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Criminal Justice (Attempts, Conspiracy and Jurisdiction) (Bailiwick of Guernsey) Law, 2006

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PROJET DE LOI
ENTITLED
The Criminal Justice (Attempts, Conspiracy and Jurisdiction) (Bailiwick of Guernsey) Law, 2006
ARRANGEMENT OF SECTIONS
PART I
ATTEMPTS, ETC
Attempts
1.      Attempting to commit an offence.
2.      Extended jurisdiction in relation to certain attempts.
3.      Application of procedural and other provisions to offences under section 1.
Specific offences of attempt
4.      Offences of attempt under other enactments.
Trial, etc, of offences of attempt
5.      Trial and penalties.
Supplementary
6.      Effect of Part I on common law.
PART II
CONSPIRACY
Conspiracy - general
7.      The offence of conspiracy.
8.      Conspiracy to commit offences outside the Bailiwick.
9.      Exemptions from liability for conspiracy.
10.      Penalties for conspiracy.
11.      Abolitions, savings and transitional provisions.
Conspiracy to defraud
12.      Charges of and penalty for conspiracy to defraud.
13.      Conspiracy to defraud - jurisdiction.
PART III
JURISDICTION
14.      Offences to which this Part applies.
15.      Jurisdiction in respect of Group A offences.
16.      Questions immaterial to jurisdiction in the case of certain offences.
17.      Rules for determining certain jurisdictional questions relating to location of events.
18.      Incitement.
19.      Relevance of external law.
20.      Application of Part III.
PART IV
INTERPRETATION, CITATION AND COMMENCEMENT
21.      Interpretation.
22.      Power to amend Law by Ordinance.
23.      Citation.
24.      Commencement.
PROJET DE LOI
ENTITLED
The Criminal Justice
(Attempts, Conspiracy and Jurisdiction)
(Bailiwick of Guernsey) Law, 2006
THE STATES, in pursuance of their Resolutions of the 30th September, 1998[a] and the 27th April 2006[b], have approved the following provisions which, subject to the Sanction of Her Most Excellent Majesty in Council, shall have force of law in the Bailiwick of Guernsey.
PART I
ATTEMPTS, ETC
Attempts
Attempting to commit an offence.
1.      (1)      If, with intent to commit an offence to which this section applies, a person does an act which is more than merely preparatory to the commission of the offence, he is guilty of attempting to commit the offence.
(2)      A person may be guilty of attempting to commit an offence to which this section applies even though the facts are such that the commission of the offence is impossible.
(3)      In any case where -
(a)      apart from this subsection a person's intention would not be regarded as having amounted to an intent to commit an offence, but
(b)      if the facts of the case had been as he believed them to be, his intention would be so regarded,
then, for the purposes of subsection (1), he shall be regarded as having had an intent to commit that offence.
(4)      This section applies to any offence which, if it were completed, would be triable in the Bailiwick as an indictable offence, other than -
(a)      conspiracy (at common law or under Part II of this Law or any other enactment),
(b)      aiding, abetting, counselling or procuring the commission of an offence,
(c)      offences under section 2(1) (assisting offenders) or section 3(1) (accepting consideration for not disclosing information about arrestable offence) of the Criminal Justice (Miscellaneous Provisions) (Bailiwick of Guernsey) Law, 2006.
Extended jurisdiction in relation to certain attempts.
2.      (1)      If this section applies to an act, what the person doing the act had in view shall be treated as an offence to which section 1 applies.
(2)      This section applies to an act if -
(a)      it is done in the Bailiwick, and
(b)      it would fall within section 1(1) as more than merely preparatory to the commission of -
(i)      a Group A offence, or
(ii)      an offence under section 3 of the Computer Misuse (Bailiwick of Guernsey) Law, 1991[c] (unauthorised modification of computer material),
but for the fact that the offence, if completed, would not be an offence triable in the Bailiwick.
(3)      In this section "Group A offence" has the meaning given by section 14(2).
(4)      Subsection (1) is subject to section 19.
(5)      Where a person does any act to which this section applies, the offence which he commits shall for all purposes be treated as the offence of attempting to commit the relevant Group A offence or, as the case may be, the offence under section 3 of the Computer Misuse (Bailiwick of Guernsey) Law, 1991.
Application of procedural and other provisions to offences under section 1.
3.      (1)      Any provision to which this section applies shall have effect with respect to an offence under section 1 of attempting to commit an offence as it has effect with respect to the offence attempted.
(2)      This section applies to provisions of any of the following descriptions made by or under any enactment (whenever passed) -
