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Cutter Guidance Version 2 Final

Introduction

The purpose of this document is to provide a general outline of the legal powers available to HM Cutters to conduct at-sea law enforcement operations. A list of the relevant treaties and legislation (and abbreviations) is at Annex A. An explanation of the changes made to customs legislation as a result of the decision to merge the work of Customs (at the border) and the Border and Immigration Agency and thus „establish a unified border force‟ as UKBA can be found at Annex B.

At-sea law enforcement operations

1.1 HM Cutters and their crew may conduct at-sea law enforcement operations on

behalf of the UK Border Agency. The legal powers available to UK Border Force officers 1 to carry out law enforcement interdictions at sea depend on the target vessel‟s location 2 and nationality (i.e. flag), namely:

(a) Ships (and vessels) of any nationality (or none) in the UK‟s internal

waters;

(b)

UK (British 3 ) ships;

(c)

Foreign ships 4 (or ships without nationality) in the UK‟s territorial sea;

(d)

Foreign ships exercising innocent passage in the UK‟s territorial sea 5 ;

(e)

Ships on the high seas.

1 UKBA‟s Border Force is part of the UKBA. UKBA is an executive agency of the Home Office.

2 CEMA section 1 ship and vessel includes any boat or other vessel whatsoever and to the extent provided in CEMA section 2, any hovercraft.

3 British ships and United Kingdom ships are defined within the meaning of section 1 of the Merchant Shipping Act 1995. A British ship will not include a ship registered in the Isle of Man or any of the Channel Islands unless it is also registered under Part 2 of the Merchant Shipping Act 1995. A Britis h ship will include ships registered in any of the 14 British Overseas Territories.

4 Merchant Shipping Act 1995 section 313 provides “foreign” in relation to a ship, means that it is neither a United Kingdom ship nor a small ship (i.e. a small ship” means a ship less than 24 metres in length).

5 Territorial Sea Act 1987 section 1(1) provides the breadth of the territorial sea adjacent to the United Kingdom shall for all purposes be 12 nautical miles.

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Internal-water interdictions

1.2 The UK retains full sovereignty over its internal waters 6 . This means that UK

Border Force officers may exercise both customs and immigration 7 powers to stop and board a suspect ship (regardless of flag) under their relevant legislation whilst it is located in the internal waters. PACE also applies in relation to anyone detained by a

UK Border Force Officer on the boarded ship which at the relevant time is located in the internal waters.

Territorial-sea interdictions

1.3 With regard to the at-sea anti-smuggling operations in territorial seas, UK

Border Force Officers may rely on their customs powers set out in the Customs and Excise Management Act 1979 (CEMA) to stop and board the target ship whilst it is located within the limits of a customs port (see Chart LOS2E, and list of customs port approvals at Annex B) 8 . The aim of these type of interdiction operations is to enforce the relevant provisions in the customs and excise acts.

1.4 Generally a coastal state‟s zones of maritime jurisdiction 9 are elective; they do

not exist unless declared by the coastal state. The UK has elected to exercise sovereignty over vessels in its territorial seas (extending 12 nautical miles from the baselines) subject to The United Nations Convention Law of the Sea (UNCLOS).

1.5 Under UNCLOS foreign ships enjoy the right of innocent passage in the

coastal State‟s territorial seas. 10 This means that HM cutters must not hamper the innocent passage of a foreign ship through the UK‟s territorial seas provided it is not prejudicial to the peace, good order or security of the UK. Amongst the activities listed as being so prejudicial, is "the loading or unloading of any commodity, currency or person contrary to the customs, fiscal, immigration or sanitary laws and regulations

6 Sovereignty means that the law of England & Wales, Scotland and Northern Ireland applies over vessels in the internal waters as if it would when the vessel is alongside at a port.

7 Immigration Act 1971, schedule 1, para 1(4) and (5)

8 Maritime operation around the coastline of the IoM must be carried out in accordance with the provisions of the MOU and with the consent of the IoM authorities. Legal advice from HOLAB should be sought in the event of a maritime operation around the coastline of Northern Ireland.

9 Jurisdiction means the authority of a sovereign power (i.e. the UK) to legislate and enforce its laws.

10 Article 17 UNCLOS: The meaning of "passage" is defined in Article 18; but note that passage "shall be continuous and expeditious"(Article 18.2). This does not mean non-stop; stopping and anchoring must, however, be incidental to navigation or necessitated by force majeure or distress or rendering assistance

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of the coastal state. 11 Officers should also be aware of the provision in Article 19.2(l) of UNCLOS which encompasses “any other activity not having a direct bearing on passage. This does clearly include the transit of ships containing drugs.

1.6 UNCLOS 12 further provides that the criminal jurisdiction of the coastal State

should not be exercised on board a foreign ship passing through the territorial sea to

arrest any person or to conduct any investigation in connection with any crime committed on board the ship during its passage, save only in the following cases:

if the consequences of the crime extend to the coastal State; or

if the crime is of a kind to disturb the peace of the country or the good order of the territorial sea; or

if the assistance of the local authorities has been requested by the master of the ship or by a diplomatic agent or consular officer of the flag State; or

if such measures are necessary for the suppression of illicit traffic in narcotic drugs or psychotropic substances.

1.7 By way of example, a foreign ship identified in para 1.1(d) would not be

entitled to claim innocent passage if those on board were suspected of smuggling illicit traffic. UK ships, ships without nationality and other vessels 13 are not entitled

to claim the right of innocent passage through the UK‟s territorial seas.

