Air-India v Wiggins
| Jurisdiction | England & Wales |
| Judge | Lord Diplock,Lord Edmund Davies,Lord Keith of Kinkel,Lord Scarman,Lord Roskill |
| Judgment Date | 03 July 1980 |
| Judgment citation (vLex) | [1980] UKHL J0703-1 |
| Court | House of Lords |
| Date | 03 July 1980 |
[1980] UKHL J0703-1
House of Lords
Lord Diplock
Lord Edmund-Davies
Lord Keith of Kinkel
Lord Scarman
Lord Roskill
My Lords,
In September 1975 Air India, the national air line of India and a subject of that sovereign state, carried a cargo of some 2,000 live parakeets upon a flight from India to London, Heathrow, which involved a scheduled stop at Kuwait. While the aircraft was at Kuwait a fault was discovered in an engine. In consequence of this the aircraft was delayed for 31 hours on the tarmac at Kuwait. The twelve crates in which the parakeets were being transported remained in the hold untended throughout this period. As a result only 89 were found to be alive when the aircraft eventually arrived at Heathrow. The remainder nearly two thousand of them, were found to have died from asphyxiation. It was subsequently found by the Crown Court that it was highly probable that these deaths occurred as a result of the heat and lack of ventilation to which the birds were subjected in Kuwait and that they were already dead before the aircraft entered British air Space.
Air India were charged before the Uxbridge Magistrates' Court with thirty-six offences under the Transit of Animals (General) Order 1973. For the purposes of this order "animals" include all species of birds. Your Lordships are concerned only with the twelve charges of contraventions of article 5 (2) of that order, which provides
"No person shall carry any animal by sea, air, road or rail, or cause or permit any animal to be so carried, in a way which is likely to cause injury or unnecessary suffering to the said animal".
Each of these charges related to birds packed in a single crate. All the crates contained dead birds on arrival at Heathrow, but there was no evidence to identify which of them contained any of the 89 birds that survived.
Air India were convicted on each of these twelve charges by the magistrates' court as well as on the other twenty-four charges. They appealed to the Middlesex Guildhall Crown Court. That court allowed the appeal on the other twenty-four charges but upheld the twelve convictions under article 5(2) of the order. It stated for the opinion of the High Court the following question of law:
"Were we correct in holding that the provisions of the Transit of Animals (General) Order 1973 apply to acts done by foreign nationals in foreign territory provided that the vessel or aircraft in which such acts are done lands or docks in Great Britain during or at the conclusion of the same voyage?"
The Divisional Court in a short extempore judgment answered that question: "Yes"; and dismissed Air India's appeal but certified as a point of law of general public importance a redrafted version of the question stated by the Crown Court, viz.:
"Is there an offence punishable in England under the Diseases of Animals Act 1950 and Regulations made thereunder if an airline carries animals from India to London Airport in conditions which constitute a breach of such Regulations but the animals are dead before the aircraft enters English airspace?"
The matter comes before your Lordships by leave granted by this House.
My Lords, article 5(2) of the Transit of Animals (General) Order, 1973, was made by the Minister of Agriculture, Fisheries and Food, in the exercise of powers conferred upon him by section 23( b) and ( c) of the Diseases of Animals Act 1950, as amended and applied to air transport by section 11 and Schedule 2, para 1(1) of the Agriculture (Miscellaneous Provisions) Act 1954. The relevant empowering provisions in the Act of 1950 as so amended read as follows:
"23. The Minister may make such orders as he thinks fit—
( a) … .
( b) for ensuring for animals carried by sea or by air a proper supply of food and water and proper ventilation during the passage and on landing:
( c) for protecting them from unnecessary suffering during the passage and on landing."
The Act provides by section 78 (1)(v) that any person shall be guilty of an offence against the Act "if he does or omits anything the doing or omission whereof is declared …. by an order of the Minister to be an offence by him against this Act". So section 23 empowers the Minister to make orders creating criminal offences.
Article 5(2) of the Transit of Animals (General) Order 1973, the terms of which I have already cited, was made in exercise of the powers conferred upon the Minister by section 23. Non-compliance with its provisions is declared to be an offence against the Act by article 11 of the order. So what the Minister is purporting to do by article 5(2) is to make the conduct therein described a criminal offence; but there is nothing in that article itself to suggest that it was intended to have extra-territorial effect.
Article 3(3) which deals with the interpretation of the order, contains the provision relied on by the Divisional Court as making things done or omitted to be done by foreign nationals in foreign countries offences under the Act. It is in the following terms:
"3(3). In relation to carriage by sea or air, the provisions of this order shall apply to animals carried on any vessel or aircraft to or from a port or airport in Great Britain, whether or not such animals are loaded or unloaded at such port or airport".
My Lords, in construing Acts of Parliament there is a well-established presumption that, in the absence of clear and specific words to the contrary, an "offence-creating section" of an Act of Parliament (to borrow an expression used by this House in Cox v. Army Council [1963] A.C. 48) was not intended to make conduct taking place outside the territorial jurisdiction of the Crown an offence triable in an English criminal court. As Viscount Simonds put it:
"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". (ibid p. 67).
Cox v. Army Council was concerned with a statute which in the plainest possible words made acts committed abroad by serving members of the British Army offences triable by court-martial. The presumption against a parliamentary intention to make acts done by foreigners abroad offences triable by English criminal courts is even stronger. As Lord Russell of Killowen C. J. said in Reg. v. Jameson (1896) 2 QB 425 at 430:
"One other general canon of construction is this, that if any construction otherwise be possible, an Act will not be construed as applying to foreigners in respect to acts done by them outside the dominions of the sovereign power enacting".
Two consequences follow from these principles of statutory construction: the first is that if the Minister had power to make an order under the Statute, making acts done by foreigners abroad offences triable in English criminal courts, such power must have been conferred upon him by words in the Statute so clear and specific as to be incapable of any other meaning; the second is that the words of the order must themselves be explicable only as a clear and unambiguous exercise of that power. If either the empowering words of section 23(1)( b) of the Act or the enacting words of article 3(3) of the order would have a sensible content if restricted to acts done within the territorial jurisdiction of the Crown, they must be so construed.
So far as section 23( b) is concerned it clearly has a sensible content if the passage of the vessel or aircraft there referred to is over the territorial airspace or waters of the United Kingdom and not beyond and the landing is at a port or airport in the United Kingdom. So no power to create...
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