| CRIME — Homicide — Incitement to murder — Defendant inciting persons to commit murder abroad — Whether necessary for persons incited to be British nationals — Offences against the Person Act 1861, s 4
R v Abu Hamza [2006] EWCA Crim 2918
CA: Lord Phillips of Worth Matravers CJ, Penry-Davey and Pitchford JJ: 28 November 2006
It was an offence contrary to s 4 of the Offences against the Person Act 1861 for a person to incite a foreign national in England or Wales to commit murder abroad.
The Court of Appeal, Criminal Division so held in dismissing the appeal of Abu Hamza against his conviction at Woolwich Crown Court (Hughes J and a jury) on 7 February 2006 on six counts of soliciting to murder, contrary to s 4 of the Offences against the Person Act 1861, three counts of using threatening, abusive or insulting words or behaviour with intent to stir up racial hatred, one count of possessing threatening, abusive or insulting recordings of sound with intent to stir up racial hatred and one count of possessing a document or record containing information of a kind likely to be useful to a person committing or preparing an act of terrorism, for which he was sentenced to seven years’ imprisonment.
The defendant challenged his conviction on the grounds, inter alia, that in so far as speeches he had made solicited those who heard them to commit murder, the solicitation was to do so in foreign countries. No evidence was given as to the nationality of any members of his audience. No offence would be committed under s 4 of the 1861 Act in respect of soliciting murder outside the jurisdiction unless the person solicited was a British national. Thus the prosecution failed to prove an essential ingredient of the offence. At common law the inchoate offences of conspiracy and incitement could only be committed if the activities that were planned or incited would constitute a crime under English law. As a matter of general principle, English criminal jurisdiction only extended to acts committed within the English jurisdiction. By way of exception, English common law recognised as a crime unlawful killing that took place outside the jurisdiction, but only where the act was committed by a British subject. That was made clear in s 9 of the 1861 Act, which was no more than declaratory of the common law, for its provisions were expressly restricted to an offence “committed by any subject of Her Majesty”. S 4 was also no more than declaratory of the common law. Thus, although it did not expressly so state, s 4 only made it a misdemeanour to solicit, encourage or endeavour to persuade any person to commit murder if the person in question was “a subject of Her Majesty”.
LORD PHILLIPS OF WORTH MATRAVERS CJ, giving the judgment of the court, said that in rejecting the defendant’s submission, the judge concluded, contrary to the view expressed in Board of Trade v Owen [1957] AC 602, that s 4 created an exception to the general common law principle. Their Lordships had concluded that the judge was correct. The motivation for the enactment of s 4 appeared to have been the activities of aliens in England in support of murders, or attempts to murder, committed by aliens outside the jurisdiction. If that was the explanation, it would have made no sense to have restricted the offence to situations where the murderers were to be British subjects. In contrast to other sections, s 4 was enacting the ingredients of substantive offences, not laying down rules of jurisdiction. There was nothing in the wording that suggested that the conspirators, or the person incited, should be British subjects. Nor was the common law so clear that that was to be implied. On the contrary, that area of the law was in confusion. There was no principle of international comity that required the legislature to restrict the inchoate offences, committed within this jurisdiction, to those relating to a murder to be carried out abroad by a British rather than a foreign subject. On the contrary, comity would weigh in favour of drawing no such distinction. Accordingly, their Lordships rejected the challenge to the judge’s interpretation of s 4.
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