Regina v. Nigel Pogmor; jurisdiction and emails used to commit an offence. Click here. Canada is a part of the UK jurisdiction.
England and Wales Court of Appeal (Criminal Division) Decisions | ||
[
ON APPEAL FROM THE CROWN COURT AT BRISTOL
HHJ Longman
T2015 7090
Strand, London, WC2A 2LL | ||
B e f o r e :
MR JUSTICE GOSS
and
HH JUDGE WAIT
(Sitting as a judge of the Court of Appeal Criminal Division)
____________________
| Regina | Appellant | |
and | ||
Nigel Pogmore | Respondent |
____________________
Mr Tim Moloney QC and Mr Matthew Jackson for the Respondent
____________________
Crown Copyright ©
- This is a prosecution appeal under s.58 of the Criminal Justice Act 2003 against a ruling by HHJ Longman, sitting in the Crown Court at Bristol.
- The respondent stood trial on an indictment which charged two counts of blackmail contrary to s.21(1) of the Theft Act 1968.
- At the close of the prosecution case on 17 May 2017 the defence submitted that the Court had no jurisdiction to try the case, and the Judge acceded to the submission. On 18 May, the prosecution notified the Judge of its intention to appeal his decision and gave the necessary acquittal undertaking. The Judge granted leave to appeal but did not order expedition, and the jury was discharged.
- The issue that arises on this appeal is whether the courts of England and Wales have jurisdiction to try an offence of blackmail where a communication, containing an unwarranted demand with menaces with a view to gain for himself or with intent to cause loss to another, is sent by a defendant from abroad to a person in this country.
- It was common ground that the respondent had been engaged on a self-employed basis as a commercial balloon pilot for a company registered in England and Wales ('the company'). On 9 March his contract was terminated, and he was paid his salary, a month in lieu, an end of contract bonus and various other additional payments. The respondent was dissatisfied by what had occurred and began a campaign against the two directors of the company.
- Count 1 covered a period between 10 May and 11 June 2009. It is unnecessary to set out all the evidence which was relied on in support of the charge, since it was no part of the defence submission that it was not capable of supporting the charge of blackmail. It is sufficient to summarise the exchange by observing that the respondent's
emails
referred to a website which the directors could access and which viewed in the light of the overall correspondence raised a case that the respondent had committed the offence. - By way of example, on 10 June 2009 at 03.45 the respondent sent an email to the company and the directors in the following terms:
- The website could be accessed and contained material which the prosecution relied on in support of its case that the respondent had made unwarranted demands with menaces.
- Count 2 covered the period between 1 and 13 November 2011.
- On 3 Nov 2011 at 16.17 the respondent sent an email to one of the directors, under the subject heading: 'This is to inform [the company] of my intention to heighten my public awareness program'. Further demands were set out, including a demand to compensate him for all his financial losses and incurred costs, the amount to be agreed between both parties and with the option of it remaining confidential.
- Again, it was not part of the defence case on the application that the evidence relied on by the prosecution was not capable of supporting the charge of blackmail in count 2.
- Mr Jackson submitted that since the prosecution (as it accepted) could not prove that the respondent's emails (whose contents it relied on in support of its case) had been sent from within England and Wales, the court had no jurisdiction to try the offences. In summary, he submitted that the jurisdiction provisions in s.2 of the Criminal Justice Act 1993 ('the CJA 1993') provided jurisdiction only if 'a relevant event' occurred in England and Wales. No relevant event occurred in England and Wales since the actus reus of the offence of blackmail was complete when the email was sent from outside the jurisdiction. He referred to and relied on the decision of the House of Lords in Treacy v DPP [1971] AC 537.
- In order to understand how this argument was founded it is necessary to turn to the relevant statutory provisions.
- Section 21 of the Theft Act 1968 provides so far as material:
- So far as jurisdiction is concerned, it is necessary to look at the CJA 1993.
- Section 2 of the CJA 1993 is headed 'Jurisdiction in respect of Group A offences and provides (so far as material):
- Section 3 is headed, 'Questions immaterial to jurisdiction in the case of certain offences'. It includes:
- Section 4 is headed, 'Rules for determining certain jurisdictional questions relation to the location of events.'
