Attorney General's Reference (No. 1 of 1982)
| Jurisdiction | England & Wales |
| Judge | THE LORD CHIEF JUSTICE |
| Judgment Date | 30 March 1983 |
| Judgment citation (vLex) | [1983] EWCA Crim J0330-1 |
| Court | Court of Appeal (Criminal Division) |
| Docket Number | No. 4641/R/82 |
| Date | 30 March 1983 |
[1983] EWCA Crim J0330-1
IN THE COURT OF APPEAL
CRIMINAL DIVISION
Royal Courts of Justice
The Lord Chief Justice of England (Lord Lane)
Mr. Justice Taylor
and
Mr. Justice McCowan
No. 4641/R/82
MISS A. GODDARD, Q.C. and MR. P. ADER appeared on behalf of the Attorney General.
MR. C. DINES appeared on behalf of the Respondents.
This is a reference by Her Majesty's Attorney General under section 36 of the Criminal Justice Act 1972.
The defendants were charged with conspiracy to defraud. The particulars of the offence were that they had conspired together and with others to defraud such companies and persons, and in particular X Company Limited, as might be caused loss by unlawful labelling, sale, supply or marketing of whisky purporting to be that of X label products, the said X Company Limited being the proprietors of the labelled products and owning the copyright in the label.
At the conclusion of the Crown case, the learned Judge upheld submissions on behalf of the defendants that the Court had no jurisdiction to try the indictment, because a conspiracy in England to commit a crime abroad is not indictable here unless the crime contemplated is one for which an indictment would lie in England.
The points of law referred for consideration by this Court are as follows:
(1) Whether on a charge of conspiracy to defraud where the conspiracy is to be carried out abroad, it is indidable if its performance will cause economic loss and damage to the proprietary interests of a company within the jurisdiction.
(2) Whether on a charge of conspiracy to defraud where the conspiracy is to be carried out abroad, it is indictable if its performance would injure a person or company here by causing him or it damage abroad.
The relevant facts are as follows: X Company distil and market whisky. Their registered offices are in England. Two of their brands or labels are world famous. They own the copyright in and claim the exclusive use of those labels. Their labels are protected by trade marks registered in almost all countries, and in particular in England, Germany and the Lebanon. Two of the defendants, A and B, were directors of Y Company. That company had no business dealings with X Company.
The prosecution case was that A and B arranged to sell to 'L' a large quantity of whisky, the ultimate destination of which was to be the Lebanon. The contract was concluded in London. The whisky was in Frankfurt. Perforated sheets of labels imitating those of X Company were printed and brought to Y Company in London, where A and B and C (another defendant) prepared them for transmission to Frankfurt, where they were to be fixed to the bottles of whisky prior to the whisky being shipped to the Lenanon and sold as the X Company's product.
The German authorities then seized the whisky before the plans could be further implemented.
X Company Limited had appreciable sales in the Lebanon, and it was likely that if the defendants' whisky, masquerading as that of X Company, had been sold in the Lebanon, X Company would have suffered loss of trade, quite apart from the infringement of their trade marks and possible injury to their reputation generally.
Miss Goddard for the Attorney General asserts that the indictment was drawn with the intention of alleging against the defendants a conspiracy to defraud the X Company and/or its parent or subsidiary companies. It was not intended, despite its wording, to allege a conspiracy to defraud any possible purchasers of the whisky in the Lebanon. Indeed she expressly disavowed any reliance on a conspiracy to obtain money by deception. Her argument stood or fell on her contention that what was proved here was a conspiracy formed in this country to defraud the X Company or its associates by the dishonest use of its labels.
Thereafter she advances two separate propositions.
Her starting point is, as it must be, the decision of the House of Lords in Board of Trade V. Owen (1957) 41 Cr. App. R. 13. That case decided that a conspiracy in England to commit a crime abroad is not indictable in England unless the crime contemplated is one for which an, indictment would lie in England. On the facts of that case no such indictment would lie, since the conspiracy was not to commit a crime but to obtain a lawful object by unlawful means both of which were outside the jurisdiction.
Miss Goddard's first argument is this. Accepting the test in Board of Trade v. Owen, although no indictment would lie in England for a substantive crime if this conspiracy was carried out, the conspiracy itself was indictable here because its ultimate object was to injure the X Company in England, albeit by acts done abroad. It was a conspiracy to defraud the X Company in England by infringing their copyright abroad.
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