BAILII is celebrating 24 years of free online access to the law! Would you consider making a contribution?
No donation is too small. If every visitor before 31 December gives just £1, it will have a significant impact on BAILII's ability to continue providing free access to the law.
Thank you very much for your support!
 |
[Home] [Databases] [World Law] [Multidatabase Search] [Help] [Feedback] |
|
Scottish High Court of Justiciary Decisons |
||
|
You are here: BAILII >> Databases >> Scottish High Court of Justiciary Decisons >> Her Majesty's Advocate v. Ali Mohmed Al Megrahi And Al Amin Khalifa Fhimah [1999] ScotHC 248 (8th December, 1999) URL: http://www.bailii.org/scot/cases/ScotHC/1999/248.html Cite as: [1999] ScotHC 248, 2000 GWD 5-183, 2000 SCCR 177, 2000 SLT 1393, 2000 JC 555 |
||
[New search] [Help]
HIGH COURT OF JUSTICIARY AT CAMP ZEIST
|
OPINION OF LORD SUTHERLAND in PRELIMINARY DIET in causa HER MAJESTY'S ADVOCATE Appellant; against ABDELBASET ALI MOHMED AL MEGRAHI and AL AMIN KHALIFA FHIMAH Respondents: _______ |
Appellant: Solicitor General, A.D.; Crown Agent
Respondents: W.J. Taylor, Q.C., J. Beckett; McCourts
R. Keen, Q.C., M. MacLeod; McGrigor Donald
8 December 1999
[1] LORD SUTHERLAND: At this stage of the Preliminary Diet a number of objections have been taken to the competency and relevancy of parts of the Indictment. I deal first with the submission that Charge 1 on the Indictment is not a charge which is subject to the jurisdiction of a Scottish Court.
[2] The definition of "conspiracy" is best contained in the Speech of Viscount Simon L.C. in Crofter Hand Woven Harris Tweed Company v. Veitch A.C. 435. That definition is that
"Conspiracy, when regarded as a crime, is the agreement of two or more persons to effect any unlawful purpose, whether as their ultimate aim, or only as a means to it, and the crime is complete if there is such agreement, even though nothing is done in pursuance of it."
[3] I accept, of course, that the crime is complete once agreement has been reached and can be charged as such once agreement has been reached.
[4] Defence Counsel submitted that because the conspiracy is complete as soon as agreement is reached, and because in Lines 12 to 25 of Page 1 of the Indictment the only locations which are specified are outwith Scotland, then it must follow that no part of the conspiracy took place in Scotland and, therefore, the Scottish Court has no jurisdiction.
[5] In my view, however, just because the crime has been completed when agreement has been reached and can be charged at that stage, it does not follow at all that the crime is necessarily spent.
[6] I refer first of all to the case of the Director of Public Prosecutions v. Doot (1973) A.C. 807. In that case Viscount Dilhorne at Page 822, referred to the case of Regina v. Aspinall where what was said was this:
"In order to apply these rules to the present case it is necessary next to determine what are the essential facts to be alleged in order to support a charge of conspiracy. Now, first, the crime of conspiracy is completely committed, if it is committed at all, the moment two or more have agreed that they will do, at once or at some future time, certain things. It is not necessary in order to complete the offence that any one thing should be done beyond the agreement. The conspirators may repent and stop, or may have no opportunity, or may be prevented, or may fail. Nevertheless the crime is complete; it was completed when they agreed."
[7] Having quoted that passage, Viscount Dilhorne went on to say this:
"I see no reason to criticise this passage unless it be interpreted to mean that the crime, though completed by the agreement, ends when the agreement is made. When there is agreement between two or more to commit an unlawful act all the ingredients of the offence are there and in that sense the crime is complete. But a conspiracy does not end with the making of the agreement. It will continue so long as there are two or more parties to its intending to carry out the design."
[8] He then quotes from a decision of Coleridge J. in Regina v. Murphy where what was said was:
"It is not necessary that it should be proved that these defendants met to concoct this scheme, nor is it necessary that they should have originated it. If a conspiracy be already formed, and a person joins it afterwards, he is equally guilty. You have to say whether, from the acts that have been proved, you are satisfied that these defendants were acting in concert in this matter."