- The Judge recorded the agreement between prosecution and defence that at the time the relevant demands were made the respondent was in Nepal and outside England and Wales.
- The Judge concluded that the alleged blackmail demands were the 'relevant events' for the purposes of s.2(1) and (4) of the CJA 1993 and that the 'relevant events' took place outside England and Wales.
- Section 4 of the CJA 1993 provided guidance as to what may constitute the occurrence of an event in England and Wales. However, the communication of a blackmail demand was not 'a relevant event' for the purposes of the offence of blackmail because a blackmail demand can be made under s.21 of the Theft Act 1968 without ever being communicated, see Treacy.
- The Judge observed that blackmail was a Group A offence and although the 'relevant event' for fraud has been extended by an amendment in s.2(1A) of the CJA 1993, no such provision was applied to blackmail and that therefore the demand for blackmail must still be made within England and Wales. Since the prosecution could not prove this, the offences fell outside the jurisdiction of the court. In short, a prosecution could not be brought within the jurisdiction against an individual who made a blackmail demand abroad and sent it by email to a person in England and Wales.
- Mr Burns for the prosecution submitted that the Judge had applied too restrictive an interpretation of 'relevant event' by ruling that the demands were the relevant events. He accepted that the demands may have been made by emails sent from abroad, but they were followed by menaces to publish damaging material on the internet which could be viewed by a person in England and Wales. The Judge had acknowledged 'that it may give rise in certain scenarios to a question of whether menaces made after a demand can properly be viewed together with the demand, such that it becomes a demand with menaces'. In respect of Count 1, the initial demand was sent by email but was followed up by menaces that were sent by email subsequently.
- He submitted that the offence included any act or omission or other event (including any result of one or more acts or omissions) proof of which was required for conviction for the offence (s.2(1) of the CJA 1993). In this case the 'result' of the blackmail took effect within the jurisdiction of England and Wales. The blackmail was aimed at the directors of the company registered in England and Wales, both of whom resided in England.
- Mr Burns argued that the Judge had failed to give effect to provisions set out in section 4 of the CJA 1993. There had been a 'demand' sent from a place elsewhere to a place in England and Wales (see s.4(b)(ii)). The emails containing the demand were addressed to the directors of the company, which was a company registered in England and Wales and/or to the company whose address was in England. The word 'demand' was included within s.4(b) and was directly applicable to part of the actus reus of blackmail.
- For the respondent, Mr Moloney QC submitted, that the Judge had been correct to find that the communication of a demand did not need to be proved for an offence of blackmail to be established. This was clear from Treacy. It was irrelevant whether a demand with menaces was aimed at some person in England or Wales, the relevant issue was whether 'a relevant event', as defined in s.2(1) of the CJA 1993, took place in England or Wales. A 'relevant event' was defined as an act, proof of which was required for conviction for the offence. In order to secure a conviction for blackmail no 'result' needed to be proved: it was a 'conduct crime'. It followed that the words in parenthesis in s.2(1) '(including any result of one or more acts or omissions)' were irrelevant for the purposes of establishing jurisdiction.
- The provisions of section 4 did not define or qualify the meaning of a 'relevant event' for a particular offence, and was only there to provide assistance as to where a 'relevant event' had occurred when it was required to be proved for the offence to be made out. Thus, s.4(b) dealt with a situation where a communication takes place. Since blackmail does not require communication to take place, it had no relevance; and certainly did not have the effect of making the communication of a demand a 'relevant event' for the purpose of establishing jurisdiction for an offence of blackmail.
- The issue that arises relates to the justiciability of a charge where the relevant demands are made in emails sent from abroad to persons within the jurisdiction.
- We do not accept Mr Burns's first argument that the demands and the menaces are to be treated as severable. In our view, it is plain that the relevant part of the actus reus of blackmail is a 'demand with menaces'. Nor do we accept the breadth of his second argument that the jurisdiction falls to be decided where the 'result' or the consequence of the blackmail took place: blackmail is a 'conduct' offence and not a 'result offence'.
