[HOUSE OF LORDS]

AND

[on appeal from REGINA v. TREACY]

Crime - Blackmail - Demand - When and where made - Letter demanding money with menace - Posted in England to person abroad - Whether demand made in England - Theft Act 1968 (c. 60), s. 21 (1)

The appellant posted in the Isle of Wight a letter written by him and addressed to a Mrs. X in West Germany demanding money with menaces. The letter was received by Mrs. X in West Germany. The appellant was charged with blackmail contrary to section 21 of the Theft Act 1968.¹ At the trial, he pleaded not guilty and objected that the court had no jurisdiction to try the case because the offence had been committed outside England. His objection was overruled and he changed his plea to one of guilty, preserving his objection. The Court of Appeal dismissed his appeal against conviction.

On appeal by the appellant, contending, inter alia, that no demand had been made by him within the meaning of section 21 of the Act of 1968 until the letter had been received by Mrs. X in Germany:-

Held, dismissing the appeal (Lord Reid and Lord Morris of Borth-y-Gest dissenting), that the offence of blackmail had been committed by the appellant in that he had made a demand when he had written and posted the letter to Mrs. X (post, pp. 558F-G, 564G - 565A).

Decision of the Court of Appeal, post, p. 541E; [1970] 3 W.L.R. 592; [1970] 3 All E.R. 205, C.A. affirmed.

The following cases are referred to in the judgment of the Court of Appeal:

Board of Trade v. Owen [1957] A.C. 602; [1957] 2 W.L.R. 351; [1957] 1 All E.R. 411, H.L.(E.)

Reg. v. Clear [1968] 1 Q.B. 670; [1968] 2 W.L.R. 122; [1968] 1 All E.R. 74, C.C.A.

Reg. v. Governor of Brixton Prison, Ex parte Rush [1969] 1 W.L.R. 165; [1969] 1 All E.R. 316, D.C.

Reg. v. Harden [1963] 1 Q.B. 8; [1962] 2 W.L.R. 553; [1962] 1 All E.R. 286, C.C.A.

Reg. v. Moran (1952) 36 Cr.App.R. 10, C.C.A.

1 Theft Act 1968, s. 21: "(1) A person is guilty of blackmail if, with a view to gain for himself or another or with intent to cause loss to another, he makes any unwarranted demand with menaces; ..."

The following additional cases were cited in argument in the Court of Appeal:

Rex v. Burdett (1820) 4 B. & Ald. 95.

Rex v. Girdwood (1776) 1 Leach 142.

Rex v. von Veltheim (1908) (unreported) Russell on Crimes and Misdemeanours, 8th ed. (1923), Vol. 1, p. 55.

The following cases are referred to in their Lordships' opinions:

Board of Trade v. Owen [1957] A.C. 602; [1957] 2 W.L.R. 351; [1957] 1 All E.R. 411, H.L.(E.).

Cox v. Army Council [1963] A.C. 48; [1962] 2 W.L.R. 950; [1962] 1 All E.R. 880, H.L.(E.).

Macleod v. Attorney-General for New South Wales [1891] A.C. 455, P.C.

Reg. v. Clear [1968] 1 Q.B. 670; [1968] 2 W.L.R. 122; [1968] 1 All E.R. 74, C.C.A.

Reg. v. Ellis [1899] 1 Q.B. 230.

Reg. v. Governor of Brixton Prison, Ex parte Rush [1969] 1 W.L.R. 165; [1969] 1 All E.R. 316, D.C.

Reg. v. Harden [1963] 1 Q.B. 8; [1962] 2 W.L.R. 553; [1962] 1 All E.R. 286, C.C.A.

Reg. v. Holmes (1883) 12 Q.B.D. 23.

Reg. v. Jameson [1896] 2 Q.B. 425.

Reg. v. Moran (1952) 36 Cr.App.R. 10; [1952] 1 All E.R. 803, C.C.A.

Rex v. Aughet (1918) 13 Cr.App.R. 101, C.C.A.

Rex v. Roche (1775) 1 Leach 134.

Sweet v. Parsley [1970] A.C. 132; [1969] 2 W.L.R. 470; [1969] 1 All E.R. 347, H.L.(E.).

The following additional cases were cited in argument in the House of Lords:

Reg. v. Blythe (1898) 4 B.C.R. 276.

Reg. v. Cooke (1858) 1 F. & F. 64.

Reg. v. Cox (Peter Stanley) [1968] 1 W.L.R. 88; [1968] 1 All E.R. 410, C.A.

Reg. v. Jeffrey (1842) 1 Broun 337.

Reg. v. Nillins (1884) 53 L.J.M.C. 157, D.C.

Reg. v. Peters (1886) 16 Q.B.D. 636, C.C.R.

Reg. v. Rogers (1877) 3 Q.B.D. 28, C.C.R.

Reg. v. Witherington (1881) 4 Coup. 475.

Rex v. Burdett (1820) 4 B. & Ald. 95.

Rex v. Esser (1767) 2 East P.C. 1125.

Rex v. Girdwood (1776) 1 Leach 142.

Rex v. Munton (1793) 2 Esp. 62.

Rex v. Oliphant [1905] 2 K.B. 67, C.C.R.

Rex v. Robinson [1915] 2 K.B. 342, C.C.A.

Rex v. Stoddart (1909) 25 T.L.R. 612; 2 Cr.App.R. 217, C.C.A.

Simpson v. State (1893) 17 S.E.R. 984.

State v. Hall and Dockery (1894) 19 S.E.R. 602.

Taylor v. Allon [1966] 1 Q.B. 304; [1965] 2 W.L.R. 598; [1965] 1 All E.R. 557, D.C.

APPEAL from the Court of Appeal (Criminal Division) (Lord Parker C.J., Karminski L.J. and John Stephenson J.).

This was an appeal by Eugene Anthony Treacy by leave of the Court

of Appeal from their decision on July 29, 1970, dismissing his appeal against his conviction at the Central Criminal Court (Judge King-Hamilton and a jury) on December 10, 1969, of blackmail contrary to section 21 of the Theft Act 1968.

On July 1, 1969, the appellant, an Irish national resident in the Isle of Wight, posted in the Isle of Wight a letter written by him and addressed to a Mrs. X in Frankfurt, West Germany. The letter read:

"Dear Mrs. [X]. This is a note asking for the loan of one hundred and seventy five pounds (£175) in return for keeping my mouth shut about you and Kane. If the money does not arraive by the 10th July I will send the photos of you and Kane to your husband Rod at Liverpool. I just want one payment of £175 in an ordanry letter sent to John Jones, c/o 101 Star Street Paddington London W.2. Remember 10th July. Deadline."

Mrs. X received the letter in Germany, and, through a friend, the police in England were informed. The address mentioned in the letter was an accommodation address at a tobacconist's shop, and, when the appellant went to collect his mail there, the police arrested him. He was charged with "blackmail contrary to section 21 of the Theft Act 1968," the particulars of offence charged being that he

"on July 1, 1969, within the jurisdiction of the Central Criminal Court, with a view to gain for himself, made an unwarranted demand of the sum of £175 from [Mrs. X] with menaces."

He pleaded not guilty. (He maintained that Mrs. X, who had been connected with a company which had employed him as a book salesman, owed him money which he was desperate to obtain, but there was no evidence to support that claim.) On the third day of the trial his counsel submitted that the court had no jurisdiction to try the case because the offence had been committed outside England. The judge rejected that submission, holding that the offence in section 21 of the Act of 1968 was complete when the last irrevocable step was taken in the making of the demand; that, in the case of a letter in the circumstances of the present case, the last irrevocable step occurred when that letter was put into the post in this country because there was then nothing more that the appellant could do to make his demand and the demand was complete, and that it was not an essential ingredient of the offence of blackmail that the demand should have been received by the victim. The trial accordingly proceeded. On the fifth day, the appellant changed his plea to guilty, preserving his objection that his offence had been committed outside the jurisdiction of the court. He was sentenced to three-and-a-half years' imprisonment.

He appealed to the Court of Appeal by leave of that court against his conviction and sentence on the grounds: (1) that the judge had been wrong in holding that the court had jurisdiction to try the offence; (2) that the judge ought to have held that the offence had been completed in Germany; (3) that the judge had been wrong in holding that the offence had been committed in the Isle of Wight, and (4) that the sentence was in all the circumstances too severe.

The facts are stated in the judgment of John Stephenson J.

Martin Graham for the defendant. The question which arises is whether the offence of blackmail was committed in England or in Germany. If it was committed in Germany then the Central Criminal Court had no jurisdiction to try the defendant. English criminal law is territorial or local in the absence of any statutory provisions extending its functioning area, so that, first, no conduct constitutes an offence over which English courts have jurisdiction unless it occurs within the territories of England or Wales, and, secondly, any conduct which constitutes an offence is a crime whatever the nationality of the offender. These are fundamental propositions.

