B. JURISDICTION AND VENUE.

1. JURISDICTION.

The triability of an accused person by an English criminal court is due sometimes to the geographical spot where the offence is alleged to have been committed and sometimes to the status of the accused (which, however, is almost negligible when the spot is in England, but may directly affect the question which court has jurisdiction).

Venue is the technical name for the court to which the indictment is presented: see R. 2 of the Indictments A. 1915-except in the case of a peer charged with treason or felony, for a grand jury has nothing to do with jurisdiction or venue. The word is probably from Fr. venir,

not L. vicinia.

Some English court can try: i. Any offence alleged to have been committed in England by (almost) anyone. ii. Certain offences alleged to have been committed in the dominions of the crown by any British subject or official. iii. Certain offences alleged to have been committed without the dominions of the crown by (1) a British subject (status being practically negligible), (2) aliens. [It is convenient, if not strictly logical, to add:] iv. Certain offences alleged to have been committed on British non-public ships and some foreign ships.

British public ships are British territory': but see under Venue, and ib. for 'British ship,' and for Objections to the jurisdiction, ib. and Practice.

i. England, for this purpose, is explained by Art. 560 in Halsbury, 9 L of Eng. p. 272: At common law the exercise of criminal jurisdiction is limited to crimes committed within the land of England with its ports and harbours, bays, gulfs and estuaries, and so much of the outer coast as extends to low water mark. The courts of common law have always exercised jurisdiction over all persons who committed crimes within these limits, whether such persons were subjects of the King or resident aliens or mere casual and temporary alien visitors. In respect of acts done outside those limits there was no jurisdiction at common law,' but there is Admiralty jurisdiction, in English territorial waters (unless taken away by statute), and even within those limits the two jurisdictions are sometimes concurrent. See Admiralty under Venue and below.

For this purpose England includes Wales: by 27 H. 8, 26.

i. The exceptions are: (a) the sovereign: The case of Charles I., 4 St. Tr. 995, 1649; History of the Rebellion, B. XI. 233, by Clarendon C. (b) Foreign sovereigns: The case of Mary Queen of Scots, 1 St. Tr. 1169, 1586. For the persons included in this privilege, see Pitt Cobbett, 1 Leading Cases, 95 (3rd ed. 1905), on Mighell v. The Sultan of Johore, 1894, 1 Q. B. 149, whence it seems that the titular head of a non-monarchical state' is within it. (c) Ambassadors, i.e. all diplomatic agents': Pitt Cobbett, ib. 301; and some persons about them: ib. 304. See Alien friends under Treason. But, according to 9 Halsbury, 245: The exemption of ambassadors of foreign states, their servants and retinue, from the criminal jurisdiction of the country to which they are accredited, though asserted by writers on international law, is not sanctioned by the English courts or by any authority on English

Diplomatic Agents: British Subject.

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criminal law.' But ib. vol. 6, 428, it is stated: "The immunities accorded to public ministers by the usages of nations, which have come to be known as international law, are expressly recognised in the law of England.' The recognition is threefold: (1) by writers of authority (see particularly 4 Co. Inst. 152; 1 Bl. Comm. 253; 4 ib. 70; Com. Dig. tit. Ambassador); (2) by judicial approval (Triquet v. Bath, 3 Burr. 1478, 1764; Novello v. Toogood, 1 B. & C. 554, 1823; Parkinson v. Potter, 16 Q. B. D. 152, 1885); (3) by 7 Ann. c. 12. The exact orbit of the immunity cannot be defined: it is a question of fact in each case' whether the person is within it: ib. 432.

Arrest] Possibly in the one instance of his engaging in acts contrary to the safety' and welfare of the state to which he is accredited, he may be arrested: ib. 429. A British subject may avail himself of this immunity: Macartney v. Garbutt, 24 Q. B. D. 368; 62 L. T. 368; 54 J. P. 437; 38 W. R. 550, 1890: per Mathew J. Apparently, therefore, such a person could not be tried for treason. (It is not clear whether this form of immunity extends to a British territory.)

'British subject' in 4-5 G. 5, 17' a person who [i] is a naturalborn British subject, or [ii] a person to whom a certificate of naturalisation [granted under this, or any A. rpd. by this, A.: s. 27] has been granted': s. 27 (1).

