21/03/2016
1968: Sealand in tribunale / Sealand – British court case
Riportiamo di seguito la trascrizione dello storico caso deciso il 25 ottobre 1968 dal giudice Chapman del tribunale di Chelmsford (Gran Bretagna): Paddy Roy Bates e Michael Roy Bates vengono assolti da accuse relative all’utilizzo di un’arma da fuoco perché Roughs Tower è fuori dalle acque territoriali britanniche e quindi anche fuori dalla giurisidizione dei tribunali di Sua Maestà.
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The Shire Hall, Chelmsford
Friday, 25th October, 1968
Before:
MR. JUSTICE CHAPMAN
REGINA
v.
PADDY ROY BATES
and MICHAEL ROY BATES.
(Transcript of the Shorthand Notes of Hibbit & Sanders, 10 Kings Bench Walk, Temple. London E. C. 4.)
MR. L. BOREHAM, Q. C. and MR. JOHN NEWEY appeared on behalf of the Prosecution.
MR. M. EASTHAM, Q. C. and MR. P. E. TURL appeared on behalf of the Prisoners.
JUDGEMENT
MR. JUSTICE CHAPMAN: On Monday of this week, the 21st October, I upheld a submission by Mr. Eastham in this case that so far as counts 2,3, and 4 of the Indictment were concerned the maters relied upon by the prosecution were outside the jurisdiction of the English Courts. The Defendants having intimated through Mr. Eastham at the outset that this question of jurisdiction arose, pleas were entered to the general issue (see Archbold Paragraph 428), and at the close of the Prosecution’s case, after hearing arguments on the matters, I directed the Jury to bring in a verdict of “Not Guilty” on those three counts. The charges in these three counts are as follows:
Count 2, “Paddy Roy Bates on a day unknown between 1st January, 1967 and 6th May, 1968, at Roughs Tower, within the jurisdiction of Essex Assizes, had in his possession a .22 pistol ad ammunition to enable Michael Roy Bates by means thereof to endanger life.” That is laid as an offense contrary to Section 22 of the Firearms Act, 1937.
In Count 3 the offense is laid contrary to Section I (1) of the Firearms Act, 1937. “Michael Roy Bates on the 6th May, 1968 at Roughs Tower within the jurisdiction of Essex Assizes had in his possession a .22 pistol without holding a Firearms Certificate in respect of the same in force on said day”.
Count 4 is laid as contrary to Section 22 of the Firearms Act, 1937, “Michael Roy Bates on the 6th May, 1968 at Roughs Tower within the jurisdiction of Essex Assizes had in his possession a .22 pistol and ammunition with intent by means thereof to endanger life.”
The evidence led for the Prosecution, summarized shortly, was to the effect that while Trinity House men were attending to a buoy north west of the artificial erection called Roughs Tower: shots were fired in their direction be the second accused from a .22 pistol belonging to his father, the first accused.
Roughs Tower is one of a number of steel and concrete erections built during the war as emplacements for anti-aircraft guns. It seems to have been abandoned by the Ministry of Defense after the war, and in 1967 Mr. Roy Bates took occupation of it. His son and daughter were on it at the material time. To what extent Mr. Bates, his wife and two children live there is not gone into, but Bates calls it, somewhat euphemistically “Sealand”. Its situation, nautically described is latitude 51-53-40 north, longitude 01-28-57 east. This means if one draws a line from LandGaurd Point on the north side of the Orwell Stour estuary to the Naze above Walton, Roughs Tower is between five and six miles from the datum line, i.e. about three miles outside territorial waters.
This being the locus in quo of the acts alleged to be criminal, Mr. Eastham submitted that there was no Jurisdiction in the English Courts to deal with them. His submission, put succinctly, was that except in the case of special offenses which may be committed by British Subjects anywhere, for example, treason, murder, bigamy, and offenses committed I British Ships on the High Seas, English Courts only have jurisdiction in territory over which British Sovereignty prevails, i.e. the soil of Great Britain and its adjacent islands and territorial waters up to the three mile limit. Another way of stating the same proposition is to say that the British Parliament does not, unless a different intention is made manifest, purport to legislate for matters outside the area of sovereignty, as above defined, and its legislature should not be construed as having any operative effect further afield. Mr. Boreham on the other hand has been concerned, as he put it, to resuscitate the old jurisdiction of the Admiral.