(a)      provisions whereby proceedings may not be instituted or carried on otherwise than by, or on behalf or with the consent of, any person (including any provisions which also make other exceptions to the prohibition),
(b)      provisions conferring power to institute proceedings,
(c)      provisions as to the venue of proceedings,
(d)      provisions whereby proceedings may not be instituted after the expiration of a time limit,
(e)      provisions conferring a power of arrest or search,
(f)      provisions conferring a power of seizure and detention of property,
(g)      provisions whereby a person may not be convicted or committed for trial on the uncorroborated evidence of one witness (including any provision requiring the evidence of not less than two credible witnesses),
(h)      provisions conferring a power of forfeiture, including any power to deal with anything liable to be forfeited,
(i)      provisions whereby, if an offence committed by a body corporate is proved to have been committed with the consent or connivance of another person, that person is also guilty of the offence.
Specific offences of attempt
Offences of attempt under other enactments.
4.      (1)      Subsections (2) to (5) have effect, subject to subsection (6) and to any inconsistent provision in any other enactment, for the purpose of determining whether a person is guilty of an attempt under a special statutory provision.
(2)      For the purposes of this Law an attempt under a special statutory provision is an offence which -
(a)      is created by an enactment other than section 1, including an enactment passed after this Law, and
(b)      is expressed as an offence of attempting to commit another offence (in this section referred to as "the relevant full offence").
(3)      A person is guilty of an attempt under a special statutory provision if, with intent to commit the relevant full offence, he does an act which is more than merely preparatory to the commission of that offence.
(4)      A person may be guilty of an attempt under a special statutory provision even though the facts are such that the commission of the relevant full offence is impossible.
(5)      In any case where -
(a)      apart from this subsection a person's intention would not be regarded as having amounted to an intent to commit the relevant full offence, but
(b)      if the facts of the case had been as he believed them to be, his intention would be so regarded,
then, for the purposes of subsection (3), he shall be regarded as having had an intent to commit that offence.
(6)      Subsections (2) to (5) do not have effect in relation to an act done before the commencement of this Law.
Trial, etc, of offences of attempt
Trials and penalties.
5.      (1)      A person guilty by virtue of section 1 of attempting to commit an offence -
(a)      is, if the offence attempted is murder or any other offence the sentence for which is fixed by law, liable on conviction on indictment to imprisonment for life,
(b)      is, if the offence attempted is indictable but does not fall with paragraph (a), liable on conviction on indictment to any penalty to which he would have been liable on conviction on indictment of that offence, and
(c)      is, if the offence attempted is triable either on indictment or summarily, liable on summary conviction to any penalty to which he would have been liable on summary conviction of that offence.
(2)      In any case in which a court may proceed to summary trial of a person charged with an offence, and charged under section 1 of attempting to commit it, or an attempt under a special statutory provision, the court may, without his consent, try the charges together.
(3)      Where, in proceedings against a person for an offence under section 1, there is evidence sufficient in law to support a finding that he did an act falling within subsection (1) of that section, the question of whether or not his act fell within that subsection is a question of fact.
(4)      Where, in proceedings against a person for an attempt under a special statutory provision, there is evidence sufficient in law to support a finding that he did an act falling within section 4(3), the question of whether or not his act fell within that section is a question of fact.
Supplementary
Effect of Part I on common law.
6.      (1)      The offence of attempt at common law and any offence at common law of procuring materials for crime are abolished for all purposes not relating to acts done before the commencement of this Law.
(2)      Except as regards offences committed before the commencement of this Law, references in any enactment passed before this Law which fall to be construed as references to the offence of attempt at common law shall be construed as references to the offence under section 1.
PART II
CONSPIRACY
Conspiracy - general
The offence of conspiracy.
7.      (1)      Subject to the following provisions of this Part of this Law, if a person agrees with any other person or persons that a course of conduct shall be pursued which, if the agreement is carried out in accordance with their intentions, either -