High-sea interdictions (international waters)

1.8 Ships on the high seas will sail under the flag of one State only and, save in

exceptional cases provided for in UNCLOS (e.g. piracy) shall be subject to its exclusive jurisdiction. 14 In other words, the flag state may enforce its laws over the ship and its crew whilst it is on the High seas unless the authorities of that state agree to waive jurisdiction in favour of a requesting state (e.g. Article 17 of the Vienna Convention procedures referred to in Annex A).

11 UNCLOS Article 19

12 UNCLOS Article 27 (criminal jurisdiction on board a foreign ship)

13 The use of the term “vessel” in this note does not include foreign ships entitled to exercise their rights under UNCLOS.

14 UNCLOS article 92.

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1.9 With regard to piracy this constitutes an automatic exception to the rule of

exclusive flag-state jurisdiction allowing boarding and seizure regardless of flag-state consent or whether the boarding state is affected by the vessel‟s activities. Piracy involves (a) an act of violence, detention or depredation; (b) committed for private ends; (c) on the high seas or in place outside the jurisdiction of any state; and (d) by the crew or passengers of a private ship or aircraft, against another vessel or persons or property abroad.

UK flagged ship interdictions

1.10 A UK flagged ship 15 wherever it is located, may be subject to UK

jurisdiction 16 in relation to conduct which is an offence under UK law, which is alleged to have been committed by a British citizen on board the UK ship or alleged to have been committed by a foreign national on board the UK ship but only whilst it is on the high seas.

Anti-smuggling at-sea interdictions

2.1 If a ship is within the limits of a customs port, then s27 of the Customs and

Excise Management Act 1979 provide the cutter crews (i.e. officers engaged in the prevention of smuggling) with the power to board and search the target ship. The limits of a customs port are marked on Chart LOS2E and extend to most of the coastline (12 Nautical Miles) around the UK (i.e. a territorial-sea/internal-water interdiction). There is also a power to stop and search a vessel under s163 of CEMA where there are reasonable grounds to suspect that the vessel may be carrying goods which are (i) chargeable with any duty which has not been paid (e.g. cigarette

15 United Kingdom ship means a ship registered under Part 2 of the Merchant Shipping Act 1995 in the United Kingdom. This excludes ships registered in the overseas territories, as well as those registered in the Channel Islands or Isle of Man. It also excludes Government ships registered under section 308 of the 1995 Act and those small vessels (under 24 metres) that are not and do not require to be registered. The UK‟s role as a flag state extends to jurisdictions where it is responsible for the conduct of the external relations of territory which provides a ship‟s registration, i.e. the Channel Islands, the Isle of Man and the 14 British Overseas Territories.

16 This, so far as England and Wales is concerned, is the combined effect of section 281 of the Merchant Shipping Act 1995, section 3A of the Magistrates‟ Courts Act 1980 and section 46A of the Supreme Court Act 1981. In relation to Scotland section 281 of the Merchant Shipping Act 1995 applies to offences under that Act. For other offences, Scottish courts have general jurisdiction only within the territorial limit although a number of statutes confer extra territorial jurisdiction for specific offences.

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smuggling); (ii) in the course of being unlawfully removed; or (iii) are otherwise liable to forfeiture under the customs and excise acts (e.g. drug smuggling).

2.2 Only the „Proper Officer‟ („Proper Officer‟ is defined by section 1(1) of

CEMA 1979 as being the person appointed or authorised to do anything by the UKBA) will have free access to every part of the ship and:

cause any goods to be marked before they are unloaded;

lock up, seal, mark or otherwise secure any goods aboard;

break open any place or container which is locked and of which the keys are withheld.

Any goods found concealed on board any such ship shall be liable to forfeiture.

2.3 Although there is no express provision in CEMA to require the ship to be

taken to a port for the purpose of carrying out the search under the relevant provisions

of the Act, it is recognised that it would be dangerous to conduct such a search at sea. Therefore where it is necessary to carry out more than a cursory examination, the boarded ship may be taken to the nearest port where the power under section 163 of CEMA can properly be exercised.

2.4 Given the possible need to subsequently justify any action under this power

before a court, any request to divert should be recorded by the customs official in their notebook, together with a brief statement of the reason for the request.

Time of importation and exportation

2.5 Under section 5 of CEMA the „time of importation‟ of any goods by sea shall

be deemed to be at the time when the ship carrying them comes within the limits of a port. 17 The „time of exportation‟ of any goods from the UK by sea shall be deemed to be at the time when the goods are shipped for exportation. In the case of goods of a class or description with respect to the exportation of which any prohibition or restriction is for the time being in force under or by virtue of any enactment which are

17 CEMA section 5(2) is subject to ss (3) and (6).

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exported by sea, the time of exportation shall be deemed to be at the time when the exporting ship departs from the last port at which it is cleared before departing for a destination outside the UK. A ship shall be deemed to have arrived at or departed from a port at the time when the ship comes within or, as the case may be, leaves the limits of that port (see Chart LOS2E).

Travel documents, passports

2.6 A customs official may require any person entering or leaving the UK (a) to

produce the person‟s travel documents for examination, or (b) to answer any questions put by the Proper Officer about the person‟s journey. The Proper Officer may rely on this power once on the boarded ship provided the original basis for boarding the ship under s27 of CEMA and being therein is for a customs function and the Proper Officer is satisfied that the ship is in the process of entering or leaving the United Kingdom (which should be taken to mean “the limits of a port”/the territorial seas). In the maritime environment a customs function can include, for example boarding a suspect ship which at the relevant time is within the limits of a customs port and is suspected of smuggling any item which is subject to a prohibition or a restriction by virtue of any enactment. Once on board, the customs official may ask the crew for their travel documents/passport as part of their questioning process, provided that ship is entering or leaving the United Kingdom. However, a customs official may not stop and board a suspect vessel solely for the purpose of checking the crew‟s travel documents and passport. In other words, the customs official must be satisfied that he can board the vessel under s27 of CEMA (as referred to above) because he is an officer engaged in the prevention of smuggling.