It has to be decided where this crime was committed. It was committed where the last constituent element of the offence occurred; until that time it had not been committed. Professor Glanville Williams in an article on "Venue and the Ambit of Criminal Law" in (1965) 81 Law Quarterly Review, pp. 276, 518, comes to the conclusion, on the authorities, that a crime is deemed to be committed where its last constituent element occurs. It is, therefore, necessary to discover what the ingredients of the offence are and when the last of them was completed. [Reference was made to Reg. v. Harden [1963] 1 Q.B. 8.] In Reg. v. Governor of Brixton Prison, Ex parte Rush [1969] 1 W.L.R. 165 extradition to Canada of persons who, whilst there, had obtained money by false pretences from persons outside Canada was refused as the substantive crime had been committed outside Canada.

If it is correct that the last ingredient of the offence determines the jurisdiction of the court then one has to examine the offence of blackmail which is now governed by section 21 (1) of the Theft Act 1968. It is conceded that the demand was unwarranted and was made with menaces. The question is, therefore: what is "making a demand"? Blackmail cannot be a completed offence until the victim knows that the demand has been made. The demand in the present case having been received in Germany, the court has no jurisdiction in the matter. [Reference was made to Reg. v. Clear [1968] 1 Q.B. 670, Rex v. Girdwood (1776) 1 Leach 142, and Rex v. von Veltheim (1908) (unreported) Russell on Crimes and Misdemeanours, 8th ed. (1923), Vol. 1, p. 55.]

The next question is whether there was only an attempted blackmail. Until a blackmailing communication has made an impact on the intelligence of the victim no offence has been committed. If, however, a letter is, for example, intercepted by the customs that would be an attempt. [Reference was made to Board of Trade v. Owen [1957] A.C. 602.] It was said in Reg. v. Moran (1952) 36 Cr.App.R. 10 that there could not be an attempt to demand money with menaces. In Rex v. Burdett (1820) 4 B. & Ald. 95 it was held that the offence of publishing a libel could be indicted either in the county where it had been composed or in the county where it was subsequently published.

In the present case the offence was not merely of publication but of writing, composing and publishing the letter demanding money with menaces.

James Mendl for the Crown. When determining where the demand was made it is helpful to consider different examples. If the defendant had telephoned the demand to Germany, where would it have been made? It would be equally open to say that it had been made where the telephone call was

made or where it was received. If a person in Germany writes a blackmailing letter to a person in England then, if the defendant is right, the person in Germany would commit an offence in England and would presumably be extraditable.

It is necessary to decide where the "gist" of the offence, namely, the communication, of which the sending of the letter was part, took place.

One would expect that the German courts would deal with a person who had sent a letter to a victim in England demanding money with menaces rather than extradite him, and the English courts, as here, would deal with the converse case.

The gist of the present case was that the demand took place in two places: where the letter was sent and where it was received. In the case of a telephoned demand it is difficult to say where it takes place. In the present case the communication was both in England and in Germany. If the blackmailer had never posted the letter he might have changed his mind; there might not even have been an attempt. A blackmailer could be found guilty of an attempt on an analogy with conspiracy. Also, the position where the intended victim has moved and the letter is intercepted by a stranger or by the customs must constitute an attempt.

Martin Graham in reply. It is not a question of the gist of the offence but of where the last constituent element of the offence is completed. The concept of "gist" is vague, and it would be necessary to decide on the question of jurisdiction what the "gist" was. This would give rise to insuperable difficulties because the court would have to decide which was the most serious element of the offence.

July 29, 1970. LORD PARKER C.J. John Stephenson J. will give the judgment of the court.

JOHN STEPHENSON J. read the following judgment. On December 4, 1969, the defendant pleaded not guilty at the Central Criminal Court to blackmail. The charge was that on July 1, 1969, within the jurisdiction of the Central Criminal Court with a view to gain for himself, he made an unwarranted demand of the sum of £175 from Mrs. X with menaces, contrary to section 21 of the Theft Act, 1968.

On the third day of his trial his counsel submitted that the court had no jurisdiction to try the case because the offence was committed outside England. The judge rejected that submission and the trial went on. On the fifth day of the trial the defendant changed his plea to guilty but preserved his objection that his offence was committed outside the jurisdiction of the court. He was sentenced to three and a half years' imprisonment. He appeals to this court by leave against that conviction and sentence.

The circumstances of the offence charged were that on July 1, 1969, the defendant posted in the Isle of Wight a letter written by him and addressed to Mrs. X in Frankfurt, West Germany. The letter read:

"Dear Mrs. [X]. This is a note asking you for the loan of one hundred and seventy five pounds (£175) in return for keeping my mouth shut about you and Kane. If the money does not arrive by July 10

I will send the photos of you and Kane to your husband Rod at Liverpool. I just want one payment of £175 in an ordinary letter sent to John Jones, c/o 101 Star Street, Paddington, London, W.2. Remember, July 10. Deadline."

Mrs. X received the letter in Germany, and, through a friend, the police in England were informed. The address mentioned in the letter was an accommodation address at a tobacconist's shop, and when the defendant came to collect his mail there, the police arrested him. The defendant maintained that Mrs. X, who had been connected with a company which had employed him as a book salesman, owed him money which he was desperate to obtain, but there was no evidence supporting his claim.

On the appeal against conviction the question for this court is whether the court of trial had jurisdiction to try the offence, as the judge held, or whether it was committed outside the jurisdiction, namely, in Germany, as counsel for the defendant has submitted both to the trial judge and to this court.

Section 21 (1) of the Theft Act, 1968, reads as follows:

"A person is guilty of blackmail if, with a view to gain for himself or another or with intent to cause loss to another, he makes any unwarranted demand with menaces; and for this purpose a demand with menaces is unwarranted unless the person making it does so in the belief - (a) that he has reasonable grounds for making the demand; and (b) that the use of the menaces is a proper means of reinforcing the demand."

The defendant admitted that he made a demand which was unwarranted with menaces and with a view to gain for himself and his appeal against conviction therefore turns upon the true answer to the question "where did he make his demand?" The prosecution alleged that he made it in England, namely, in the Isle of Wight, when he posted the letter there on July 1, 1969. The defence contend that he made it in West Germany, namely, in Frankfurt, when Mrs. X received it there, presumably a day or two later. Mr. Graham for the defendant relies, first, on the general rule that English criminal law is applied on the territorial principle and no conduct constitutes an offence unless it occurs in the territory of England and Wales. Secondly, he says that the place where a crime is committed is determined by deciding where the last constituent element of the offence occurred. Thirdly, he submits that the last constituent element in the offence created by section 21 of the Act - or the gist of the offence - is the communication of the demand to the victim.

The general rule needs no authority and it appears that the present weight of English authority generally supports his second proposition: see The Law Commission Published Working Paper No. 29, Second Programme Item XVIII, Codification of the Criminal Law, Subject 3; Territorial and Extraterritorial Extent of the Criminal Law, May 12, 1970, paragraph 86. In an article in (1965) 81 Law Quarterly Review, p. 518 on "Venue and the Ambit of the Criminal Law," Professor Glanville Williams has given reasons for deploring what he calls "the terminatory theory

of jurisdiction" and preferring "the initiatory theory," that the crime is committed where the offender is; and the Law Commission has put forward provisional proposals in paragraph 91 of the papers referred to that

"it should be enacted that where any act or omission or any event, constituting an element of an offence, occurs in England or Wales that offence shall be deemed to have been committed in England or Wales even if other elements of the offence take place outside England or Wales."

Even if this court is not bound to go with the current of existing authority against the initiatory theory, we are willing to assume for the purpose of this appeal that the last constituent element does determine the place where the offence is committed.

Where then is the offence of making a demand completed? Where the person to whom it is addressed is? and if so, when effectively communicated to the victim (like an offer) or at some earlier stage? Or where the demander is? and if so, when first formulated or expressed by him or at some later stage? The answer depends on the natural and ordinary meaning of "makes a demand"; and in our judgment a person may make a demand from another without communicating it to that other. He makes a demand contrary to the section when he utters threatening words (or makes threatening gestures) addressed to another person with the necessary intent or object. When the demand is by letter he makes it, unless there are exceptional circumstances, when he posts the letter.

When the demand is made by word of mouth it is usually made at one time and place. If the intended victim is too deaf to hear it or unable to understand it, it is nonetheless made. Or a demand may be made orally over the telephone. In that case it is made and received simultaneously and it may be right to regard it as made at one time but in two places, as counsel for the Crown suggested. When the demand is made in writing, as in this case, it will usually be made at one time and place and received at another time and place. If the intended victim is blind or illiterate, the demand is nonetheless made and first made, in our opinion, not when it reaches the victim but when it leaves the demander beyond recall on its way to the intended victim whom it will reach in the ordinary course of things.

We say "first made," because it may be right to regard the demand as continuing until it is received, or as repeated when received. On that view the defendant's demand was made both in England and in Germany, but he would still be triable for the offence in England although he might also be triable for an offence in Germany. The demand is not made when the threatening letter is written because it may never be sent and the writer may have no firm intention to gain anything by it or to cause any loss by it. But once the letter is posted the demand is completed and the offence of blackmail is committed. The blackmailer has then made his demand, whether or not the letter goes astray or is read by the intended recipient. To make a demand is not the same thing as to make it known.