(a)      will necessarily amount to or involve the commission of any offence or offences by one or more of the parties to the agreement, or
(b)      would do so but for the existence of facts which render the commission of the offence or any of the offences impossible,
he is guilty of conspiracy to commit the offence or offences in question.
(2)      Where liability for any offence may be incurred without knowledge on the part of the person committing it of any particular fact or circumstance necessary for the commission of the offence, a person shall nevertheless not be guilty of conspiracy to commit that offence by virtue of subsection (1) unless he and at least one other party to the agreement intend or know that that fact or circumstance shall or will exist at the time when the conduct constituting the offence is to take place.
(3)      In this Part of this Law "offence" means an offence triable in the Bailiwick.
Conspiracy to commit offences outside the Bailiwick.
8.      (1)      Where each of the following conditions is satisfied in the case of an agreement, this Part of this Law has effect in relation to the agreement as it has effect in relation to an agreement falling within section 7(1).
(2)      The first condition is that the pursuit of the agreed course of conduct would at some stage involve -
(a)      an act by one or more of the parties, or
(b)      the happening of some other event,
intended to take place in a country or territory outside the Bailiwick.
(3)      The second condition is that the act or other event constitutes an offence under the law in force in that country or territory.
(4)      The third condition is that the agreement would fall within section 7(1) as an agreement relating to the commission of an offence but for the fact that the offence would not be an offence triable in the Bailiwick if committed in accordance with the parties' intentions.
(5)      The fourth condition is that -
(a)      a party to the agreement, or a party's agent, did anything in the Bailiwick in relation to the agreement before its formation,
(b)      a party to the agreement became a party in the Bailiwick (by joining it either in person or through an agent), or
(c)      a party to the agreement, or a party's agent, did or omitted anything in the Bailiwick in pursuance of the agreement.
(6)      In the application of this Part of this Law to an agreement in the case of which each of the above conditions is satisfied, a reference to an offence is to be read as a reference to what would be the offence in question but for the fact that it is not an offence triable in the Bailiwick.
(7)      Conduct punishable under the law in force in any country or territory is an offence under that law for the purposes of this section, however it is described in that law.
(8)      Subject to subsection (9), the second condition is to be taken to be satisfied unless, not later than specified by the court, the defence serve on Her Majesty's Procureur a notice -
(a)      stating that, on the facts as alleged with respect to the agreed course of conduct, the condition is not in their opinion satisfied,
(b)      showing their grounds for that opinion, and
(c)      requiring the prosecution to show that it is satisfied.
(9)      The court may permit the defence to require the prosecution to show that the second condition is satisfied without the prior service of a notice under subsection (8).
(10)      In the Royal Court the question whether the second condition is satisfied shall be decided by the Bailiff alone, and shall be treated as a question of law.
(11)      Any act done by means of a message (however communicated) is to be treated for the purposes of the fourth condition as done in the Bailiwick if the message is sent or received in the Bailiwick.
(12)      In any proceedings in respect of an offence triable by virtue of this section, it is immaterial to guilt whether or not the accused was a British citizen at the time of any act or other event proof of which is required for conviction of the offence.
(13)      References in any enactment, instrument or document (except those in this Part of this Law) to an offence of conspiracy to commit an offence include an offence triable in the Bailiwick as such a conspiracy by virtue of this section (without prejudice to subsection (6)).
(14)      Nothing in this section -
(a)      applies to an agreement entered into before this Law comes into force, or
(b)      imposes criminal liability on any person acting on behalf of, or holding office under, the Crown..
Exemptions from liability for conspiracy.
9.      (1)      A person is not by virtue of section 7 guilty of conspiracy to commit any offence if he is an intended victim of that offence.
(2)      A person is not by virtue of section 7 guilty of conspiracy to commit any offence or offences if the only other person or persons with whom he agrees are (both initially and at all times during the currency of the agreement) persons of any one or more of the following descriptions -
(a)      his spouse,
(b)      a person under the age of criminal responsibility, and