2.7 It is also essential that officers exercising this power are able to demonstrate

that it is being exercised for a customs rather than an immigration purpose. Information obtained relating to an immigration matter in the course of such questioning may be shared with immigration colleagues on shore through the powers in the Borders Citizenship and Immigration Act gateways 18 but further enquiries should not be pursued by the proper officer in relation to an individual‟s immigration status once the officer has discovered information of immigration interest. In these

18 See section 14 -19 of the BCIA.

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circumstances, the reason for the intervention, what subsequently gave rise to immigration issues being discovered and the further actions of the proper officer once this information was identified should be recorded.

Coasting Ship 19

2.8 The Proper Officer may also at any time during a coasting ship‟s voyage,

board and search it (CEMA sec 72(3)) and:

examine goods carried in the ship at any time while they are on board (sub section 72(1)(a));

require any container to be opened or unpacked (at the proprietor's expense for unpacking and repacking (sub section 72(2));

require any document which should properly be on board to be produced or brought to him for examination (sub section 72(3)(b)). 20

Power of arrest

2.9 If there is reasonable ground to suspect a person is or has been involved in the

improper importation 21 or exportation 22 of goods, making untrue declarations 23 or being involved in the fraudulent evasion of duty etc 24 , he may be arrested under the relevant provision in CEMA 25 . Where there is a power of arrest under CEMA, it should be relied upon where the boarded vessel is at the relevant time in the UK‟s territorial seas.

Information to be given on arrest

19 "Coasting ship" is defined by section 69 as a ship engaged in the trade of carrying goods coastwise between places in the UK or the UK and Isle of Man.

20 If the master fails to do either he is liable for a summary offence. The maximum penalty is a fine up to level 2 on the standard scale (i.e. £500).

21 CEMA section 50(1) and (2): Penalty for improper importation of goods.

22 CEMA section 68(2): penalty in relation to exportation of prohibited or restricted goods.

23 CEMA section 167(1): penalty in relation to knowingly or recklessly making an untrue declarations etc.

24 CEMA section 170(1) and (2): penalty for fraudulent evasion of duty, etc.

25 The other arrestable offences under CEMA are: section 24(5) unauthorised movements of goods by pipeline, section 53(8) entry outwards of goods with fraudulent intent and section 63(6) entry outwards of exporting ships with fraudulent intent, section 68A(1) offences in relation to agricultural levies, section 87 penalty for offering goods for sale as smuggled goods, section 100(1) general offences relating to warehouse and warehoused goods, section 129(3) power to remit or repay on denatured goods, section 158(4) power to require provision of facilities and section 168(1) counterfeiting documents, etc.

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2.10 It should be noted that, so far as its application to customs officials are

concerned, the provisions of the PACE Order 26 (unlike CEMA) do not extend to the UK‟s territorial seas. However, it is UKBA‟s policy that its officials must observe the spirit of PACE and its Codes when operating in the UK‟s territorial seas. An arrested person must therefore be informed that he is under arrest and the grounds for his arrest as soon as practicable otherwise the arrest will be unlawful. Customs officials must also have regard to paragraph 3.3 and note 3 to PACE Code of Practice G 27 Adjacent to Scotland, the common law and provisions in the Criminal Procedure (Scotland) Act 1995 relating to arrest apply. Similarly, outside the territorial seas, the provisions of the PACE Order and the Scottish provisions do not apply. Therefore

under CJICA, enforcement officers should act in conformity with its provisions to secure relevant rights under ECHR (albeit a breach of PACE is not necessarily a breach of article 5 of the convention).

Must the customs official arrest?

2.11 The fact that an offence is an arrestable one does not mean that a person must

be arrested. It should be noted that if, for example, a person is found with a "personal

use" amount of cannabis in his possession, there may be good cause to wish to dispose of the matter by seizing the drugs and offering a compound penalty 28 to the person concerned, under the power contained in section 152(a) CEMA 1979 29 .

2.12 Once a person is arrested, section 30 of PACE (as applied to customs officials

by the PACE Order) is of relevance because a cutter is not a designated office of the

26 See: s22 of the Borders, Citizenship and Immigration Act 2009, the Police and Criminal Evidence Act 1984 (Application to Revenue and Customs) Order 2007 (SI 2007/3175) and the Police and Criminal Evidence (Application to Revenue and Customs) Order (Northern Ireland) 2007 (SR

2007/464).

27 Code G – Para 3.3 „A person who is arrested, or further arrested, must be informed at the time, or as soon practicable thereafter, that they are under arrest and the grounds for their arrest, see note 3. Note 3: „An arrested person must be given sufficient information to enable them to understand they have been deprived of their liberty and the reason they have been arrested e.g. when a person is arrested on suspicion of committing an offence they must be informed of the suspected offences nature, when and where it was committed. The suspect must also be informed of the reasons or reasons why arrest is considered necessary. Vague or technical language should be avoided.

28

[ TBC
[
TBC

: A compound penalty should only be offered in consultation with the CPS duty lawyer].

29 Current limits permit the following quantities to be compounded: all class B and C drugs (except amphetamines) - 50g. Amphetamines: 10g.