A contrary view has been expressed, for instance by Professor Glanville Williams, who writes at p. 521 of the article already quoted that

"The essence of this crime [blackmail] is the making of a demand with menaces, and there is no 'demand' until the demanding letter is received, so that the offence is regarded as committed at the place of receipt":

citing as authority cases of sending a letter with menaces and uttering a forgery. Mr. Griew in his book on the Theft Act 1968 to which Mr. Mendl for the Crown referred us, expresses the opinion, at p. 110, that the full act of making a demand with menaces probably does involve the effective communication of the demand in the sense that the victim must actually receive the demander's letter or hear his words or observe his gestures; but he is willing, at p. 111, to regard the question what amounts to making a demand as an open one, so far as the spoken word is concerned, but not apparently so far as the written word is concerned. He treats the sending of a letter which does not arrive as an attempt to make a demand, and criticises the view of the court in Reg. v. Moran (1952) 36 Cr. App.R. 10, 12 that there cannot be an attempt to demand: there is a demand or there is not.

That view is, however, consistent with the nature of the offence now defined by section 21 and of the mischief aimed at by it and by the statutory provisions which preceded it. We would apply to section 21 the view of Professor Glanville Williams at p. 537 of the same article that, in a sense, the substantive mischief aimed at by sections 29-31 of the Larceny Act 1916 was the obtaining of property by blackmailing threats, but that that statute

"is worded as creating a kind of inchoate crime, and there is clearly an element of mischief in the mere utterance of the threat. There can be no doubt, therefore, that a blackmailing threat uttered in England with a view to obtaining property abroad would be justiciable here."

Bearing in mind that those sections of the Larceny Act made "Every person who utters ... any letter or writing demanding of any person with menaces ..." (section 29) or "who ... demands of any person ..." (section 30) or "who ... publishes or threatens to publish ..." (section 31) guilty of an offence, we see no reason why a person like the defendant who posts a letter in this country should not be thought to have "uttered" the letter here or made a demand here which is justiciable here, notwithstanding that, in Professor Glanville Williams' words, "some further extraterritorial mischief is in view," namely, its receipt by the person outside the jurisdiction to whom it is addressed as well as her compliance with it by paying £175.

We can find no authority which prevents us from giving the words of the section this meaning and we consider our view of them at least consistent with the interpretation put by this court on section 30 of the Act of 1916 in Reg. v. Clear [1968] 1 Q.B. 670. Reg. v. Harden [1963] 1 Q.B. 8, Board of Trade v. Owen [1957] A.C. 602 and Reg. v. Governor of Brixton Prison, Ex parte Rush [1969] 1 W.L.R. 165 are in our view of no assistance to the defendant. In particular, there is a world of difference between

obtaining money by false pretences or deception and demanding it by menaces or threats.

Blackmail is in substance an attempt to obtain money. Making a demand resembles making a false pretence or a false statement. Indeed it is making a statement in a peremptory and often interrogative form. It cannot of course be an offence if made to the winds. Although the new section does not say in terms that the demand must be made from any person, it must be addressed or directed to another person, and if unwarranted and made with menaces and with one of the specified intents or objects it is blackmail within the section, whether or not it reaches its destination or is understood by the addressee.

For these reasons we consider that the defendant was rightly charged with making an unwarranted demand on the date the letter was posted and that the ruling of the trial judge that the offence was complete when the last irrevocable step was taken in the making of the demand was right. That ruling recognised the inchoate nature of the offence and its similarity to an attempt. The appeal against conviction is therefore dismissed. As to the appeal against sentence, the defendant is a young man now 22 years of age and he has one previous conviction in 1968 when he was bound over for housebreaking and larceny. He has worked in various employments; when arrested he was working as a kitchen porter in a holiday camp on the Isle of Wight. The attempt to extract money from this lady was a crude attempt, and the trial judge was satisfied that not only was he not owed money by the company which he claimed owed him money, but it was the other way round: he owed that company money.

Bearing in mind the seriousness of the offence of blackmail, this court sees no reason to interfere with the sentence passed by the judge and the appeal against that sentence is likewise dismissed.

[Reported by MRS. H. WHICHER, Barrister-at-Law.]

The appellant appealed.

C. Lewis Hawser Q.C and Martin Graham for the appellant. Four questions arise for consideration: 1. Is English criminal law applied on the territorial principle? 2. Where is a crime with a foreign element committed? 3. Is the communication of the demand a constituent element in the offence of blackmail? 4. If the appellant's acts in England were no more than would normally constitute an attempt, can he be found guilty of an attempt in England when a constituent element of the crime was committed abroad and the crime itself is not justiciable here?

As to 1. It is clearly established that English criminal law is applied on the territorial principle unless a statute plainly gives the courts extraterritorial jurisdiction over crimes committed abroad: see Macleod v. Attorney-General for New South Wales [1891] A.C. 455 and Cox v. Army Council [1963] A.C. 48. [Reference was made to Gordon, The Criminal Law of Scotland (1967), pp. 60, 61, 83 et seq.]

As to 2. There are three possible views: (a) that the crime is committed where it is initiated (the initiatory theory); (b) that it is committed where it is completed, i.e., where the last constituent element occurs (the terminatory theory); (c) that at any rate for the purpose of conferring jurisdiction it is to be regarded as being committed in England if any of its constituent elements or the "gist" of the offence - occur here.

The weight of English authority has come down on the side of (b), and although some of the earlier cases may appear to be inconsistent with this view the more recent cases support it. [Reference was made to Rex v. Girdwood (1776) 1 Leach 142; Rex v. Munton (1793) 1 Esp. 62; Rex v. Esser (1767) 2 East P.C. 1125; Rex v. Burdett (1820) 4 B. & Ald. 95; Reg. v. Cooke (1858) 1 F. & F. 64; Reg. v. Rogers (1877) 3 Q.B.D. 28; Reg. v. Holmes (1883) 12 Q.B.D. 23; Reg. v. Nillins (1884) 53 L.J.M.C. 157, D.C.; Reg. v. Peters (1886) 16 Q.B.D. 636; Rex v. Oliphant [1905] 2 K.B. 67; Rex v. Stoddart (1909) 25 T.L.R. 612; 2 Cr.App.R. 217; Board of Trade v. Owen [1957] A.C. 602; Reg. v. Harden [1963] 1 Q.B. 8; Reg. v. Cox (Peter Stanley) [1968] 1 W.L.R. 88; and Reg. v. Governor of Brixton Prison, Ex parte Rush [1969] 1 W.L.R. 165.] In particular, Rex v. Stoddart, Reg. v. Harden, Reg. v. Cox (Peter Stanley) and Reg. v. Governor of Brixton Prison, Ex parte Rush are only consistent with the terminatory theory set out in (b). (b) is also supported by foreign cases such as Simpson v. State (1893) 17 S.E.R. 984; Reg. v. Blythe (1898) 4 B.C.R. 276: and State v. Hall and Dockery (1894) 19 S.E.R. 602, by Working Paper No. 29 of the Law Commission [see ante, pp. 542G - 543B] and by Professor Glanville Williams's articles on "Venue and the Ambit of Criminal Law" in (1965) 81 Law Quarterly Review, pp. 276, 518: see particularly that starting at p. 518. [Reference was made to Gordon, op cit., pp. 85, 86; Reg. v. Jeffrey (1842) 1 Broun 337, 341; and Reg. v. Witherington (1881) 4 Coup. 475, 488, 497.]

As to 3. The making of a demand involves, in the ordinary meaning of the words, the making of a demand to somebody: see the form of indictment in the present case. (In the case of a letter, the Post office would be the innocent agent of the sender.) In the case of a telephone call, the demand would be made in the place where it was received; cf. the Telex class of case

in the law of contract. No demand is made until communicated: see Professor Glanville Williams, 81 Law Quarterly Review at p. 521.

On the question whether there can be an attempt to commit blackmail, there is authority for the proposition that there cannot be an attempt to make a demand; that authority is wrong: Reg. v. Moran (1952) 36 Cr.App.R. 10. The decision in that case was not wrong on its facts, but it is wrong on the proposition of law contained in it. It has been criticised - rightly - by Professor J. Ll. J. Edwards in (1952) 15 Modern Law Review, p. 347. If a man speaks to another in the wrong language, he attempts to make a demand; he does not make a demand. In the case of a letter, there cannot be a demand until the letter is received; the posting of it is the attempt. Whether or not a demand is made cannot depend on the probability - varying according to the circumstances - that the intended recipient will get it. It must be a question of receipt: it must be received in a form which the recipient can understand before there can be a demand.

