On 7 January 2012, the crew of a Danish warship, the HDMS Absalon, engaged in anti-piracy action off the coast of Somalia, received reports from its surveillance helicopter of 'piracy indicators' by a fishing vessel, the Tahiri. At about 40 nm off the Somali coastline, the Absalon ordered the Tahiri to stop. The vessel refused to do so, and instead tried to evade intervention, with crewmembers pointing weapons at the Absalon and waving weapons at what appeared to be hostages on deck. The Absalon closed in while firing warning shots and was eventually able to bring the Tahiri to a halt. The fishing vessel was boarded by the crew of the Absalon, who discovered nine Pakistanis and five Iranian hostages, together with 25 suspected Somali pirates on the Tahiri. The Danish crew of the Absalon observed and filmed a large number of weapons being thrown overboard. Skiffs and powerful outboard engines, together with hook and rope ladders and booster charges for rocket-propelled grenades, were also recovered on board. The 25 Somalis on board were arrested for suspected piracy. Jurisdiction for their prosecution was sought. Seychelles accepted four of the detainees, Kenya another four, and the rest were released for want of a jurisdiction to prosecute them.

The appellants were charged initially with two counts of piracy. At trial, the first charge was dropped, since the released hostages could not be produced to support the charge. The appellants were tried and convicted on 26 November 2012 on the second charge of voluntary participation in the operation of a ship with knowledge of facts making it a pirate ship. Abdul Ahmed Mohamed was sentenced to 14 years imprisonment and the others to 21 years imprisonment. They have now appealed against their conviction and sentence on the following grounds:

1. The Judge erred in convicting the appellants on a defective charge which did not state the element of common intention as per s 23 of the Penal Code.
2. The Judge erred in law and in fact in concluding that the four appellants had participated in the act of piracy in the high seas.
3. The Judge erred in law and in fact in concluding that the four appellants had knowledge of the fact that the ship that they were using was a pirate ship.
4. The conviction of the second appellant was unsafe and unsatisfactory, as the Judge failed to ensure that the sanction of the Attorney-General had been granted before prosecuting the first appellant, who was a minor at the time the offences were committed.
5. In all the circumstances of the case, the conviction of the four appellants was unsafe and unsatisfactory.
6. The sentences were manifestly harsh and excessive and wrong in principle.

Held: The appeals are allowed and the appellants' convictions are quashed.

This case concerns an offence of maritime piracy with no nexus whatsoever to Seychelles. In the circumstances, Seychelles is exercising universal jurisdiction to prosecute. Given the provisions of ss 65(4)(b) and (c) of the Penal Code, the domestic jurisdiction of Seychelles is authorised for the prosecution of foreign pirates operating a pirate ship on the high seas. However, in order to obtain a conviction for piracy based on the operation of a pirate ship under s 65(5) of the Penal Code, with which the four appellants were charged, three crucial elements of mens rea have to be proved. First, it must be established that the ship is a pirate ship. This is done in several ways: either by proving the acts of depredation or violence for private ends against another ship and that the ship remains under the control of the persons who committed those acts; or by proving that it is the intention of the person in dominant control of the ship to use it for the purpose of committing acts of piracy. It is not clear from the conduct of the case and the evidence adduced whether it was the first or second limb of s 65(5) with which the appellants were charged.

The second element that has to be proven by the prosecution for the offence of operating a pirate ship is the control of the ship by the accused persons. The prosecution has a choice, as has already been pointed out, to prove that those who committed the acts of piracy remain in control of the vessel, or that the person or persons in dominant control of the pirate ship has the intention of committing acts of piracy.

The third element requires proof beyond reasonable doubt to show that those who voluntarily participated in the operation of the ship had knowledge of facts making it a pirate ship.

These essential ingredients are contained in the amended provisions of s 65 of the Penal Code, which replicate and domesticate art 101.b of UNCLOS. Article 101 of UNCLOS defines piracy as any of the following acts:

(a) any illegal acts of violence or detention, or any act of depredation, committed for private ends by the crew or the passengers of a private ship or a private aircraft, and directed:

(i) on the high seas, against another ship or aircraft, or against persons or property on board such ship or aircraft;

(ii) against a ship, aircraft, persons or property in a place outside the jurisdiction of any State;

(b) any act of voluntary participation in the operation of a ship or of an aircraft with knowledge of facts making it a pirate ship or aircraft;

(c) any act of inciting or of intentionally facilitating an act described in subparagraph (a) or (b).

Art 103 of UNCLOS defines a pirate ship as follows: 'A ship or aircraft is considered a pirate ship or aircraft if it is intended by the persons in dominant control to be used for the purpose of committing one of the acts referred to in article 101. The same applies if the ship or aircraft has been used to commit any such act, so long as it remains under the control of the persons guilty of that act.'