[9] He then went on to say:
"This statement of Coleridge J. has not been questioned and I take it to be well established that it is a correct statement of the law. If it is, it is not easy to reconcile it with the view expressed by the Court of Appeal, for a man who joins a conspiracy after it has been formed was not a party to the conspiracy when it was 'completed.' The face that a man who later joins a conspiracy may be convicted of it shows that although the offence is complete in one sense when the conspiracy is made, it is nevertheless a continuing offence."
[10] Viscount Dilhorne's conclusion at the end of his speech is in the following terms:
"The conclusion to which I have come after consideration of these authorities and of many others to which the House was referred but to which I do not think it is necessary to refer is that though the offence of conspiracy is complete when the agreement to do the unlawful act is made and it is not necessary for the Prosecution to do more than prove the making of such an agreement, a conspiracy does not end with the making of the agreement. It continues so long as the parties to the agreement intend to carry it out. It may be joined by others, some may leave it. Proof of acts done by the accused in this country may suffice to prove that there was at the time of those acts a conspiracy in existence in this country to which they were parties and, if that is proved, then the charge of conspiracy is within the jurisdiction of the English Courts, even though the initial agreement was made outside the jurisdiction."
[11] In the same case Lord Pearson said this:
"When the conspiratorial agreement had been made, the offence of conspiracy is complete, it has been committed, and the conspirators can be prosecuted even though no performance has taken place. But the fact that the offence of conspiracy is complete at that stage does not mean that the conspiratorial agreement is finished with. It is not dead. If it is being performed, it is very much alive. So long as the performance continues, it is operating, it is being carried out by the conspirators, and it is governing or at any rate influencing their conduct. The conspiratorial agreement continues in operation and therefore in existence until it is discharged (terminated) by completion of its performance or by abandonment or frustration or however it may be."
[12] Finally from that case I refer to the speech of Lord Salmon who says this:
"It is obvious that a conspiracy to carry out a bank robbery in London is equally a threat to the Queen's peace whether it is hatched, say, in Birmingham or in Brussels. Accordingly, having regard to the special nature of the offence a conspiracy to commit a crime in England is, in my opinion, an offence against the common law even when entered into abroad, certainly if acts in furtherance of the conspiracy are done in this country. There can in such circumstances be no doubt that the conspiracy is in fact as well as in theory a real threat to the Queen's peace.
Suppose a case in which evidence existed of a conspiracy hatched abroad by bank robbers to raid a bank in London, or by terrorists to carry out some violent crime at an English airport, or by drug peddlers to smuggle large quantities of dangerous drugs on some stretch of the English coast. Suppose the conspirators came to England for the purpose of carrying out the crime and were detected by the police reconnoitring the place where they proposed to commit it, but doing nothing which by itself would be illegal, it would surely be absurd if the police could not arrest them then and there but had to take the risk of waiting and hoping to be able to catch them as they were actually committing or attempting to commit the crime. Yet that is precisely what the police would have to do if a conspiracy entered into abroad to commit a crime here were not in the circumstances postulated recognised by our law as a criminal offence which our Courts had any jurisdiction to try.
I do not believe that any civilised country, even assuming that its own laws do not recognise conspiracy as a criminal offence, could today have any reasonable objection to its nationals being arrested, tried and convicted by English Courts in the circumstances to which I have referred."
[13] These passages in Doot to which I have referred appear to me to be strong indications of a number of factors. In the first place, that conspiracy is a continuing crime until abandoned or until its purpose is completed, secondly, that if its purpose is to offend against the peace of this country, it is justiciable in this country, and, thirdly, that such an assumption of jurisdiction would not in any way offend against international comity.
[14] Similar passages can be found in the advice of the Board in the case of Somchai Liangsiriprasert v. the Government of the United States (1991) 1 AC 225. There Lord Griffiths, having come to the conclusion that defrauding of Germans in Germany is not a threat to English society and, therefore, such a crime should be dealt with by the Germans and not by the English Courts, goes on to say this:
"But looking at the obverse side of the coin what should be the position if a conspiracy is entered into in Germany to commit a crime in England? Such a conspiracy is obviously a threat to English and not to German society and it would appear that the Court of Criminal Appeal and Lord Tucker considered that such a conspiracy would constitute an indictable crime in this country."