An attempt becomes an attempt when it is actually launched; it is not even an attempt in the preparatory stages when there is a mere intention or manifestation of intention. [Reference was made to Professor Glanville Williams, "Blackmail" [1954] Crim.L.R. 79, 85; Professor J. C. Smith, "Success and Failure in Criminal Attempts" [1961] Crim.L.R. 436, 445; Russell on Crime, 12th ed. (1964), vol. 2, p. 878; Smith and Hogan, Criminal Law, 2nd ed. (1969), p. 177, and Griew, The Theft Act 1968 (1968), pp. 109-110.] Rex v. Robinson [1915] 2 K.B. 342 shows that, in the case of false pretences, there is not even an attempt until the pretence is communicated; this provides an important analogy with the present case. In Robinson's case the full offence was the making of the representation plus the obtaining of the money. If the accused does not obtain the money but makes a representation, that is an attempt, and there cannot be an attempt to commit an attempt. Where, however, the making of a demand is the offence, one can have an attempt to make a demand - but for the full offence to be committed the demand must be communicated. [Reference was made to Reg. v. Clear [1968] 1 Q.B. 670.] There are three stages: 1. The formation of the intent. 2. An intermediate stage, part preparatory and part intent. The accused acts so as to try to put his manifested intention into operation. This includes posting the letter, or telephoning - or possibly shouting to someone not within earshot. 3. The demand being received by the victim; then only is the offence committed. The demand must be communicated in a form which the victim is able to understand, though perhaps it is not necessary for the prosecution to show that he did in fact understand it. If the victim is out of earshot, the accused is not making a demand, though he may be making an attempt to do so. In a situation where the victim might or might not be out of earshot, it is for the prosecution to prove that there was a communication.

The early Acts of Parliament make a distinction between uttering and communicating; see the Larceny Act 1861: "uttering, sending or causing to be received" and the Forgery Act 1913, s. 6.

The Theft Act 1968 does not contain the words "make a demand of anyone." In an ordinary situation, however, the Act is aimed at people being frightened by threats being made to them. Its aim is to protect people from demands with menaces. If the demand does not reach the intended

victim, the consequences are less serious and the law regards it as merely an attempt. Analogous is the offence of attempting to obtain money by false pretences; there cannot be a conviction unless the false pretence is communicated to the victim: Rex v. Robinson [1915] 2 K.B. 342. There are also analogies in the civil law: in the case of a claim in detinue the claimant has first to make a demand for the return of the goods. If he issues his writ before the demand has reached the respondent it is premature and it is idle for him to say that he sent the letter off and that in the normal course of post the respondent would have got it but for some reason or other he did not. Similarly, an offer cannot be accepted until it comes to the plaintiff's knowledge: see Taylor v. Allon [1966] 1 Q.B. 304.

As to 4. If the completed crime is not triable in this country, the acts preparatory thereto - even though they would be sufficient in an ordinary case to constitute an attempt - are also not triable here: see Board of Trade v. Owen [1957] A.C. 602, 625.

Henry Pownall and James Mendl for the Crown. In both section 29 and section 30 of the Larceny Act 1916 the words "of any person" appear, whereas they do not appear in section 21 (1) of the Act of 1968. In practice, for a number of years the "uttering" section, section 29, of the Act of 1916 had always been used for blackmail by letter and section 30 for verbal blackmail. The new section 21 (1) was plainly intended to include blackmail by letter. While omitting, in its compression, the offence of uttering, it has in fact widened the meaning of the word "demand" by omitting the words "of any person." The word "demand" does not import communication; "demand of any person" may do so. It would be strange if the Act of 1968 intended to remove an offence which had previously existed. The mischief which section 21 (1) was designed to prevent is the very publication of the offensive words. Under the new Act there is no need for the prosecution to prove receipt.

One makes a demand in the first place; its effect is contingent on its being received. The letter has got to be sent on its way - otherwise there could be no intent to cause loss to another. The meaning of "sending it on its way" would depend on the method chosen - for instance, speaking into the telephone or putting a letter into the postbox. It must be sent on its way with the intent that it should reach its destination.

The terminatory theory is unsatisfactory because it involves the fiction that a person acts in a place where he is not. Death, in the case of murder could occur anywhere. A better test in the present case is: from where was the letter sent? It is not so much a question of the last irrevocable step as of the last reasonable step which the sender can take.

In the case of a letter sent from Germany, the sender could be prosecuted here because one of the principal elements of the offence would have occurred here. No real distinction is to be drawn between "making a demand" and "demanding."

There is a difference between commission and consummation - a distinction suggested by Professor Glanville Williams in 81 Law Quarterly Reviewat pp. 520-521. Commission is the defendant's last personal act; consummation is the final effect of it. Commission decides jurisdiction and consummation determines the offence.

In none of the cases referred to by the appellant with the possible exception of Reg. v. Harden [1963] 1 Q.B. 8, has there been held to be exclusive jurisdiction in the country which obtained jurisdiction.

The terminatory theory has no basis as yet in law. In both Reg. v. Harden and Reg. v. Governor of Brixton Prison, Ex parte Rush [1969] 1 W.L.R. 165 the ratio decidendi seems to have been equally consistent with the "gist of the offence" test: see per Widgery L.J. [1970] 3 W.L.R. 592, 597. In Reg. v. Harden the real gist was the taking of the money. It was held that it was the sending of the money, but that was on the special facts of the case; see also Reg. v. Governor of Brixton Prison, Ex parte Rush [1969] 1 W.L.R. 165, 172-173, per Lord Parker C.J. The gist of the offence may, however, take place in two jurisdictions (per Wills J. in Reg. v. Ellis [1899] 1 Q.B. 230, 235 et seq.); alternatively, there may be concurrent jurisdictions.

The only definition of "uttering" occurs in the Forgery Act 1913, s. 6. For the question whether the doctrine of autrefois acquit applies to a conviction in a foreign court see Archbold, Criminal Pleading, Evidence and Practice, 37th ed. (1969), paras. 438 and 440, pp. 121-122 and 123.

The advantages of the initiatory theory are as follows. The principal element of the offence is certain in itself. The gist of the offence is certain. The place where the crime is committed is certain (though this does not mean that that place has exclusive jurisdiction; the defendant could be tried where the lesser element occurred). The witnesses would be in that place. The defendant's guilty mind would be in that place. Extradition would be avoided. That place will be the place whose law our law would presume him to know.

Hawser Q.C. in reply. The House should not adopt the "gist of the offence" proposition, though it makes no difference here because here the "gist" was the making of the demand - in Germany. The theory is, however, a very difficult one to apply. In the case of false pretences, for example one element, the obtaining, is just as essential as the other, the false pretence. In any case where a crime has a number of essential ingredients, it cannot be committed unless all the elements are present, so that each of them is the "gist." The prosecution are then in great difficulties, because they must accept that there can only be one "gist" of anything; if there are two "gists," one is back where one started. If posting the letter was the gist of the present offence, the blackmailer could, if the prosecution are right just slip over to Boulogne to post his letter, he would not commit any offence triable in England and only extradition to France could get at him. The prosecution's proposition is inconsistent not only with Reg. v. Harden [1963] 1 Q.B. 8 and Reg. v. Governor of Brixton Prison, Ex parte Rush [1969] 1 W.L.R. 165 but also with Reg. v. Witherington (1881) 4 Coup. 475. "The crime" cannot be committed in two different places, and it does not help to say that jurisdiction is where the crime is committed.

The place having jurisdiction is the place where the last constituent element of the crime - the last essential ingredient of it - has occurred. This is the current of authority in the last few years in this country. It would be impossible to leave to the jury the question whether a defendant thought it probable that a letter would reach its intended destination.

Their Lordships took time for consideration.

November 15. LORD REID. My Lords, I shall not set out the facts of this case. The question in issue can be simply stated. The offence charged was the blackmailing offence of making an unwarranted demand with menaces. Is a person guilty of that offence if in England he writes and posts a letter making such a demand of a person who is abroad?

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."

First, I think that we should see what is meant by making a demand with menaces. Rather than argue about words I shall take a few examples. Suppose the blackmailer uses the telephone and says: "You know who is speaking. Pay up or I shall kill your brother John." If the victim receives the message he will understand it and clearly there is a demand with menaces. But suppose the blackmailer gets the wrong number. Sometimes an operator taking a call does not listen immediately and no one may hear these words. Or the call may be taken by a complete stranger. He does not know who the caller is or what is demanded, and he is not menaced - he has no brother John. It seems to me very far-fetched to say that the blackmailer has made a demand with menaces. He has attempted to do so but his attempt has miscarried.

Then suppose the blackmailer sends an emissary to make an oral demand. Surely no demand is made until the emissary delivers the message. Can it make any difference that the emissary carries a paper with the words written on it? Can it make any difference that the paper is enclosed in an envelope? Can it make any difference that the emissary does not know what is enclosed in the envelope? Can it make any difference whether the message is to be delivered in this country or abroad? I think not.

But it is said to make a difference whether or not the blackmailer is able to get in touch with the emissary before the message is delivered and countermand its delivery. I can see no reason for that. In either case the blackmailer has done all the physical acts he can to put in train a series of events which if not interrupted will result in the demand being made. They may be interrupted by the emissary being taken ill or being unable to find the victim or by the blackmailer having second thoughts and being able to countermand delivery. The result is the same in each case. The blackmailer attempted to make the demand when he dispatched the emissary, but the demand was never made.

The Post office is no more than an emissary. The letter may miscarry

or the addressee may have left his old address. The letter may or may not be returned by the Post Office to the sender.

