. 211; [1970] 1 All E.R. 209, C.A.

Reg. v. Kelly (Francis William) [1970] 1 W.L.R. 1050; [1970] 2 All E.R. 198, C.A.

Reg. v. Markus [1976] A.C. 35; [1975] 2 W.L.R. 708; [1975] 1 All E.R. 958, H.L.(E.).

Reg. v. Martin (1972) 57 Cr.App.R. 279, C.A.

Reg. v. Miskell [1954] 1 W.L.R. 438; [1954] 1 All E.R. 137, Ct.-M.A.C.

Reg. v. Morris [1972] 1 W.L.R. 228; [1972] 1 All E.R. 384, C.A.

Reg. v. Smith (Roger) [1975] A.C. 476; [1974] 2 W.L.R. 1; [1973] 3 All E.R. 1109, H.L.(E.).

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

Reg. v. Vickers [1975] 1 W.L.R. 811; [1975] 2 All E.R. 945, C.A.

Reg. v. Waters (1963) 47 Cr.App.R. 149, C.C.A.

Reg. v. Withers [1975] A.C. 842; [1974] 3 W.L.R. 751; [1974] 3 All E.R. 984, H.L.(E.).

Rex v. Larkin [1943] K.B. 174; [1943] 1 All E.R. 217, C.C.A.

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

Rex v. Robinson [1915] 2 K.B. 342, C.C.A.

Stirland v. Director of Public Prosecutions [1944] A.C. 315; [1944] 2 All E.R. 13, H.L.(E.).

Strassheim v. Daily (1911) 221 U.S. 280.

The following additional cases were cited in argument:

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

Morton v. Henderson, 1956 J.C. 55.

Reg. v. El-Hakkaoui [1975] 1 W.L.R. 396; [1975] 2 All E.R. 146, C.A.

Reg. v. Governor of Brixton Prison, Ex parte Rush [1969] 1 W.L.R. 165; [1969] 1 All E.R. 316, D.C.

Reg. v. Hensler (1870) 22 L.T. 691.

Reg. v. Holmes (1883) 12 Q.B.D. 23.

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

Reg. v. Peters (1886) 16 Q.B.D. 636.

Reg. v. Rogers (1877) 3 Q.B.D. 28.

Reg. v. Wall [1974] 1 W.L.R. 930; [1974] 2 All E.R. 245, C.A.

Simpson v. State (1893) 17 S.E.Rep. 984.

Welham v. Director of Public Prosecutions [1961] A.C. 103; [1960] 2 W.L.R. 669; [1960] 1 All E.R. 805, H.L.(E.).

The following cases referred to by their Lordships were not cited in argument:

Chandler v. Director of Public Prosecutions [1964] A.C. 763; [1962] 3 W.L.R. 694; [1962] 3 All E.R. 142, H.L.(E.).

Hope v. Brown [1954] 1 W.L.R. 250; [1954] 1 All E.R. 330, D.C.

Reg v. Clemo (Note) [1973] R.T.R. 176, C.A.

Reg. v. Dudley and Stephens (1884) 14 Q.B.D. 273.

Reg. v. Guttridge [1973] R.T.R. 135, C.A.

Reg. v. Jones (E. J. M.) [1970] 1 W.L.R. 211; [1970] 1 All E.R. 209, C.A.

Reg. v. Kelly (Francis William) [1970] 1 W.L.R. 1050; [1970] 2 All E.R. 198, C.A.

Reg. v. Martin (1972) 57 Cr.App.R. 279, C.A.

Reg. v. Miskell [1954] 1 W.L.R. 438; [1954] 1 All E.R. 137, Ct.-M.A.C.

Reg. v. Morris [1972] 1 W.L.R. 228; [1972] 1 All E.R. 384. C.A.

Reg. v. Waters (1963) 47 Cr.App.R. 149, C.C.A.

Reg. v. Withers [1975] A.C. 842; [1974] 3 W.L.R. 751: [1974] 3 All E.R. 984, H.L.(E.).

Rex v. Larkin [1943] K.B. 174; [1943] 1 All E.R. 217, C.C A.

Stirland v. Director of Public Prosecutions [1944] A.C. 315; [1944] 2 All E.R. 13, H.L.(E.).

APPEAL from the Court of Appeal.

This was an appeal by the defendant, John Thomson Stonehouse, from a decision of the Court of Appeal (Criminal Division) (Lord Widgery C.J., Waller L.J. and Ackner J.) on January 25, 1977, dismissing his appeal against conviction at the Central Criminal Court before Eveleigh J. and a jury of five counts of attempting to obtain property by deception. On January 27, 1977, the Appeal Committee of the House of Lords granted leave to appeal.

The facts, stated by Lord Diplock, were as follows: In 1974, John Thomson Stonehouse ("the accused") was a well-known public figure in this country. A Member of Parliament and a Privy Councillor, he had held a number of ministerial posts in the Government during the six years up to 1970. Thereafter he became active in business through a company. Export Promotion and Consultancy Services Ltd., which he controlled.

By the summer of 1974, his personal finances were in a disastrous state. He decided to fake his death by drowning and to start life afresh under a new identity with money dishonestly obtained and clandestinely transferred to his chosen country of refuge, Australia. He carried out

this plan, but was discovered living in Australia under his false identity some five weeks after his pretended death by drowning. He was extradited and stood his trial at the Old Bailey on an indictment charging him with 16 complete offences of dishonesty and forgery and five offences of attempting to obtain property by deception (counts 17 to 21).

The House of Lords was not concerned in this appeal with any of the charges of complete offences. The accused was convicted on thirteen of these. The House was concerned with those five counts (17 to 21) which charged him with the inchoate crime of attempting to obtain property by deception. The intended victims of the deception charges were five different life insurance companies, which had issued to Mrs. Stonehouse, the wife of the accused, policies amounting in all to �125,000 payable upon her husband's death within five years. Apart from the names of the insurers, the amounts insured and the dates on which the policies were taken out, all five counts were in identical terms and it was sufficient to refer to one of them.

"Seventeenth Count. Statement of Offence. Attempt to obtain

property by deception. Particulars of Offence.

"John Thomson Stonehouse on November 20, 1974, dishonestly attempted to enable Barbara Joan Stonehouse to obtain from the Canada Life Assurance Co. in the United Kingdom a cheque for the sum of �25,000 by deception, namely by falsely pretending that he had drowned so that the benefit payable on his death under a life insurance policy which commenced on July 10, 1974, had become payable by the said insurers."

The facts that gave rise to the charges were, stated briefly: Mrs. Stonehouse was not a party to the accused's plan. She was intended to believe that he had died by drowning. The accused intended to transfer to Australia all the money that he could lay his hands on; so upon his death being presumed, his estate would be insolvent. To provide for his wife, ostensibly his widow, after his disappearance there were taken out between July and September 1974, in Mrs. Stonehouse's name, the five policies of insurance to a total amount of �125,000 payable to her upon the death of her husband within five years. Active steps in arranging for the issue of the policies to his wife were taken by the accused himself in England. On November 20, 1974, the accused faked his death by accidental drowning in the sea off Miami in Florida, U.S.A., to which city he had gone with a business associate, ostensibly for a business meeting. He had made an appointment for such a meeting later on that day and pending this had told his companion that he was going to the beach to have a swim. When he failed to keep the business appointment, inquiries were set on foot. His clothes, valuables and passport were found to be still in his hotel room and his bath robe was found in a bathing hut on the beach. Of the accused himself there was no trace. In fact he had left Miami secretly by air, wearing a new suit of clothes which he had secreted and equipped with a false passport to conceal his identity. He eventually reached Australia and remained there undetected until December 24, 1974.

As soon as his disappearance at Miami was discovered in the circumstances summarised above, the hue and cry was raised. The police were

brought in and, as was inevitable, the circumstances of his disappearance hit the headlines in the press, and on television and radio, in England. What the accused had done ensured, as he intended, that the news of his death by drowning should be communicated in England to his wife, who, he intended, should claim the policy moneys, and to the insurance companies, who he intended should pay them over to her.

At his trial the accused was convicted on the five counts of attempting to obtain property by deception. He had discharged his counsel early in the proceedings and no point was taken at the trial that the offences were committed outside the territorial jurisdiction of the English court.

Louis Blom-Cooper Q.C. and G. R. Robertson for the appellant. The defendant was charged with attempting to obtain property by deception. The relevant enactment is section 15 of the Theft Act 1968. The certified question relates to the jurisdiction of the English courts to try the defendant on the charges laid in counts 17 to 21 of the indictment on the assumption that all the constituent elements of the crime of attempt were present, save for the fact that the only constituent physical element of the attempt, the requisite actus reus, occurred in Florida. The word "intended" in the certified question refers to the defendant's mens rea.

The English courts have no jurisdiction to try the charges in counts 17 to 21 because the offences (if they be offences under English law) were committed abroad; the one and only act constituting the crime of attempt occurred outside the jurisdiction of the English courts. The defendant did no other act. On November 20, 1974, he fabricated his death, thereby exhibiting a guilty mind, walking into the sea with the knowledge that he had taken out the policies of life insurance; the relevant knowledge was the knowledge which he had at that particular time.

The general rule is that English criminal law is applied on the basis of territoriality, namely: (a) No conduct constitutes an offence unless it occurs in the territory of England and Wales. (b) Conduct constituting an offence committed by any person within that territory is a crime, whatever the actor's nationality and status. Nationality and status have generally been irrevelant in questions of the justiciability of criminal acts: see Reg. v. Doot [1973] A.C. 807, 817, 818, 827, 833 and Cox v. Army Council [1963] A.C. 48, 67.

The principle of territoriality has invariably been applied to all inchoate crimes with a foreign element. (a) Conspiracies in England to commit a crime are not indictable here unless the contemplated crime is one for which an indictment would lie here. Conversely (b) Conspiracies abroad to commit a crime in England are not indictable unless and until some overt act is performed here in pursuance of a conspiracy; and that is because conspiracy is an offence of a continuing character and, once the overt act pursuant to the conspiracy has been committeed in England, it can be said that the conspiracy is active and being committed here: Reg. v. Doot [1973] A.C. 807, 823, 824, 825, 832, 834. The inchoate crime of attempt is not invariably an offence of a continuing character. At least in this case it is alleged only that the actus reus of attempt was committed on a single day by the act of disappearance and was then complete.

It is the obtaining of the property and the deception which must be looked at in testing the locality in relation to the crime. The enabling act must be done within the jurisdiction, i.e., the obtaining and the enabling to obtain must be done within this country: see Reg. v. Harden [1963] 1 Q.B. 8, 19-20 and Reg. v. Governor of Brixton Prison, Ex parte Rush [1969] 1 W.L.R. 165.

There are a number of cases where the courts have held that crimes with a foreign element are justiciable here, but invariably in these cases the constituent elements of the offence charged involved direct personal communication by the offender with the intended victim in England: Rex v. Oliphant [1905] 2 K.B. 67, 71-72; Reg. v. Robert Millar (Contractors) Ltd. [1970] 2 Q.B. 54, 71-72; Reg. v. Baxter [1972] 1 Q.B. 1, 10 and Reg. v. Wall [1974] 1 W.L.R. 930, 934.

Parliament may, and does occasionally, provide for an exception to the principle of territoriality. That is the ratio in Reg. v. Treacy [1971] A.C. 537, 551, 555-556, 557, 559, 564, where a majority of the House of Lords held that section 21 of the Theft Act 1968 (making an unwarranted demand with menaces) did envisage the demands being made by the posting in England of a letter to a victim abroad. The question there was a pure question of statutory construction: was the demand made when the letter was posted in the Isle of Wight? The question was not whether the offence was justiciable in England but whether the facts proved amounted to a criminal offence in England. Lord Diplock's speech suggested that Parliament can indulge in extraterritorial legislation and, since it cannot have intended any geographical limitation, the extraterritorial nature of a statutory crime can be established. But what was there said was obiter. There is no support for that view, which introduced an entirely new approach to the extraterritoriality of crime. An inchoate attempt to contravene section 15 of the Theft Act is not justiciable where the actus reus of the attempt is done abroad. The intention and the preparatory acts anterior to the actus reus of November 20, 1974 abroad are irrelevant. The defendant's conduct was abroad and no consequences flowed from it in this country.