[15] He then referred to the case of Doot and said this:
"As there had been acts performed in England, namely the importation of the cannabis, in pursuance of the conspiracy, Lord Pearson who gave the leading speech confined himself to that situation. He said, 'On principle, apart from authority, I think (and it would seem the Court of Appeal also thought) that a conspiracy to commit in England an offence against English law ought to be triable in England if it has been wholly or partly performed in England. Lord Wilberforce expressly reserved his opinion on the question of whether a conspiracy formed abroad to do an illegal act in England, but not actually implemented in England could be tried in England. The general tenor of Lord Salmon'' speech appears to be in favour of the view that a conspiracy entered into abroad to commit a crime in England is triable in England even if no other act pursuant to the conspiracy takes place in England."
And he then quotes the passages which I have already quoted from Lord Salmon's speech.
[16] Certainly there is no suggestion from Lord Griffiths that he is in any way disapproving of what was said, particularly by Lord Salmon in the case of Doot.
[17] Finally Lord Griffiths says this:
"As Lord Tucker pointed out in Board of Trade v. Owen, inchoate crimes of conspiracy, attempt and incitement developed with the principal object of frustrating the commission of a contemplated crime by arresting and punishing the offenders before they committed the crime. If the inchoate crime is aimed at England with the consequent injury to English society why should the English Courts not accept jurisdiction to try it if the authorities can lay hands on the offenders, either because they come within the jurisdiction or through extradition procedures? If evidence is obtained that a terrorist cell operating abroad is planning a bombing campaign in London what sense can there be in the authorities holding their hand and not acting until the cell comes to England to plant the bombs, with the risk that the terrorists may slip through the net?
Extradition should be sought before they have a chance to put their plan into action and they should be tried for the conspiracy or the attempt as the case may be. Furthermore, if one of the conspirators should chance to come to England, for whatever purpose, he should be liable to arrest and trial for the criminal agreement he has entered into abroad.
The Law Commission in their Working Paper 'Territorial and Extra Territorial Extent of the Criminal Law' published in 1970 said: 'As to conspiracies abroad to commit offences in England, we take the view that such conspiracies should not constitute offences in English law unless overt acts pursuant thereto take place in England.'
But why should an overt act be necessary to found jurisdiction? In the case of conspiracy in England the crime is complete once the agreement is made and no further overt act need be proved as an ingredient of the crime. The only purpose of looking for an overt act in England in the case of a conspiracy entered into abroad can be to establish the link between the conspiracy and England or possibly to show the conspiracy is continuing. But if this can be established by other evidence, for example the taping of conversations between the conspirators showing a firm agreement to commit the crime at some future date, it defeats the preventative purpose of the crime of conspiracy to have to wait until some overt act is performed in pursuance of the conspiracy.
Unfortunately in this century crime has ceased to be largely local in origin and effect. Crime is now established on an international scale and the common law must face this new reality. Their Lordships can find nothing in precedent, comity or good sense that should inhibit and common law from regarding as justiciable in England inchoate crimes committed abroad which are intended to result in the commission of criminal offences in England. Accordingly a conspiracy entered into in Thailand with the intention of committing the criminal offence of trafficking in drugs in Hong Kong is justiciable in Hong Kong even if no overt act pursuant to the conspiracy has yet occurred in Hong Kong."
[18] I accept that the situations posited in the cases of Doot and Somchai rely to some extent on the specific target being the country seeking jurisdiction, and it might be argued that a country not a specific target cannot have jurisdiction. If the conspiracy never reached fruition and if there was no overt act to carry on the conspiracy in the country concerned, I appreciate that that would be a formidable objection.