Some difficulty has been introduced into this matter by what was said in Reg. v. Moran (1952) 36 Cr.App.R. 10 when it was said that there could not be an attempt to make a demand. There may have been no room in that case for finding an attempt. But if it was intended to say that there can never be an attempt to make a demand with menaces I think that that was clearly wrong.

So in this case I have no doubt that a demand with menaces was made by the accused when the victim received the letter in Germany, but no demand was made in England.

How, then, was he guilty of an offence in this country? He did not make two demands one when he posted the letter and a second when it was delivered. He did nothing after posting the letter which could amount to a second demand. But it was argued that he made a continuing demand which began when he posted the letter and ended when it was received. Continuing offences are well known in the law. They are generally offences of omission. The accused is guilty of the full offence at the beginning and he continues to be guilty for every moment during which the omission continues. But here was he accused guilty of the full offence when the letter was posted? Would he, in the examples which I have suggested, have been guilty of the full offence the moment he sent off his emissary? I think not. I therefore reject the argument that there was a continuing demand.

The particulars of the offence of which the accused was convicted were that he "on July 1, 1969, within the jurisdiction of the Central Criminal Court, with a view to gain for himself, made an unwarranted demand ... with menaces." July 1 was the day when he posted the letter in England. If I am right that the demand was not made until the letter was received in Germany then that is an end of the case.

But there was much argument on a wider basis involving the jurisdiction of the courts of England when there is a foreign element in the crime. My noble and learned friend Lord Morris of Borth-y-Gest has dealt with this matter. I agree with what he says and shall not repeat it. But in view of the importance of the question I shall try to state my own views briefly.

It has been recognised from time immemorial that there is a strong presumption that when Parliament, in an Act applying to England, creates an offence by making certain acts punishable it does not intend this to apply to any act done by anyone in any country other than England. Parliament, being sovereign, is fully entitled to make an enactment on a wider basis. But the presumption is well known to draftsmen, and where there is an intention to make an English Act or part of such an Act apply to acts done outside England that intention is and must be made clear in the Act. I can find no indication of any such intention in the Theft Act 1968 with regard to any part of it with which we are concerned. I think that it would be both retrograde and likely to cause confusion in the law if any such intention were inferred without there being clear words to indicate it.

The present state of the law is, in my view, far from satisfactory. I refer in particular to the decisions in Reg. v. Harden [1963] 1 Q.B. 8 and Reg. v. Governor of Brixton Prison, Ex parte Rush [1969] 1 W.L.R. 165.

If a person in this country does all that he can to ensure that a crime is committed abroad so that he can reap the benefit here, I can see nothing contrary to legal principle in our law holding him guilty of a crime. If I were entitled to make law I think that I would draw some distinction between malum prohibitum and malum in se. The latter is or ought to be a crime everywhere but opinion and practice differ as to the former. But changes of that kind are apt to have side-effects which would elude us in any such examination of a problem as we can make in reaching a decision in a particular case.

This is not an offence where there are two elements, e.g. making a false pretence and then obtaining the money. There is only one element in this offence - making a demand with menaces. But by employing the services of the Post Office the accused chose to arrange matters so that he personally did not make the demand; he only had to do the acts preparatory to committing the offence - writing and posting the letter. If I take the law as it is the argument must be that, on a proper construction of the Theft Act 1968, doing the preparatory acts in England can be held to be equivalent to making the demand in England. This seems to me to be a novel and unsound construction. No doubt there ought to be an offence. And I think that there would have been an offence under the law as it was before the Theft Act was passed. Those who prepared that Act tried to simplify the law. But very often the result of simplifying the law is that per incuriam some unusual cases are no longer caught by the simplified provisions. In such a case it is, in my view, wrong to try to remedy this by giving a strained meaning to the new provisions: the proper remedy is new legislation.

I would allow this appeal.

LORD MORRIS OF BORTH-Y-GEST. My Lords, the general principle of the common law of England is that the exercise of criminal jurisdiction does not extend to cover acts committed on land abroad. In general, therefore, acts committed out of England, even though they are committed by British subjects, are not punishable under the criminal law of this country. But, as Parliament is supreme, it is open to Parliament to pass an enactment in relation to such acts. It is, however, a general rule of construction that unless there is something which points to a contrary intention a statute will be taken to apply only to the United Kingdom. It would be open to Parliament to enact that if a British subject committed anywhere an act designated as blackmail he would commit an offence punishable in England. Such an enactment would, however, have to be in clear and express terms: specific provision would have to be made with regard to acts committed abroad.

The general rule as expressed by Lord Halsbury L.C. in Macleod v. Attorney-General for New South Wales [1891] A.C. 455, 458 is that "all crime is local" and that jurisdiction over a crime belongs to the country where it is committed. Unless, therefore, there is some provision pointing to a different conclusion, a statute which makes some act (or omission) an offence will relate to some act (or omission) in the United Kingdom. Even where a statute creating a criminal offence is clearly expressed so as to cover acts committed outside the jurisdiction, it will, in the absence of further

clear provision only be regarded as covering such acts when committed by British subjects.

"One other general canon of construction is this - that if any construction otherwise be possible, an Act will not be construed as applying to foreigners in respect to acts done by them outside the dominions of the sovereign power enacting"

(per Lord Russell of Killowen C.J. in Reg. v. Jameson [1896] 2 Q.B. 425, 430).

There are numerous statutes which have made express provision in relation to acts committed abroad by British subjects and which have made such acts punishable in this country. It will suffice to give only a few examples. Thus, by section 9 of the Offences against the Person Act 1861 it was provided that where any murder or manslaughter

"shall be committed on land out of the United Kingdom, whether within the Queen's Dominions or without, and whether t’he person killed were a subject of Her Majesty or not"

then any such offence if "committed by any subject of Her Majesty" could be dealt with, inquired of, tried, determined and punished in England. Section 10 of that Act made provision for the case where any person "being feloniously stricken, poisoned, or otherwise hurt upon the sea, or at any place out of England" should die in England and for the case where someone feloniously stricken, poisoned or otherwise hurt in England should die of the same at sea or at any place out of England, providing that in any such case the offence could be dealt with in England.

In section 8 of the Perjury Act 1911 provision is made to allow of prosecution in England where an offence is "committed in any place either on sea or land outside the United Kingdom."

By section 57 of the Offences against the Person Act 1861 it was enacted that whosoever being married should marry any other person during the life of the former husband or wife and "whether the second marriage shall have taken place in England or Ireland or elsewhere" should be guilty of bigamy. One part of the proviso to the section enacted that it would not extend to a second marriage contracted elsewhere than in England and Ireland by any other than a subject of Her Majesty.

By section 31 of the Criminal Justice Act 1948 it is provided that any British subject employed under Her Majesty's Government in the United Kingdom in the service of the Crown who commits, in a foreign country, when acting or purporting to act in the course of his employment, any offence which, if committed in England, would be punishable on indictment, is to be guilty of an offence and subject to the same punishment as if the offence had been committed in England.

Without further elaboration it will suffice to quote the words of Viscount Simonds in Cox v. Army Council [1963] A.C. 48, 67, viz.:

"apart from those exceptional cases in which specific provision is made in regard to acts committed abroad, the whole body of the criminal law of England deals only with acts committed in England."

The appellant was charged with an act which is made an offence by section 21 of the Theft Act 1968. This is an Act to revise the law of England and Wales as to theft and similar or associated offences and in connection therewith to make provision as to criminal proceedings by one party to a marriage against the other "and to make certain amendments extending beyond England and Wales in the Post Office Act 1953 and other enactments." The Larceny Act 1916 is (subject to one limitation not here relevant) wholly repealed.

The offence of blackmail is created and defined in section 21. Certain conduct had been punishable under sections 29 and 30 of the Larceny Act 1916; such conduct had not in that Act been designated by he name "blackmail." The offence of blackmail is committed if a person (with a view to gain for himself or another or with intent to cause loss to another) "makes any unwarranted demand with menaces." I can see no trace of any words which would warrant a suggestion that Parliament was making it an offence punishable in England for a person to make an unwarranted demand with menaces abroad. Nor did the prosecution here ever so contend. They only claimed to prosecute the appellant in respect of what he did in this country. They contended that what he did in this country was made an offence by section 21. They did also advance a contention, which, though obscure, I must examine, that, if the act of the appellant could be said to have consisted of substantial elements in this country and substantial elements in Germany, then there could be a conviction in this country and also (depending, presumably, on German law) in Germany.

In my view, the only question which arises in this appeal is whether the appellant made a demand in England or whether he made it in Germany. He posted in England a letter which he had written and which was received in Germany by someone to whom it was addressed and who was living at the address to which the letter was sent. The terms of the letter were such that there was an "unwarranted demand with menaces"; the appellant was motivated by "a view to gain for himself." The letter was dated June 29, 1969. It was posted on July 1, 1969, in the Isle of Wight. [His Lordship read the letter and continued:] The appellant was indicted for the offence of blackmail contrary to section 21 of the Theft Act 1968. The particulars of the offence were as follows:

"Eugene Anthony Treacy on July 1, 1969, within the jurisdiction of the Central Criminal Court, with a view to gain for himself, made an unwarranted demand of the sum of £175 from [Mrs. X] with menaces."

