NOTES
Regina v. Doot
In 1935, the American Society of International Law in coopera-
tion with the Harvard Law School published an impressive series
of drafts in an attempt to codify international law., With respect
to crime, careful research disclosed five general principles used to
determine penal jurisdiction among the States of the world. These
five general principles are: (1) the territorial principle, determin-
ing jurisdiction by reference to the place where the offense is
committed; (2) the nationality principle, determining jurisdiction
by reference to the nationality or national character of the person
committing the offense; (3)
the protective principle, determining
jurisdiction by reference to the national interest injured by the
offense; (4) the universality principle, determining jurisdiction by
reference to the custody of the person committing the offense; and
(5) the passive personality principle, determining jurisdiction by
reference to the nationality or national character of the person
injured by the offense 2
United States and Anglo-Canadian case law, reflects a long
standing recognition of the territorial principle 3; however, in de-
to the penal law. The nationality principle
‘Harvard Research in International Law: Codification of International Law
Jurisdiction With Respect to Crime, (1935), 29 Am. Jour. Int’l, Law, (Supp.), 1.
2 1bid., at p. 445. The territorial principle is everywhere considered funda-
mental
is also considered
though the researchers found differences fundamental in its application. The
protective principle, while employed by many states, is ancillary to some other
jurisdictional axiom. The universality principle is primarily recognized in
piracy cases, and the passive personality principle is found to be ancillary
and neglected if other means of obtaining jurisdiction proved satisfactory.
3 U.S. Bowman v. 260 U.S. 94, 43 S. Ct. 39, 67 L. Ed. 149, (1922); MacLeod v.
A.-G. for New South Wales, [1891] A.C. 455, 60 L.J.P.C. 55, 65 L.T. 321, 17 Cox
C.C. 341, 14 Digest (Repl.) 145, 1075.
See also, Rose v. Himely, 8 U.S. (4 Cranch) 241, 279 (1808) (dictum), Black-
mer v. U.S., 284 U.S. 421, 52 S. Ct. 252, 76 L. Ed. 375, (1932), Rocha v. U.S., 288
F. 2d 545 (C.A. 9 Cir. 1961), U.S. v. Pizzarusso, 388 F. 2d 8 (C.A. 2d Cir. 1968),
U.S. v. Rodriguez, 182 F. Supp. 479 (S.D. Cal. 1960).
United States Courts have interpreted the territorial principle under the
the so-called “objective” test extending jurisdiction over all acts which take
McGILL LAW JOURNAL
[Vol. 18
termining the applicability of their respective criminal laws in any
given situation, many other factors weigh in the decision. This note
shall survey the differences in defining the situs of a conspiracy
for jurisdictional purposes in United States and Anglo-Canadian
case law, in light of the recent decision in Regina v. Doot.4
Regina v. Doot.
At issue in Regina v. Doot 1, is the competence of a British court
to try a person for a conspiracy, committed outside the jurisdiction,
to do an illegal act within the jurisdiction. The uncontested facts
showed that Doot and others had agreed in Belgium or Morocco
to buy cannabis in Morocco and, having travelled through England
and Canada to import the drug into the United States 6. The defen-
dants were apprehended when customs officials discovered the
contraband at Southampton port.
On appeal, the defendants argued that when an agreement was
made in a country other than England to commit an offense
cognizable by English law, nevertheless, no conspiracy triable by
English courts had been committed, even if some act pursuant
to the illegal agreement was consummated on English soil 7. English
courts, contended the defendants, are restricted to cognizance of
offenses completed within their borders s; therefore, since a cons-
effect within the sovereign even though the author is elsewhere. Ford v. U.S.,
273 U.S. 593, 47 S. Ct. 531, 71 L. Ed. 793 (1927). The “subjective” test would
restrict jurisdiction to those persons who are within the state and there
violating its laws. Berge, Criminal Jurisdiction and the Territorial Principle,
(1931), 30 Mich. L. Rev. 238.
Editorial note:
The Canadian position appears to be that of strict adherence to the terri-
torial principle of determining jurisdiction, both as regards problems of
Canadian/foreign conflicts as to the situs of nominate offences (R. v. Selkirk,
[1965] 2 C.C.C. 353, 357, 359; [1965] 2 O.R. 168 (C.A.)), and as regards juris-
diction of courts in various provinces to try defendants for conspiracies
formed ex juris, with reference to s. 434(1) of the Criminal Code, R.S.C. 1970,
c. C-34: see R. v. Connolly and McGreevy (1894), 25 O.R. 151, 1 C.C.C. 468 (C.A.);
R. v. Horbas, [1969] 3 C.C.C. 95, 67 W.W.R. 95 (Man. C.A.). In view of the
relative paucity of analyses of the bases for this position in the very limited
Canadian jurisprudence in point, the present author’s analysis of the English
and American position bears attention.
J.D.F.