By s. 1 (1), a natural-born British subject ='(a) Any person born within His Majesty's dominions and allegiance; and (b) Any person born out of His Majesty's dominions, whose father was a British subject at the time of that person's birth and either was born within His Majesty's allegiance or was a person to whom a certificate of naturalisation had been granted; and (c) Any person born on board a British ship, whether in foreign territorial waters or not: Provided that the child of a British subject, whether that child was born before or after the passing of this Act [7 Aug. 1914] shall be deemed to have been born within His Majesty's allegiance if born in a place where by treaty, capitulation, grant, usage, sufferance or other lawful means, His Majesty exercises jurisdiction over British subjects.' (2) ' A person born on board a foreign ship shall not be deemed to be a British subject by reason only that the ship was in British territorial waters at the time of his birth.' (3) 'Nothing in this s. shall, except otherwise expressly provided, affect the status of any one born before Jan. 1, 1915 [e.g. proviso to sub-s. 1].

Before Jan. 1, 1915, natural-born British subjects were‘(a) Children born within the dominions; (b) Children born abroad of a father who falls within category (a) (7 Anne, c. 7 & 4 G. 2, c. 21); (c) Children born abroad of a father who falls within category (b) (13 G. 3, c. 21)': Piggott, Nationality, I. xiii. p. 195. Thus, of persons born before Jan. 1, 1915, the following were British subjects: those born (1) within British dominions, unless born to an enemy father at a place in hostile occupation; (2) on board a British ship while on the high seas; (3) legitimate children of a naturalborn British subject though born out of British dominions; (4) children born out of British dominions of a legitimate father born thereout, but legitimate grandchildren of one born within British dominions; (5) those naturalised in the United Kingdom (or a British colony); (6) those who during infancy have become resident in the United Kingdom with a naturalised parent or with a naturalised father while

in the service of the crown thereout; (7) a woman alien by birth who validly marries a British subject: Sir Thomas Barclay, British Subject in Encycl. Laws Eng. See Sawyer, 1815; and Ibrahim v. R. In 5 G. 5, 34, 1, by (8), 'a British subject, in that s. . . . includes a woman who has married an alien, but who before the marriage was a British subject.' By s. 10, the wife of a British subject and of any alien are deemed respectively British and alien; if a husband ceases to be British the wife may by declaration remain British. By s. 11, a. British woman become alien by marriage does not cease to be alien merely by the death of her husband or dissolution of the marriage, nor does an alien so become British cease in that way to be British. By s. 12, children who have ceased to be British may, within a year of attaining majority, declare and become British.

ii. E.g. murder on land, piracy, oppression. The instances are collected under Abroad in Index. For certain offences in India, see India.

iii.-1. Offences under the Explosive Substances A. 1883: see Index, Abroad, and some instances under iv.; also ss. 686-7 of the Merchant Shipping A. 1894, and, perhaps, Conspiracy to Murder. The Foreign Jurisdiction A. 1890, gives a jurisdiction to a British court' in foreign countries over British subjects who may be, by s. 6 (1), 'sent for trial to any British possession,' &c., in which England can hardly be included. By s. 4, in any proceeding in a court in Her Majesty's dominions,' the extent of the crown's jurisdiction is conclusively certified by a secretary of state. In Ibrahim v. R. an Afghan subject enlisted in an Indian regiment of the crown stationed in China, was within the jurisdiction of the Supreme Court of China because the China O. in Council, 1904, Art. III. says: 'British subject' includes ‘a British protected person.'

2. Jurisdiction over aliens abroad is usually only in virtue of some special connection, such as service within three months on board a British vessel': 1 Pitt Cobbett, 219, citing s. 687; s. 686 also makes aliens on a British ship on the high seas amenable.

Other offences on the high seas or in foreign lands come under iv. Ships: British courts will not take cognisance of an offence [other than piracy] committed outside British territory by a foreigner on board a foreign vessel': 1 Pitt Cobbett, 273, citing Lewis, 1857 (where the nationality of the deceased was regarded as indifferent; cf. 24-5 V. 100, 9). Aliter, if the ship is British: Lopez, 1858.

In Piracy (which cannot take place independently of the sea': Hall, Intern. L. P. II. c. 6), the jurisdiction is universal in respect of place and person (status being negligible).

Foreign non-public ships] 'It is admitted [by international lawj that foreign merchantmen come under the jurisdiction of a state when they enter its harbours or cast anchor off its shore. It is also agreed that the littoral state has jurisdiction over persons on passing vessels in breaches of its police and quarantine regulations; but most authorities consider that crimes and offences committed on foreign ships merely passing through territorial waters by persons on board such ships against persons or things also on board, are as such outside the jurisdiction of the bordering state, unless they involve a violation of the rights or interests of the bordering state or of its inhabitants who are neither members of the crew nor passengers': Green's Encycl. of Law of Scotland; 'Territorial Waters,' vol. 12, 1914, citing Annuaire de l'institut de droit international, xii. 329.