The appellant was tried at the Central Criminal Court. He pleaded not guilty. On the third day of the trial a submission was made that the court had no jurisdiction to try the case. It was contended that no offence had been committed in England. The court ruled that the demand was complete and was made when the irrevocable step was taken of posting the letter. It was held that it was not an essential ingredient of the offence of blackmail that "the demand should have been received by the victim." The trial proceeded for two more days. On the fifth day of the trial the appellant changed his plea to one of guilty while preserving his objection that his offence had been committed outside the jurisdiction of the court.

On appeal, the Court of Appeal upheld the ruling of the judge at the trial that the offence was complete "when the last irrevocable step [was] taken in the making of the demand." It was held that the offence was committed and the demand completed when the letter was posted. It was said that if for any reason the letter had gone astray and had not been received the demand would still have been made. The view was further expressed that it might be right to regard the demand as continuing until it was received or as repeated when received.

"On that view the [appellant's] demand was made both in England and in Germany, but he would still be triable for the offence in England although he might also be triable for an offence in Germany" [1970] 3 W.L.R. 592, 596.

My Lords, I am unable to agree with this approach. The short question which arises is whether the appellant made an unwarranted demand with menaces in England. The offence is committed (other words of section 21 being satisfied) if a person "makes any unwarranted demand with menaces." The act which is made an offence involves the making of a demand. How, then, does a person make a demand? He does so by communicating a request. He may do this by speaking to someone. He may do it in other ways. But the notion of making an unwarranted demand with menaces involves that the demand is made to or of someone who could comply with it and who could be influenced by the menaces which accompany the demand. The act of making the demand is not, in my view, committed until it is communicated to the person who is being unjustifiably menaced. There must be contact between the demander and the victim. If the demander puts his menacing demand into writing and trusts to the post either in this country or in some other country to deliver it to his victim he will not have made his demand unless and until his letter arrives. The making of a demand is one act which takes place at one time. If an Englishman on a day-trip to France there posts to a place in England a letter containing an unwarranted demand of the addressee of the letter who in due course receives it at his address in England, I consider that the demand is then and at that place made.

I find it wholly unrealistic to suggest, as do the prosecution, that a demand is made when a letter containing a demand is posted. Section 21 does not make it an offence to post a letter which contains an unwarranted and menacing demand. Such an offence might have been created but it has not been. The offence under section 21 consists in making a demand. It is said in the present case that the appellant made his demand on July 1 when he posted his letter in the Isle of Wight. On that date Mrs. X was in no way exercised to consider whether or not she should send a sum of £175. On that date she was disturbed by no menaces. If the letter had been lost in the post she would have been oblivious of its contents. The letter did later reach her but if after July 1 and before it had reached her she had been asked whether the appellant had made an unwarranted demand with menaces she would assuredly have said that he had made no demand at all.

If a person went on to a remote and deserted shore and spoke words involving an unwarranted demand with menaces it would be fanciful to suggest that he had committed an offence under section 21. If a person put

such a demand into writing in a letter which he then posted to an address in England and if after the letter was posted but before it was delivered the addressee of the letter died, I cannot think that it would be right to say that the demand was made. There would, I think, have been an attempt to make a demand. 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.

If the appellant had decided to go over to Germany and there to confront Mrs. X and require her to pay him money, he would not have made his demand until he confronted Mrs. X. If he had decided to send a friend to present to Mrs. X on his behalf his requirement, he would not have made his demand until his friend had completed his mission. If he had decided to write out his request and personally to take his letter so as to present it to Mrs. X, he would not have made his demand until he had seen Mrs. X and handed over his letter. If he had entrusted his letter to a friend to take it to Mrs. X in Germany and if the friend had accepted the mission and set out on the journey in such a manner as precluded his being recalled I would think it strange indeed to say that the appellant had made a demand with menaces when he said farewell to his friend. Nor do I think that anyone so placed would ever think that he had made a demand. His menaces would not have begun to operate. They would only do so when the demand was made. If the friend died on the journey some new plan would have had to be made - for then there would have been no demand.

As the present case only involves and requires a consideration of the meaning of the words of section 21 I do not find it necessary to refer to cases in which, with regard to quite different offences, there has been discussion as to the place where an offence has been committed. There have been many cases in which consideration was given to the question as to where the offence of obtaining goods or money by false pretences was committed. In such cases there might be a false pretence in one place and an obtaining in another. The act of making a false pretence would precede the act of obtaining. Under section 21 there is no comparable problem. There is but one criminal act - i.e., the act of making the demand. There is no provision in the section covering the doing of an act in one place with some consequences elsewhere. Nor is there scope for or value in speaking about the "gist" of the offence. The gist is in making the demand. There must be the necessary intent and the demand must have the qualities described in the words of the section, but the offence consists in making the demand. That is a single act taking place at one time and in one place. I cannot therefore accept the contention of the prosecution that the act of the appellant can be said to have consisted of substantial elements in this country and substantial elements in Germany. There is nothing in the section to warrant the suggestion that the posting of a letter is a "constituent element" of offence. Nor can I accept the view that the appellant's demand was made both in England and in Germany. There were not two demands. There was only one. It is, in my view, wholly artificial to say that the appellant made a demand in England on July 1 and then made the same demand again or a separate demand in Germany some days later. Nor can there be any question of a continuing offence. The offence was committed when the demand was made. As in my opinion the

demand was made in Germany when Mrs. X received the threatening and demanding letter, I consider that, under the law as it now stands, even though it may be unsatisfactory and merit examination, the court lacked jurisdiction.

For the reasons which I have given I would allow the appeal.

LORD HODSON. My Lords, the argument 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.

The only question which it is necessary for your Lordships to decide is: "What is the construction to be placed on section 21 of the Theft Act 1968?" The section reads:

"A person is guilty of blackmail if, with a view to gain for himself or another or with intent to cause loss to another, he makes any unwarranted demand with menaces; ...."

The specific words to be construed are "makes any unwarranted demand."

The Theft Act 1968 replaced the Larceny Act 1916, which it repealed with one immaterial exception. Section 29 (1) of the earlier Act provided:

"(1) Every person who - (i) utters, knowing the contents thereof, any letter om writing, demanding of any person with menaces, and without any reasonable or probable cause, any property or valuable thing; ... shall be guilty of felony. ..."

The short facts of this case are these. On July 1, 1969, the appellant posted in the Isle of Wight a letter written by him and addressed to Mrs. X in Frankfurt, Germany. [His Lordship read the letter and continued:] The change of language in the later Act enabled the appellant to put forward an argument which would not have been available to him under the earlier Act, for he says that he can rely on the general principle of English criminal law that no conduct constitutes an offence unless it occurs in the territory of England. In the absence of express statutory provision to the contrary, Acts of Parliament must be so construed as not to conflict with this principle. The appellant argues that no demand was made in England but that the demand was not made at all until Mrs. X received it in Frankfurt.

Under the earlier Act there would have been no question but that the letter demanding the money had been uttered in England and no doubt as to the justice of the appellant's conviction could have been felt.

Now, the relevant words are changed to "makes any unwarranted demand," so the appellant says: "True, I wrote a letter initiating a demand but no demand was made and ergo no crime was committed until the letter reached its destination in Germany." Hence the statutory offence of blackmail, which to be justiciable must be committed in this country, was, he says, not committed by him at all.

This seems an odd consequence of an Act designed to revise the law of England as to theft and similar or associated offences and I do not

find myself able to accept that the result for which the appellant contends follows.

Some learning has been expended in dividing the commission of a crime into its initiatory and its terminatory stages. This forms the basis for an argument that the crime is not completed until the terminatory stage is reached. This was not reached in the present case until the letter reached its destination outside the jurisdiction. Similarly, an argument can be built upon a distinction between conduct leading up to a result and the result itself. Thus, in obtaining money by false pretences the conduct which is essential to the crime does not amount to a complete offence until the result is obtained.

So in this case the writing of the letter and the posting of it by the appellant is said to have been no more than a preparatory act, at worst an attempt to commit the crime of blackmail. Under the earlier Act, the wording of which I have quoted, it was held that there could not be an attempt to demand money with menaces. In short, either there is a demand or there is not; a person cannot be guilty of an attempt to demand: Reg. v. Moran, (1952) 36 Cr.App.R. 10. This is correct as a general rule if the view which I take as to the meaning of the phrase "makes a demand" is right. It is, of course, otherwise if, under the new Act, the demand is not made until it reaches its destination, then there could be an attempt to demand in the preparatory stages culminating in the perfection of the crime when the demand was received.

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 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.

I am in agreement with the Count of Appeal that he criminal offence of blackmail was committed in that the appellant made a demand when he wrote and posted this letter to Mrs. X. I would therefore dismiss the appeal.

LORD GUEST. My Lords, I have had the advantage of reading the speech of my noble and learned friend, Lord Hodson. I agree with his views and for the same reasons ’would dismiss this appeal.