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UK Border Agency. Section 30 PACE applies to an arrest other than at an office of UKBA and provides that the person must be taken to a designated office of UKBA as soon as practicable after the arrest. 30 They may be taken to a non-designated station if it appears to the officer that they are not to be kept in detention for more than 6 hours. It is important to observe in particular the time limit on detention without charge. This is likely to arise where someone is arrested at sea and is to be transported back to land for custody procedures etc. The relevant provision is section 41(2)(b) PACE 31 which stipulates that the "relevant time" (i.e. when detention begins) shall be either the time at which the person arrives at the office of UKBA in which the offence for which he was arrested is being investigated or the time 24 hours after the time of that person‟s entry into England and Wales, whichever is the earlier. If there is a operational requirement to keep an arrested person in detention on board a cutter (or on the boarded ship) for a period longer than 24 hours, because for example due to the location of the boarding, the cutter will take longer than 24 hours to transport the arrested person back to a designated office of the UKBA, the customs official should inform Maritime Aviation Command and Control Team (MACC) as soon as possible so that they in turn can seek legal advice from Home Office Legal Advisers Branch at 2 Marsham Street (HOLAB).

Seizure of cargo, ships, etc

2.13 Once board, the custom official may seize or detain anything which is liable to

forfeiture under the customs and excise acts (section 139(1) CEMA 32 ) by a customs official. A boarded ship will also be liable to forfeiture under CEMA in the following situations:

30 If an officer makes an arrest under CEMA in the UK‟s territorial seas, PACE does not apply but officers should still have regard to it as a matter of UKBA policy.

31 As modified by the 2007 Application Order.

32 Schedule 3 to CEMA lays down a self-contained code for resolving disputes caused by the seizure of ships and other goods. Note that where any goods, including a ship, are seized a Notice of Seizure must be given to anyone who appears to be an owner or one of the owners except where the seizure was made in the presence of any of the following: the person whose offence or suspected offence occasioned the seizure, the owner, or one of the owners, of the ship (or their agent) or the master of that ship.

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where a ship is, or has been, in UK waters 33 while constructed, adapted, altered or fitted in any manner for the purpose of concealing goods (section 88);

where any part of the cargo of a ship is thrown overboard or is destroyed to prevent seizure while the ship is in UK waters or has been properly summoned to bring to by a vessel in the service of Her Majesty and has failed to do so and chase has been given (section 89);

where a ship has been within the limits of a customs port or the Isle of Man with a cargo on board and a substantial part of that cargo is afterwards found to be missing and the master of the ship fails to account therefore to the satisfaction of the Commissioners (section 90);

where a ship has failed to bring to when required to do so and chase has been given (section 91)

where any ship has been used for the carriage, handling, deposit or concealment of some other thing liable to forfeiture e.g. drugs (section 141).

2.14

Special provisions 34 apply to forfeiture of larger ships (i.e. a ship of 250 or

more tons) 35

Outward Clearance procedures

3.1 Any customs official can board any ship which is cleared outwards from a port

at any time while the ship is within the UK‟s territorial seas and require production of the ship‟s clearance. The customs official may also require the master to answer questions concerning the ship, cargo and intended voyage 36 . The right of innocent passage through the UK‟s territorial sea for the purpose of proceeding to or from internal waters or a call at such roadstead or port facility will apply to foreign ships identified in situation (d) referred to above in para 1.1.

33 UK waters means any waters (including inland waters) within the seaward limits of the territorial sea of the UK (see section 1 of CEMA).

34 CEMA section 142: special provisions as to forfeiture of larger ships.

35 Ships that exceed 250 tons shall not be liable to forfeiture under these provisions unless the offence in respect of or in connection with which the forfeiture is claimed (a) was substantially the object of the voyage during which the offence was committed or (b) was committed while the ship was under chase by a vessel in the service of Her Majesty after failing to bring to when properly summoned to do so by that vessel.

36 Refusal by the master to produce the ship's clearance or answer such questions creates liability for a summary offence. The maximum penalty is a fine up to level 1 on the standard scale, (currently £200).

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The power to refuse or cancel clearance of a ship (section 65 CEMA 1979)

3.2 If a ship is detained for the purpose of any power or duty conferred or imposed

by or under any enactment, or for the purpose of securing compliance with any customs provision relating to the importation or exportation of goods the Proper Officer may at anytime refuse clearance of any ship and where clearance has been granted to a ship, a customs official may at anytime while the ship is within the limits of any port (see Chart LOS2E) demand that the clearance shall be returned to him. Any such demand may be made orally or in writing on the master of the ship 37 .

Illicit-traffic at-sea interdictions

4.1 The Criminal Justice (International Co-operation) Act 1990 (CJICA) was

enacted to implement the UK‟s obligations under the United Nations Convention against Illicit Traffic in Narcotic Drugs and Psychotropic Substances signed in Vienna on the 20 December 1988 (“the Vienna Convention 1988”) and specifically article 17. CJICA provides if anything which would constitute a drug trafficking offence if done on land in any part of the UK shall constitute an offence if done on a British ship 38 . It also further provides 39 a person is guilty of an offence if on a specified ship 40 wherever it may be, he (1) has a controlled drug in his possession; or (2) is in any way knowingly concerned in the carrying or concealing of a controlled drug on a ship, knowing or having reasonable grounds to suspect that the drug is intended to be

imported or has been exported contrary to the Misuse of Drugs Act 1971 or the law of any state other than the United Kingdom.

4.2 The enforcement powers in respect of ships under CJICA are set out in

Schedule 3 of the Act. In this schedule “an enforcement officer” will include a customs official. For the purpose of CJICA, a British ship means a ship registered in the United Kingdom or a colony 41 . The territorial sea of the UK will also include the territorial sea adjacent to any of the Channel Islands, the Isle of Man or any colony 42 .