He starts with the Offenses at Sea Act, 1536 which first gave Common Law Courts power to deal with “all treason, felonies, robberies, murders, and confederacies here after to be committed in or upon the sea (i.e. the High Seas, see Leigh v. Burly 1609 Owen 122) or in any other haven, river, creek, or place where the Admiral or Admirals have or pretend to have power, authority, or jurisdiction.”
By the Offenses at Sa Act, 1799 this was extended so that, “All and every offense and offenses which after the passing of this Act shall be committed upon the High Seas out of the body of any County of this realm shall be, and they are hereby declared to be offenses liable to the same punishment respectively as if they had been committed upon the shore.”. I quote the Act as amended recently by the Criminal Law Act, 1967. Subsequently in a number of consolidating Acts of the last century there is a number of references to offenses committed within the jurisdiction of the Admiralty of England or Ireland: for example Accessories and Abettors Act, 1861, offenses against the Person Act, 1861, and the Forgery Act, 1869.
Mr. Boreham argued that these provisions were not limited to those portions of the High Seas which fell within what we now call territorial waters, but extended to the High Seas everywhere, though he constrained to accept that this could not be true of foreigners outside territorial waters. In other words he had read into all these statutes from1799 onwards the established that the jurisdiction of the Admiral was not confined to territorial waters, see for example Sir William Holdsworth in Volume 1 of the Great History of English Law (1966 Reprint of the Seventh Edition page 550; Blackstones Commentaries Book IV Chapter 19 Paragraph 5. But that is because British Ships would be sailing everywhere the seas were navigable and piracies might be committed in waters here, there, and everywhere. But I think the Admiral would be somewhat surprised to hear that if one British Subject picked the pocket of another such on an artificial structure (not being a ship) built in the middle of the Persian Gulf that was some concern of his.
The scope of jurisdiction of the Admiral was the subject of elaborate discussion in the Queen against Keyn 1876 2 Exchequer Division Page 63. The Defendant was the master of “The Franconis”, a German ship flying the German flag when it was in collision with a British Ship “The Strathclyde” within two and a half miles of Dover Beach, and a passenger in “The Strathclyde” was drowned as a result. The Defendant was tried for manslaughter at the Central Criminal Court and a question was reserved for The Court of Crows Cases Reserved as to whether the Central Criminal Court had jurisdiction. The sevenfold majority of the Court (Cockhurn, C. J., Kelly, C. B., Brarawel, J. A., Lush, J. and Field, J. Sir Robert Phillimose, and Pollock, B.) held that the Admiral had no Jurisdiction eve within territorial waters over foreign vessels and those on board them. The six powerful dissentees were Lord Coleridge, C.J., Brett,J.A.,and Arnphlett,J.A.,Grove,J.Denman, J., and Lindley,J.
Parliament was outraged by this decision and proceeded to pass the Territorial Waters Jurisdiction Act, 1878. The preamble was eloquent of the Legislature’s disavowal of the majority of judges. It reads, “Whereas the rightful jurisdiction of Her Majesty her heirs and successors extends, and has always extended over the open seas adjacent to the coast of the United Kingdom and al other parts of Her majesty’s Dominions to such a distance as is necessary for the defense and security of such Dominions; and Whereas it is expedient that all offenses committed on the open sea within a certain distance of the coasts of the United Kingdom and all other parts of Her Majesty’s Dominion, by whomsoever committed, shall be dealt with according to law.”
It then proceeded to enact section 2, “An offense committed by a person whether he is or is not a subject of Her Majesty on the open sea within the Territorial Waters of Her Majesty’s Dominion is an offense within the jurisdiction of the Admiral although it may have been committed on board or by means of a foreign ship and the person who committed such offense may be arrested, tried, and punished accordingly.
