Court of Appeal
| DOI | 10.1177/002201839105500303 |
| Published date | 01 August 1991 |
| Date | 01 August 1991 |
| Subject Matter | Court of Appeal |
COURT
OF
APPEAL
EXTRATERRITORIAL
CONSPIRACIES
R v Sansom &Others
In this case
([1991]
2 WLR 366), the appellants had been convicted
of conspiracy to evade the prohibition on the importation of a
controlled drug. The plot had been to smuggle cannabis from
Morocco to a European country. The defendants argued that the
destination was Belgium, not England. Furthermore, they argued
that as there had been no unlawful act in England in pursuance of
the conspiracy, the English courts did not have jurisdiction. The
factual basis for this assertion was that, although the defendants had
hired a boat, the 'Danny Boy', in England to rendezvous with the
ship from Morocco and remove the cargo of cannabis, when the
'Danny Boy' was arrested it was outside English territorial waters.
The Court of Appeal based its decision on R v Doot [1973] AC
807, and the persuasive authority of the Privy Council decision in
Somchai Liangsiriprasert v Government
of
the United States
of
America [1991] 1 AC 225. Those cases showed that there was no
need for an overt act in England in order to give the courts
jurisdiction, provided the link between the conspiracy and England
could be proved by
other
means. The Court accepted that these
cases concerned the common law but held that the principles
applied equally to conspiracies under the Criminal Law Act 1977.
Three
reasons were given for this: (a) it must be assumed
that there had been no intent to change the common law on
extraterritorial conspiracies in the absence of express words in the
1977 Act, (b) as conspiracy to defraud was outside the 1977 Act it
would lead to the position that the common law rules only applied
to those conspiracies, and (c) the Privy Council knew of the 1977
Act and its effect on the law of conspiracy so could have been
expected to make some statement limiting the effects of its decision
had it wished so to do. The appeal was dismissed on this point.
Ruth Harrison
299
Journal
of
Criminal
Law
COMPENSATION
FOR
ARREST
Lewis vChief Constable
of
South Wales Constabulary
In this case ([1991] 1 All
ER
206) the Court of Appeal considered
the question of the relationship between the fact of arrest and the
reasons why that arrest is lawful.
The appellants had obtained ajudgment for damages for false
arrest and wrongful imprisonment at the county court. The appeal
concerned the length of detention for which they should be
compensated. When arrested the appellants were not given the
reason for the arrest. Shortly after, on presentation to the custody
officer at the police station, they were given the reason for the
arrest. They were later released. The appellants argued that they
should be compensated for the whole time in custody.
In the opinion of the Court of Appeal the Police and Criminal
Evidence Act 1984 was not a truly codifying act since it made a
number of changes to the previous law. The Court cited three pre-
Act
cases-Spicer
v Holt [1977] AC 987, Holgate-Mohammed v
Duke
[1984]
AC
437 and R v Kulynycz [1971] 1 QB 367. The
court argued on the basis of the first two cases that arrest was a
question of
fact-has
the person been deprived of his liberty?
However, arrest is also a continuing act. Although s 28(3)
PACE
requires the arrested person to be given the reasons for arrest, if
this is not done then the arrest is unlawful at that point.
If
the
arrest continues it is unlawful, but once the arrested person is then
told of the reasons the arrest becomes lawful.
It
would, in the
court's opinion, be farcical to expect a police officer to release
someone only to rearrest them immediately. The later giving of
reasons does not make the arrest retrospectively lawful, so the
appellants were entitled to compensation for the period from when
they were first arrested up to the point when they were given the
reasons for arrest.
Ruth Harrison
300
Court
of
Appeal
DURESS IS NO
DEFENCE
TO ATTEMPTED
MURDER
RvGotts
In RvHowe [1987] 2
WLR
568; 51
JCL
288, where the House of
Lords ruled
that
duress was not available as a defence to the
principal offender to
murder
or to a secondary party to
murder,
Lord
Griffiths, in a powerful statement made obiter, expressed
the
view
that
duress was also not available as a defence to a charge
of attempted murder.
He
observed
that
the prosecution had to
prove an even more evil intent to convict of attempted
murder
than in actual
murder
since
attempted
murder
required
proof
of
an intent to kill, whereas in
murder
it was sufficient to prove an
intent to cause really serious injury and, therefore, in his Lordship's
opinion, it could not be right to allow the defence to one who
might be more intent upon taking a life than the murderer.
The
decision of the
Court
of
Appeal
in R v Gotts [1991] 2 All
ER
1
now confirms this additional exclusion from the scope of the
defence of duress.
The
defendant, then aged 16,
armed
with a knife supplied by
his father, waylaid and stabbed his
mother
as she
took
one
of
her
younger children to school. He intended to kill his
mother
who,
in the event, suffered serious injuries in the attack. She had earlier
left the family home after arguments with the father and had gone
with two of the younger children to a women's aid refuge.
The
defendant was charged, inter alia, with attempted murder. He
pleaded
not
guilty, his defence being
one
of duress in that he
had
been
ordered
by his father to kill his
mother
under the
threat
that,
if he did not do so, he himself would be shot.
The
trial judge
rejected adefence submission that the defence of duress was, as a
matter
of law,
open
to the defendant on a charge of attempted
murder,
whereupon the defendant changed his plea to one of
guilty to
attempted
murder.
The
trial judge granted acertificate
under
s 1(2) of the Criminal
Appeal
Act
1968 that apoint of law
was fit to be argued, namely,
whether
duress was available as a
defence to a charge of
attempted
murder.
In
the
Court
of Appeal, Lord
Lane
CJ,
delivering the judgment
of the court, began by reviewing the
chequered
history of duress
as a defence to
murder-from
the early commentators who denied
301
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