The Republic concedes that UNCLOS reflects the customary international law on piracy, and that the exercise of universal jurisdiction necessitates a basis in norms firmly grounded in international law (see eg United States v Ali 718 F 3d 929 (DC Cir 2013) (CMI492). Further, s 12 of the Interpretation and General Provisions Act also states: 'A construction of an Act which is consistent with the international obligations of Seychelles is to be preferred to a construction which is not.'

In the circumstances the Court cannot and will not extend the meaning of concepts contained in s 65 of the Penal Code beyond international norms in cases where the offence of piracy was committed outside the jurisdiction of Seychelles. The Court is therefore guided but also limited both by our domestic laws and international norms in construing the meaning of piracy, pirate ship, knowledge, and control.

Knowledge has to be inferred from the facts of the case. Neither art 101 of UNCLOS nor s 65 of the Penal Code specifies how one draws an inference of requisite knowledge. While it is not necessary that a ship fly 'The Jolly Roger' for it to be inferred that it is a pirate ship, the Court must still find evidence that the appellants had knowledge that the ship they were on board was operating as a pirate ship. The evidence of the Danish able ratings might have been enough for the Court to draw an inference that the crew of the Tahiri, including the appellants, had knowledge that the vessel was being operated as a pirate ship within the meaning of s 65(5) of the Penal Code and art 101.b of UNCLOS, had the hostages confirmed their testimony. Arms were found with some of the crew of the Tahiri , and they were filmed throwing them overboard when intercepted. There were various other piracy paraphernalia on board. It may well be that some or all the Somalis on board the Tahiri carrying AK 47s and RPGS, approvisioned with large quantities of rice, fuel and water for a long trip, had knowledge that it was a ship cruising with intent as envisaged in the UNCLOS provisions and the Penal Code.

The difficulty lies in the failure of the prosecution to tie the appellants with the whole group of Somalis in control of the Tahiri. Evidence from the hostages could have provided that link. In both R v Mohammed Abdi Jama (The Alankrantxu) SC 15/2012 and R v Liban Mohamed Dahir (The Happy Bird) SC 6/2012, Gaswaga J used the analogy of 'equipment articles' in offences of slavery to infer a presumption of knowledge, and therefore guilt, on the part of the defendants in operating a pirate ship. Equipment articles are defined as rules that create a judicial presumption of guilt on piracy charges for the crews of civilian vessels possessing certain specified equipment within a specified area of the high seas plagued by pirate attacks. It would therefore have been Gaswaga J’s view that the discovery of such equipment articles on board the Tahiri would have corroborated the evidence of the Danish witnesses that the vessel was being used as a pirate ship. However, the Court is unable to agree with him in this respect, and finds it impossible to adopt this approach. The presumption of equipment articles are not contained in the customary international law of piracy, nor in UNCLOS or domestic legislation. The Court cannot import such a concept in construing the law of piracy in Seychelles. In the circumstances the Court is unable to find that the appellants had knowledge that the ship was operating as a pirate ship.

There is further difficulty in relation to the element of retention of control or dominant control. In order to secure a conviction for the operation of pirate ship by the retention of control after acts of piracy have been committed under s 65(5)(a) of the Penal Code, the prosecution has to prove such control by the appellants individually or by common design. To secure a conviction under section 65(5)(b) of the Penal Code, the prosecution has to prove the appellants individually or by common design had dominant control of the ship with the intention of committing acts of piracy. The Republic submitted that the presence of the appellants on board the Tahiri is enough to infer knowledge that the ship was a pirate ship and that there was voluntary participation by the appellants in its operation. However, there are other possible conclusions as far as the appellants are concerned. Consider for example the case of the 16 year-old second appellant. Is it inconceivable that he was drafted as a crew member for a fishing expedition, as he claims? There was no evidence adduced that he or any of the other appellants were members of the original crew who took over the Tahiri and continued to be in control of it. There is in fact no evidence that the Tahiri was not owned by the Somalis. Nor was there any evidence that any of the appellants was in dominant control of the pirate ship. No evidence was adduced as to their respective roles on the ship. It appears that a 'guilt by association' interpretation may have been applied in this case to render liable all the crew apprehended, even in the absence of clear guilt being established of any principal offenders in this case.

The evidential burden for the offence of piracy in terms an act of voluntary participation in the operation of pirate ship has not been met by the prosecution in this case. Knowledge and control cannot be inferred by the evidence adduced, at least not by the appellants, given the paucity of evidence in relation to them personally. The Court cannot and will not uphold a conviction which is grounded purely on guilt by association.