4 [1972] 3 W.L.R. 33.
5Id. The issue has never before arisen in the English Courts. Ibid., at p. 38.
6 Ibid., at p. 34.
7 Ibid., at p. 35.
8Ibid., at p. 36. This clearly was an argument advocating the subjective
territorial principle of jurisdiction. See: op. cit., n. 2 and accompanying text,
No. 4]
NOTES
piracy consists of making an unlawful agreement and is both
committed and completed at the time of formation, the offense
was committed in either Belgium or Morocco ‘. The Crown, on its
behalf, submitted that a conspiracy continues in existence until
discharge or lapse, or some subsequent agreement; therefore, at
the least, there would be no discharge until after the vehicles
containing the narcotics entered England, at the most when they
finally left for North America 10 Reversing the defendant’s convic-
tion, the Court held a conspiracy is not a continuing offense, the
essential ingredient is the agreement, and the offense is complete
when the agreement is made; therefore, the situs of the conspiracy
is outside England and not cognizable within.
American Analysis.
The federal law of conspiracy in the United States ” has been
called many things, at best, “elastic, sprawling and pervasive”. 2
It is impossible to view the law of conspiracy in pari materia with
the rest of the federal criminal code which is intended to give “the
world in language that the common world will understand… what
the law intends to do if a certain line is passed”.’ 3
0 Id.
10 Ibid., at p. 37.
11 18 U.S.C. 371 (1970) provides that:
If two or more persons conspire either to commit any offense against the
United States, or to defraud the United States, or any agency thereof
in any manner or for any purpose, and one or more of such persons
do any act to effect the object of the conspiracy, each shall be fined
not more than $10,000 or imprisoned not more than five years, or both.
If, however, the offense, the commission of which is the object of
the conspiracy, is a misdemeanor only, the punishment for such conspiracy
shall not exceed the maximum punishment provided for such misde-
meanor.
To conspire “to commit an offense against the United States” means to
conspire to commit a substantive crime elsewhere defined in the United States
Code. Eg., 18 U.S.C. 2312 (1970), The National Motor Vehicle Theft Act,
prohibiting the transportation of stolen motor vehicles in intestate commerce.
A charge of cinspiracy to transport a stolen motor vehicle in intestate com-
merce would be indictable under 18 U.S.C. 371, 2312.
See also, eg. 18 U.S.C. 372 (impede or injure federal officer), 1201 (kidnap-
ping), 241 (civil rights violation) which may be indicted specially without
recourse to 18 U.S.C. 371.
1 Kruleivitch v. U.S., 336 U.S. 440, 445, 69 S. Ct. 716, 719, 93 L. Ed. 790, 795
(1949)
(Jackson, J. concurring).
13 McBoyle v. U.S., 283 U.S. 25, 27, 51 S. Ct. 340, 341, 75 L. Ed. 816, 818 (1931)
(Holmes, 1.).
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[Vol. 18
In United States v. Bowman,14 the Supreme Court vocalized the
territorial principle of confirming criminal jurisdiction. The exi-
gencies of dealing with the modem criminal have slowly eroded the
territorial restriction in applying American conspiracy statutes;
yet there appears to be a reluctance to discard the terminology of
the territorial principle. American courts have repeatedly upheld
convictions obtained in Regina v. Doot situations ‘r.
Nine years after the Bowman 16 court opined that absent Con-
gressional intent to provide for punishment outside the strict terri-
torial jurisdiction of the United States there can be none, a lower
federal court held that a conspirator who had not set foot in the
United States could be guilty of a conspiracy to import contraband
liquor “by a fiction as repeating their agreement wherever any part
of it [was] executed”.’ 7
By 1956, the Courts had come to hold in extraterritorial situa-
tions, that the conspiracy was not complete until one of the overt
acts was committed,”
thus forcing the crime to be committed
within the territorial jurisdiction of the United States. A far more
sophisticated argument allowed a federal appeals court to affirm
the defendant’s conviction, in Brulay v United States,’ where the
evidence showed a Mexican conspiracy to import amphetamines
illegally into the United States. The defense argued that not only
was the conspiracy formed outside the United States, but that no
overt act was committed on United States soil and, therefore,
regardless of what happened in Mexico, no crime was committed in
the United States. The Court of Appeals paid tribute to the terri-
torial principle by citing Bowman,20 inferring that Congress intended
the provisions of the smuggling statute should extend to foreign
14260 US. 94, 43 S. Ct. 39, 67 L. Ed. 149 (1922).
15 E.g., U.S. v. Downing, 51 F. 2d 1030 (CA. 2d Cir. 1931); Ramey v. U.S.,
230 F 2d 171 (CA. 5th Cir. 1956); Brulay v. U.S., 383 F. 2d 345 (C.A. 9th Cir.
1967), cert. den., 389 U.S. 986, 88 S. Ct. 469, 19 L. Ed. 2d 478 (1967)
(Douglas, J.
dissenting).