Apart from exceptional cases for which specific provision is made, the whole body of criminal law deals only with acts committed in England: see Maxwell on Interpretation of Statutes, 12th ed. (1969), p. 173; and also Macleod v. Attorney-General for New South Wales [1891] A.C. 455, 457, 458 and Reg. v. Markus [1976] A.C. 35, 38-40, 57, 58, 61.

In testing the place of the commission of the crime, the intention of the defendant is irrelevant: see Reg. v. El-Hakkaoui [1975] 1 W.L.R. 396, 399-400.

It is concluded that the defendant's conduct relevant to this case was not just walking towards the sea at the beach; it included his telling his business associate that he might go swimming. His conduct included faking his own death as part of the fraudulent scheme which he was hatching. The representation was made to his business associate, no doubt in the expectation that he could communicate it to other people. But that was wholly done in Florida. There was no communication to anyone else. The representation was not made to the world at large. There was no communication to the intended victims of the fraud, e.g., by writing a letter.

But anything less than such a communication is not sufficient to establish justiciability in England. That is what the law is, although it may not be good, sound, social policy. In such communications telephoning or sending a telegram is not enough, nor would dictation for the Telex be enough, unless the operator was a servant or agent of the accused. An instant broadcast would be enough, but not making a recording for broadcasting. Any interval of time is crucial and the record might be withdrawn before being broadcast.

Further, the defendant might have been totally unconcerned about the insurance policies, since it was for other reasons that he wished to disappear. Though they may have been one of the factors in his mind, they were only one.

In any event, his conduct did not amount to an attempt in English law. The full offence under section 15 of the Act of 1968 is obtaining property by deception. The extended definition of the offence in section 15 (2), includes enabling another person to do so. There the property in question was the money to be obtained from the insurance companies. The necessary steps were: (1) Fabricating death by disappearance, but after that several other steps would have to be taken before anyone could get the money. (2) When the news had gone out, Mrs. Stonehouse would have to decide whether to make any claim, and till the claim was made there was no consummated offence; since she could only be enabled to obtain the money if she made a claim. The mere disappearance did not enable her to obtain the property.

The defendant may have laid out the ground by his acts on November 20, 1974, which were clearly preparatory to an attempt, but on that day they were too remote from any subsequent act of obtaining by deception (or too remote from any subsequent enabling of his wife to obtain by deception, since he could not then, and did not, equip her with the essential material to prove his death to the insurance companies' satisfaction) so as to fix him with any criminal liability.

All the authorities on the actus reus of attempt draw the distinction between an act of preparation and an act of attempt. The actus reus must be sufficiently proximate to the completion of the full crime or be immediately, and not merely remotely connected with the completed crime: Reg. v. Eagleton (1855) Dears.C.C. 515 and Davey v. Lee [1968] 1 Q.B. 366. If what was said in Rex v. Robinson [1915] 2 K.B. 342 is correct the defendant in that case had done something far more closely connected with obtaining money from insurance than had the defendant in the present case, and yet his appeal was allowed. The failure of a defendant to make an actual claim on the insurers has been held fatal to a charge of attempting to defraud: see the Law Commission's Working Paper on Inchoate Crimes, No. 50, para. 73, p. 51 and Comer v. Bloomfield (1970) 55 Cr.App.R. 305, 308 which is consistent with the reasoning in Rex v. Robinson [1915] 2 K.B. 342.

What the defendant did was only remotely, not immediately, connected with the commission of the crime in question. An invitation to an independent third person to commit a crime may amount to an incitement, but it cannot constitute at attempt: Morton v. Henderson, 1956 J.C. 55,

57. What this defendant did was at most by way of preparation but it was not criminal.

Even if there had been communication between the defendant and an innocent agent, e.g., an insurance broker, his acts would have to be of a kind that set the wheels in motion for the making of a dishonest claim.

The proximity test and its consequences have been accepted as the law. It is a fortiori where there is interposed between the preparatory act of the defendant and the making of a dishonest claim the voluntary independent act of an innocent third party. Any nexus there might be between the acts of the defendant and the victim of the fraud is broken.

Applying these principles to the facts of this case, no element amounting to an attempt in law took place either in London or Miami: (a) The defendant made certain preparations in London in July-September 1974 but these were not acts sufficiently proximate to the commission of a crime under section 15 of the Act of 1968; (b) these acts did not form part of a series of acts leading inevitably to the act done on November 20, 1974; (c) the offence under section 15 could have been completed only at the discretion of the defendant's wife in a certain way by her independent act; (d) he made no communication to her as the potential beneficiary of the insurance moneys influencing her one way or the other as to the exercise of her discretion; (e) by faking his death he did not initiate a train of events that would lead inevitably to the obtaining of the insurance moneys.

Reprehensible as his conduct might be, his act on November 20, 1974, was at most a preparation for crime. Short of his conspiring with another to contravene section 15, English law did not make his conduct a crime.

The trial judge clearly withdrew the issue of actus reus from the jury. This he should not have done. Such a matter must be left to the jury: see Reg. v. Cook (1963) 48 Cr.App.R. 98, 102; Reg. v. Smith (Roger) [1975] A.C. 476, 492; Reg. v. Vickers [1975] 1 W.L.R. 811, 815 and Joshua v. The Queen [1975] A.C. 121, 129-130.

The Court of Appeal did not need to consider the application of the proviso to section 2 (1) of the Criminal Appeal Act 1968 but if the Crown did not ask for it to be applied then, it should not do so now. It would be wrong to apply the proviso in this case, particularly since the stipendiary magistrate refused to commit the appellant on counts 17 to 21 which were restored by the Crown on indictment.

Lord Diplock intimated that their Lordships required to hear argument for the Crown on the jurisdiction point, on the question of leaving the issue of actus reus to the jury and on the application of the proviso.

D. W. Tudor Price for the Crown. It is agreed that the trial judge was in error in his summing up: see Welham v. Director of Public Prosecutions [1961] A.C. 103, 129-130. But it is not correct to say that in no circumstances can a judge withdraw an issue from the jury. Here, indeed, the judge should have left it to the jury to decide whether or not the evidence established the attempt charged, but, had he done so, they could only have given one answer. The disappearance of the defendant would inevitably have been communicated in England. It was established that he provided the evidence of his fabricated death.

Though it is normal for the Crown to ask for the application of the

proviso to section 2 (1) of the Criminal Appeal Act 1968, it is an exercise of the power of the court which it may adopt on its own initiative.

It is submitted: (1) It is well settled that a person may be indicted in England for a criminal offence committed by his agent in England notwithstanding that he was physically outside the jurisdiction at all material times.

(2) It is immaterial whether the agent is an innocent agent or a willing participant in the crime. In either case the principal may be indicted as a principal in the crime.

(3) It is immaterial whether the act or acts of attempt are performed within or outside the jurisdiction. They merely evidence the fact that he is trying to commit the crime in England.

(4) In the alternative, if the last proposition is too widely stated, there is jurisdiction to try in England any attempt to commit a crime in England where (a) any act of preparation takes place in England, or (b) the act or acts of attempt abroad have any effect in England, whether through an agent or otherwise.

For the purposes of submission (3) it is not necessary for anything to happen in England. For the purposes of submission (4) (b) the appellant's case is destroyed by the admission that on the appellant's argument a broadcast would make a defendant answerable to the jurisdiction of the English courts. Similarly if from a ramp outside the United Kingdom a missile was fired at its territory, that would be an attempt to do damage here even if the missile were brought down before it arrived: see Reg. v. Hensler (1870) 22 L.T. 691, 692.

The Law Commission's Working Paper on Territorial and Extraterritorial Extent of the Criminal Law, No. 29, deals with crimes with a foreign element. As to conduct outside a country's territory where the results may occur within the territory, see paragraph 90. As to conspiracies abroad to commit offences in England, see paragraph 95. As to attempts, see paragraph 97.

Acts done outside the jurisdiction but intended to produce effects within it are justiciable within the jurisdiction: see Simpson v. State (1893) 17 S.E.Rep. 984, 985 and Strassheim v. Daily (1911) 221 U.S. 280, 285. The common law is always developing and there is no reason why the law should not take cognisance of that intention. Contrast Board of Trade v. Owen [1957] A.C. 602, 611, 634 where the act and the ultimate object were both outside the jurisdiction.

If the theory of jurisdiction is that some substantial part of the crime must take place in England, then in the present case the part of the crime which took place in the United States is justiciable here on the ground of the preparations made in England and the information of the disappearance which was bound to be conveyed there.

Reliance is placed on Reg. v. Rogers (1877) 3 Q.B.D. 28; Reg. v. Holmes (1883) 12 Q.B.D. 23, 24 and Reg. v. Peters (1886) 6 Q.B.D. 636. In Reg. v. Ellis [1899] 1 Q.B. 230; Reg. v. Harden [1963] 1 Q.B. 8 and Reg. v. Governor of Brixton Prison, Ex parte Rush [1969] 1 W.L.R. 165 the court looked at the place where the crime was to be effected. Reg. v. Baxter [1972] 1 Q.B. 1 covers submission (4) (b).

Blom-Cooper Q.C. in reply. The charge on which the defendant was

extradicted was attempting to obtain the moneys; there was nothing about enabling Mrs. Stonehouse to obtain them. This constitutes a strong argument against applying the proviso to section 2 (1) of the Criminal Appeal Act 1968.

The United States cases cited for the Crown do not assist. They were inter-State decisions only dealing with sovereignty in a limited way. The House of Lords cannot extend the common law on this point at this stage.

Reg. v. Baxter [1972] 1 Q.B. 1 was dealing with a unitary state, the United Kingdom.

The defendant made no communication to anyone in England. All he did was done in Florida. The acts done in July and September are not criminal acts alleged against him. The only relevant acts are those of November 20, 1974.

Their Lordships took time for consideration.

June 30.LORD DIPLOCK stated the facts and referred to the conviction of the accused and continued: My Lords, on his appeal to the Court of Appeal (Criminal Division) the accused was represented by counsel who took the territorial jurisdiction point and two other points of law. They were that the acts of the accused at Miami on November 20, 1974, were not sufficiently proximate to the complete offence of obtaining property by deception to be capable in law of constituting an attempt to commit that crime; or, in the alternative, that the question whether they were sufficiently proximate was one of fact for the jury and that the judge had wrongly treated it as one of law and withdrawn that question from them.

The appeal was dismissed, but the Court of Appeal certified that the following point of law of general public importance was involved in the decision to dismiss the appeal against conviction upon counts 17 to 21:

"Whether the offence of attempting on November 20, 1974, to obtain property in England by deception, the final act alleged to constitute the offence of attempt having occurred outside the jurisdiction of the English courts, is triable in an English court, all the remaining acts necessary to constitute the complete offence being intended to take place in England."

In addition to the certified question, counsel for the accused in the appeal to this House has also relied upon the other two alternative contentions on which he was also unsuccessful in the Court of Appeal. I propose to deal first with the certified question.

The completed crime which the accused was charged with attempting to commit was that defined in section 15 of the Theft Act 1968. Since it will be necessary to analyse the constituent elements of this statutory offence I will first set out the section in full (omitting only subsection (3)):

"(1) A person who by any deception dishonestly obtains property belonging to another, with the intention of permanently depriving the other of it, shall on conviction on indictment be liable to imprisonment for a term not exceeding ten years. (2) For purposes of this section a person is to be treated as obtaining property if he obtains

ownership, possession or control of it, and 'obtain' includes obtaining for another or enabling another to obtain or to retain. ... (4) For purposes of this section 'deception' means any deception (whether deliberate or reckless) by words or conduct as to fact or as to law, including a deception as to the present intentions of the person using the deception or any other person."

Like all definitions of conduct which constitutes a criminal offence it contains expressly or by implication a description both of the acts of the accused which are the constituent physical elements of the crime (actus reus) and of his state of mind when he did them which is the constituent mental element (mens rea); but it also incorporates a requirement that the conduct of the accused must be followed by a described consequence which he intended that conduct to bring about. So in the classification suggested by Professor Gordon in his book The Criminal Law of Scotland (1967) the offence of obtaining property by deception is a "result-crime," not a mere "conduct-crime" such as blackmail under section 21 of the same Act; and is that kind of "result-crime" in which, unlike such offences as unlawful wounding or involuntary manslaughter, the described consequence must not only occur but its occurrence must also have been intended by the accused. The definition contains no reference to the place where the physical acts are done or their consequence occurs.

