From Steamships to Byte Streams

In this piece, Jonathan Sandiford KC seeks to cover the nuances of the debate over the question, who has jurisdiction over the internet? Specifically, it will explore in three parts how the law has developed to meet the challenges of jurisdiction and the internet and telecommunications by assessing how the Courts and Parliament have developed the law in response to the growth in remote international commerce over the last 20-30 years. Then, it will conclude with the key points of consideration when faced with issues of jurisdiction on the internet and in our globalised world more broadly.

Part I


On 12th July 1882, Messrs Kelker & Co, bankers of Amsterdam, dispatched two parcels containing Egyptian bonds and shares in the Illinois Railroad to Messrs Mercia, Backhouse & Co of London.

The parcels were put aboard the Steamship Avalon, a British vessel moored in the River Maas at Rotterdam, some 16-18 miles from the open sea and well within the geographical borders of Holland.

After that, the parcels and their valuable contents were stolen, either whilst the Avalon was still at her moorings alongside Rotterdam or during her subsequent voyage to Harwich, where the theft was discovered.

Two crew members later stood trial at the Old Bailey and were acquitted of larceny (theft) but convicted of receiving one of the parcels.

On appeal, both defendants contended that The Avalon had been outwith the English courts’ jurisdiction when moored at Rotterdam. As it could not be proved that the parcels had been stolen within that jurisdiction, English law then required for there to be a conviction of receiving them.

That was the issue before the Court of Crown Cases Reserved in R v Carr and Wilson (1882) 10 QBD 76.

The court held that, even when moored alongside Rotterdam, The Avalon was within the Admiralty Jurisdiction, which extended to British ships on and in:

all oceans, seas, bays, channels, rivers, creeks, and waters below low-water mark, and where great ships could go.

Of Rotterdam, where the Avalon had been moored, Lord Coleridge CJ said:

The place is clearly within the old description of a place within the ebb and flow of the tide where great ships are accustomed to go. The ship was accustomed to go there in its trading; it was there in the course of trading. There is enough to make it clear that the place is within the jurisdiction.

Thus, the convictions of C and W were upheld.


The Admiralty Jurisdiction reflected the need to extend the jurisdiction of the British Courts to facilitate international commerce and protect it from criminal interference.

The “jurisdiction of the Admiralty of England” is today expressly preserved by s46(2) of the Senior Courts Act 1981, but times have changed in banking and financial commerce. The days of concluding transactions by sending valuable stocks and bonds via steamship are long gone, replaced now by telecommunications, computers and the internet carrying byte-streams of data.

Like the great oceans, seas and navigable rivers, the internet covers and reaches much if not all of the planet. This has created many new opportunities for international banking, financial commerce and trade but also for offending with fraud and digital skulduggery replacing physical plunder and piracy.

The ability of offenders to locate themselves and/or their websites and servers outside of the jurisdiction has presented new challenges to law enforcement, leaving many to question who has jurisdiction over the internet? And how can lawmakers respond to the ease of facilitating offences across international borders?

Just as the Admiralty Jurisdiction extended the law to regulate “where the great ships were accustomed to go“, so have the Courts and Parliament adapted and extended the law to regulate the internet.

The Common Law

The general rule at common law is that the British Courts have jurisdiction to try and punish offences committed within the geographical boundaries of England and Wales, and the territorial waters which extend up to 12 miles from the coast or halfway between nations where less.

As we will see, the principal rationale for this general rule was:

(a)      Locality – the common law was concerned with crimes committed in England and Wales and, generally speaking, did not concern itself with crimes committed abroad.

(b)     International comity – the reluctance to interfere in the affairs of other countries by purporting to punish criminal acts committed in those countries.

Applying the common law and jurisdiction on the internet – where say, a person in London uses a website hosted on a server in Birmingham to commit fraud against a person in Manchester, there is no difficulty, and the common law rule of jurisdiction applies in the normal way.