37 If the demand is not complied with, the master is liable for a summary offence. The maximum penalty is a fine up to level 2 on the standard scale (i.e. £500).

38 CJICA section 18 offences on British ships

39 CJICA section 19 ships used for illicit traffic

40 i.e. a British ship, a ship registered in a state other than the United Kingdom which is party to the Vienna Convention, or a ship not registered in any country or territory: CJICA ss19(1).

41 See section 24(1) of CJICA. Ship will also include any vessel used in navigation.

42 See section 24(1) of CJICA.

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Power to stop, board, divert and detain

4.3 An enforcement officer may stop the ship, board it and, if he thinks it

necessary for the exercise of his functions, require it to be taken to a port in the United

Kingdom and detain it there 43 .

Flag state consent

4.4 Before exercising the enforcement powers set out in CJICA outside the

landward limits of the territorial sea of the UK in relation to a ship registered in a Convention state, 44 (i.e. international-waters interdiction) authority must be obtained

from the Director of Border Force (acting on behalf of the Secretary of State) through the UK national competent authority based at MACC. The procedures for obtaining flag state consent are set out in Annex C.

4.5 That authority can be given only where the Convention state concerned has, in

respect of their flagged ship, either requested the assistance of the UK for the purposes of section 20(1) 45 , or authorised the UK to act for that purpose. Section 20(1) and (2) of CJICA will be interpreted in the light of Article 17 of the Vienna Convention 1988 which provides for enforcement powers to be exercised where the:

flag State itself has requested the assistance of the UK pursuant to Article 17(2) of the Convention;

UK has notified the flag State of the presence of the vessel, confirmation of registration has been given and our request for authorisation has been accepted by that State pursuant to Article 17(3) of the Convention; or

flag State has authorised the UK to act in accordance either with a treaty in force or in accordance with some other high - level agreement or

43 CJICA Sch 3 para 2

44 Convention state has the meaning given in section 19(1) of CJICA, namely, a state other than the UK which is a party to the Vienna Convention.

45 The powers conferred on an enforcement officer under CJICA shall be exercisable in relation to any British ship where there are reasonable grounds to suspect those on board are trafficking drugs or a specified ship is being used for illicit traffic.

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arrangement reached between the UK and the flag State pursuant to Article 17(4) of the Convention 46 .

4.6 The Secretary of State may impose conditions or limitations on the exercise of

the powers as may be necessary to give effect to such conditions or limitations as the Convention state may impose. 47 The powers shall not be exercised in another state's territorial sea without the authority of the Commissioners and they will not give that authority unless that third state has consented to the exercise of those powers.

The powers of the enforcement officer

4.7 The powers of the enforcement officer are set out in Schedule 3 of the Act

which specifically provides that an enforcement officer may:

search the ship, anyone on it and anything on it including its cargo and require any person on the ship to give information concerning himself or anything on the ship; 48

arrest without warrant anyone whom he has reasonable grounds for suspecting to be guilty of an offence under CJICA and seize and detain anything found on the ship which appears to him to be evidence of such an offence; 49

take any other person with him to assist in exercising his powers and that person can perform any of the officer's functions under the officer's supervision (known as assistants); 50

use reasonable force, if necessary, in the performance of his functions; 51

will not be liable in civil or criminal proceedings for his actions in the purported carrying out of his functions if the court is satisfied that the act was done in good faith and there were reasonable grounds for doing it 52 .

46 See the decision of the Court of Appeal in R -v- Dean and Bolden [1998] 2 Cr App R 171 for further discussion as to Article 17 of the Convention.

47 CJICA section 20(3)

48 See CJICA schedule 3, para 3

49 See CJICA schedule 3, para 4

50 See CJICA schedule 3, para 5, e.g. SOCA officers

51 See CJICA schedule 3, para 6

52 See CJICA schedule 3, para 8

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4.8 To expand on the above, if an enforcement officer believes a suspected

offence under section 18 or 19 of CRIJCA may have been committed he has the

power to do any of the following.

Search and obtain information

4.9 The enforcement officer may (a) search the ship, anyone on it, and anything

on it, including its cargo, open any containers, make tests and take samples of anything on the ship; (b) require any person on the ship to give information concerning himself or anything on the ship. There is no power to require information about anyone else on (or off) the ship; and c. require the production of documents, books

or records relating to the ship or anything on it (and make photographs or copies of such items).

CriJICA Power of arrest

4.10 If an enforcement officer has reasonable grounds to suspect that an offence

under either section 18 or 19 of CJICA has been committed on a ship to which the section in question applies, he may arrest without warrant anyone whom he has reasonable grounds for suspecting to be guilty of the offence. Note that good practice dictates that a person arrested in international waters should be reminded that he is still under arrest once inside the UK‟s territorial seas.

Seize and detain

4.11 If an enforcement officer has reasonable grounds to suspect that an offence

under section 18 or 19 of CRIJICA has been committed on a ship he may seize and detain anything found on the ship which appears to him to be evidence of the offence.

This power will normally be exercised in support of an arrest (see above).

4.12 A notice in writing must be served on the master stating that the vessel is

detained. This should be done at the time of detention. If detention is to cease, a further notice must be served to this effect (para 2(4)). The standard Notice of Detention issued by the Maritime Branch must be used on all occasions.

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Evidence of authority

4.13 If required to do so, an enforcement officer shall produce evidence of his

authority 53 .