(c)      an intended victim of that offence or of each of those offences.
Penalties for conspiracy.
10.      (1)       A person guilty by virtue of section 7 of conspiracy to commit any offence or offences is liable on conviction on indictment -
(a)      in a case falling within subsection (2) or (3), to imprisonment for a term related in accordance with that subsection to the gravity of the offence or offences in question (referred to below in this section as the "relevant" offence or offences), and
(b)      in any other case, to a fine.
(2)      Where the relevant offence or any of the relevant offences is an offence of any of the following descriptions -
(a)      murder or any other offence the sentence for which is fixed by law,
(b)      an offence for which a sentence extending to imprisonment for life is provided, or
(c)      an indictable offence punishable with imprisonment for which no maximum term of imprisonment is provided,
the person convicted is liable to imprisonment for life.
(3)      Where in a case other than one to which subsection (2) applies the relevant offence or any of the relevant offences is punishable with imprisonment, the person convicted is liable to imprisonment for a term not exceeding the maximum term provided for that offence or (where more than one such offence is in question) for any one of those offences (taking the longer or the longest term as the limit for the purposes of this section where the terms provided differ).
In the case of an offence triable either on indictment or summarily the references in this subsection to the maximum term provided for that offence are references to the maximum term so provided on conviction on indictment.
Abolitions, savings and transitional provisions.
11.      (1)      Subject to the following provisions of this section, the offence of conspiracy at common law is abolished.
(2)      Subsection (1) does not affect the offence of conspiracy at common law so far as relates to conspiracy to defraud.
(3)      Subsection (1) does not affect any offence of conspiracy at common law if and in so far as it may be committed by entering into an agreement to engage in conduct which -
(a)      tends to corrupt public morals or outrages public decency, but
(b)      would not amount to or involve the commission of an offence if carried out by a single person otherwise than in pursuance of an agreement.
(4)      Subsection (1) does not affect -
(a)      any proceedings commenced before the time when this Part of this Law comes into force, or
(b)      any proceedings commenced after that time against a person charged with the same conspiracy as that charged in any proceedings commenced before that time.
(5)      Sections 7 and 9 apply to things done before as well as to things done after the time when this Part of this Law comes into force.
(6)      The rules laid down by sections 7 and 9 apply for determining whether a person is guilty of an offence of conspiracy under any enactment other than section 7, but conduct which is an offence under any such other enactment is not also an offence under section 7.
(7)      Incitement to commit the offence of conspiracy (whether the conspiracy incited would be an offence at common law or under section 7 or any other enactment) shall cease to be an offence.
(8)      The fact that the person or persons who, so far as appears from the indictment on which any person has been convicted of conspiracy, were the only other parties to the agreement on which his conviction was based have been acquitted of conspiracy by reference to that agreement (whether after being tried with the person convicted or separately) is not a ground for quashing his conviction unless under all the circumstances of the case his conviction is inconsistent with the acquittal of the other person or persons in question.
(9)      Any rule of law or practice inconsistent with the provisions of subsection (8) is abolished.
Conspiracy to defraud
Charges of and penalty for conspiracy to defraud.
12.      (1)      If -
(a)      a person agrees with any other person or persons that a course of conduct shall be pursued, and
(b)      that course of conduct will necessarily amount to or involve the commission of any offence or offences by one or more of the parties to the agreement if the agreement is carried out in accordance with their intentions,
the fact that it will do so does not preclude a charge of conspiracy to defraud being brought against any of them in respect of the agreement.
(2)      A person guilty of conspiracy to defraud is liable on conviction on indictment to imprisonment for a term not exceeding 10 years, or to a fine, or to both.
Conspiracy to defraud - jurisdiction.
13.      (1)      A person may be guilty of conspiracy to defraud if -
(a)      a party to the agreement constituting the conspiracy, or a party's agent, did anything in the Bailiwick in relation to the agreement before its formation,
(b)      a party to it became a party in the Bailiwick (by joining it either in person or through an agent), or
(c)      a party to it, or a party's agent, did or omitted anything in the Bailiwick in pursuance of it,