[19] Where however, a crime of the utmost gravity has been in fact committed in a particular country and it can be shown that that crime is the culmination of a long drawn out and complex conspiracy, it appears to me quite illogical to say that that country has no interest in putting the conspirators on trial for their part in what has happened, even though their activities were all carried out abroad. Defence Counsel recognise that this is undoubtedly so in relation to the charge of murder in Scotland. I see no logical reason why the same principle should not apply to the charge of conspiring to commit the final criminal act, which is alleged to be the culmination and the whole purpose of the conspiracy. That view, in my opinion, is consistent with what has been said in the cases of Doot and Somchai, which, although they deal with the English law of conspiracy, appear to me to be entirely consistent with the law in Scotland.
[20] Counsel submitted, however, that there were certain authorities which should prevent me from coming to this conclusion.
[21] In the case of H.M.A. v. Witherington 1881 8 R. (J.) 41 a distinction was made between result crimes and conduct crimes and the implication was that conduct crimes committed abroad would not be justiciable in Scotland because the whole crime was committed abroad. The example given in that case was forgery and uttering; and I would accept that a person could not be tried in Scotland for the crime of forgery and uttering committed in England. That, however, does not address the question of what would be the position if the forged document was used to commit a fraud in Scotland and the Accused was charged with conspiring to defraud and, in pursuance of that conspiracy, forging the document in England. That, in my view, would be justiciable in Scotland and a perfectly permissible extension of the rule. That would also be following the case of Dumoulin v. H.M.A. 1974 S.L.T. (Notes) 42 where it was said that foreign offences could only be charged if there was a nexus between them and the crime committed in Scotland. That, in my view, would be so even if conspiracy should not be regarded as a continuing crime.
[22] I was also referred to the case of Maxwell v. H.M.A. 1980 J.C. 40. In that case Lord Cameron said:
"That crime is constituted by the agreement of two or more persons to further or achieve a criminal purpose. A criminal purpose is one which if attempted or achieved by action on the part of an individual would itself constitute a crime by the law of Scotland. It is the criminality of the purpose and not the result which may or may not follow from the execution of the purpose which makes the crime a criminal conspiracy."
it was suggested that in that passage Lord Cameron was indicating that what one has to look to is the original agreement to commit the crime rather than look to the result to see if the crime has been committed. It should, however, be noted that his Lordship's observations were in the context of a case where harmful effects will be felt, and the single purpose, with which all those involved were in their own way concerned, was to bring this about.
"The underlying mischief at which these provisions are directed is the supply or offer to supply of a controlled drug to another, and to look to the place of the mischief as the place where jurisdiction can be established against all those involved would be consistent with the idea that the courts of the place where the harmful acts occur may exercise jurisdiction over those whose acts elsewhere have these consequences."
[23] Counsel referred to Lord Coulsfield's observation on result and conduct crimes. What his Lordship said was:
"The general rule undoubtedly is that in the absence of legislation to the contrary, the jurisdiction of the Scottish Criminal Courts is limited to crimes committed in Scotland. In the ordinary case a crime may be held to have been committed in Scotland either if there has been conduct in Scotland which amounts to a crime there or there has been conduct abroad which has had as its result an actus reus in Scotland. In considering the argument was that as the purpose of the conspiracy was one which was impossible of achievement, no offence could have been committed. Accordingly, all that Lord Cameron was pointing out was that a successful conclusion to the conspiracy is not a necessary part of the commission of the offence and that the offence has been committed when the agreement has been entered into. I do not read what Lord Cameron has said as meaning that the result of the conspiracy is something which can simply be ignored."
[24] In the case of Clements v. H.M.A. 1991 J.C. 62 the Lord Justice General, Lord Hope, said, in connection with an offence under Section 4(3)(b) of the Misuse of Drugs Act:
"On the other hand the nature of the offence which is created by Section 4(3)(b) suggests strongly that all those who participated in the chain should be subject to the jurisdiction of the Courts of the place in the United Kingdom where the chain comes to an end. For the criminal enterprise with which they were concerned was the whole network or chain of supply, right up to the end of the chain. It is at the end of the chain that the questions of jurisdiction, therefore, crimes may be classified as 'conduct crimes' and 'result crimes' although, as has been pointed out, it must not be forgotten that conduct on the part of the Accused is an essential element in both types of crime. I do not, however, think that it could be said that all offences under Section 4(3)(b) of the 1971 Act must be either conduct crimes on the one hand or result crimes on the other. Section 4(30(b) has a very wide scope and covers many different types of conduct. According to circumstances, Section 4(3)(b) may apply where what is charged is conduct in Scotland or conduct which leads to a result in Scotland, or both. To decide whether the court has jurisdiction to try a particular accused on a charge under Section 4(3)(b), therefore, it is necessary, in my view, to consider the precise conduct which is the subject of the charge in the particular case."
