Public international law and municipal law
Incorporation or transformation?
At common law the territory of England stops at the low-water mark for the purposes
of criminal jurisdiction.
R v. Keyn
(1876) 2 ExD 63 (Court for Crown Cases Reserved)
Background
A collision occurred in the English Channel within 3 miles of the English coast
between a German ship, the Franconia and a British ship, the Strathclyde. A
passenger on the British ship was killed in the collision and the defendant, master of
the German ship, was charged in England with manslaughter.
Disposition
The English central criminal court did not have jurisdiction to try the case.
The leading majority judgment (the 13 judges were divided 7:6) was given by Lord
Cockburn CJ who reasoned as follows: first, as a matter of English common law
(there being no relevant statute) the sea beyond the low-water mark on the English
coast was not part of British territory; secondly, there existed a body of opinion, not
unanimous, that as a matter of customary international law, the sea to a distance of
3 miles from the English coast was part of British territory; thirdly, there was no
evidence of British assent to this customary international law rule, whether by treaty,
statute, express concurrence of the British government or by implication from
established usage. Therefore the English court had no jurisdiction over the defendant.
In reaching this conclusion Lord Cockburn CJ appeared to be influenced by two
factors:
(i) the inconclusive evidence as to the precise terms of the alleged rule of
customary international law; and
(ii) the constitutional consideration that adoption of new law (a 3 mile
territorial sea) was a matter for parliament rather than the courts.
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Notes
1. The Territorial Waters Jurisdiction Act 1878 (Imp) addressed the deficiency in English law revealed
by R v. Keyn (above) namely, that an English court had no criminal jurisdiction in respect of an offence
committed by a foreigner on board a foreign ship on the high seas, defined for this purpose as any tidal
waters outside the body of an English county. The Act declared that English criminal jurisdiction
extended to any indictable offence committed “within one marine league [three nautical miles] of the
[English] coast measured from low-water mark”, including offences committed on board foreign ships
and by foreigners.
2. The High Court of Australia approved R v. Keyn (above) in the Seas and Submerged Lands Case
(1975) 135 CLR 337 which held that, at the date of federation, the boundaries of the Australian
colonies ended at the low-water mark. In The Commonwealth v. Yarmirr (2001) 184 ALR 113 Gleeson
CJ, Gaudron, Gummow and Hayne JJ made the following observation at [57]:
RA.Int’ntionalLaw.07 R v. Keyn
2
The nature and extent of the rights of the coastal state over its territorial sea was, as a
matter of international law, regarded by Lord Cockburn CJ in Keyn (1876) 2 ExD 63 at 191193 to be still then a matter of controversy and it was thought in 1913 to remain so. (AttorneyGeneral for British Columbia v. Attorney-General for Canada [1914] AC 153 at 174-175.)
3. In 1990, by proclamation pursuant to the Seas and Submerged Lands Act 1973 (Com), the
Australian territorial sea was extended from 3 to 12 nautical miles measured from the low-water mark.
4. In R v. Keyn (above), the majority of the Court for Crown Cases Reserved rejected the Crown’s
contention that the crime of manslaughter had been committed on the Strathclyde where the negligent
navigation of Ferdinand Keyn, the master of the Franconia, caused the death of Jessie Dorcas Young, a
passenger on the British ship. In this regard, Sir R Phillimore observed (at p 66):
He [Ferdinand Keyn] never left the deck of his own ship, nor did he send any
missile from it to the other ship; neither in will nor in deed can he be considered to
have been on board the British vessel.
Cockburn CJ (at p 234) considered that the crime of murder may have been committed on the British
ship if Ferdinand Keyn purposefully had run into it. However, Cockburn CJ considered (at p 235) that
manslaughter by negligence was “a very different thing”:
The negligence in running down a ship may be said to be confined to the improper navigation
of the ship occasioning the mischief; the party guilty of such negligence is neither actually, nor
in intention, and thus constructively, in the ship on which the death takes place.
On the issue of the location of the crime of manslaughter, R v. Keyn may be compared with the
decision of the Permanent Court of International Justice in “Lotus” Ann Digest 1927-1928, Case No
98, p 153. In “Lotus”, the Court held that the crime of manslaughter had been committed on the
Turkish ship Boz-Kourt when the negligent navigation of the French officer, Lieutenant Demons, on
the French ship Lotus, caused a collision in which eight Turkish nationals on the Turkish ship were
killed.
R v. Keyn is not easily reconciled with the general common law rule that a crime is committed in the
place where the last element, or last necessary ingredient, occurs. See Glanville Williams, “Venue and
the ambit of criminal law – Part 3” (1965) 81 LQR 518 at p 525. In Ward v. R (1980) 142 CLR 308,
the offender fired a shot in Victoria which struck and killed the victim in New South Wales. The High
Court of Australia held that, in those circumstances, the crime of murder had been committed in New
South Wales where the act of the offender took effect upon the victim.
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