Prosecution/Forfeiture

4.14 Once on board, the enforcement officer may seize anything which he

considers to be evidence of illicit traffic (para 4, sch 3). Those on board may also be arrested and brought back to the UK to stand trial for an offence under s19 of CriJICA (ships used for illicit traffic); although any charging decision will be made by the CPS prosecutor. Post conviction for this offence, the UK courts have the power under s27 of the Misuse of Drugs Act 1971 to make a forfeiture order in relation to anything shown to the satisfaction of the court to relate to the s19 offence including the boarded ship which was used for illicit traffic. This offence falls within this section as it is an offence specified in paragraph 1 of Schedule 2 of POCA 2002. Any personal property which relates to the offence may be forfeited including the suspect ship and illicit cargo but s27 does not extend to intangibles, or to property situated at the time of conviction outside the jurisdiction of the English courts.

International-water interdictions and PACE

5.15 Where an international water interdiction is carried out under CriJICA, PACE

has no application until the arrested crew are brought within the internal waters of England & Wales. However it is the policy of the UKBA to follow PACE as closely as is possible in such circumstances (for example, suspects should be told that they have the right to remain silent - an abbreviated version of the caution). In calculating the beginning of the relevant time, regard should be had to section 41(2)(b) PACE which states that in the case of a person arrested outside England and Wales, the relevant time shall be the earliest of either the time when the person first arrives at the office of UKBA in which the offence for which he was arrested is being investigated or the time 24 hours after the time that person enters England and Wales. Generally, once an arrest has taken place, customs officials should ensure that the suspects are taken to the nearest available port; however, where two ports are approximately equi-

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distance apart, there is no objection to choosing one port over another for operational or logistical reasons.

5.16 Where a person has been arrested outside of the UK‟s territorial seas, it is

good practice to remind them that they are still under arrest once they cross over into the internal waters of England & Wales. At that point, they are of course entitled to all the rights and safeguards guaranteed by PACE (or the equivalent legislation in Scotland) and should be given the full caution.

Migrant smuggling and human trafficking

6.1 The illegal movement of persons by sea may occur in three cases: the slave

trade, human trafficking and migrant smuggling. Migrant smuggling involves procuring a person‟s entry into a state „of which the person is not a national or a permanent resident‟ by crossing borders without complying with national immigration law and doing so for financial benefit 54 . Human trafficking involves the recruitment and transportation of persons, including within one state, by coercive means for purposes of exploitation including sexual exploitation, forced labour and „slavery or practices similar to slavery‟. 55 Only the Migrant Smuggling Protocol attracts maritime interdiction.

Immigration Acts

6.2 Although the UK is a signatory to the Migrant Smuggling Protocol there are

no domestic powers to carry out at-sea enforcement operations against vessels suspected of smuggling migrants at sea. This is because the Immigration Acts do not extend to the UK‟s territorial seas or the High Seas. In other words, UK Border Force Officers appointed as immigration officers may not exercise their powers under the Immigration Acts in relation to a suspect ship or its crew identified in para 1(c), (d) and (e). Once the suspect ship comes within the internal waters or alongside at a UK port these immigration powers will be triggered and may be relied upon by appointed immigration officers in relation to those on board the suspect ship.

54 Article 3(a) and (b) and Article 6, The Protocol against Smuggling of Migrants by Land, Sea and Air, supplementing the UN Convention against Transnational Organised Crime 2000 (Migrant Smuggling Protocol).

55 Article 3(a) Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children, supplementing the UN Convention against Transnational Organised Crime 2000 (Human Trafficking Protocol).

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The Right of Hot Pursuit and Constructive Presence

Hot pursuit

7.1 The right of "hot pursuit" may be summarised in the following principles,

taken from UNCLOS:

The right arises, for the purposes of enforcing a provision under CEMA. The pursuit must begin within the UK‟s territorial sea 56 .

The pursuit may be exercised only by warships or military aircraft or other ships or aircraft clearly marked and identifiable as being on government non-commercial service and authorised to that effect. This includes customs cutters.

The pursuit must not be interrupted, but it may be done in relay, e.g. by a custom cutter handing over pursuit to an RAF aircraft.

Hot pursuit may only be commenced within the territorial sea after a visual or auditory signal to stop has been given at such a distance which enables it to be seen or heard by the foreign ship. A signal by VHF radio will be sufficient for these purposes, as will other means of communication such as GMDSS, loud hailer, semaphore, etc.

The right of hot pursuit ceases if a. the pursuit is interrupted, or b. the ship pursued enters the territorial sea of its own State or that of a third State.

7.2 There has been some debate in case law as to whether the right to “hot

pursuit” must be undertaken as soon as the breach of the law within territorial seas occurs. It is recognised that “hot pursuit”, if it is to be lawful, must follow closely upon the violation and that, whilst this requirement is not without a measure of flexibility, any unreasonable delay will serve to cast doubt on the legitimacy of the

56 It could also include the contiguous zone, if appropriate (the contiguous zone of each country varies; the UK has not claimed any contiguous zone).

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pursuit. Obviously, delay due to reasons such as the state of the sea, the prevailing

weather conditions or operational logistics are likely to be justified 57 .

7.3 Care must be taken in exercising the right to "hot pursuit", as the pursuing

state may be liable for damages if the measures taken in purported exercise of the

right are unjustified. Given this risk, advice should wherever possible be sought in

advance from a member of the Home Office Legal Adviser‟s Branch (HOLAB).