- We turn then to the major point in issue: the proper interpretation of the relevant parts of the CJA 1993. The Act was intended to address the issue of the justiciability of international dishonesty by introducing rules in respect of designated offences. By s.1(1) these were divided into substantive 'Group A offences' and inchoate 'Group B offences'. Among the former was the offence of blackmail (see s.1(2)(a)). The statutory key to establishing jurisdiction is the occurrence of a 'relevant event' within the jurisdiction. Where such an event occurs, it is immaterial whether the defendant was at any material time in England and Wales. A 'relevant event' is defined for most purposes as any event which is an essential (or definitional) element of the offence.
- In order to answer the question faced by the Judge it is convenient to start with the decision in Treacy.
- The facts of Treacy were not complicated. The appellant had written a letter dated 29 June 1969 and posted it in the Isle of Wight. The letter was addressed to a recipient in West Germany and contained a demand for £175 with menaces. The letter was received in West Germany by the intended recipient, and he was charged with blackmail 'within the jurisdiction of the Central Criminal Court'. At his trial the defence argued that the Court had no jurisdiction to try him because the offence was committed outside England and Wales. The trial judge ruled against the objection, finding that it was not an essential ingredient of the offence of blackmail that the demand should be received by the victim. The defendant then pleaded guilty preserving his objection. The Court of Appeal dismissed his appeal and he appealed to the House of Lords, where his appeal was dismissed (Lord Hodson, Lord Guest and Lord Diplock, Lord Reid and Lord Morris of Borth-y-Gest dissenting).
- The certified question for the House of Lords was whether the posting of the letter in England was sufficient to establish the jurisdiction of the Central Criminal Court. Lord Hodson, Lord Guest and Lord Diplock decided that it was, while Lord Reid and Lord Morris of Borth-y-Gest decided that it was not. However, for reasons that we will come to it, is necessary to consider the reasoning of each member of the Appellate Committee.
- At p.550B-C, Lord Reid said this:
- Lord Morris of Borth-y-Gest expressed a similar view at p.556A.
- It is clear from these and other passages in the speeches of Lord Reid and Lord Morris that a relevant demand was made when and (importantly for present purposes) at the place where it was communicated to the recipient, see also Lord Reid at p.551B. It follows that in their opinion the Courts of England and Wales would have had jurisdiction in the present case prior to the passing of the CJA 1993.
- The speech of Lord Hodson (at p.557B) began by setting out the narrowness of the issue to be decided:
- Having considered the provisions of s.21 of the Theft Act 1968 and prior provisions of the Larceny Act 1916, he concluded at p.558D.
- Lord Guest agreed with Lord Hodson. On this view, it was sufficient that the relevant demand was made in this country without proof of communication of that demand. It was for this reason that the Courts of England and Wales had jurisdiction.
- Lord Diplock approached the issue on a different basis. At p.561E-F he posed the question:
- At p.562B-E, he expressed the view that Parliament was entitled to render liable to punishment those who carry out acts outside the United Kingdom which have harmful effects upon victims in England.
- At p.563F he considered the essential features of the crime of blackmail:
- At p.564E-G, he considered whether the right to penalise conduct was subject to a territorial limitation:
- Lord Diplock identified the ratio of the decision in Treacy as follows:
- Three members of the House of Lords (Lord Hodson, Lord Guest and Lord Diplock) decided that he had and that consequently the courts of England and Wales had jurisdiction. However, importantly for present purposes, there are statements that it would be enough for jurisdiction to be established if either the harmful consequences took place in England or Wales (Lord Diplock) or the communication of the demand was in England (implicit from the speeches of Lord Reid and Lord Morris). It is in the light of the doubts expressed in these speeches, including the references to a 'blackmailer's charter' in the speeches of Lord Reid and Lord Hodson, that we turn to the Law Commission's Report and to the statutory provisions in question.
- The Law Commission Report 'Criminal Law: Jurisdiction Over Offences of Fraud and Dishonesty with a Foreign Element', was published in April 1989. The introduction to the Report summarises its intent.
- The references to narrow rules and to modern methods of communication, have a resonance on the facts of the present case.
- The decision in Treacy was a point of reference for the Law Commission Report, which produced a draft Bill in similar terms to the jurisdiction provisions set out in Part I of the CJA 1993. An early and less elaborate form of what became s.4 of the CJA 1993 was contained in an appendix to the report.