10 260 U.S. 94, 43 S. Ct. 39, 67 L. Ed. 149 (1922).
17 U.S. v. Downing, 51 F. 2d 1030, 1031, (C.A. 2d Cir. 1931). See also, Ford v.
U.S., 273 U.S. 593, 47 S. Ct. 531, 71 L. Ed. 293 (1927).
18 Ramey v. U.S., 230 F. 2d 171 (C.A. 5 Cir. 1956).
19 383 F. 2d 345 (C.A. 9 Cir. 1967), cert. den., 389 U.S. 986, 88 S. Ct. 469, 19
L. Ed. 2d 469 (1967)
(Douglas, J. dissenting). See also, U.S. v. Perlnan, 430 F.
2d 22 (C.A. 7th Cir. 1970), cert-den., 400 U.S. 832, 91 S. Ct. 64, 27 L. Ed. 2d 63
(1970), holding “jurisdiction” proper where
the
foreign end of a hashish smuggling operation, with a companion based in
Chicago to receive the drug.
the defendant handled
20260 U.S. 94, 43 S. Ct. 39, 67 L. Ed. 149 (1922).
No. 4]
NOTES
countries and that the conspiracy section is extended along with
it.2 ‘
While it is arguable that the Bowman22 rule, “which depends
upon the purpose of Congress as evinced by the description and
nature of the crime”23 inherently requires the extension of the
smuggling prohibition, there is nothing more to say on behalf of
extending the general conspiracy statute concommitently than cons-
piracy to smuggle is not specially indictable. 4 Tacking the general
conspiracy statute onto another statute, which is arguendo extra-
territorial clearly violates the restriction against extraterritorial
punishment where Congress has failed to provide for it. The deci-
sion would have rested on firmer ground had the territorial prin-
ciple been completely abandoned and the conviction affirmed on
the basis of the nationality or protective principles.2 5 Perhaps the
court was alluding to just such a result when it said that an Ame-
rican citizen may be charged and punished for the crime although
it was committed in Mexico; 26 however, clarification is still wanting.
Conclusion.
In determining whether the extraterritorial situs of a conspira-
cy will be “transported” to a situs within the jurisdiction to enable
punishment for the harm caused, American courts have viewed
the facts relevant to its establishment “against a background of the
type of crime involved”.27 The line of cases preceding Regina v.
Doot28, similarly viewed the facts against a background of the type
of crime involved; thus arises the anomoly between Doot and the
corresponding American cases.
Unquestionably, Regina v. Doot2 , distills the essence of the sub-
jective territorial principle discarded by the American courts fifty
years ago 30 for the less restrictive nationality and protective prin-
21 383 F. 2d, at p. 350.
22 Op. cit., n. 14 and accompanying text.
23 Ibid., at p. 79, 43 S. Ct., at p. 41, 67 L. Ed., at p. 151.
240p. cit., n. 15.
25 Op. cit., n. 2 and accompanying text.
26 383 F. 2d, at p. 350.
27 U.S. v. Rich, 262 F. 2d 415, 417 (C.A. 2d Cir. 1959). “A workable definition
of conspiracy applicable equally in all cases and to all types of crime is a
virtual impossibility.” Ibid., at p. 418.
28 [1972] 3 W.L.R. 33.
209 Id.
30 See, op. cit., n. 3, especially, Ford v. U.S., 273 U.S. 593, 47 S. Ct. 531, 71
L. Ed. 793 (1927).
McGILL LAW JOURNAL
[Vol. is
ciples. While Anglo-Canadian courts are cognizant of the situs of the
agreement to determine jurisdiction, American courts respond to a
jurisdictional act (harm) other than the agreement itself to deter-
mine jurisdiction. While “acts in performance (of the conspiracy)
go to prove the offense but are not constituent or essential parts of
it”,3
though triable as a substantive crime in England, the act in
furtherance of the conspiracy is the essential jurisdictional element
triggering the American criminal process.
Those international criminal jurists who have been caught up
by the American “law and order” campaign may well find the
limits of the rule prescribed in Regina v. Doot3l2 distasteful; others
may find the wisdom of the Court more telling: “…
this case
illustrates once more the dangers and difficulties which lie in wait
for those who persist in framing indictments containing the popu-
lar offense of conspiracy in addition to substantive offenses.” 33
Perhaps the Courts should not fill the gaps in the substantive cri-
minal law with conspiracy where the legislature has opted to leave
gaps – purposefully.
Robert E. Greenberg *
31 [1972] 3 W.L.R., at p. 37.
32 Ibid., at p. 33.
3Ibid., at p. 42.
* A. B. Lehman College; J. D. University of Florida; of the Interstate Com-
merce Commission, Washington, D.C. It goes without saying that the views
expressed herin represent only the author’s opinions and are not those of the
Interstate Commerce Commission or the United States Government.