LORD DIPLOCK. My Lords, the appellant wrote and posted in England a typical blackmailing letter addressed to a lady in West Germany. In it he demanded that she should send £175 to him at an address in England under the threat ’that if she did not he would inform her husband of some allegedly discreditable conduct on her part. She received the letter in West Germany, the police in England were informed and the appellant was arrested in this country and tried and convicted at the Central Criminal Count of the offence of blackmail under section 21 of the Theft Act 1968.

His conviction was upheld by the Court of Appeal who granted leave

to appeal to your Lordships' House and certified that the following point of law of general public importance was involved in the decision:

"Whether, when a person with a view to gain for himself or with intent to cause loss to another, makes an unwarranted demand with menaces by letter posted in England and received by the intended victim in West Germany, the person can be tried in England on a charge under section 21 of the Theft Act 1968."

In view of the way in which the question is framed and the wide-ranging argument about "jurisdiction" before your Lordships' House, I am prompted to state at the outset that the question in this appeal is not whether the Central Criminal Court had jurisdiction to try the defendant on that charge but whether the facts alleged and proved against him amounted to a criminal offence under the English Act of Parliament.

This is a different question from that involved in the old cases about venue which have been relied on by each of the parties in this appeal. In the venue cases, the facts alleged against the prisoner unquestionably amounted to a criminal offence in English law. The only question was whether under the technical rules of venue he was liable to be tried before a court whose jurors were drawn from one locality rather than another. The historical origin of those rules dated back to the embryonic stage of development of English trial by jury. Jurors originally combined the functions of "know-ers" of facts as well as "tri-ers" of facts and the prisoner was entitled to have his guilt determined by jurors drawn from an area where the inhabitants would be most likely to know the facts alleged to constitute the crime with which he was charged. The rules of venue continued to be applied long after the jury had assumed its modern function of deciding facts upon evidence adduced before it. The question involved in the old venue cases was one of jurisdiction and, although the reported cases are not decisive as to this, it may well be that under the former doctrine of venue before it was changed by the Criminal Law Act 1826 the jurisdiction to try a prisoner for a particular crime was exclusive to a court whose jurors were from the particular geographical area in which events constitutive of the crime were alleged to have occurred. But these cases dealing with competing local jurisdictions of courts in England and Wales are of marginal relevance to the disposition of the instant appeal.

The fact that the appellant was arrested in Greater London and committed for trial at the Central Criminal Court unquestionably gave to that court jurisdiction to determine whether or not he was guilty of the offence for which he was indicted. That offence was the statutory offence of "blackmail" as defined in section 21 of the Theft Act 1968. The Act creates a new code of offences of obtaining or handling property or causing loss dishonestly or by other improper means. It supersedes the previous penal enactments in this field of law, and by section 32 (1) (a) abolishes any previously existing offences at common law falling within that field of crime. These are offences of which the victims are generally private individuals. The only question for your Lordships' House is what did Parliament mean when it enacted in 1968 that:

"A Person is guilty of blackmail if, with a view to gain for himself or

another or with intent to cause loss to another, he makes any unwarranted demand with menaces"?

The words are quite general. On a literal construction they are satisfied wherever the unwarranted demand is made. No mere application of rules of syntax or semantics can cut them down to "if ... he makes any unwarranted demand with menaces in England or Wales." If the meaning of the subsection is to be qualified by implying some geographical limitation as to the place where the unwarranted demand is made, the limitation is to be derived not as a matter of linguistics from the actual words used but from broader considerations of the purpose of the code in which the words appear.

The Theft Act 1968 is a code of criminal law, and criminal law is about the right of the state to punish persons for their conduct - generally where that conduct is undertaken with a wicked intent or without justificatory excuse. A code of criminal law defines offences, viz., the kinds of conduct which render the person guilty of them liable to punishment. Conduct which constitutes a crime consists of a person's doing or, less frequently, omitting to do physical acts, and the definition of the crime ways contains a description of physical acts or omissions, though it may, and in English law generally does, also require that the physical acts or omissions which constitute the described conduct should be done with a particular intent either expressly stated in the definition or to be implied from the mere fact that Parliament has made the described conduct punishable (cf. Sweet v. Parsley [1970] A.C. 132). Your Lordships are not, however, concerned with the mental element in the definition of a crime in the instant appeal.

But the definition may in addition provide that the described conduct only becomes the defined crime if it is followed by particular consequences occurring after the completion of the physical acts done by the accused which constitute the described conduct. The consequences may be independent of any at of volition by the victim of the accused's conduct, as in the case of murder by shooting, or they may be dependent upon an act of volition by the victim, as in the case of obtaining money by false pretences. But in either case the consequences may take effect upon the victim in a different place from that where the physical acts of the accused were done.

Where the definition of the crime incorporates a requirement of consequences subsequent to the completion of the physical acts by the accused, Professor Gordon in his book on Scots criminal law [ The Criminal Law of Scotland (1967)] classifies the resultant crime as a "result-crime" as distinct from a "conduct-crime," but this nomenclature, though convenient in drawing attention to the distinction, tends to blur the fact that the conduct of the accused is as essential an ingredient of a "result-crime" as it is of a "conduct-crime."

In his article in (1965) 81 Law Quarterly Review, pp. 276, 518, on "Venue and the Ambit of Criminal Law" which was referred to the Court of Appeal in the instant case, Professor Glanville Williams uses the contrasting phrases "initiatory" to describe that element or ingredient of a crime which consists of the physical acts of the accused, and "terminatory" to describe its subsequent consequences. He argues the case in favour of what he calls the "initiatory theory of jurisdiction," viz., that the accused

can be tried for the crime only by the counts of the state in which the accused did the physical acts, but concludes that the English courts have adopted the "terminatory theory of jurisdiction," viz., that the accused can be tried for the crime only by the courts of the state in which the consequences of the accused's physical acts took effect. The Count of Appeal, in the instant appeal, was willing to assume that this was so.

The assumptions which underlie the proposition that English criminal law calls for a choice to be made between these rival theories of jurisdiction are: first, that the definition of the crime under consideration includes a requirement that the physical acts of the accused should be followed by specified consequences - otherwise, the initiatory and terminatory characteristics of the crime coincide; second, that the existence of jurisdiction in the courts of one state to try the accused for a particular crime, however the crime may be defined, necessarily excludes the jurisdiction of the counts of any other state to try the accused for his physical acts which either alone or in conjunction with their consequences constitute the crime defined.

My Lords, whether or not the definition of the crime of blackmail in section 21 of the Theft Act 1968 is one which includes a requirement that the physical acts of the accused himself should be followed by any consequences is a problem of linguistics. The opinions held by your Lordships upon it are divided and in due course I shall express my own opinion on this aspect of the instant appeal. But it does not matter which view is correct unless the second underlying assumption of Professor Glanville Williams's article is justified. This raises a more basic question in our criminal law than a mere problem of linguistics. This I will now proceed to examine.

The Parliament of the United Kingdom has plenary power, if it chooses to exercise it, to empower any court in the United Kingdom to punish persons present in its territories for having done physical acts wherever the acts were done and wherever their consequences took effect. 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 reason have we to suppose that Parliament intended any geographical limitation to be understood?

The only relevant reason, now that the technicalities of venue have long since been abolished, is to be found in the international rules of comity which, in the absence of express provision to the contrary, it is presumed that Parliament did not intend to break. It would be an unjustifiable interference with the sovereignty of other nations over the conduct of persons in their own territories if we were to punish persons for conduct which did not take place in the United Kingdom and had no harmful consequences there. But I see no reason in comity for requiring any wider limitation than that upon the exercise by Parliament of its legislative power in the field of criminal law.

There is no rule of comity to prevent Parliament from prohibiting under pain of punishment persons who are present in the United Kingdom, and so owe local obedience to our law, from doing physical acts in England, notwithstanding that the consequences of those acts take effect outside the

United Kingdom. Indeed, where the prohibited acts are of a kind calculated to cause harm to private individuals it would savour of chauvinism rather than comity to treat them as excusable merely on the ground that the victim was not in the United Kingdom itself but in some other state.

Nor, as the converse of this, can I see any reason in comity to prevent Parliament from rendering liable to punishment, if they subsequently come to England, persons who have done outside the United Kingdom physical acts which have had harmful consequences upon victims in England. The state is under a correlative duty to those who owe obedience to its laws to protect their interests and one of the purposes of criminal law is to afford such protection by deterring by threat of punishment conduct by other persons which is calculated to harm those interests. Comity gives no right to a state to insist that any person may with impunity do physical acts in its own territory which have harmful consequences to persons within the territory of another state. It may be under no obligation in comity to punish those acts itself, but it has no ground for complaint in international law if the state in which the harmful consequences had their effect punishes, when they do enter its territories, persons who did such acts.

The consequence of recognising the jurisdiction of an 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 accused to double jeopardy. This is avoided by the common law doctrine of autrefois convict and autrefois acquit, a doctrine which has always applied whether the previous conviction or acquittal based on the same facts was by an English court or by a foreign court: see Rex v. Roche (1775) 1 Leach 134 and for a modern instance Rex v. Aughet (1918) 13 Cr.App.R. 101.