The physical acts of the accused that are an essential element of any offence under section 15 must amount to a "deception" i.e., the making to the person from whom the property is obtained of a representation of fact, law or intention that is false. The essential state of mind of the accused at the time of doing those physical acts is his knowledge of the falsity of the representation or his indifference as to whether it is true or false, and his intentions (1) that the false representation should be communicated to the person from whom the property is to be obtained; (2) that such person should believe the representation to be true; (3) that this belief should induce that person to part with ownership, possession or control of property to the accused himself or to some other person, and (4) that the accused himself or that other person should assume the rights of owner of the property so obtained.

Of these four intentions which must be present in the mind of the accused at the time of his physical acts which constitute the making of the false representation, the last three are directed solely to the consequences of those physical acts; so is the first in those cases in which the communication reaches the person from whom the property is to be obtained through some person, other than the accused himself, as intermediary. On the other hand, the described consequence of those physical acts which is also an essential constituent element in the "result-crime" of obtaining property by deception, although they will require physical acts to be done by the person from whom the property is obtained, do not necessarily involve the accused in doing any physical acts himself subsequent to the making of the false representation. They do if the intended consequence of the representation is that he should obtain the property for himself, for this will call for further physical acts by him in assuming the rights of an owner of the property. But if the intended consequence

is that another person should be enabled to obtain the property, any further physical acts needed to bring this consequence about may be done exclusively by that other person independently of the accused and, as in the instant case, under the influence of the same deception by the accused as induced the person from whom the property was obtained to part with it.

My Lords, the certified question is directed to an attempt to commit the crime of obtaining property by deception and not to the complete crime itself; but, apart from the case of Reg. v. Baxter [1972] 1 Q.B. 1, to which I shall refer later, there is a dearth of direct authority upon the territorial element in the jurisdiction of English courts to try inchoate offences of attempt. So I start by considering the territorial element in their jurisdiction to try the complete crime; for on this and on the corresponding offence under section 32 of the Larceny Act 1916, which has been replaced by section 15 of the Theft Act 1968, there is long-standing authority to the effect that in a "result-crime" the English courts have jurisdiction to try the offence if the described consequence of the conduct of the accused which is part of the definition of the crime took place in England.

This was called the "terminatory theory" of jurisdiction by Professor Glanville Williams in an article "Venue and the Ambit of Criminal Law" (1965) 81 L.Q.R. 518 where he contrasted it unfavourably with the "initiatory theory" that the crime is committed where the offender is when he does the acts which constitute the essential physical element of the crime. The terminatory theory has been acted on as a ground of jurisdiction since it was first laid down in Reg. v. Ellis [1899] 1 Q.B. 230, a case where the false representations were made in Scotland but the property was obtained in England. As I ventured to point out in Reg. v. Treacy [1971] A.C. 537, there is no reason in principle why the terminatory theory should have the effect of excluding the initiatory theory as an alternative ground of jurisdiction, though this was held to be so in Reg. v. Harden [1963] 1 Q.B. 8; but since in the instant case all the physical acts of the accused himself on which the prosecution rely were done in the United States, your Lordships are not concerned to consider whether Reg. v. Harden was rightly decided.

In those reported cases where the false representations have been made abroad but the property has been obtained in England, the property has been obtained by the offender himself and this has in fact involved some physical act in England by the offender or by someone else, not necessarily an accomplice but possibly an innocent agent or bailee, accepting possession or control of the property on the offender's behalf. In the instant case if the crime which the accused was charged with attempting to commit had been completed he would have enabled another person, Mrs. Stonehouse, to obtain the property, viz., the policy moneys, for herself and no further act would have needed to be done in England by the accused himself or anyone acting on his behalf. Should this make any difference? In my opinion it does not. The basis of the jurisdiction under the terminatory theory is not that the accused has done some physical act in England, but that his physical acts, wherever they were done, have caused the obtaining of the property in England from the person to whom it belonged. Whether

he has caused it to be obtained for himself through the instrumentality of an innocent agent, such as the Post Office, acting on his behalf, or has caused it to be obtained by an innocent third party cannot in my view make any difference to the jurisdiction of the English court to try the offence.

My Lords, if this be the principle upon which the English courts would have had jurisdiction to try the complete offence which the accused was charged with attempting to commit, that principle is broad enough to cover also their jurisdiction to try the inchoate offence of attempting to commit it. The accused had done all the physical acts lying within his power that were needed to comply with the definition of a complete crime justiciable by an English court; and his state of mind at the time he did them also satisfied the definition of that crime. All that was left was for him not to be found out before the intended consequence could occur. Once it is appreciated that territorial jurisdiction over a "result-crime" does not depend upon acts done by the offender in England but on consequences which he causes to occur in England, I see no ground for holding that an attempt to commit a crime which, if the attempt succeeded, would be justiciable in England does not also fall within the jurisdiction of the English courts, notwithstanding that the physical acts intended to produce the proscribed consequences in England were all of them done abroad.

Reg. v. Baxter [1972] 1 Q.B. 1 was a case where fraudulent football pool claims were posted in Northern Ireland addressed to pool promoters in Liverpool. The promoters were suspicious; they did not pay the claims and Baxter was charged with attempting to obtain property by deception. It was held that the English court had jurisdiction on what in the headnote are described as alternative grounds - (i) that the attempt was still in being when the contents of the letters containing the fraudulent claims came to light in Liverpool where they were meant to produce the intended result; or, alternatively, (ii) that when a person despatches a missive and arranges for its transport and delivery, this delivery forms an essential part of the attempt and is committed in the place where the message is delivered.

If these are not really expressing a single ground in different words, I have some doubts about ground (i). Both grounds, however, appear to treat as the foundation of territorial jurisdiction in the offence of an attempt that something should actually have happened in England as a result of the physical acts done by the offender abroad. For my part, I think there would have been jurisdiction in Baxter's case even if the fraudulent claims had been intercepted in the post while still in Northern Ireland. In the instant case, however, the acts of the accused in Florida did cause something to happen in England which was an inevitable and intended consequence of those acts, namely, the communication through the media to Mrs. Stonehouse and the insurance companies of the false representation that the accused had been accidentally drowned.

If in order to found jurisdiction it were necessary to prove that something had been actually caused to happen in England by the acts done by the offender abroad a qualified answer to the certified question would

be called for. I do not think that it is necessary. So I would answer with an unqualified "Yes."

I can deal much more briefly with the two other points of law relied on on behalf of the accused. The constituent elements of the inchoate crime of an attempt are a physical act by the offender sufficiently proximate to the complete offence and an intention on the part of the offender to commit the complete offence. Acts that are merely preparatory to the commission of the offence such as, in the instant case, the taking out of the insurance policies are not sufficiently proximate to constitute an attempt. They do not indicate a fixed irrevocable intention to go on to commit the complete offence unless involuntarily prevented from doing so. As it was put in the locus classicus Reg. v. Eagleton (1855) Dears.C.C. 515, 538:

"The mere intention to commit a misdemeanour is not criminal. Some act is required, and we do not think that all acts towards committing a misdemeanour are indictable. Acts remotely leading towards the commission of the offence are not to be considered as attempts to commit it, but acts immediately connected with it are; ..."

In other words the offender must have crossed the Rubicon and burnt his boats.

In the instant case I have pointed out, the accused by November 20, 1974, had done all the physical acts lying within his power that were needed to enable Mrs. Stonehouse to obtain the policy moneys if all had gone as he had intended. There was nothing left for him to do thereafter except to avoid detection of his real identity. That was the day on which he crossed his Rubicon and burnt his boats.

In my opinion it is quite unarguable that, given the necessary intention, those acts were not sufficiently proximate to the complete offence of obtaining property by deception to be capable in law of constituting an attempt to commit that offence. On the contrary they clearly do constitute such an attempt in law. At the trial indeed the judge so regarded the matter. He directed the jury in the following terms:

"We now come to counts 17 to 21, attempting to obtain property by deception. An attempt really means trying to, and these charges seek to establish that he falsely staged his death by drowning, dishonestly intending that Mrs. Stonehouse should claim and obtain the money, in due course. That is what has to be proved, and I will say it once more, that he falsely staged his death by drowning, dishonestly intending that Mrs. Stonehouse should make a claim and obtain the money in due course."

So he did not leave it to the jury to decide whether the acts of the accused in Florida on November 20, 1974, were sufficiently "proximate" to constitute an attempt.

The Court of Appeal took the view, which I understand is shared by all your Lordships, that what the accused did on November 20, 1974, was so obviously sufficiently proximate to constitute an attempt that no reasonable jury could have any doubt about it; a contrary finding could only be Perverse. The Court of Appeal held that in those circumstances

it was proper for the judge to tell the jury that if the facts alleged were proved they should find the accused guilty of the attempt charged. With this I agree.

A summing up is not meant to incorporate abstract disquisitions on the general law relating to the offence with which the accused is charged. It ought to be tailored to the evidence that has been adduced in the particular case. It should explain to the jury what facts they must find to be established by the evidence and, where appropriate, what opinion they must form about those facts, in order to justify in law their bringing in a verdict of guilty or not guilty. To do more than this, to invite the jury to consider as if it were an open question one to which in common sense and law there can only be one possible answer, runs the risk of confusing the minds of those who are not lawyers.

My Lords, there is a risk of confusion even in the minds of lawyers themselves as to the respective functions of judge and jury in a criminal trial, if we classify as questions of law all those matters which it is for the judge to decide, and as questions of fact all those matters which he must leave to be decided by the jury. It is well settled now that on a trial for an attempt to commit a complete offence it is a question for the judge to decide whether there is any evidence which if accepted by the jury would establish that acts had been done by the accused that were sufficiently proximate to the complete offence to constitute an attempt to commit it: Reg. v. Cook (1963) 48 Cr.App.R. 98. One way of explaining the allocation of this question to the judge and not the jury is that it is a question of interpretation of the definition of the inchoate offence at common law of an "attempt," and can thus be properly classified as a question of law. Would those acts, if established, conform to the definition? Logically this would lead to the conclusion that it was for the judge, and not the jury, to decide not only what acts would not conform to the definition but also what acts would; but it is well settled that this is not so.

There are some crimes whose definition incorporates as a constituent element a concept which is imprecise in that it involves some matter of degree upon which opinions of reasonable men may differ and as to which the legal training and experience of a judge does not make his opinion on the matter more likely to be right than that of a non-lawyer. Under our system of trial by jury the question whether the facts proved conform to such a concept is one for the jury despite its involving interpretation of the definition of a crime; because, it being a matter on which opinions may reasonably differ, an opinion that is shared by at least ten jurors is thought to be more reliable than that of a single judge. In the crime of attempt the concept of proximity between the acts of the accused and the complete offence that he intended to commit involves this kind of imprecision; but the imprecision is limited in its range. At one extreme it can be said that the particular acts proved are so remote from the complete offence that no reasonable person could regard them as sufficiently proximate to conform to the definition of an attempt; at the other extreme it can be said that they are so immediately connected with it that no reasonable person could regard them as not conforming to the definition of an attempt.

In directing the jury that the only acts of the accused of which there is evidence are outside the range of proximity which any reasonable person could regard as conforming to that concept as a constituent element in the common law offence of attempt, the judge is exercising his responsibility as controller of the trial to prevent its resulting in a perverse verdict which would call for correction by the Court of Appeal under section 2 (1) (a) of the Criminal Appeal Act 1965. If the acts of the accused lay beyond the other extreme of the range of proximity within which any reasonable person could doubt that they conformed to that concept as a constituent element in the offence of attempt, a verdict of acquittal on the ground that the acts of the accused were not sufficiently proximate would also be perverse.

When in either case any opinion to the contrary would be equally perverse, why if the judge is bound to tell the jury that particular acts of the accused are so remotely connected with the intended offence that they do not amount in law to an attempt to commit it, should the judge be forbidden to tell the jury that particular acts of the accused, if established, are so closely connected with the offence that they do amount in law to an attempt to commit it?