However, where the offender and/or victim and/or web or email server are without England and Wales, the situation is less straightforward. The common law has had to develop from the ‘last act‘ or ‘terminatory‘ principle to the more practical ‘gist‘ or ‘substantial measure‘ test that now applies.

The Last Act or Terminatory Principle: R v Harden [1963] 1 QB 8

The ‘last act‘ or ‘terminatory‘ principle held that jurisdiction lay where the last act or final consequence of an offence occurred.

The case of Harden provides a good example.

H’s business sold refrigeration equipment, with some sales being financed by hire purchase agreements provided by a company in Jersey. Copies of the hire purchase agreements were sent to Jersey, and cheques posted to H by return.

H dishonestly submitted several fictitious hire purchase agreements and was duly charged with and convicted of 13 counts of obtaining monies (the resulting cheques) by false pretences.

Those convictions were quashed with the Court of Appeal holding that the ‘last act‘ of the offences was when H obtained the cheques in Jersey when they were put in the post to him, therefore outwith the jurisdiction. Further, examples of applying the ‘last act‘ or ‘terminatory‘ principle can be found in Tirado (1974) 59 Cr.App.R. 80 and R. v Governor of Pentonville Prison ex p Khubchandani (1980) 71 Cr. App. R. 241).

The ‘Gist’ or ‘Substantial Measure’ Test

Harden and the other cases mentioned above illustrate the potential difficulties in dealing with cross-border offending caused by the ‘last act‘ or ‘terminatory‘ principle. In short, acts of fraud committed within or from the jurisdiction that resulted in the obtaining of payment or property abroad were outwith the jurisdiction of the British Courts. These difficulties could only be amplified by the growth of international banking and finance conducted via telecommunications and, later, the internet.

However, it took until 2004 before the Court of Appeal confirmed that the ‘last act‘ or ‘terminatory‘ principle was not the exhaustive test of jurisdiction at common law and that the, more pragmatic, ‘gist‘ or ‘substantial measure‘ was to be preferred. That is, the British Courts have jurisdiction if the ‘gist‘ or a ‘substantial measure‘ of the activities constituting an offence are committed within England and Wales. The origin of this test can perhaps most clearly be traced back to DPP v Treacy in 1971, ironically a case that was determined by the ‘last act‘ or ‘terminatory‘ principle.

DPP v Treacy [1971] AC 537

T was convicted of blackmail, having posted in England a letter to a Mrs X in Germany, a letter which contained a demand for money with menaces.

On appeal, T contended that he had committed no offence within the jurisdiction. The Court of Appeal and House of Lords disagreed, holding that the offence was committed in England at the moment when T posted the offending letter.

Lord Diplock, in his well-known judgment on international comity, paved the way for the ‘gist’ or ‘substantial measure‘ test when he said at pp561H-562D:

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…………

Conspiracy Leads the Way

Two cases in 1991 confirmed that the British Courts’ jurisdiction extended to conspiracies formed abroad with the object of committing offences in England and Wales. However, both cases might be regarded as inchoate applications of the ‘last act‘ or ‘terminatory‘ principle.

In Liangsiriprasert, the Privy Council mentioned with approval the ‘gist‘ or ‘substantial measure‘ test. It emphasised the importance of developing the common law to meet the new challenges posed by international crime.

This approach was followed and endorsed by the Court of Appeal a short time later in Sansom.

Liangsiriprasert v Government of the USA [1991] 1 AC 225

L was a Thai national who conspired in Thailand to traffic heroin to New York and collected payment in Hong Kong. Unfortunately for L, his intended customers were, in fact, agents of the US Drugs Enforcement Administration. As a result, L was arrested in Hong Kong, and the USA sought his extradition. The key issue in the extradition proceedings was the theoretical question of whether the conspiracy would have been justiciable in Hong Kong had L agreed in Thailand to traffic heroin to Hong Kong but not committed any overt act within the territory.

The relevant Hong Kong Ordinance provided that the law of conspiracy was the same as the common law of England.