- In our view s.4 of the CJA 1993 was intended to resolve the jurisdictional questions raised in Treacy and did so by adopting both sets of views as to how jurisdiction was established. So far as blackmail was concerned, the communication of a demand founded jurisdiction if it were sent either (a) from a place in England and Wales to a place elsewhere, or (b) from a place elsewhere to a place in England and Wales. It is of course (b) that applies in the present case.
- We would accept that, as the editors of Blackstone's Criminal Practice 2017 point out at A8.14:
- We would also accept, as Mr Moloney submitted, that a penal statute is to be construed strictly in favour of those that may be prosecuted under them, see for example Lord Simonds in London and North Eastern Railway Co. v. Berriman [1946] AC (HL) 278 at 313-4:
- To similar effect is the observation of Lord Reid in R v. Knuller (Publishing, etc) Ltd [1973] AC 435 at 457-8, that the courts do not have any general or residual power to 'so widen existing offences as to make punishable conduct of a type hitherto not subject to punishment'.
- We accept that the references in s.2(1), (3) and (4) to jurisdiction being established where any of the events which are 'relevant events' occurred in England and Wales supports an argument that the offence is complete without the demand being communicated. However, in our view s.2 of the CJA 1993 must clearly be read with s.4. On this basis the question is whether Parliament intended to exclude jurisdiction in the case of a demand with menaces that was communicated within England and Wales. For reasons that we have set out above, we consider that this was the position following Treacy, and Parliament was clearly not intending to change the law so as to exclude jurisdiction in such a case.
- Furthermore, if there is doubt about which of the two routes to establishing jurisdiction identified in Treacy was correct (and we acknowledge that Lord Diplock's analysis is not straightforward), we regard it as clear, when reading sections 2 and 4 together, that Parliament's intent was that jurisdiction was to be founded in each of the cases described in s.4(b)(i) and (ii). We also regard it as clear from the use of the word 'demand' (which is particularly, if not exclusively, apposite to the actus reus of blackmail) in s.4(b) that Parliament (with the focus provided by the Law Commission Report) is to be regarded as having in mind the specific issues that were considered in Treacy. To adopt the phrase of Lord Hodson in Treacy jurisdiction was established in each of the two possible alternative bases.
- It follows that we have concluded that the Judge erred in his ruling.
- Since we are satisfied that the ruling was wrong in law and involved an error of principle, we reverse the ruling and order (pursuant to s.61(4)(b) and (8) of the Criminal Justice Act 2003) that a fresh trial take place in the Crown Court at Bristol for these offences.
Lord Justice Simon:
Introduction
The prosecution case
… Your unwillingness to co-operate in this matter forces me to consider what other action I can take to bring about a swift and logical conclusion. With a heavy heart on Thursday 10 June 2009 with the aim to promote my case, I shall be moving on to the next phase. Whilst the website shall remain locked, it will be forwarded to trusted individuals and organisations for their evaluation and support.
The defence submission at the close of the prosecution case
The relevant statutory provisions
(1) A person is guilty of blackmail … with a view to gain for himself or another or with intent to cause loss to another, he makes any unwarranted demand with menaces …
(1) For the purposes this Part, the 'relevant event', in relation to any Group A offence. Means … any act or omission or other event (including any result of one or more acts or omissions) proof of which is required for conviction of the offence.
…
(3) For the purpose of determining whether or not a particular event is a relevant event in relation to a Group A offence, any question as to where as to where it occurred is to be disregarded
(4) A person may be guilty of a Group A offence if any of the events which are relevant events in relation to the offence occurred in England and Wales.
(1) A person may be guilty of a Group A … offence whether or not –
(a) he was a British citizen at any material time,
(b) he was in England and Wales at any such time.
In relation to a Group A or Group B offence –
…
(b) there is communication in England and Wales of any information, instruction, request, demand or other matter if it is sent by any means –
(i) from a place in England and Wales to a place elsewhere; or
(ii) from a place elsewhere to a place in England and Wales.