Offences on Ships.

The following table purports to include all cases:

A crime alleged to have been

committed by:

is cognisable by:

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For Admiralty jurisdiction, see Venue. There seems to be no authority on crimes committed aboard British vessels or boats on foreign rivers and inland waters (not in a port or territorial waters) where Admiralty jurisdiction is not claimed; but there can be no doubt that in respect of the vessel there can be no British jurisdiction at all, though everyone concerned is British.

* If the ship is non-public there would be a concurrent jurisdiction in the foreign state: if it is public the concurrent jurisdiction (if any) would be very strictly limited. In the case of a seaman, &c. within s. 686 of the M. S. A. 1904, the law comes to exactly the same thing. In Leslie, 29 L. J. M. C. 97; 8 Cox. C. C. 269, 1860, C. C. R., the master of an English trading ship deported some Chilean political prisoners, under contract with the Chilean government, from Valparaiso to Liverpool. At the Assizes there he was convicted for their false imprisonment and of assault: this was upheld in respect of the duress on the high seas, but quashed in respect of that in Chilean waters; for there the court assumed that the local government was within its own law. Apparently the law is the same if they had been British subjects. It is clear that on a British public ship they would at once have been free.

Apply note, mutatis mutandis.

Carr's case, 1882.

The Felicidade or Serva's case: eleven judges holding against two that there was no evidence that the ship was British or a lawful British possession so as to found Admiralty jurisdiction: conviction for murder of au English officer on board a captured slaver quashed.

2. VENUE.

1. On land] I.e. a place next to that where anything that comes to be tried is supposed to be done': Termes de la ley, 1708, citing 35 H. 8, c. 6, 3, where the writ venire facias speaks of xii liberas et legales homines de vicineto de B as jurors.

In general, the offence must on the face of the indictment appear to have been committed within the jurisdiction of the court of trial: ‘in general, all offences must be inquired into as well as tried in the county where the fact is committed': 4 Bl. Comm. 305; this is the most usual and (except that of boroughs) the only common law venue (for the Admiralty Court was never a common law court*): and if it appear by the evidence that the place where the offence was committed is not within that jurisdiction the variance unamended would at one time have been fatal: e.g. T. Thomas, Lea. 634, 1794: wrong county.

But the strictness of this rule has been modified in various ways, so that of late years but little attention has been paid to questions of venue, partly in view of provisions scattered through various Acts of parliament (e.g. in the case of corrupt practices, p. 447). Hence, a plea to the jurisdiction is almost unknown-if only because it must show what court has authority to . . . try: 1 Chitty, Cr. L. 438. For an instance, see R. Johnson, 6 East, 583, 1805: libel: judgment-respondeat ouster. Sometimes an Act provides an alternative venue (e.g. for offences against trade unions, 39-40 V. 22, 5).

Winter assizes] By 39-40 V. 57, there is power by order in council to unite neighbouring counties for the purpose of winter assizes, i.e. in November, December, or January (by reason of the small number of prisoners or otherwise). September and October are brought within that A. by 40-1 V. 46, and by 42-3 V. 1, that A. is extended to spring assizes, i.e. in March, April, and May. For the Central Criminal Court, see below.

Counties-boundaries—partly in one, partly in another] By 7 G. 4, 64, 12: Where any felony or misdemeanour shall be committed on the boundary or boundaries of two or more counties, or within the distance of five hundred yards of any such boundary or boundaries, or shall be begun in one county and completed in another, every such felony or misdemeanour may be dealt with, inquired of, tried, determined, and punished, in any of the said counties, in the same manner as if it had been actually and wholly committed therein.'

It has been held, that the s. does not extend to trials in limited jurisdictions, but only to county trials. Welsh, 1 Moody C. C. 175, 1827: no jurisdiction in Southwark Q. S. held under a charter of E. 6: larceny on London Bridge. Where it appeared on the record that the court had no jurisdiction-an offence in Northamptonshire but close to the Lincolnshire boundary being tried at Lincoln Assizesa conviction was not sustained, notwithstanding that the court really

Stephen, J., perhaps doubted this: see 2 Hist. Cr. L. 17, and his edn. (7th) of this work, p. 240, retained till this edn.