This section has always been accepted as declaratory of the law laid down by the minority of judges in the Queen against Keyn (see R. v. Dudley and Stephens 1884, 14 Q. B. Division page 273), and that, I think, entitles Mr. Boreham to rely, for example on passages I Mr. Justice Lindley’s judgment on pages 87 and 88 such as, “The jurisdiction thus exercised does not appear to have been limited as regards to distance from the shore”, and “The statute (i.e. that of 1536) shows that both as regards distance from the shore and as regards persons the jurisdiction to punish crimes on the High Seas was as wide as it could be”, and “The Statutes (i.e. the Act of 1799) again assumes that as regards geographical limits and persons within those limits the jurisdiction of the Commissioners appointed to try offenses on the High Seas was as wide as it could be”. It has however to be born in mind that as a practical matter the only way a person could be on the High Seas any appreciable distance from the shore was by being on a ship. The possibility of people swimming the Atlantic, or even the Channel was not in anyone’s contemplation, still less the possibility of artificial gun platforms being built upon the ocean bed.
I too found myself on Mr. Justice Lindley for a classic exposition of the basic principals which I regard as applicable. I read from page 89 of the report. “This brings us at once to the consideration of the limits of legislative power of this country and of the jurisdiction of the Courts, and there being no other limit than that set by international law, those limits must be sought for among the recognized authorities o that branch of jurisprudence. Here, however, a fresh difficulty presents itself; for there are no treaties and there is no established practice bearing directly on the subject under consideration. But there are, in my opinion, certain general principals sufficiently well established to afford the decision of the case before us.
“The controversy between Grotios in his Mare Liberum and Seldon in his Mare Clausum have been observed upon by almost every writer on international law since their day: and the result has been that whilst extravagant propositions contend for each of these celebrated men have long ago been exploded, it appears to me to be now agreed by most esteemed Writers on international law that, subject to the right of all ships freely to navigate the High Seas, every state has full power to enact and enforce what laws it thinks proper for the preservation of peace and the protection of its own interests, over those parts of the high seas which adjoin its own coasts and are within three mile thereof. But that beyond this limit, or, at all event, beyond the reach of artillery on its own coasts, no state has any power to legislate over its own subjects and over persons on board ships carrying its flag.”
This makes it plain that the British Parliament has power to legislate over British Subjects anywhere and over persons of any nationality on board ships flying the British Flag. I need not trouble with the latter category because no one has suggested that Roughs Tower is a ship, nor indeed was my query as to whether it was an island received with much enthusiasm. British subjects anywhere can be legislated for but the question always remains, “Have they been?” It has been enacted that certain offenses committed by British subjects, whether on the High Seas, or even on land abroad are cognisable by the British Courts, for example, murder, bigamy, treason, but the general principle is, in my judgment, that a British At of Parliament is not to be regarded as having extra territorial effect unless that is its manifest intention. I turn again to Mr. Justice Lidley’s judgment on page 92 to 93. “It is said, indeed, that in the absence of clear evidence of intention to the contrary, a general statute is not to be construed to extend to foreigners; and this is quite true of foreigners out of the limits to which the statute is geographically applicable, but it is not true of foreigners within those limits. In fact, this rule of construction is another mode of expressing the more general rule that statutes are to be so construed as to apply only to those persons and places which are within the dominion of legislative power.”
Parliament has no doubt the power to make it an offense for a British subject to have a firearm with intent to endanger life in Istanbul or Buenos Aires, or where have you, but I do not think it has done so. The Firearm Act of 1937 seems to me to be clearly an Act intended to operate only within the ordinary territorial limits and also no doubt on British ships. Breaches of its provisions, even by British subjects, outside those limits are not in my judgment intended to be cogniable by the British Court.
Accordingly I have rejected Mr. Boreham’s most interesting argument and upheld Eastham’s submission.
JUSTICE CHAPMAN
The Shire Hall, Chelmsford
Friday, 25th October, 1968