It has been suggested by counsel for the prosecution that the difference lies in the accused being entitled to be protected against being convicted on a verdict that is perverse but is entitled to his chance of a perverse verdict of acquittal. This cynical view of justice and the jury system is inconsistent with the test applied by the Court of Appeal under the proviso to section 2 (1) of the Criminal Appeal Act 1968 in deciding to uphold a conviction, notwithstanding that the trial judge has made an error in summing up, on the ground that no substantial miscarriage of justice has actually occurred as a result of his error.

That test has been repeatedly stated to be: "that no reasonable jury after a proper summing up could have failed to convict." It has the approval of your Lordships House in Stirland v. Director of Public Prosecutions [1944] A.C. 315, 321 where Viscount Simon L.C. had this to say in relation to the possibility of a jury being perverse:

"A perverse jury might conceivably announce a verdict of acquittal in the teeth of all the evidence, but the provision that the Court of Criminal Appeal may dismiss the appeal if they consider that no substantial miscarriage of justice has actually occurred in convicting the accused assumes a situation where a reasonable jury, after being properly directed, would, on the evidence properly admissible, without doubt convict."

My Lords, it must be very rarely upon an issue such as the issue of proximity in attempt, which involves not only the determination by the jury of what physical facts have been established beyond reasonable doubt but also their forming an opinion on matters of degree, that the judge is in a position at the time of his summing up to be certain that any decision that the acts of the accused were not sufficiently proximate to the offence that he intended to commit, could only be perverse.

For my part I think that the instant case was one of those rare cases. So did the Court of Appeal; and so do those of your Lordships who,

although you consider that the judge should have left this issue to the jury are nonetheless in favour of applying the proviso. There could have been no complaint of the judge's summing up on this particular issue if he had stated the law to the jury, quoting from Reg. v. Eagleton, Dears.C.C. 515, 538:

"Acts remotely leading towards the commission of the offence are not to be considered as attempts to commit it, but acts immediately connected with it are"

and then gone on to tell them that if they considered certain facts to be established although the question whether they were immediately connected with the intended offence was for them to answer, in his own opinion there was only one possible answer; any other would be perverse.

My Lords, in this very exceptional case I agree with the Court of Appeal that it was not necessary for the judge to go through any such rigmarole as that. At best the jury would see no point in it: at worst it would risk confusing them. In my view what he said was quite sufficient in all the circumstances of the instant case.

I would dismiss this appeal.

VISCOUNT DILHORNE. My Lords, Mr. Blom-Cooper for the appellant submitted that the conduct of the appellant in Miami on November 20, 1974, when he falsely represented that he had met his death by drowning did not amount to an attempt by that deception to enable his wife to obtain moneys from insurance companies which had issued policies on his life; secondly, that that conduct was outside the jurisdiction of the courts of England and was not justiciable here; and, thirdly, that the trial judge had not left it to the jury to decide but had decided himself that there was an attempt.

With regard to the first submission, Lord Reading C.J. delivering the judgment of the Court of Criminal Appeal in Rex v. Robinson [1915] 2 K.B. 342 said that a safe guide as to what constituted an attempt was to be found in the statements of the law laid down by Parke B. in Reg. v. Eagleton, Dears.C.C. 515, 538, as follows:

"The mere intention to commit a misdemeanour is not criminal. Some act is required, and we do not think that all acts towards committing a misdemeanour are indictable. Acts remotely leading towards the commission of the offence are not to be considered as attempts to commit it, but acts immediately connected with it are; ..."

A similar view was expressed in Davey v. Lee [1968] 1 Q.B. 366 and, while there is not infrequently difficulty in applying this principle to the facts of a particular case: see Comer v. Bloomfield (1970) 55 Cr.App.R. 305, I do not think that there is any difficulty in applying it in the present case. Stonehouse's conduct was not a step preparatory to the commission of a crime but part of its execution. Indeed apart from concealing the fact that he had not died, that was all he had to do towards the commission of the full offence. In these circumstances there is no room for any other conclusion than that by such conduct with that intent he was guilty of an attempt.

Mr. Blom-Cooper's third submission raises a question of some importance and difficulty. In the course of his summing up, Eveleigh J. told the jury:

"An attempt really means trying to, and these charges seek to establish that he falsely staged his death by drowning, dishonestly intending that Mrs. Stonehouse should claim and obtain the money in due course. That is what has to be proved, and I will say it once more, that he falsely staged his death by drowning, dishonestly intending that Mrs. Stonehouse should make a claim and obtain the money in due course.

A little later he said:

"There is an attempt by the accused within the legal meaning of that word 'attempt' if you are satisfied that the matters I have stated to you are proved. I am going to repeat that, that he falsely staged his death by drowning, dishonestly intending that a claim should be made and the money obtained in due course, sooner or later."

In the Court of Appeal Lord Widgery C.J. delivering the judgment of the court said:

"The novelty of that form of direction ... was that the judge is really pre-empting the jury's decision, and he is saying: ... 'As a matter of law, I direct you that if the conduct of Stonehouse is proved, and you are satisfied with the conditions I am laying down, then an offence has been committed.'"

The court, however, held that the learned judge did not err in giving that direction, and my noble and learned friend, Lord Diplock, whose speech I have had the advantage of reading in draft, agrees with that conclusion.

It is the function of the jury and of the jury alone to decide all questions of fact. It is the task of the judge and his duty to rule on all questions of law and to direct the jury as to the law. I should indeed be sorry to see the line between their respective functions blurred. Here the judge did not tell them that the conduct and intent alleged were proved. If he had, he would indeed have been usurping the functions of the jury but he did tell them that there was an attempt within the legal meaning of that word if they found that conduct and intent proved.

In Joshua v. The Queen [1955] A.C. 121 the Privy Council did not find it necessary to decide whether apart from conspiracy cases, there was any common law offence of effecting a public mischief (a question now decided in Reg. v. Withers [1975] A.C. 842), but held that it was a misdirection to tell the jury as a matter of law that they must convict the appellant of effecting a public mischief if they found that he spoke the words alleged. In Reg. v. Withers I ventured to point out that the inclusion of the expression "public mischief" in criminal charges introduced a wide measure of uncertainty. It was for the jury to decide not only whether the words were spoken but also whether speaking them amounted to a public mischief. As to that there was certainly room for more than one

opinion and so it was wrong for the trial judge not to leave that question to the jury.

In Reg. v. Cook (1963) 48 Cr.App.R. 98 the accused was charged with another with attempting to take and drive away a car without the owner's consent. The deputy chairman directed the jury that all the prosecution had to prove was that they had got into the car with the idea of driving it away. No direction was given as to what in law can constitute an attempt and Lord Parker C.J. pointed out that he had in effect withdrawn the matter from the jury and ruled as a matter of law that the mere getting into the car with that intention constituted an attempt. Again there was room for two possible views, one, that merely getting into the car with that intent was not an act sufficiently proximate to the commission of the crime to constitute an attempt and the other that it was; and that was a question for the jury to decide.

These two decisions and the observations of Scarman L.J. in Reg. v. Vickers [1975] 1 W.L.R. 811 lend support to Mr. Blom-Cooper's submission that the decision of the Court of Appeal on this was wrong. If it was, then it is in my opinion a clear case for the application of the proviso to section 2 (1) of the Criminal Appeal Act 1968 for no miscarriage of justice has occurred.

I do not, however, think that the Court of Appeal was wrong for there was in this case no room for any other conclusion than that if the conduct and intent alleged were proved, it constituted an attempt. The jury could have returned a special verdict finding that conduct and intent proved. If they had done so, it would have been the judge's duty to decide whether or not that constituted an attempt. If in the opinion of the Court of Appeal, he then came to a wrong conclusion, instead of allowing the appeal, that court could substitute its own conclusion and pass such sentence in substitution for the sentence passed at the trial as might be authorised by law (Criminal Appeal Act 1968, section 5).

In Reg. v. Dudley and Stephens (1884) 14 Q.B.D. 273 the jury returned a special verdict finding many facts and ending with saying that they were ignorant of whether the killing was murder and seeking the advice of the court thereon. If the killing was murder, they said that the accused were guilty. The assizes were adjourned from Devon and Cornwall to the Royal Courts of Justice where the matter was considered by five judges who were unanimous in holding that the accused were guilty of murder. They were sentenced to death, a sentence later commuted.

This case is in my opinion clear authority for saying that if the jury in the present case had returned a special verdict finding the conduct and intent alleged proved, the judge would have been entitled to rule that that amounted to an attempt and entitled to direct the jury to return a verdict of guilty.

It would be highly anomalous if a judge were so entitled if the jury returned such a special verdict and not entitled to tell them that such conduct and intent would come within the legal meaning of "attempt" in the course of his summing up and before they reached conclusions on the evidence.

In Reg. v. Smith (Roger) [1975] A.C. 476, 496 my noble and learned friend, Lord Hailsham of St. Marylebone L.C., said:

"At the end of the day there must be a question of fact for the jury. The judge may direct them what facts, if established, could constitute an attempt, or would be evidence of an attempt. The jury alone can decide whether there was an attempt."

Here the jury were not told that the conduct and intent could constitute an attempt. They were told that it would. The jury's verdict showed that they found that conduct and intent proved. There was not in my opinion room for more than one conclusion on their so finding. If there had been, such a direction would have been wrong. A conclusion on that conduct and intent being established that there was no attempt would have been perverse and in my view a direction as to what in law amounted to an attempt, distinguishing between preparatory acts and acts amounting to an attempt would have served no useful purpose. I agree with the Court of Appeal in thinking that it would have been very confusing.

So, in my opinion, for the reasons I have stated the learned judge did not err in an otherwise impeccable summing up in directing the jury as he did. I desire to emphasise that such a direction is only permissible in exceptional cases such as this, where the only possible conclusion on the facts found which was not perverse was that proof of the conduct and intent alleged amounted to proof of an attempt.

The question certified, to which Mr. Blom-Cooper's second submission relates, is also of some difficulty. If it had not been discovered that the appellant was alive and, in consequence of his false representations, the cheques had been obtained from the insurance companies, the full offences of obtaining property by deception would have been committed and there is no doubt that if Stonehouse had been found after the cheques had been given, he could have been tried in England for the substantive offences. It would have been no answer for him to have said that his false representations were made outside the jurisdiction of the English courts: see Reg. v. Ellis [1899] 1 Q.B. 230; Reg. v. Markus [1976] A.C. 35. I see no reason for doubting the correctness of the decision in Reg. v. Harden [1963] 1 Q.B. 8 if it was in that case right to conclude that the cheques were obtained in Jersey. In that case the false pretences were made in England to a company in Jersey. The court in that case held, in my view correctly, following Reg. v. Ellis [1899] 1 Q.B. 230, that the gist of the offence lay in the obtaining, and as that in their view had occurred outside the jurisdiction, the convictions were quashed. It was not suggested in that case that the making of the false pretences in England gave the English courts jurisdiction. I doubt, however, whether it was right to hold that the jurisdiction of the English courts in respect of criminal offences depended on the narrow ground that the Post Office was the agent of the maker of the false pretences to obtain on his behalf the fruits of his fraud. Neither he nor the company in Jersey are likely to have considered or contemplated that the Post Office was acting as agent for one or other of them. The Post Office was just the vehicle for the transmission of the false pretences and the fruits of the fraud.

I can find no authority for the proposition that the English courts have jurisdiction in a case where the false pretences were made in this country and the obtaining of goods or money in consequence thereof occurred

outside the jurisdiction. That the law might have so provided and that Parliament might make that the law, I acknowledge but I do not think that it is the law now.

However this may be, it is not necessary to reach a decision on that now. The false representations were made in Miami with the object of leading the insurance companies to believe that he had died and of enabling his wife to obtain the sums for which his life was insured. If false representations had been made by him by post while in Miami with a view to obtaining goods or money in England, there is no doubt that the English courts would have had jurisdiction to try him for attempting to obtain property by deception: see Reg. v. Baxter [1972] 1 Q.B. 1. Does it make any difference that they were not so communicated and that the communications of the false representations as to his death were not made by Stonehouse? I think not. The object of staging his death was that insurance companies should be led to believe him dead. He must have known that news of his death would receive the widest publicity. They were representations to the world but intended to be acted on and believed in England. Knowing that they were bound to be communicated to England and that being his object, I do not think that the fact that he made no communication himself is of any significance in relation to the question of jurisdiction.