and the conspiracy would be triable in the Bailiwick but for the fraud which the parties to it had in view not being intended to take place in the Bailiwick.
(2)      Subsection (1) is subject to section 19.
PART III
JURISDICTION
Offences to which this Part applies.
14.      (1)      This Part applies to two groups of offences -
(a)      any offence mentioned in subsection (2) (a "Group A offence"), and
(b)      any offence mentioned in subsection (3) (a "Group B offence").
(2)      The Group A offences are -
(a)      an offence under any of the following provisions of the Theft (Bailiwick of Guernsey) Law, 1983[d] -
(i)      section 1 (theft),
(ii)      section 15 (obtaining property by deception),
(iii)      section 15A (obtaining a money transfer by deception),
(iv)      section 16 (obtaining a pecuniary advantage by deception),
(v)      section 17 (obtaining services by deception),
(vi)      section 18 (evasion of liability by deception),
(vii)      section 19 (false accounting),
(viii)      section 21 (false statements by company directors, etc),
(ix)      section 22(2) (procuring execution of valuable security by decep­tion),
(x)      section 23 (blackmail),
(xi)      section 25 (handling stolen goods),
(xii)      section 27A (dishonestly retaining a wrongful credit),
(b)      an offence under any of the following provisions of the Forgery and Counterfeiting (Bailiwick of Guernsey) Law, 2006 -
(i)      section 1 (forgery),
(ii)      section 2 (copying a false instrument),
(iii)      section 3 (using a false instrument),
(iv)      section 4 (using a copy of a false instrument),
(v)      section 5 (offences relating to money orders, share certificates, passports, etc),
(vi)      section 12 (counterfeiting notes and coins),
(vii)      section 13 (passing, etc, counterfeit notes and coins),
(viii)      section 14 (offences involving custody or control of counterfeit notes and coins),
(ix)      section 15 (offences involving making or custody or control of counterfeiting materials and implements),
(x)      section 18 (prohibition of importation of counterfeit notes and coins),
(xi)      section 19 (prohibition of exportation of counterfeit notes and coins).
(3)      The Group B offences are -
(a)      conspiracy to commit a Group A offence,
(b)      conspiracy to defraud,
(c)      attempting to commit a Group A offence,
(d)      incitement to commit a Group A offence.
(4)      The States may by Ordinance amend subsection (2) or (3) by adding or removing any offence.
Jurisdiction in respect of Group A offences.
15.      (1)      For the purposes of this Part "relevant event", in rela­tion to any Group A offence, means any act or omission or other event (including any result of one or more acts or omissions) proof of which is required for conviction of the offence.
(2)      For the purpose of determining whether or not a particu­lar event is a relevant event in relation to a Group A offence, any question as to where it occurred is to be disregarded.
(3)      A person may be guilty of a Group A offence if any of the events which are relevant events in relation to the offence occurred in the Bailiwick.
Questions immaterial to jurisdiction in the case of certain offences.
16.      (1)      A person may be guilty of a Group A or Group B offence whether or not -
(a)      he was a British citizen at any material time,
(b)      he was in the Bailiwick at any such time.
(2)      On a charge of conspiracy to commit a Group A offence, or on a charge of conspiracy to defraud in the Bailiwick, the de­fendant may be guilty of the offence whether or not -
(a)      he became a party to the conspiracy in the Bailiwick,
(b)      any act or omission or other event in relation to the conspiracy oc­curred in the Bailiwick.
(3)      On a charge of attempting to commit a Group A offence, the defendant may be guilty of the offence whether or not -
(a)      the attempt was made in the Bailiwick,
(b)      it had an effect in the Bailiwick.
(4)      Subsection (1)(a) does not apply where jurisdiction is given to try the offence in question by an enactment which makes provision by reference to the nationality of the person charged.
(5)      Subsection (2) does not apply in relation to any charge of conspiracy brought by virtue of section 8.
(6)      Subsection (3) does not apply in relation to any charge of attempting to commit a Group A offence brought by virtue of section 2.
Rules for determining certain jurisdictional questions relating to location of events.
17.      In relation to a Group A or Group B offence -
(a)      there is an obtaining of property in the Bailiwick if the property is either despatched from or received at a place in the Bailiwick, and
(b)      there is a communication in the Bailiwick of any information, instruction, request, demand or other matter if it is sent by any means -
(i)      from a place in the Bailiwick to a place elsewhere, or
(ii)      from a place elsewhere to a place in the Bailiwick.
Incitement.
18.      (1)      A person may be guilty of incitement to commit a Group A offence if the incitement -
