Cameron v HM Advocate
| Jurisdiction | Scotland |
| Judgment Date | 22 July 1971 |
| Docket Number | No. 10. |
| Date | 22 July 1971 |
| Court | High Court of Justiciary |
JC
Lords Wheatley, Walker, Milligan.
Crime—Piracy—Members of crew of British ship taking masterful possession of ship in territorial waters by assault on master, putting him ashore and navigating ship on to high seas—Tokyo Convention Act, 1967 (cap. 52), sec. 4 and Sched., art. 15.
Review—Misdirection—Direction that acts libelled constituted crime not mentioned nomine juris in indictment.
Jurisdiction—Ship—Acts constituting crime libelled committed partly within and partly outwith territorial waters—Merchant Shipping Act, 1894 (57 and 58 Vict. cap. 60), sec. 686 (1).
The Tokyo Convention Act, 1967, enacts by sec. 4:—"For the avoidance of doubt, it is hereby declared that for the purposes of any proceedings before a court in the United Kingdom in respect of piracy, the provisions set out in the Schedule to this Act of the Convention on the High Seas … shall be treated as constituting part of the law of nations …" Art. 15 of the Schedule enacts:—"Piracy consists of any of the following acts: (1) Any illegal acts of violence, detention or any act of depredation, committed for private ends by the crew … of a private ship … and directed: (a) On the high seas, against another ship … (b) Against a ship, … persons or property in a place outside the jurisdiction of any State …"
The Merchant Shipping Act, 1894, enacts by sec. 686:—"(1) Where any person, being a British subject, is charged with having committed any offence on board any British ship on the high seas … and that person is found within the jurisdiction of any court in Her Majesty's dominions, which would have had cognizance of the offence if it had been committed on board a British ship within the limits of its ordinary jurisdiction, that court shall have jurisdiction to try the offence as if it had been so committed."
Members of the crew of a British ship were convicted in the High Court on an indictment which set forth that, when the ship was about three miles off the Aberdeenshire coast, they threatened and robbed the master, put him and other members of the crew ashore and navigated the ship eastwards on to the high seas, and thus took masterful possession of the ship and appropriated it to their own use. Piracy was not mentioned in the indictment, but the presiding judge directed the jury that the charge was one of piracy and explained the law of piracy to them.
In applications for leave to appeal it was not disputed that the evidence was sufficient to establish the facts libelled, but it was maintained (1) that the presiding judge had misdirected the jury by describing these facts as piracy, in respect (a) that they did not constitute piracy at common law, and (b) that the Tokyo Convention Act, 1967, in redefining piracy had superseded the common law, that such of the facts as occurred in territorial waters did, not fall within the statutory definition, and that the verdict could not be supported now as one of guilty of other crimes; and (2) that the High Court did not have jurisdiction in respect of such of the facts as occurred on the high seas.
Held (1) that the Tokyo Convention Act, 1967, had not superseded, but was supplementary to, the common law; (2) that the direction on piracy was correct, and further (per Lord Wheatley and Lord Walker) that, even if it were not, the facts libelled were criminal and it had in effect been left to the jury to decide whether they were proved; and (3) that the High Court had jurisdiction at common law quoad the facts which occurred within territorial waters and under sec. 686 (1) of the 1894 Act quoad the rest.
Procedure—Indictment—Relevancy—Offence alleged to have been committed outside territorial waters—No specification of ground of jurisdiction—No averment whether or not accused British subject—Jurisdiction—Merchant Shipping Act, 1894 (57 and 58 Vict. cap. 60), sec. 686 (1).
The Merchant Shipping Act, 1894, enacts by sec. 686:—"(1) Where any person, being a British subject, is charged with having committed any offence on board any British ship on the high seas … or, not being a British subject, is charged with having committed any offence on board any British ship on the high seas, and that person is found within the jurisdiction of any court in Her Majesty's dominions, which would have had cognizance of the offence if it had been committed on board a British ship within the limits of its ordinary jurisdiction, that court shall have jurisdiction to try the offence as if it had been so committed."
Two offences charged in an indictment were libelled as having been committed at sea outside the three-mile limit. An objection was stated to the relevancy of the indictment on the grounds that it made no reference to any statutory provision extending the Court's jurisdiction beyond territorial waters, and contained no averment that the accused, whose domiciles of citation had been sisted as the Sheriff Clerk's office at Aberdeen, were or were not British subjects.
Lord Cameron repelled the objection, holding that...
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...seas and not in territorial waters is a matter of jurisdiction. I agree and adopt the reasoning of Lord Wheatley in Cameron v HM Advocate 1971 JC 50 at There is but one further point with which I should deal. It was argued that piracy could take place only on the high seas, and that the act......
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