L’s application to the High Court of Hong Kong for a writ of habeas corpus was refused. That decision was upheld by the Hong Kong Court of Appeal and, on further appeal, by the Judicial Committee of the Privy Council.

Lord Griffiths, in giving His opinion at p244C-D, explained part of the rationale for previously limiting the jurisdiction of the British Courts at common law:

As a broad general statement, it is true to say that English criminal law is local in its effect and that the common law does not concern itself with crimes committed abroad. The reason for this is obvious; the criminal law is developed to protect English society and not that of other nations which must be left to make and enforce such laws as they see fit to protect their own societies. To put the matter bluntly, it is no direct concern of English society if a crime is committed in another country. It was for this reason that the law of extradition was introduced between civilised nations so that fugitive offenders might be returned for trial in the country against whose laws they had offended.

However, having reviewed several authorities, Lord Griffiths at p250B-C went on to cite with approval the following passage from the judgment of La Forest J in the Canadian Case of Libmen v R (1985) 21 CCC 3rd 20b which had in turn been cited by Chief Justice Roberts in the Hong Kong Court of Appeal:

The English courts have decisively begun to move away from definitional obsessions and technical formulations aimed at finding a single situs of a crime by locating where the gist of the crime occurred or where it was completed Rather. they now appear to seek by an examination of relevant policies to apply the English criminal law where a substantial measure of the activities constituting a crime take place in England, and restrict its application in such circumstances solely in cases where it can seriously be argued on a reasonable view that these activities should, on the basis of international comity, be dealt with by another country.

Lord Griffiths observed that the law, as previously understood, had required an overt act of a conspiracy to be done within England and Wales. However, His Lordship recognised that the British Courts had to face up to the reality of international crime. To that end, the focus should be on whether there was a sufficient factual link to establish jurisdiction.

At p251A-D, His Lordship said:

But why should an overt act be necessary to found jurisdiction? In the case of conspiracy in England, the crime is complete once the agreement is made, and no further overt act need be proved as an ingredient of the crime. The only purpose of looking for an overt act in England in the case of a conspiracy entered into abroad can be to establish the link between the conspiracy and England or possibly to show the conspiracy is continuing. But if this can be established by other evidence, for example, the taping of conversations between the conspirators showing a firm agreement to commit the crime at some future date, it defeats the preventative purpose of the crime of conspiracy to have to wait until some overt act is performed in pursuance of the conspiracy. Unfortunately, in this century, crime has ceased to be largely local in origin and effect. Crime is now established on an international scale, and the common law must face this new reality. Their Lordships can find nothing in precedent, comity or good sense that should inhibit the common law from regarding as justiciable in England inchoate crimes committed abroad which are intended to result in the commission of criminal offences in England. Accordingly, a conspiracy entered into in Thailand with the intention of committing the criminal offence of trafficking in drugs in Hong Kong is justiciable in Hong Kong even if no overt act pursuant to the conspiracy has yet occurred in Hong Kong.

Sansom and others (1991) 92 Cr.App,R. 115

Liangsiriprasert was followed in Sansom, where the Court of Appeal held that a conspiracy abroad to import a ton of cannabis from Morocco was justiciable in the British Courts without proof of an overt act within the jurisdiction.

Taylor LJ cited the passage from the opinion of Lord Griffiths at pp251A-D in Liangsiriprasert as being the law of England on this point [p138B]. The Court also rejected any distinction being drawn between common law conspiracies and statutory conspiracies under s1(1) of the Criminal Law Act 1977 (“CLA 1977”).

Applying the principle in Sansom and the simplified wording of CLA 1977 s1(1), a conspiracy formed abroad to commit an offence within England and Wales is justiciable both at common law and under the statute.

In the next part, we will see how the ‘substantial measure‘ test came to be applied to substantive offences of fraud and how the ‘last act‘ or ‘terminatory‘ principle made one last come back before the conflict was settled in 2004.

Read Part 2: From Steamships to Byte Streams – Jurisdiction and the Internet.

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Jonathon Sandiford KC St Pauls Chambers

Jonathan Sandiford KC

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