Constructive presence

7.4 There is also a right to arrest foreign ships which use their boats to commit

offences within the territorial sea while themselves remaining on the high seas. This is

the doctrine of constructive presence, implicitly recognised in the provisions of

UNCLOS relating to hot pursuit. The doctrine of constructive presence may operate

together with the right of hot pursuit, so as to give coastal States some flexibility in

the manner in which they enforce their laws. For example, in the case of R v. Mills

(1995), a right of hot pursuit was asserted by the United Kingdom against the

Poseidon, a ship registered in St Vincent that was smuggling cannabis into the United

Kingdom by transferring it on the high seas to a British trawler which came from an

Irish port and subsequently put in to a British port. The judge was not troubled by the

fact that the second ship was not one of the boats of the ship pursued or even a boat

that had put out from and returned to British shores.

Firearms

8.1 A person may without holding a certificate have in his possession a firearm

or ammunition on board a ship. 58 The person may only remove the firearm from or to a ship whilst in the UK‟s internal waters if he has obtained from a constable a permit for that purpose.

8.2 The Enforcement Handbook 59 sets out the detailed guidance on the customs

controls which are applicable to firearms on board vessels. Different rules apply to

pleasrue craft and commercial ships.

57 For a helpful analysis of the “hot pursuit” doctrine see the judgement in R -v- Mills and others (transcript available from MACC).

58 The Firearms Act 1968, section 13.

59 See Firearms: Imports (overall controls and policy)

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UKBA (Borders, Enforcement and Citizenship) Team Legal Adviser's Branch Home Office Ground Floor Seacole 2 Marsham Street

Date: [ May 2010]

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ANNEX A

International Law United Nations Convention on the Law of the Sea (UNCLOS) The United Nations Convention against Illicit Traffic in Narcotic Drugs and Psychotropic Substances of 1988 (the Vienna Convention)

Article 17 Illicit Traffic by Sea

1. The Parties shall cooperate to the fullest extent possible to suppress illicit

traffic by sea, in conformity with the law of the sea.

2. A Party which has reasonable grounds to suspect that a vessel flying its flag

or not displaying a flag or marks of registry is engaged in illicit traffic may request the assistance of other Parties in suppressing its use for that purpose. The Parties so requested shall render such assistance within the means available to them.

3. A Party which has reasonable grounds to suspect that a vessel exercising

freedom of navigation in accordance with international law, and flying the flag or displaying marks of registry of another Party is engaged in illicit traffic may so notify the flag State, request confirmation of registry and, if confirmed, request authorisation from the flag state to take appropriate

measures in regard to that vessel.

4. In accordance with paragraph 3 or in accordance with treaties in force

between them or in accordance with any agreement or arrangement otherwise

reached between those Parties, the flag State may authorise the requesting State to, inter alia:

(a)

Board the vessel;

(b)

Search the vessel;

(c)If evidence of involvement in illicit traffic is found, take appropriate action with respect to the vessel, persons and cargo on board.

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5. Where action is taken pursuant to this article, the Parties concerned shall

take due account of the need not to endanger the safety of life at sea, the security of the vessel and the cargo or to prejudice the commercial and legal interests of the flag State or any other interested State.

6. The flag State may, consistent with its obligations in paragraph 1of this

article, subject its authorisation to conditions to be mutually agreed between it and the requesting Party, including conditions relating to responsibility.

7. For the purposes of paragraphs 3 and 4 of this article, a Party shall

respond expeditiously to a request from another Party to determine whether a vessel that is flying its flag is entitled to do so, and to requests for authorisation made pursuant to paragraph 3. At the time of becoming a Party to this Convention, each Party shall designate an authority or, when necessary, authorities to receive and respond to such requests. Such designation shall be notified through the Secretary-General to all other Parties within one month of the designation.

8. A Party which has taken any action in accordance with this article shall

promptly inform the flag State concerned of the results of that action.

9. The Parties shall consider entering into bilateral or regional agreements or

arrangements to carry out, or to enhance the effectiveness of, the provisions of

this article.

10. Action pursuant to paragraph 4 of this article shall be carried out by

warships or military aircraft, or other ships or aircraft clearly marked and

identifiable as being on government service and authorised to that effect.

11. Any action taken in accordance with this article shall take due account of

the need not to interfere with or affect the rights and obligations and the exercise of jurisdiction of coastal States in accordance with the international law of the sea.

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Primary Legislation The Commissioners for Revenue and Customs Act 2005 (CRCA) The Customs and Excise Management Act 1979 (CEMA) The Police and Criminal Evidence Act 1984 (PACE) The Criminal Justice (International Co-operation) Act 1990 (CJICA) The Misuse of Drugs Act 1971 (MDA) The Proceeds of Crime Act 2002 (POCA)

Secondary Legislation

England & Wales The Police and Criminal Evidence Act 1984 (Application to Revenue and Customs) Order 2007 (SI. 2007 No.3175) (PACE Order). The Appointment of Ports (London) Order 1980 SI 1980 No 482 The Appointment of Ports (Folkestone, Dover, Ramsgate, Whitstable and Medway) Order 1980 SI 1980 No 484

The Appointment of Ports (Weymouth, Poole, Solent, Littlehampton, Shoreham and Newhaven) Order 1980 SI 1980 No 1369 The Appointment of Ports (Bristol Channel and Cardigan Bay) Order 1980 SI 1980 No 1367 The Appointment of Ports (Padstow, Penzance, St Mary‟s, Falmouth, Fowey, Plymouth, Dartmouth, Teignmouth and Exeter) Order 1980 SI 1980 No 1368 The Appointment of Ports (Liverpool, Mostyn, Holyhead and Caernarfon) Order 1980 SI 1980 No 1879 The Appointment of Ports (Preston, Fleetwood, Heysham and Workington) Order

1980 SI 1980 No 1882

The Appointment of Ports (Tees and Hartlepool, Sunderland, Tyne, Blyth and Berwick) Order 1980

