R v Keyn (The Franconia)

Facts

• The Franconia, a German vessel, collided with a British vessel within three nautical miles of the English coast
• A passenger on the British vessel died as a result of the collision
• Ferdinand Keyn, the German captain of the Franconia, was prosecuted for manslaughter in an English court
• The prosecution argued England had jurisdiction over its territorial waters
• The defence argued that no statute or judicial precedent established English jurisdiction over foreign nationals on foreign vessels in the territorial sea

Issue

1. Whether English courts had criminal jurisdiction over an act committed by a foreign national on a foreign vessel within British territorial waters, absent specific statutory authority.

Held

• The court held it had no jurisdiction (by a narrow majority, 7-6)
• International custom regarding territorial waters had not been incorporated into English law
• Customary international law, even if clear, requires adoption by statute or judicial decision to be enforceable domestically
• Parliament subsequently enacted the Territorial Waters Jurisdiction Act 1878 to fill the gap
• This case supports the transformation (as opposed to automatic incorporation) approach to international law in English law

Ratio Decidendi

International law does not per se form part of the law of England. For a rule of international law to be enforced in English courts, it must have been received into domestic law either by Act of Parliament or by clear judicial adoption. The mere existence of an international customary rule does not, without more, confer jurisdiction on English courts. This distinguishes R v Keyn from the Triquet v Bath (1764) incorporation approach to diplomatic immunity.