In my opinion the courts of England had jurisdiction to try him for these offences and for the reasons I have stated, I would dismiss this appeal.

LORD SALMON. My Lords, during the summer of 1974 the appellant arranged with each of five insurance companies in England to issue a policy of insurance on his life. Each policy was taken out in his wife's name and stipulated that if he died within five years after the date of the policy his wife would receive the amount for which the policy covered his life. On his death his widow would receive in all the sum of �125,000 under these five policies.

On November 19, 1974, the appellant flew to Miami Beach, Florida, in the United States of America, with a business associate Mr. Charlton. On November 20, 1974, the appellant told Mr. Charlton and others that he was going for a swim in the ocean and arranged to meet Mr. Charlton in the evening at 7 p.m. The appellant failed to keep the appointment and after waiting for him for a considerable period in vain, Mr. Charlton became alarmed. A thorough search was made for the appellant. He was not in his hotel room, but his clothes, valuables and other belongings, including his passport, were found there. In the beach hut which the appellant had used, presumably to change into his swimming shorts, were found his beach clothes. But there was no sign of the appellant anywhere. It appeared that he must have been drowned perhaps because of a heart attack or severe cramp whilst swimming far out at sea. Accidents of this kind are by no means infrequent. The whole mise en scene had obviously been set up by the appellant to make it appear that he must have died by drowning. Since the appellant was a well-known Member of Parliament and former Cabinet Minister, and also prominent in the business world, the news of his disappearance and probable death by drowning was soon blazoned all over

the world, especially in England, by the press, radio and television - just as the appellant must have known it would be. In fact he had gone off with two false passports, each bearing a different false name, to Australia, where a few weeks later he was arrested and subsequently extradited to England. He was then prosecuted at the Central Criminal Court on an indictment containing 21 counts, on 18 of which he was convicted and sentenced to seven years' imprisonment in all. Your Lordships are concerned only with counts 17 to 21, on each of which the appellant was convicted and sentenced to six years' imprisonment to run concurrently. Each of these counts was brought under section 15 of the Theft Act 1968.

As each of these counts was in identical language except for the name of the insurance company to which it related, the date of the policy of insurance and the amount insured, it is necessary for me to recite only one count. [His Lordship read count 17 and continued:] His application for leave to appeal was dismissed by the Court of Appeal (Criminal Division). [His Lordship stated the point of law certified to be of general public importance and continued:] In my opinion it is obvious from the facts I have recited that the appellant intended to enable and attempted to enable his wife to obtain from the insurers in England the sums payable on his death under the five life insurance policies to which I have referred. I wish to make it plain that it has never been suggested that his wife was in any way involved in her husband's dishonesty. She, no doubt, was hoping against hope that he might still be alive and never made any claim against any of the insurers. If he had evaded detection his plot would have been successful. Even though, in law, death is not presumed until a disappearance of seven years' duration, it seems likely to me that after two or three years or so, the highly reputable insurers would have paid the amounts insured to the "widow," and the attempt with which the appellant was charged would have succeeded.

The chief points made by counsel for the appellant were, (1) that no attempt had been proved but only preliminary steps in preparation to commit an offence under the Act, and, (2) that if an attempt to commit an offence under section 15 was made, it was made abroad, namely in Miami, and therefore the courts of this country had no jurisdiction to try the appellant for that attempt.

As to (1). There is great deal of authority relating to what does and what does not constitute an attempt to commit an offence. It is, however, necessary only to refer to Reg. v. Eagleton, Dears.C.C. 515, 538 in which Parke B. in a celebrated passage lays down the guiding principle in deciding whether or not an attempt has been made.

"The mere intention to commit a misdemeanour is not criminal. Some act is required, and we do not think that all acts towards committing a misdemeanour are indictable. Acts remotely leading towards the commission of the offence are not to be considered as attempts to commit it, but acts immediately connected with it are; ..."

It follows that mere preparatory steps towards committing a crime do not constitute an attempt. An attempt consists, in addition to a guilty intention, of an overt act or series of acts which if not interrupted would have constituted the actual commission of the complete offence. As a matter of

ordinary common sense, it seems crystal clear to me that the acts committed by the appellant in Miami were an attempt to commit the crime with which he was charged; they would no doubt have had the result which the appellant intended, namely the commission of the complete offence in that they would have enabled the appellant's wife to obtain payment from the insurers of the sums for which the appellant's life was insured, but for their frustration by his detection and arrest shortly after the attempt of which he was convicted was made.

As to (2). This argument on behalf of the appellant is based on the well-established principle that crime is generally regarded as territorial, i.e., punishable only in the jurisdiction in which it is committed. For example whilst A and B are both in the U.S.A., A robs B (an English subject); if A subsequently comes to the U.K. he cannot be prosecuted here for that crime. The Theft Act 1968 could not be construed so as to cover it. No doubt it might have been framed so as to cover such an offence, for Parliament is omnipotent. But it would have needed express words to achieve such a result (Reg. v. Treacy [1971] A.C. 537 per Lord Reid at p. 551) which might well be regarded as a breach of the comity of nations.

Difficulties, however, arise when crimes have an international flavour, e.g., when A does an act in the U.K. which is intended to and perhaps does defraud B outside the U.K. and vice versa. Reg. v. Treacy is an example of the former type of case. Your Lordships' House by a majority, with which I respectfully agree, decided that the accused made his demand for money with menaces when he posted that demand in the U.K. to an intended victim in Germany. In the ordinary use of language, I think that anyone in the position of the accused when asked whether he had made a demand, if he answered truthfully and naturally, would answer "Yes, I made my demand when I posted the letter."

In Reg. v. Baxter [1972] 1 Q.B. 1, the accused was charged with attempting to obtain money by deception. Whilst in Northern Ireland he had posted letters to pool promoters in England falsely pretending that he was entitled to prizes. He was convicted on the basis that he had committed a crime in England when the pool promoters opened his letters; and his appeal was dismissed in the Court of Appeal. At first sight this decision may perhaps seem difficult to reconcile with Reg. v. Treacy [1971] A.C. 537. In the former case the offence was held to have taken place in the country where the letters were posted; in the second, in the country where the letter was opened and read. I think that the answer to any apparent discrepancy between the cases is that in Treacy's case the accused could no doubt also have been convicted in Germany (if the relevant German law is the same as our own) and that in Baxter's case the accused could also have been convicted in Northern Ireland. When he posted the letters in Ireland he was, in my opinion, clearly doing something more than taking preliminary steps towards committing an offence. He was in fact doing proximate acts which constituted an attempt to cheat the pool promoters. This however was a continuing attempt because the accused was responsible for causing the letter to reach the pool promoters in England and to be opened and read by them there. This he accomplished through the post which carried his letters on his behalf. The doctrine of

qui facit per alium facit per se is just as applicable in the criminal law as it is in the civil law. I agree with Lord Alverstone C.J. when in Rex v. Oliphant [1905] 2 K.B. 67 he said, at p. 72:

"I am unable to draw any distinction between sending information by post or by telephone and giving the same information by direct personal communication in London."

In the instant case it was admitted on behalf of the accused that he would have been guilty of an offence under section 15 if he had written to his wife to inform her that he was about to swim far out to sea taking a risk that he might be drowned and reminding her that if he were drowned she would be entitled to be paid and should make a claim under the life insurance policies. But there was no need for him to write such a letter. The natural and inevitable consequence of his acts, which he must have known and indeed intended, was that the news of his apparent death by drowning was spread over the front pages of most of our newspapers and featured prominently on the radio and television. This news thus reached his wife much more certainly and quickly than any letter which he might have written her: and naturally reached the insurers also. He made the media his innocent and unwilling agents to inform his wife and the insurers in London of his death by drowning. And the imparting of this information was undoubtedly an essential part of his attempt dishonestly to enable his wife to recover the insurance money.

For these reasons I am satisfied that the questions formulated by the Court of Appeal should be answered in the affirmative.

I would only add on this part of the case that although I am aware that distinguished academic writers have placed some importance on what they describe as the "terminatory theory" and the "initiatory theory" of jurisdiction, I doubt whether these esoteric classifications are of any practical utility in deciding the present or any other case. The criminal law should remain as simple as possible so that it can be readily understood by a jury. I would not envy the task of a trial judge who had to attempt to explain these two concepts to a jury who might well regard them as two pieces of legal jargon beyond their comprehension. For my part I do not think that either classification is necessary to explain the decision in Reg. v. Ellis [1899] 1 Q.B. 230; in that case the defendant carried on business in England. On a visit to Glasgow he made representations which he knew to be false to a trader in that city in order to obtain certain goods from him. The Glasgow tradesman, relying on those representations delivered the goods to the defendant in England. Hawkins J. said, at p. 240, a false representation made to a tradesman,

"... with the object fraudulently to obtain goods ... must, according to every dictate of good sense, be intended by the maker of it to operate on ... the mind of the tradesman until the goods are actually obtained from him, and [the defendant] by his conduct in obtaining the goods ... ought ... to be treated as having repeated his representations quite as effectually as if he had again put them into words."

It followed that although the false pretence had originally been made in Scotland it continued until the moment when, as a result of it, the goods

were delivered in England. Accordingly the defendant was triable in England, the false pretence and the obtaining of the goods having both occurred there.

Reg. v. Doot [1973] A.C. 807 concerned a common law conspiracy hatched in the U.S.A. Although it turned on the jurisdiction of our courts to try the conspirators, I doubt whether it offers much assistance in the present case, because for the reasons I attempted to explain in Doot'scase I regard conspiracy as sui generis so far as jurisdiction is concerned.

Counsel for the appellant complains that the judge misdirected the jury in telling them,

"There is an attempt by the accused within the legal meaning of that word attempt if you are satisfied that the matters I have stated to you are proved. I am going to repeat that, that he falsely staged his death by drowning, dishonestly intended that a claim should be made and the money obtained in due course, sooner or later."

The criticism of that passage was that the judge should have explained to the jury the legal meaning of an attempt and directed them that if they were satisfied beyond a reasonable doubt that the facts proved established the attempt charged, then they should find the accused guilty, otherwise they should acquit him. I agree with that criticism. So did counsel for the Crown who conceded that there had been the technical misdirection of which counsel for the appellant had complained.

The learned judge conducted this trial lasting 70 days with outstanding ability and patience. The direction complained of came towards the end of a most fair, accurate and lucid summing up. It concerned a matter which was as plain as a pikestaff. No reasonable jury could have failed to find that the facts proved clearly established the attempt charged and convicted the appellant accordingly. It has never been suggested that when the appellant faked his death, he may not even have been giving his wife a thought and did what he did do solely to escape from being arrested and charged with the 13 other counts to which he had no defence and of which he was convicted.

Anyone in the judge's position might easily have made the slip which he did of not leaving the jury to decide whether the facts proved amounted to the attempt charged. However obvious it may be that they did and that the accused was guilty, technically, the judge should still have left it to the jury to decide whether or not the evidence established the attempt charged and to have found him guilty or not guilty accordingly. The technical slip on the part of the judge certainly made no difference to the result of the trial. There is no possibility that any reasonable jury could have had the slightest doubt that the facts proved did establish the attempt charged and accordingly would certainly have brought in a verdict of guilty. I am completely satisfied that no miscarriage of justice could have resulted from what technically was a misdirection and that therefore the proviso to section 2 (1) of the Criminal Appeal Act 1968 should be applied.

With the greatest respect to my noble and learned friends, Lord Diplock and Viscount Dilhorne and the Court of Appeal, I am afraid that I cannot agree with their views on this aspect of the case. Whilst there is no doubt

that if a judge is satisfied that there is no evidence before the jury which could justify them in convicting the accused and that it would be perverse for them to do so, it is the judge's duty to direct them to acquit.

