`Last act' jurisdiction rule still stands

Friday Law Report: 26 June 1998 Regina v Manning Court of Appeal (Criminal Division) (Lord Justice Buxton, Mr Justice Wright and Mr Justice David Steel) 24 June 1998
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The Independent Culture
IN ESTABLISHING the jurisdiction of the English courts to try offences with an international element, the "last act" rule has not been replaced by the "comity" theory.

The Court of Appeal allowed the appeal of John Laurence Manning against his conviction of three counts of procuring the execution of a valuable security, contrary to section 20(2) of the Theft Act 1968.

The appellant, who ran his own maritime insurance business, was charged, inter alia, with three counts of false accounting contrary to section 17(1)(a) of the Theft Act 1968, in connection with insurance cover notes containing false information which had been given to an insured in Greece; with three counts of procuring the execution of a valuable security, contrary to section 20(2) of the 1968 Act, based on the fact that the insured had issued cheques in Greece to pay the appellant on the basis of the false cover notes; and with two further counts of false accounting, the false cover notes having been sent to a broker.

He was convicted, and appealed against conviction on the grounds, inter alia, that in the absence of evidence explaining the actual use made of the cover notes which were the subject of the charges of false accounting by the persons to whom they were sent, the jury had not been entitled to conclude that they were documents "required for any accounting purpose" within the terms of section 17(1)(a) of the Act; and that the court had had no jurisdiction to try the charges of procuring the execution of a valuable security under section 20(2) of the Act, the actus reus of those offences having been completed in Greece.

Alastair Malcolm QC (Registrar of Criminal Appeals) for the appellant; Warwick McKinnon (Crown Prosecution Service) for the Crown.

Lord Justice Buxton said that it was accepted that under section 17(1)(a) of the Act an accounting purpose could be merely an incidental, and not necessarily the principal, purpose of the document in question. The cover notes in the present case had set out the assured and the insurer; the period of insurance and the interest covered; and the rate of and dates on which the premiums were to be paid.

There was no doubt that the cover notes would play a role in the accounting process of the appellant's clients, and the jury had been entitled, simply by looking at the documents, to come to the conclusion that they were required for an accounting purpose, in that they set out what was owed by the client. That ground of appeal was, accordingly, rejected, but the court was bound to say that such arguments could be avoided by prosecutors calling evidence, of a brief and probably unchallenged nature, as to how documents on which they relied under section 17(1)(a) were in fact used.

In the present case, the procurement of the execution of a valuable security had not occurred until the cheques had been signed in Greece. Apart from the underlying need, in order to establish the jurisdiction of the court, that a defendant should be physically within the jurisdiction, it had until recently been thought that the common law's only further requirement was that the act needed to complete the actus reus should have taken place within the jurisdiction.

In recent years, however, an alternative approach, the "comity theory", based on observations of Lord Diplock in Treacy v DPP [1971] 1 All ER 110, had been adumbrated, and had been adopted in R v Smith (Wallace Duncan) [1996] 2 Cr App R 1.

Although in terms of reason and policy it would be highly desirable to accept the comity theory as a rule of jurisdiction, the court was bound by the decisions in R v Harden [1962] 1 All ER 286, R v Beck [1985] 1 All ER 571 and R v Nanayakkara [1987] 1 All ER 650 to apply the "last act" rule, and the decision in Smith could not stand.

Accordingly, the Crown Court had had no jurisdiction to try the appellant on the counts under section 20(2), and his convictions on those counts would be quashed.