The Judge's ruling
The issue
Discussion
I think that the best way to approach this case is to consider first the converse case where the blackmailer goes abroad and writes and posts there his letter to his intended victim in England. Can he on his return to England be convicted of this offence? I cannot believe that it would be a good defence that all the physical acts which he did in order to make his demand were carried out by him abroad and that therefore the offence was committed abroad. Whether one takes into account the views of the man in the street or simply construes the words of the section, section 21 of the Theft Act 1968, it seems to me to be quite plain that the blackmailer made his demand in England when the intended victim received his letter. Any other decision would be, as has been said, a 'blackmailer's charter.'
Making a demand or demanding involves effecting contact with a person so that effective communication is established with him. A demand is not made until it is communicated. If the demand is contained in a letter it is not made until the letter is received.
… the arguments before your Lordships travelled over a very wide field in which many circumstances were considered which do not arise in this case and persuasive arguments were used on both sides as to the difficulties and doubts which might arise in other cases, whichever view was accepted of the two alternatives put forward.
I see nothing improbable in Parliament in 1968 enacting that the conduct of the appellant in writing and posting a threatening letter should be punished as a criminal offence even without proof that the letter was received in in this country. It had so enacted in 1916.
It has been argued that this view of the construction of the Act gives a blackmailer a charter if he takes the trouble to cross the Channel and post his letter to a recipient in this country. I do not agree, but it is unnecessary to consider such a case which might involve deciding whether a demand made outside the jurisdiction could be treated as a continuous demand subsisting until the addressee received it.
When Parliament, as in the Theft Act 1968, defines new crimes in words which, as a matter of language, do not contain any geographical limitation either as to where a person's punishable conduct took place or, when the definition requires that the conduct shall be followed by specified consequences, as to where those consequences took effect, what reasons have we to suppose that Parliament intended any geographical limitation to be understood?
The consequence of recognising the jurisdiction of the English court to try persons who do physical acts in England which have harmful consequences abroad as well as persons who do physical acts abroad which have harmful consequences in England is not to expose the accuse to double jeopardy. This is avoided by the common law doctrine of autrefois convict and autrefois acquit …
I have already pointed out the actual words of the definition are quite general so far as concerns the place where the unwarranted demand is made. The absence of any geographical limitation upon where the described conduct of the offender takes place or where its consequences take effect is common to all the other definitions of the offences contained in the Act. If any such limitation does exist its source is to be discovered and its extent determined by applying some presumption as to Parliament's intention extraneous to the words in which the definitions of offences are couched.
For reasons which I stated earlier, the rules of international comity, in my view do not call for more than that each sovereign state should refrain from punishing persons for their conduct within the territory of another sovereign state where that conduct has had no harmful consequences within the territory of the state which imposes the punishment … In my view, where the definition of any such offence contains a requirement that the described conduct of the accused should be followed by described consequences the implied exclusion is limited to cases where neither the conduct nor its harmful consequences took place in England or Wales.
It follows that, even if the definition of blackmail in section 21 of the Act falls into the category of offences in which the physical acts of accused must be followed by consequences occurring after completion of those acts, it is sufficient to constitute the offence of blackmail if either the physical acts are done or their consequences take effect in England and Wales.
… all that has to be decided upon this aspect of the instant appeal is whether the appellant 'made a demand' when he posted his letter to the addressee?
In this report the Law Commission reviews and makes recommendations for reform of the rules that determine whether a criminal court in England or Wales has jurisdiction to try certain offences of fraud and dishonesty connected with another country. The report explains that for several reasons these rules are in urgent need of reform: in particular, they are unduly narrow, technical and insular in character, and they are antiquated, having evolved before the introduction of modern methods of communication and transfer of money across national boundaries. The report is accompanied by draft legislation to give effect to the Commission's recommendations.
The wording of s.4 is unfortunate because in contrast to s.2(1A), it does not provide that such events are necessarily 'relevant events' … The 'communication' of a blackmail demand is not a 'relevant event' for the purposes of the offence of blackmail, because a blackmail demand can be 'made' under the Theft Act 1968, s.21, without ever being communicated (see Treacy v. DPP [1971] AC 537).
A man is not to be put in peril upon an ambiguity, however much … the purpose of the Act appeals to the predilection of the court.
Conclusion
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