The Appointment of Ports (Boston, Humber, Scarborough and Whitby) Order 1980 SI

1980 No 486

The Appointment of Ports (Colchester, Orwell Haven, Lowestoft, Great Yarmouth

and King‟s Lynn and Wisbech) Order 1980 SI 1908 No.483

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Scotland The Appointment of Ports (Forth, Tay and Abroath) Order 1980 SI 1980 No 81 The Appointment of Ports (North of Scotland) Order 1980 SI No 1880 The Appointment of Ports (Strathclyde and Dumfries and Galloway) Order 1980 SI 1980 No 1881

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Annex B

Borders, Citizenship and Immigration Act 2009 (BCIA)

Introduction

1. Part 1 of the BCIA provides a legislative framework for immigration officers and officials of the Secretary of State to exercise revenue and customs functions which to date have been exercised by HMRC. In practice, officials of the UK Border Agency (UKBA), which is an Executive Agency of the Home Office, exercise these functions on behalf of the Secretary of State and the Director of Border Revenue respectively. Non-revenue customs functions such as the role of MACC and HM Cutters in the prevention of drug smuggling at sea is a matter for the Secretary of State and general customs officials. Whereas the role of MACC and HM Cutters in preventing the smuggling of goods where duties or taxes have not been paid (cigarette smuggling) will be a matter for the Director of Border Revenue and customs revenue officials.

2. All members of MACC and HM Cutters must be designated as a general customs official and a customs revenue official under BCIA in order to carry out their daily duties. This legislation further provides that so far as is appropriate, references to an officer of Revenue and Customs, or to HMRC, in an enactment, instrument or document which includes the legislation listed below, are to be construed as including a reference to a general customs official and or customs revenue official.

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Police and Criminal Evidence Act 1984 (PACE)

3. Section 22 of BCIA applies the provisions of PACE (Application to Revenue and Customs) Order 2007 (SI 2007/3175) and the PACE (Northern Ireland) Order (SR 2007/464) (hereinafter referred to as the “PACE Order”) to criminal investigations conducted by designated customs officials in relation to a general customs or customs revenue matter, and to persons detained by such designated customs officials.

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Annex C

Procedures for dealing with Requests to obtain flag State consent

Outgoing Request

1. MACC will require the approval of the operational commander before any

enquiries can be initiated in relation to an operation requiring the boarding of a vessel in international waters by UK authorities. This will take the form of a Request to

Maritime A [MACC] for Assistance. This request should include a brief summary of the investigation and or relevant intelligence, including as much detail as possible, e.g. name of vessel, port of registry, flag state, current position/area, crew if known, reasons for boarding, likely destination of drugs/vessel and intended action after boarding.

2. On receipt of the Request, the Maritime case officer will prepare a number of

forms which will record all further actions undertaken by MACC. These forms lay out the procedures to be adopted by the department and give provision for the recording of all actions when making an application to send a Letter of Request to an overseas Competent Authority.

3. Where the maritime operation involves the exercise of enforcement powers

against a ship engaging in illicit traffic under schedule 3 of CriJICA, MACC will always seek legal advice from Home Office Legal Adviser‟s Branch. If circumstances permit the advice will be obtained in writing in advance, and kept on file. The

appointed legal adviser in HOLAB will always confirm their advice in writing.

4. MACC will identify the Competent Authority of the relevant foreign nation

for an Article 17 request. The UN Directory on Competent Authorities (held by MACC) is the essential starting point. As this directory is updated on a regular basis, MACC will also verify the details of the overseas competent authority, by contacting

the UN Drug Control Programme (UNDCP) Vienna, who is responsible for collating and updating this information.

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5. Once the appropriate overseas competent authority has been identified, MACC

will draft a Letter of Request on behalf of the Director of Border Force who is authorised to act on behalf of the competent national authority. This letter will request the foreign authority for permission to board their suspect vessel pursuant to article 17(3) of the Vienna Convention and CriJICA. In making this request, the Director will need to provide the details of the vessel and its location (co-ordinates or best position info), specify the reasons why he has reasonable grounds to suspect that the vessel is engaged in illicit trafficking and what actions are being requested. Finally, the Director will ask for confirmation that the overseas competent authority,

to which the letter is addressed, is the designated authority for that country concerned under their appropriate laws.

Decision making

6. Once the overseas competent authority approval has been obtained in writing,

the Director will then be asked to authorise exercise of the enforcement powers set out

in schedule 3 of CriJICA. In giving his authority, the Director is acting on behalf of the Secretary of State who has delegated their authority under section 20 of CriJICA.

7. At this time, the Director must be shown all the relevant paperwork including

the response from the foreign competent authority and any written advice from HOLAB before authorising the enforcement officer to exercise these powers. There are further procedures which apply when there is a change in circumstances from the details given in the initial request or there is a delay of longer than 24 hours, verbal reconfirmation must be obtained, prior to the boarding, from the overseas competent authority. After The Director has given their approval, the Operational Commander

who will be acting as an enforcement officer must be advised immediately and informed of any conditions imposed by the overseas competent authority.

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8. At the time of boarding it is essential that the master of the suspect vessel is

issued with a Notice of Detention as required by Schedule 3(2)(4) of CriJICA. This Notice informs the Master of the Vessel that the officer serving the notice is a duly authorised Enforcement Officer and that the vessel is detained under the powers

conferred by CriJICA until the notice is withdrawn by the service of a further notice in writing, signed by an enforcement officer.

Incoming Request to board a British ship

9. MACC to add para about procedures to be followed?