This rule, which has long been established, is to protect the accused against being wrongly convicted. But there is no converse rule - although there may be some who think that there should be. If the judge is satisfied that, on the evidence, the jury would not be justified in acquitting the accused and indeed that it would be perverse of them to do so, he has no power to pre-empt the jury's verdict by directing them to convict. The jury alone have the right to decide that the accused is guilty. In an appropriate case (and this was certainly such a case) the judge may sum up in such a way as to make it plain that he considers that the accused is guilty and should be convicted. I doubt however whether the most effective way of doing so would be for the judge to tell the jury that it would be perverse for them to acquit. Such a course might well be counter-productive.

In the present case, I think it would have been far more effective if the judge, after reciting what the appellant had done in Miami on November 20, 1974, had reminded the jury of the argument that such acts were not sufficiently proximate to constitute an attempt by deception to enable the appellant's wife to obtain payment under the life policies but were merely preparatory to such an attempt and then added: "Well members of the jury, if such acts do not constitute such an attempt you may find it difficult to imagine any acts which would."

I should perhaps add, since it has been necessary to deal with this aspect of the case, that when a summing up in favour of a conviction is called for, the judge should be particularly careful to put to the jury all the points made by the defence and also say something to the effect that:

"You may conclude from what I have said about the facts that I have formed a certain view about this case. You must however remember that it is your views about the facts which count - not mine. If your views turn out to be different from what you think mine may be, it is not only your right but also your duty to give effect to your own views.

My Lords, I would dismiss this appeal.

LORD EDMUND-DAVIES. My Lords, the facts giving rise to this appeal have already been set out in the speech of my noble and learned friend, Lord Diplock, and I shall not repeat them in any detail.

In his clear and able address, learned counsel for the appellant made three submissions: first, that no English court had jurisdiction to try the accused on the five charges contained in counts 17 to 21 which are the subject of this appeal; secondly, that the action of the accused particularised in each count did not constitute the offence charged; and, thirdly, that the jury were misdirected in a manner fatal to the upholding of any of the convictions on those counts. I proceed to consider each of these submissions in turn.

(1) Justiciability

Between July and September 1974, in this country the accused, a prominent politician who was already in financial difficulties, arranged in favour of his wife insurance cover on his life with five English companies to the total sum of �125,000. Shortly thereafter, he dishonestly gained possession of the birth certificates of two deceased men and, by means of false declarations, secured passports bearing their names but carrying his photographs. On November 19 he flew to Miami, Florida, with Mr. Charlton, a business associate. The next day he parted from Mr. Charlton with the remark that he would probably have a swim and arranged a meeting for that evening. The appointment not having been kept, a search was made, the accused's clothing was found on the beach, the local police were informed and it was thought that the accused had probably met his death by drowning. The news was immediately communicated to Mrs. Stonehouse in England and very naturally soon received the widest publicity. On December 12, 1974, her solicitors wrote to each of the five insurance companies, advising them that they were acting for her and were not yet in a position to submit a formal claim under the policy issued by them, and seeking an appointment to discuss the matter. But developments were halted when, on December 24, the accused (who had flown from Miami to Mexico on November 20, and thence to Australia) was recognised and arrested in Melbourne. On the basis of the foregoing facts, counts 17 to 21 in the indictment each charged the appellant with an attempt to obtain property by deception, and in count 17, which is typical of the following four counts, the particulars were that the accused,

"... on November 20, 1974, dishonestly attempted to enable Barbara Joan Stonehouse to obtain from Canada Life Assurance Company in the United Kingdom a cheque for the sum of �25,000 by deception, namely by falsely pretending that he had drowned so that the benefit payable on his death under a life insurance policy which commenced on July 10, 1974, had become payable by the said insurers."

The first submission of Mr. Blom-Cooper may be shortly stated: As Viscount Simonds said in Cox v. Army Council [1963] A.C. 48, 67:

"... apart from those exceptional cases in which specific provision is made in regard to acts committed abroad, the whole body of the criminal law of England deals only with acts committed in England."

And in relation to the very statute, the Theft Act 1968, which this appellant was charged with attempting to violate, Lord Reid said in Reg. v. Treacy [1971] A.C. 537, 551:

"It has been recognised from time immemorial that there is a strong presumption that when Parliament, in an Act applying in England, creates an offence by making certain acts punishable it does not intend this to apply to any act done by anyone in any country other than England."

The only act of the accused alleged in counts 17 to 21 to constitute the offence charged was that of "falsely pretending that he had drowned." Treating the accused's action as a representation by conduct, it was one

made in the United States of America and not in the United Kingdom. Counts 17 to 21 were accordingly not justiciable in this country.

This submission was rejected by the Court of Appeal, who refused leave to appeal but certified as a point of law of general public importance the following question:

"Whether the offence of attempting on November 20, 1974, to obtain property in England by deception, the final act alleged to constitute the offence of attempt having occurred outside the jurisdiction of the English courts, is triable in an English court, all the remaining acts necessary to constitute the complete offence being intended to take place in England."

It appears that the Court of Appeal were led to regard the question as calling for an affirmative answer largely in the light of the important decision in Reg. v. Baxter [1972] 1 Q.B. 1, where it was held that attempts to obtain property by deception by means of false claims posted in Northern Ireland and delivered to pools promoters in Liverpool were triable in this country. Sachs L.J. cited with approval at p. 11 what he rightly described as the "admirably compact ruling" given by the learned Recorder of Liverpool (Judge Lyons) that,

"Whenever the defendant posted one of his fraudulent letters in Northern Ireland he set in motion a train of events for which he was solely responsible, the transportation of the letter to Liverpool and its delivery to and reading by the addressee. The reality of the situation is that the misrepresentations were designed to be made in England and were made there by the defendant's use of the post."

But on behalf of this appellant it is stressed that in Reg. v. Baxter the accused had himself posted the fraudulent letters and they had reached their destination, whereas here the appellant despatched no communication to this country to advance his wife's entitlement to the insurance moneys. It is said, too, that our case law establishes that jurisdiction to try in this country offences of obtaining by false pretences depends upon whether the obtaining occurred here, in which event our courts may try them even though the false pretence or deception was made outside the jurisdiction: see Reg. v. Ellis [1899] 1 Q.B. 230, Reg. v. Harden [1963] 1 Q.B. 8 and Reg. v. Markus [1976] A.C. 35. Reliance was also placed upon the absence of any decision that a conspiracy (like attempts, an inchoate offence), entered into abroad but aimed at this country, is indictable here if no overt acts have been committed in the United Kingdom; and it has to be observed that in Reg. v. Doot [1973] A.C. 807, Lord Wilberforce at p. 818E-F and Lord Salmon at p. 833D-E were at some pains to point out that they expressed no view regarding justiciability in those circumstances.

But jurisdiction to try persons in this country in respect of acts committed abroad rests upon the international rules of comity. As my noble and learned friend, Lord Diplock, said in Reg. v. Treacy [1971] A.C. 537, 561G:

"It would be an unjustifiable interference with the sovereignty of other nations over the conduct of persons in their own territories if

we were to punish persons for conduct which did not take place in the United Kingdom and had no harmful consequences there."

On the other hand, it is difficult to see how international comity would be threatened were our courts to adopt the view expressed by Holmes J. in Strassheim v. Daily (1911) 221 U.S. 280, 285 that:

"Acts done outside a jurisdiction, but intended to produce and producing detrimental effects within it, justify a state in punishing the cause of the harm as if he had been present at the effect, if the state should succeed in getting him within its power."

Lord Diplock expressed himself to the like effect in Reg. v. Treacy [1971] A.C. 537, 562B-C, saying:

"Comity gives no right to a state to insist that any person may with impunity do physical acts in its own territory which have harmful consequences to persons within the territory of another state. It may be under no obligation in comity to punish those acts itself, but it has no ground for complaint in international law if the state in which the harmful consequences had their effect punishes, when they do enter its territories, persons who did such acts."

International comity accordingly not being threatened thereby, it is difficult to see why one should not apply to the present case the general statement of the law, propounded in Halsbury's Laws of England, 4th ed. (1976), vol. 11, para. 77, p. 55 on the basis of the listed cases, that,

"If a person, being outside England, initiates an offence, part of the essential elements of which take effect in England, he is amenable to English jurisdiction."

And there seems no reason why the prosecution should not rely upon the decision in Reg. v. Ellis [1899] 1 Q.B. 230, of which my noble and learned friend, Lord Diplock, said in Reg. v. Markus [1976] A.C. 35, 61 that:

"That case is well established authority for the proposition that, in the case of what is a result crime in English law, the offence is committed in England and justiciable by an English court if any part of the proscribed result takes place in England."

If the appellant had remained undiscovered until a substantial period of time had elapsed and his wife had meanwhile obtained the insurance moneys on the basis that he had died, he could, in my judgment, be tried by our courts for the full offence on being extradited to this country. Now, the reason why he faked his "death" in Florida rather than in England was that this facilitated his plan to go to Australia. Had he faked it here he could unquestionably be tried here either for the full offence, if his ruse had succeeded, or for the attempt if it had not. Yet in both cases his plan was the same, viz. to defraud English insurance companies. Then why, in principle, should he not be tried here in the present case? Because, retorts Mr. Blom-Cooper, no "proscribed result" took place here; unlike in Reg. v. Ellis [1899] 1 Q.B. 230, there was no "obtaining" here and only an attempt is charged. Again, unlike in Reg. v. Baxter [1972] 1 Q.B. 1, in furtherance of his fraud Stonehouse despatched

from America no message, either to his wife or to anyone else in this country, whether by post, telephone, telegraph or in any other way. All he did, contends counsel, was to act fraudulently in Florida, and there must not be imputed to him the independent and unsolicited actions of others in communicating news of his "death" to people in this country. He accordingly cannot be tried here.

My Lords, if such were indeed the law, I think it would be absurd. The appellant was no obscure person, but a Member of Parliament, well-known both in politics and in the business world, and he knew as surely as if he had arranged matters himself that news of his disappearance would immediately be flashed back home. Indeed, Mr. Blom-Cooper accepted that the appellant had that very thing in mind, and events fulfilled his expectations up to the hilt. The law must keep in step with technical advances in international communications and the dissemination of news, and one who has it in mind that they will be utilised by others and, indeed, banks on their doing so must, in my judgment, be treated no differently from one who himself posts a letter or telephones a message or makes a personal broadcast, in which events learned counsel accepted that the issue of justiciability could not be in doubt.

For these reasons, I hold that there was jurisdiction in our courts to try the appellant on counts 17 to 21. Out of respect for learned counsel's argument, I should, however, add by way of a postscript that he further submitted that the only "actus reus" here was the accused's physical conduct in faking his death by drowning in Miami, and that his intention in doing that can relate solely to "mens rea." In my judgment this is over-simplification. The mental state of an accused is frequently an important ingredient of the actus reus (e.g. knowledge of the falsity of a representation on a charge under section 15 of the Theft Act 1968; absence of belief that the woman was consenting on a charge of rape) and the "actus reus" in the instant case consisted not simply in the accused's faking his death, but in that (1) he did so in the knowledge (a) that the five insurance policies were still extant; (b) that the news of his death would be swiftly communicated to the United Kingdom; (c) that his wife would thereby be enabled to claim on the policies in England and would surely do so; and (2) he was aiming at that very thing happening. What belonged to his "mens rea" was that the appellant acted as he did in the full realisation that his wife would not in the circumstances be entitled to any of the insurance moneys which he planned should nevertheless be obtained by her.

(2) Attempt

While the appellant's counsel did not go so far as to submit to this House that the learned trial judge was wrong in leaving counts 17 to 21 to the jury, he did contend that the actions of the accused in Miami on November 20, 1974, did not amount to an attempt. He accepted that they were his final contribution to a fraudulent scheme calculated to induce people in Miami to conclude that he had drowned and to communicate that conclusion to his family and others in England. He nevertheless contended that the appellant had merely made preparation to create a situation

in which his wife could in all innocence claim and maybe obtain from the insurance companies moneys which they would have withheld had the true facts been known to them.