(a)      takes place in the Bailiwick, and
(b)      would be triable in the Bailiwick but for what the person charged had in view not being an offence triable in the Bailiwick.
(2)      Subsection (1) is subject to section 19.
Relevance of external law.
19.      (1)      A person is guilty of an offence triable by virtue of section 13 only if the pursuit of the agreed course of conduct would at some stage involve -
(a)      an act or omission by one or more of the parties, or
(b)      the happening of some other event,
constituting an offence under the law in force where the act, omission or other event was intended to take place.
(2)      A person is guilty of an offence triable by virtue of section 2 or by virtue of section 18 only if what he had in view would involve the commission of an offence under the law in force where the whole or any part of it was intended to take place.
(3)      Conduct punishable under the law in force in any place is an offence under that law for the purposes of this section, however it is described in that law.
(4)      Subject to subsection (6), a condition specified in subsection (1) or (2) shall be taken to be satisfied unless, not later than specified by the court, the defence serve on Her Majesty's Procureur a notice -
(a)      stating that, on the facts as alleged with respect to the relevant conduct, the condition is not in their opinion satisfied,
(b)      showing their grounds for that opinion, and
(c)      requiring the prosecution to show that it is satisfied.
(5)      In subsection (4) "the relevant conduct" means -
(a)      where the condition in subsection (1) is in ques­tion, the agreed course of conduct, and
(b)      where the condition in subsection (2) is in ques­tion, what the defend­ant had in view.
(6)      The court, if it thinks fit, may permit the defence to require the prosecution to show that the condition is satisfied without the prior service of a notice under subsection (4).
(7)      In the Royal Court the question whether the condition is satisfied shall be decided by the Bailiff alone.
Application of Part III.
20.      Nothing in any provision of this Part of this Law applies to any act, omission or other event occurring before the commencement of that provision.
PART IV
INTERPRETATION, CITATION AND COMMENCEMENT
Interpretation.
21.      (1)      In this Law -
"Bailiwick" means the Bailiwick of Guernsey,
"Bailiff" means the Bailiff, the Deputy Bailiff, a Lieutenant Bailiff or the Juge Délégué,
"Group A offence" : see section 14(2),
"Group B offence" : see section 14(3),
"Her Majesty's Procureur" includes Her Majesty's Comptroller,
"Magistrate's Court" means -
(a)       in Alderney, the Court of Alderney, and
(b)       in Sark, the Court of the Seneschal,
"offence" (in Part II) : see section 7(3).
(2)      The Interpretation (Guernsey) Law, 1948[e] applies to the interpretation of this Law throughout the Bailiwick.
(3)      Any reference in this Law to an enactment is a reference thereto as from time to time amended, re-enacted (with or without modification), extended or applied.
Power to amend Law by Ordinance.
22.      (1)      The States may by Ordinance amend this Law.
(2)      The provisions of subsection (1) are without prejudice to any other provision of this Law conferring power to enact Ordinances (and vice versa).
(3)      An Ordinance under this Law -
(a)      may, for the avoidance of doubt -
(i)      create new offences, and
(ii)      repeal, replace, amend, extend, adapt, modify or disapply any rule of customary or common law,
(b)      may be amended or repealed by a subsequent Ordinance hereunder, and
(c)      may contain such consequential, incidental, supplementary and transitional provision as may appear to be necessary or expedient.
(4)      Any power conferred by this Law to make an Ordinance may be exercised -
(a)      in relation to all cases to which the power extends, or in relation to all those cases subject to specified exceptions, or in relation to any specified cases or classes of cases,
(b)      so as to make, as respects the cases in relation to which it is exercised -
(i)      the full provision to which the power extends, or any lesser provision (whether by way of exception or otherwise),
(ii)      the same provision for all cases, or different provision for different cases or classes of cases, or different provision for the same case or class of case for different purposes,
(iii)      any such provision either unconditionally or subject to any prescribed conditions.
Citation.
23.      This Law may be cited as the Criminal Justice (Attempts, Conspiracy and Jurisdiction) (Bailiwick of Guernsey) Law, 2006.
Commencement.
24.      This Law shall come into force on the day appointed by Ordinance of the States; and different days may be appointed for different provisions.
 
[a]

Article XVI of Billet d'État No. XXI of 1998.

[b]

Article XI of Billet d'État No. VIII of 2006.

[c]

Order in Council No. VIII of 1991.

[d]

Ordres en Conseil Vol. XXVIII, p. 5; No. I of 1991; No. IX of 1996; and No. XII of 1999.

[e]

Ordres en Conseil Vol. XIII, p. 355.