[25] In my opinion this passage does not go as far as to say that on no view could a conduct crime committed abroad ever be justiciable in Scotland. As Lord Coulsfield pointed out, "it is necessary to consider the precise conduct which is the subject of the charge in the particular case."
[26] I do not therefore consider that anything said by the Scottish authorities to which I have referred detracts from the general principles relating to jurisdiction in conspiracy which are set out in the speeches in the cases of Doot and Somchai, and I am satisfied that on the basis of what is set out in Charge 1 of this Indictment the Scottish Courts do have jurisdiction in this matter.
[27] The next point that was taken by Defence Counsel was an attack on the general relevancy of Charge 1 on the basis that it charged both conspiracy and murder cumulatively and that that is not competent.
[28] Reference was made to the cases of Cordiner v. H.M.A. 1993 S.L.T. 2, H.M.A. v. Young and H.M.A. v. Wilson, Latta and Rooney and in these cases the Court had stressed that separate offences should be libelled in separate charges. Reference was also made to Gordon on Criminal Law at Paragraphs 655 to 659 where he points to the great possibility of confusion when conspiracy charges are combined with substantive charges.
[29] The use of conspiracy charges with other substantive charges, being said to have been carried out in pursuance thereof, is now a fairly regular practice; whether it is a desirable practice is another matter, but it is a regular practice, and this is shown by the indictments in a number of terrorist-type cases. It is now recognised that the approach to these is to deal separately with the conspiracy and the various substantive charges by returning verdicts separately on each of these charges. As I have said, the practice may be somewhat regrettable and may cause confusion, certainly to juries, but I am satisfied that it cannot be said to be incompetent.
[30] The problem which is envisaged in Article 2(b) of the Minute which is before the Court on behalf of the Accused, namely that "esto the Court having determined that it has jurisdiction in Charge 1 and the Court determines that the Accused is not guilty of murder, Charge 1 would cease to be justiciable before the High Court of Justiciary", is one which might have to be faced if the eventuality arises which is figured in that article. But in that situation in my view the solution of the problem will lie in the particular nature of the evidence which has given rise to that apparently somewhat unlikely situation.
[31] In these circumstances I am not satisfied that the attack on the relevancy and competency of Charge 1 can succeed.
[32] Finally, Counsel attacked the averment that each of the Accused was a member of the Libyan Intelligence Service, attacked the final paragraph of each charge which related to certain matters connected with the Libyan Intelligence Service and attacked the allegations in Charge 2(a) and (b) on the ground that offences were narrated in these charges committed abroad which had no nexus to the principal charge.
[33] It appears to me from the face of the Indictment that this case appears to hinge on the use of an explosive device contained in a cassette recorder with the use of a timing device, and it appears to me that any evidence relating to the availability of these items to the Accused must be relevant to that charge. If, therefore, as is said in the final paragraph of each of the charges, the Libyan Intelligence Service holds a store of such items for the use of their members, that would be a possible source of supply; and if the Accused are members of that Service, then it would follow that these supplies would be readily available to them. Now, I appreciate, of course, that all of these matters will have to be substantiated by evidence from the Crown. What I cannot at present see, however, is that it can be said that any of the matters complained of have no connection with the charge that the Accused did in fact make use of such devices.
[34] As far as 2(a) is concerned, the timing of that alleged part of the offence and the route taken could well be regarded, on one view of the evidence, as what might be called a dry run. As far as 2(b) is concerned, it is again connected with the question of availability of timing devices of a nature alleged to have been used by the Accused. In both cases, therefore, it appears to me that there is sufficient connection with the alleged crimes to enable these matters to fall within the rule expressed in Dumoulin.
[35] On the whole matter, therefore, I find that I am unable to accept the submissions of Defence Counsel and I shall hold the libel relevant.