Learned counsel relied strongly on Rex v. Robinson [1915] 2 K.B. 342, where a jeweller insured his stock against burglary and then, with the object of obtaining the insurance money, falsely represented to the police that a burglary had been committed and the jewellery stolen. This he did in the hope that they would make a report by which the insurers might be induced to pay, but before the accused had communicated with the insurers the fraud was discovered. His conviction of having attempted to obtain money from the insurers was quashed by the Court of Criminal Appeal, Lord Reading C.J. saying at pp. 348-349:

"In the present case the real difficulty lies in the fact that there is no evidence of any act done by the appellant in the nature of a false pretence which ever reached the minds of the underwriters, though they were the persons who were to be induced to part with the money. ... In truth what the appellant did was preparation for the commission of a crime, not a step in the commission of it. ... We think the conviction must be quashed ... upon the broad ground that no communication of any kind of the false pretence was made to them."

The court there founded its judgment on the well-known statement of Parke B. in Reg. v. Eagleton, Dears.C.C. 515, 538 that:

"Acts remotely leading towards the commission of the offence are not to be considered as attempts to commit it, but acts immediately connected with it are."

But it is open to doubt whether that dictum was properly applied in Rex v. Robinson, a decision which has been said to be "as favourable to the accused as any that can be found in English law; it seems to be too favourable" (Glanville Williams, Criminal Law, The General Part, 2nd ed. (1961), p. 627). In my respectful judgment, the ruling that there cannot be a conviction for an attempt to obtain by false pretences (or, now, of obtaining by deception) unless the pretence or the deception has come to the knowledge of the intended victim should not be followed, and the court was wrong in treating all preceding acts as mere preparation and therefore as not amounting to perpetration of an attempt to commit the full offence.

The much cited Reg. v. Eagleton has itself been criticised as going further than is called for, in stressing the necessity for the act charged to be "immediately connected" with the full offence; see, for example, Archbold, Criminal Pleading, Evidence & Practice, 39th ed. (1976), para. 4105, p. 1697. In Stephen's Digest of the Criminal Law, 9th ed. (1950), pp. 24-25 it is laid down that:

"An attempt to commit a crime is an act done with intent to commit that crime, and forming part of a series of acts, which would constitute its actual commission if it were not interrupted."

That definition has been repeatedly cited with judicial approval, as by

Byrne J. in Hope v. Brown [1954] 1 W.L.R. 250, 253 and by the Divisional Court in Davey v. Lee [1968] 1 Q.B. 366. But, as Lord Parker, C.J. observed in the latter case at p. 370G, Stephen's definition "does not help to define the point of time at which the series of acts begins." Professor Glanville Williams has added [1955] Crim.L.R., at p. 68, and rightly in my judgment, that,

"This definition, notwithstanding its judicial commendation, is too narrow, because it is now settled that one may attempt a crime by impossible means, in which case the attempt is doomed to failure quite apart from interruption. It is, also, too wide, because many acts that have been held to be mere preparation were part of a series of acts that would have constituted the actual commission of the crime if it were not interrupted."

In the present case, while conceding that the mere act of taking out the insurance policies was, at most, only an act of preparation, counsel for the prosecution submitted that: "Where a crime is not completed, the principal may be indicted for an attempt to commit the crime, provided that:- (a) it is capable of being committed and (b) he has himself or by his agent performed an act or acts which show that he is trying to commit the crime, as distinct from merely getting ready to commit it." This was a commendable endeavour to embrace the elements (1) of intention, (2) of the necessity for the overt acts charged to be part of a series of acts which would constitute the full offence if uninterrupted, and (3) of proximity, which Lord Hailsham of St. Marylebone L.C., said in Reg. v. Smith (Roger) [1975] A.C. 476, 492 were the true ingredients of a criminal attempt and which I respectfully adopt in the present case.

But what, for my part, I am not prepared to adopt is the view sometimes advanced (e.g. Glanville Williams, Criminal Law, The General Part,at p. 622, and Smith and Hogan, Criminal Law, 3rd ed. (1973), at p. 198) that a man must be guilty of an attempt if he has done the last act which he expects to do and which it is necessary for him to do to achieve the consequence aimed at. This is probably based on the observation of Parke B. in Reg. v. Eagleton, Dears.C.C. 515, 538, regarding a charge of attempting to obtain money from guardians of the poor by false pretences, that

"... no other act on the part of the defendant would have been required. It was the last act, depending on himself, towards the payment of the money, and therefore it ought to be considered as an attempt." (Italics supplied.)

But, even so, the wrongdoer may not have progressed a sufficient distance along the intended path, and his actions may still amount (as in Hope v. Brown [1954] 1 W.L.R. 250 to no more than mere "preparation." As Lord Widgery C.J. pointed out in the instant case, he may have been given merely "jobs of a kind which were obviously preparatory and not proximate." What has always to be borne in mind, as I think, is the nature of the full offence alleged to have been attempted. In the instant case, it would not have been that by deception the accused dishonestly obtained a cheque from an insurance company by falsely pretending that

he had died, for such a charge would be manifestly ridiculous; and, even if it were not, one can well imagine it being argued, on the lines of Rex v. Robinson [1915] 2 K.B. 342, that what the accused did in Miami did not go beyond mere preparation. But the charge actually laid was based on one of the extended meanings of "obtain" contained in section 15 (2) of the Theft Act, viz. "enabling another to obtain." So, had it been carried through to completion and not been interrupted by his being recognised and arrested in Australia, the full offence charged would have been that the accused dishonestly and by deception enabled his wife to obtain insurance money by the false pretence that he had drowned. Towards the commission of that offence, the faking of his death (a) was intended to produce that result; (b) was the final act that he could perform, and (c) went a substantial distance towards the attainment of his goal. In short, in my judgment it was sufficiently proximate thereto to constitute the attempts charged in counts 17 to 21.

(3) The direction to convict

The third point argued on behalf of the appellant was that the learned trial judge withdrew the issue of "Actus reus vel non?" from the jury by directing them in the following words:

"Mr. Stonehouse has argued to you that there can be no attempt within the legal meaning of the word if no actual claim has yet been made ... I have to tell you in the circumstances of this case that Mr. Stonehouse's contention in law was not correct. There is an attempt by the accused within the legal meaning of that word 'attempt' if you are satisfied that the matters I have stated to you are proved. I am going to repeat that, that he falsely staged his death by drowning, dishonestly intending that a claim should be made and the money obtained in due course, sooner or later."

Although in the Court of Appeal Lord Widgery C.J. said that "this somewhat bold approach is one which in our judgment fitted the circumstances of this case," counsel for the prosecution conceded in this House that the learned trial judge was in error in so directing the jury. In my judgment, he was right in making that concession, for, as Lord Oaksey said in Joshua v. The Queen [1955] A.C. 121, 130:

"It is a general principle of British law that on a trial by jury it is for the judge to direct the jury on the law and in so far as he thinks necessary on the facts, but the jury, whilst they must take the law from the judge, are the sole judges on the facts. (See Rex v. West (1910) 4 Cr.App.R. 179, Rex v. Beeby (1911) 6 Cr.App.R. 138, Rex v. Frampton (1917) 12 Cr.App.R. 202)."

Eveleigh J. approached this part of his very onerous task as if he were interpreting a statute containing the word "attempt" and regarded himself as entitled to direct the jury that, as a matter of pure law, the acts itemised (if proved) did constitute the "actus reus." But just as it was for the jury and not the judge to decide whether the necessary mens rea had been established, so also it was for them to decide whether the proved acts of the accused were such as to constitute an attempt to commit the full offence

of obtaining by deception: see Reg. v. Miskell [1954] 1 W.L.R. 438, 440 per Hilbery J.

So it was that in Reg. v. Cook (1963) 48 Cr.App.R. 98, where the trial judge ruled as a matter of law that to get into a car with the intention of taking it and driving it away constituted an attempt to commit the offence of taking and driving away, the Court of Criminal Appeal held that the matter should have been left to the jury, and Lord Parker C.J. prefaced his survey of the relevant case law by saying, at p. 102:

"This court is satisfied that, while in every case it is for the judge to rule whether there is any evidence capable of constituting an attempt, it is always for the jury to say whether they accept it as amounting to an attempt."

My Lords, the erroneous direction in the instant case is but one example of a prevalent (though fortunately not universal) tendency in our courts in these days to withdraw from the jury issues which are solely theirs to determine. The tendency has been deplored, notably by Lord Devlin in commenting on Rex v. Larkin [1943] K.B. 174; see his Trial by Jury, revised edition (1966), p. 186. It has been markedly evinced in cases arising under the Road Traffic Acts, and this despite the earlier warning of Lord Parker C.J. in Reg. v. Waters (1963) 47 Cr.App.R. 149; see, for example, Reg. v. Kelly (Francis William) [1970] 1 W.L.R. 1050 ("driving or attempting to drive") and Reg. v. Morris [1972] 1 W.L.R. 228 ("accident"). Whether this tendency springs from distrust of the jury's capacity or from excessive zeal in seeking to simplify their task, it needs careful watching, and there are welcome signs that judges are awakening to that fact: see for example, Reg. v. Guttridge [1973] R.T.R. 135, Reg. v. Clemo (Note) [1973] R.T.R. 176 and Reg. v. Martin (1972) 57 Cr.App.R. 279. And it has to be said that, while the possibility of a perverse verdict cannot be wholly eliminated, the risk that directions to convict may lead to quashings can be obviated by clarity in identifying the contested issue, by commenting on the evidence (maybe even in strong terms, provided that they fall short of a direction, as Lord Devlin stressed in Chandler v. Director of Public Prosecutions [1964] A.C. 763, 806), and by then trusting the jury to play their constitutional part in the criminal process.

Then does it follow that these five convictions should be quashed? Or can they be unheld by applying the proviso to section 2 (1) of the Criminal Appeal Act, 1968? While each case turns on its own facts, it is, I think, material to consider what the practice is in cases like the present. In Reg. v. Guttridge [1973] R.T.R. 135, although Lawton L.J. said, at p. 139 that "This court is minded to think that, had the trial judge left the issue of driving to the jury, there could only have been one answer," the Court of Appeal nevertheless declined to apply the proviso. But that conclusion was seemingly based on the mistaken belief that in Reg. v. Jones (E. J. M.) [1970] 1 W.L.R. 211 Sachs L.J. had laid down a general rule that the proviso ought not to be applied where that type of misdirection had occurred, whereas what he had earlier said at p. 215 was that the evidence on the issue of driving "was not so overwhelming as to make a verdict of guilty inevitable and the proviso cannot be applied." In several

cases of misdirection of the kind which occurred in the instant case, the conviction has been upheld where the court was convinced that, on a proper direction, the jury would have come to the same conclusion; see Reg. v. Cook, 48 Cr.App.R. 98, 102; Reg. v. Waters (1963) 47 Cr.App.R. 149 and Reg. v. Vickers [1975] 1 W.L.R. 811. Applying that generally accepted test to the present case and being satisfied that no miscarriage of justice resulted from the misdirection complained of, I would apply the proviso.

It follows that I concur with your Lordships in dismissing this appeal.

LORD KEITH OF KINKEL. My Lords, the appellant was tried in 1976 at the Central Criminal Court, along with Mrs. Sheila Buckley, upon an indictment containing 21 counts of crimes of dishonesty. He was convicted upon all but three of these counts. Upon each of the most serious of these he was sentenced to six years' imprisonment, the sentences to run concurrently, but in respect of another count he was sentenced to 12 months' imprisonment, the sentence to run consecutively. Thus the total period of imprisonment was seven years.

This appeal is concerned only with counts 17 to 21. Under count 17 the offence charged was attempt to obtain property by deception. [His Lordship read the count and continued:] The terms of counts 18, 19, 20 and 21 were similar, except that the name of the insurance company, the date when the policy commenced and, in two instances, the amount of the sum assured were in each case different.