Turning from principle to the authorities, little assistance is, in my view, to be gained from the earlier cases. For reasons already stated those on internal venue in England are not in point. In those in which there was a foreign or Scottish element, generally cases of obtaining property or money by false pretences, the courts appear to have treated the problem as one of determining where the crime was "committed," without drawing any distinction between the physical acts of the accused and the subsequent consequences of his acts, and to have treated the jurisdiction of an English court to try it as dependent upon that. In Reg. v. Holmes (1883) 12 Q.B.D. 23 it was held on the facts that both the physical acts of the accused (the false pretences) and their consequences (the obtaining) had taken place in England and it was expressly left open whether the court would have had jurisdiction to try the accused of only one of those ingredients it the offence had taken place in this country. In Reg. v. Ellis [1899] 1 Q.B. 230 it was held as a matter of decision that the English court had jurisdiction to try the offence if the obtaining took place in England although the false pretences were made only in Scotland. This is not inconsistent with the view at an English court would likewise have jurisdiction in the converse case where the false pretences were made in England and the obtaining look place only in Scotland, and I do not find the dicta in the several judgments to be sufficiently clear or consistent to be persuasive to the contrary.

The question whether the jurisdiction to try offences of obtaining property or money by false pretences is treated in English law as exclusive to the court

of the country in which the property or money was obtained did not fall for decision until comparatively modern times, in Reg. v. Harden [1963] 1 Q.B. 8. The only matter discussed in the judgment was as to where the accused obtained cheques which were posted in Jersey addressed to the accused in England as a consequence of his false pretences made previously in England. The Court of Criminal Appeal applied the legal fiction as to the Post Office being the agent of the offeror, which forms part of the English civil law of contract, and held that the cheques were "obtained" by the accused in Jersey. They assumed, but without giving any reasons, that that finding deprived an English court of jurisdiction to try the accused of the offence charged.

My Lords, this assumption was really one as to the intention of Parliament when it passed the Larceny Act 1916. As I have already indicated, I see no justification for it. Reg. v. Harden will, in my view, call for re-examination if a similar question should arise in connection with the new offence of obtaining property by deception under section 15 of the Theft Act 1968.

The only decision of this House itself which is even peripherally relevant to the issue in the instant appeal is Board of Trade v. Owen [1957] A.C. 602. The question there was whether a conspiracy entered into in England to commit acts in Germany which were unlawful under German law to achieve an object which was unlawful there constituted a conspiracy at common law which was indictable in England. The unanimous opinion of this House was given in the speech of Lord Tucker. He treated the question correctly - as one not of jurisdiction but as to what were the characteristics of the crime of conspiracy at common law. The conclusion reached upon examination of the authorities was that the common law crime of conspiracy did not extend to an agreement to achieve an object which was unlawful in a foreign country or to use means to achieve it which were unlawful in a foreign country. This case has since been followed by the Court of Appeal in Reg. v. Governor of Brixton Prison, Ex parte Rush [1969] 1 W.L.R. 165.

Conspiracy is la crime at common law. Its characteristics are to be ascertained by an analysis of the decided cases. Blackmail is a statutory offence. Its characteristics are to be ascertained by determining what Parliament meant by the definition of "blackmail" in section 21 (1) of the Theft Act 1968. I have already pointed out that 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 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.

Recognition that there is some limitation which "goes without saying" is to be found in section 24 of the Act. This section, by subsections (1) and (4), extends the scope of the new offence of handling stolen goods created by section 22 to goods which have been stolen or obtained by blackmail or by deception elsewhere than in England and Wales. In doing so it treats the descriptions of conduct (including, where appropriate, its consequences)

which appear in the statutory definitions of "steal" in section 1, "blackmail" in section 21 and obtaining property by deception in section 15 as wide enough to include that conduct even though it takes place ouside England and Wales. But it also recognises that there may be circumstances in which that conduct is not an offence under the Act. Where those circumstances exist the goods obtained as a result of the conduct are not to be treated as "stolen" goods unless the conduct by which they were obtained mounted to a criminal offence under the law of the place where it occurred. It is thus evident that the circumstances which it is assumed may prevent conduct (including, where appropriate, its consequences) from being an offence under the Act, notwithstanding that it falls within the description of the offence, relate to the place where the conduct (and/or its consequences where these form part of the definition of the offence) occurred. The limitation acknowledged by these subsections is thus territorial in character. But neither they nor any other provisions of the Act throw further light on its extent.

The source of any presumption that Parliament intended that the right created by the Act to punish conduct should be subject to some territorial limitation upon where the conduct takes place or its consequences take effect can, in my view, only be the rules of international comity, and the extent of the limitation, where none has been expressed in words, can only be determined by considering what compliance with those rules requires. I can leave aside the question of territorial limitation as between the different jurisdictions (England and Wales, Scotland and Northern Ireland, etc.) within the United Kingdom, for this depends on constitutional practice, not on international comity. 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. I see no reason for presuming that Parliament in enacting the Theft Act 1968 intended to make the offences which it thereby created subject to any wider exclusion than this. 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 the 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 or Wales.

The physical acts of the appellant in the instant case were that he wrote and posted to an addressee in Germany a letter which contained an unwarranted demand with menaces. Those acts all took place in England. Their consequences were that the letter was received and read by the addressee. Those consequences took place in Western Germany. It follows from what I have already said that, in my opinion, this latter fact would not bring the case within the implied exception. The appellant was guilty of the offence of blackmail whether or not the words "makes

an unwarranted demand" in section 21 of the Theft Act 1968 as a matter of linguistics connote a requirement that the demand should be communicated to the person of whom it is made.

The Court of Appeal held that those words did not connote any such requirement. That was sufficient to enable them to dispose of the instant appeal and that is the ground upon which counsel for the prosecution has chiefly relied in your Lordships' House.

My Lords, I too think that the Count of Appeal were right as to the construction of the section and that the appeal could be dismissed on this alternative ground. Arguments as to the meaning of ordinary everyday phrases are not susceptible of much elaboration. The Theft Act 1968 makes a welcome departure from the former style of drafting in criminal statutes. It is expressed in simple language as used and understood by ordinary literate men and women. It avoids so far as possible those terms of art which have acquired a special meaning understood only by lawyers in which many of the penal enactments which it supersedes were couched. So the question which has to be answered is: Would a man say in ordinary conversation: "I have made a demand" when he had written a letter containing a demand and posted it to the person to whom the demand was addressed? Or would he not use those words until the letter had been received and read by the addressee?

My answer to that question is that it would be natural for him to say "I have made a demand" as soon as he had posted the letter, for he would have done all that was in his power to make the demand. He might add, if it were the fact: "but it as not reached X yet," or: "I made a demand but it got lost in the post." What, at any rate, he would not say is: "I shall make a demand when X receives my letter," unless he contemplated making some further demand after the letter had been received.

I see nothing in the context or in the purpose of the section to indicate that the words bear any other meaning than that which I have suggested they would bear in ordinary conversation. I do not attach overmuch importance to the omission of the words "of any person" which were present in the corresponding sections 29 and 30 of the Larceny Act 1916 which were superseded by section 21 of the Theft Act 1968. Their presence might have strengthened the argument for the contrary view, but their absence may be accounted for by a desire for brevity and simplicity. I should, however, give considerable weight to the fact that section 29 of the Larceny Act 1916, which dealt separately with "uttering" letters containing a demand, in my view unquestionably made it an offence to post such a letter in England to an addressee abroad, and I should hesitate to attribute to Parliament in 1968 the more chauvinistic attitude of tolerating such conduct within the territory subject to its legislative powers.

As respects the purpose of the section, I see no reason for supposing that Parliament did not intend to punish conduct which was anti-social or wicked - if that word is still in current use - unless the person guilty of the conduct achieved his intended object of gain to himself or loss caused to another. The fact that what a reasonable man would regard as an unwarranted demand with menaces after being posted by its author goes astray and never reaches the addressee, or reaches him but is not understood by him, or because of his unusual fortitude fails to disturb his equanimity, as

was the case in Reg. v. Clear [1968] 1 Q.B. 670, may be a relevant factor in considering what punishment is appropriate but does not make the conduct of the author himself any less wicked or anti-social or less meet to be deterred.

My Lords, 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 the course of the argument many other and ingenious ways in which a blackmailer might choose to send his demand to his victim have been canvassed, and many possible, even though unlikely, events which might intervene between the sending of the demand by the blackmailer and its receipt and comprehension by the victim have been discussed. These cases which so far are only imaginary may fall to be decided if they ever should occur in real life. But unless the purpose of he new style of drafting used in the Theft Act 1968 is to be defeated they, too, should be decided by answering the question: "Are the circumstances of this case such as would prompt a man in ordinary conversation to say: 'I have made a demand'?"

For both the reasons which I have given I would dismiss this appeal.

Solicitors: Quirke & Co.; Director of Public Prosecutions.

M. G.