The facts spoken to in evidence, which the jury by their verdict showed they accepted as true, were as follows. In July, August and September 1974 the appellant, a prominent politician and ex-Cabinet Minister, whose financial affairs were then seriously embarrassed, arranged for his wife, Mrs. Barbara Joan Stonehouse, to effect with each of five insurance companies a separate policy of assurance upon his life for a period of five years. The total of the sums assured amounted to �125,000. The appellant signed each of the proposal forms and co-operated in his medical examinations. Mrs. Stonehouse paid the premiums, but there is no suggestion that she was not an entirely innocent party in relation to the transactions. On November 19, 1974, the appellant, having provided himself with false passports, flew with a business associate, Mr. Charlton, to Miami in Florida, U.S.A. He and Mr. Charlton booked in at an hotel in Miami Beach. On the following day, November 20, the appellant told Mr. Charlton that he was going out to do some shopping and might have a swim, but would meet Mr. Charlton at 7 p.m. He failed to keep this appointment and Mr. Charlton, becoming concerned, investigated the appellant's bedroom and found his belongings still there. Later some clothing was found in a beach hut. The Miami police were informed and soon afterwards the news that the appellant was missing was communicated, through Mr. Charlton and the appellant's personal assistant in London, Mr. Gay, to Mrs. Stonehouse. A few days later the news was reported by the press and other media and received wide publicity in England and elsewhere. The appellant, under a false identity, had travelled by air to Mexico, and eventually he made his way to Melbourne in Australia, where he lived for a time under his false name, but was

recognised there on December 24, 1974. Everything soon after came to light. Mrs. Stonehouse had never sought to make any claim under the policies, though her solicitors had earlier in December 1974 written to the various insurance companies asking that their interest be noted.

The offences which the appellant was charged under counts 17 to 21 of the indictment with attempting to commit were offences under section 15 (1) of the Theft Act 1968.

The appellant appealed to the Court of Appeal (Criminal Division) on a number of grounds against his conviction upon these five counts. The most important ground related to the question whether an English court had jurisdiction to try him upon them, in respect that the acts alleged to constitute the attempts, so it was said, were all done in the United States of America. The court (Lord Widgery C.J., Waller L.J. and Ackner J.) dismissed the appeal but certified a point of law of general public importance as being involved in their decision. [His Lordship stated the question and continued:] My Lords, the general principle of the territoriality of crime is of great importance. The English courts do not assert jurisdiction to try any person whether a citizen of this country or not, for acts done in a foreign land. The more correct approach is to say that such an act cannot in principle constitute a crime by the law of England rather than that the act is a crime but the court does not have jurisdiction. In the field of statutory offences, there is a strong presumption that Parliament has not legislated so as to attribute criminal consequences here to acts done abroad (Macleod v. Attorney-General for New South Wales [1891] A.C. 455, 458 per Lord Halsbury L.C.). There are many instances of statutes where by express provision the general principle has been excluded and the presumption has been clearly overcome. Some examples of these are noted in the speech of Lord Morris of Borth-y-Gest in Reg. v. Treacy [1971] A.C. 537, 553. In that case Lord Diplock, at p. 564, expressed the view that the presumption applied, in relation to a statutory offence containing a requirement that the described conduct of the accused should be followed by described consequences, only in cases where neither the conduct nor its consequences took place in England or Wales. The facts of the case were that the accused posted in England a letter addressed to a lady in Germany. The letter contained an unwarranted demand with menaces, and the consequence of the accused's act was that it was received and read by the lady in Germany. It was held by a majority that he was rightly convicted of blackmail under section 21 of the Theft Act 1968. The minority (Lord Reid and Lord Morris of Borth-y-Gest) took the view that no demand was made until the letter was received and read, and hence that the accused had committed no offence in England. Lord Hodson, with whom Lord Guest concurred, held that on a proper construction of section 21 the demand was made when the letter was posted. Lord Diplock, while proceeding principally upon the ground I have already mentioned, was also of opinion that the appeal could be dismissed on the alternative ground of construction.

No question as to the character or extent of the presumption arises in the present case. The problem is of a somewhat different character. English criminal law has consistently adopted the approach, in cases

involving a foreign element, that, where an act done abroad has resulted in harmful consequences in England, the actor may be tried by an English court. In Reg. v. Ellis [1899] 1 Q.B. 230, it was held that the accused had been rightly convicted of obtaining goods by false pretences, in a situation where the false pretences had been made in Glasgow and the goods had thereby been obtained in Durham. Hawkins J. said, at p. 240:

"A false representation made to a London tradesman out of the jurisdiction, say in Paris, with the object fraudulently to obtain goods from that tradesman in London, must, according to every dictate of good sense, be intended by the maker of it to operate on and continue present in the mind of the tradesman until the goods are actually obtained from him, and by his conduct in obtaining the goods he ought, in my opinion, to be treated as having repeated his representations quite as effectually as if he had again put them in words."

We see here the conception, which in my view is a sound one, that false pretences, once made, continue to operate up to the time when goods are obtained as a result of them. Thus if the goods are obtained in England, it does not matter that the false pretences were originally made abroad. They are operating in England at the relevant time and the whole crime is committed there.

In relation to conspiracy, a common law crime, a similar approach was adopted by this House in Reg. v. Doot [1973] A.C. 807. In that case a number of American citizens were charged with conspiring together fraudulently to evade the prohibition imposed by the Dangerous Drugs Act 1965 on the importation of a certain dangerous drug into the United Kingdom. The plan to import the drug had been originally formulated abroad, and it was put into effect by actual importation of the drug into England, where the conspirators were arrested. Their conviction was sustained. Viscount Dilhorne said, at p. 823:

"If [conspiracy] 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."

Lord Pearson said, at p. 827:

"... 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."

Thus I consider it to be established that where a state of affairs which the law of England regards as criminal has been brought into existence abroad and continues to exist in England, without ever having come to rest, by reason of its effects being intentionally felt there, then any person whose act caused that state of affairs has committed an offence under English law and may be tried by the English courts.

The present case is concerned with attempt. In my opinion the principles applicable to a completed crime involving a foreign element apply equally to an attempt involving such element. So where acts constituting an attempt to commit a crime under English law are done abroad and intended effects are felt in England, the matter is justiciable there. In Reg. v. Baxter [1972] 1 Q.B. 1 the accused was charged with attempting to obtain property by deception. He had despatched in Northern Ireland letters addressed to pool promoters in Liverpool, which were received and read by them, falsely claiming that he was entitled to prizes. His conviction was sustained by the Court of Appeal. Sachs L.J. giving the judgment of the court said, at pp. 11-12:

"An attempt to commit a crime is established by proving an intent to commit it and in addition proving that in pursuance of that intent something has been done that is more than a mere preparation and is sufficiently proximate to the intended offence: compare Jones v. Brooks (1968) 52 Cr.App.R. 614, 617. Obviously the period between the moment the proximate act or acts commence and the time they finally fail may vary immensely. At any moment of that period, however, it is plainly true to say of the offender: 'He is attempting to commit a crime.' It matters not whether on any particular set of facts the attempt is best described as a continuing offence (as where a time bomb set to explode at a given hour in this country is being sent by rail) or as a series of offences (as where there are series of blows on a cold chisel to force a door open). If the time bomb is discovered on the train it matters not whether it is known on which side of some border it was placed there. At the moment of discovery it can plainly be said of the person who put it there that he is attempting to cause an explosion. The position is no different if what is being transmitted is a letter and the moment when its contents come to light occurs on the premises where it is meant to produce the intended result, an obtaining by deception of money from someone within the jurisdiction. The attempt has occurred within the jurisdiction. On those principles it is accordingly manifest that there is no reason why the jurisdiction of the courts here should not attach to the offence."

I would myself prefer to rest the matter not so much upon the proposition that the offence is a continuing one, or on the alternative proposition, also favoured by Sachs L.J., that part of the offence is committed within the jurisdiction, as on the principle that an offence is committed if the effects of the act intentionally operate or exist within the jurisdiction. This would be the situation if a bomb or a letter sent from abroad were found anywhere within the jurisdiction. Its presence at that spot would be an intended effect of the act of despatching it. In my opinion it is not the present law of England that an offence is committed if no effect of an act done abroad is felt there, even though it was the intention that it should be. Thus if a person on the Scottish bank of the Tweed, where it forms the border between Scotland and England, were to fire a rifle at someone on the English bank, with intent to kill him, and actually did so, he would be guilty of murder under English law. If he fired with similar intent but missed his intended victim, he would be guilty of attempted murder under English law, because the presence of the bullet in England would be an intended effect of his act But if he pressed the trigger and his weapon misfired, he would be guilty of no offence under the law of England, provided at least that the intended victim was unaware of the attempt, since no effect would have been felt there. If, however, the intended victim were aware of the rifle being pointed at him, and was thus put into a state of alarm, an effect would have been felt in England and a crime would have been committed there. The result may seem illogical, and there would appear to be nothing contrary to international comity in holding that an act done abroad intended to result in damage in England, but which for some reason independent of the actor's volition had no effect there, was justiciable in England. But if that were to be the law, I consider that it would require to be enacted by Parliament.

Turning to the facts of this case, I am of opinion that the actions of the appellant in Florida, which consisted in staging a scene intended to deceive people into believing that he had drowned, had effects which were intentionally felt in England. His wife in England was directly informed of what appeared to have happened, and he must have anticipated and intended this. She was the beneficiary under the five policies of assurance and the appellant, it is reasonable to infer, was by his actions seeking to put her in a position to make a successful claim under them. Further, the wide publicity arising as a result of the appellant's prominent position in public life must undoubtedly have had the effect of bringing news of the supposed facts to the notice of the five insurance companies, and this too was a result which the appellant must in the circumstances have anticipated and intended. Thus the deception arranged by the appellant reached the minds of Mrs. Stonehouse and of responsible officers of the insurance companies. This was an intended effect of his actions which might possibly have operated so as to lead to Mrs. Stonehouse obtaining the policy moneys.

For these reasons I am of opinion that the question certified by the Court of Appeal should be answered in the affirmative.

Mr. Blom-Cooper, for the appellant, argued certain points other than that raised by the question, as he was entitled to do. He contended, in

the first place, that the appellant's actions in Florida were not sufficiently proximate to constitute an attempt by deception to enable Mrs. Stonehouse to obtain the policy moneys, but were merely preparatory to such an attempt. This argument is in my opinion untenable. Clearly the appellant did all that he could in the circumstances to enable Mrs. Stonehouse to obtain the moneys, and his acts were directly aimed at this end.

In the second place it was argued that the trial judge misdirected the jury in respect that he failed to leave it to them to decide whether in their view the appellant's acts were sufficiently proximate to constitute an attempt or were merely preparatory. The learned trial judge did indeed direct the jury that if they were satisfied that the appellant falsely staged his death by drowning, dishonestly intending that a claim should be made and the policy moneys obtained in due course, then in law there had been an attempt to commit the offence. I am of opinion that it should properly have been left to the jury to say whether what the appellant did amounted to an attempt, and indeed this was accepted by Mr. Tudor-Price for the respondent. It is the function of the presiding judge at a trial to direct the jury upon the relevant rules of law. This includes the duty, if the judge takes the view that the evidence led, if accepted, cannot in law amount to proof of the crime charged, of directing the jury that they must acquit. It is the function of the jury, on the other hand, not only to find the facts and to draw inferences from the facts, but in modern practice also to apply the law, as they are directed upon it, to the facts as they find them to be. I regard this division of function as being of fundamental importance, and I should regret very much any tendency on the part of presiding judges to direct juries that, if they find certain facts to have been established, they must necessarily convict. A lawyer may think that the result of applying the law correctly to a certain factual situation is perfectly clear, but nevertheless the evidence may give rise to nuances which he has not observed, but which are apparent to the collective mind of a lay jury. It may be suggested that a direction to convict would only be given in exceptional circumstances, but that involves the existence of a discretion to decide whether such circumstances exist, and with it the possibility that the discretion may be wrongly exercised. Thus the field for appeals against conviction would be widened. The wiser and sounder course, in my opinion, is to adhere to the principle that, in every case where a jury may be entitled to convict, the application of the law to the facts is a matter for the jury and not for the judge. I see no reason to doubt that the good sense and responsible outlook of juries will enable them to perform this task successfully.

While that is my view upon the matter of principle, I cannot in the circumstances of the present case regard the misdirection as being other than purely technical. I do not consider that in these circumstances any reasonable jury could have come to the conclusion, having accepted the evidence as to what the appellant did, that his actions were merely preparatory to an attempt such as was charged. I am therefore of opinion that this is a clear case where no miscarriage of justice has resulted from

the misdirection, and which is therefore a proper one for the application of the proviso to section 2 (1) of the Criminal Appeal Act 1968.

My Lord, I would dismiss the appeal.

Solicitors: Michael P. O'Dell & Co.; Director of Public Prosecutions.

F. C.