Cutter Guidance Version 2 Final 19_UKBA_Cutter_Guidance IntroductionThe 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 abbrev iations) is at Annex A. An explanation o fthe changes made to customs legislation as a result of the decision to merge the workof 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 en forcement interdictions at s ea 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 t he UKBA. UKBA is an executive agency of t he Home Office. 2 CEMA section 1 ship and vessel includes any boat o r other vessel whatsoever and to t he extent provided in CEMA section 2, any hovercraft. 3 British ships and United Kingdom ships are defined within the meaning of section 1 of t he Merchant Shipping Act 1995. A British ship will not include a ship registered in the Isle of Man or any o f the Channel Islands unless it is also registered under Part 2 of the Merchant Shipping Act 1995. A Br itish 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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1.2 The UK retains full sovereignty over its internal waters6. This means that UK
Border Force officers may exercise both customs and immigration7
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 jurisdiction9are 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
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 andanchoring must, however, be incidental to navigation or necessitated by force majeure or distress or
to waive jurisdiction in favour of a requesting state (e.g. Article 17 of the Vienna
Convention procedures referred to in Annex A).
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 ship15
wherever it is located, may be subject to UK
jurisdiction16
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
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 308of 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 onlywithin the territorial limit although a number of statutes confer extra territorial jurisdiction for specific
status once the officer has discovered information of immigration interest. In these
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 Ship19
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 importation21
or exportation22
of goods, making untrue declarations23
or
being involved in the fraudulent evasion of duty etc24
, he may be arrested under the
relevant provision in CEMA25
. 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 coastwisebetween 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 upto 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 outwardsof 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 denaturedgoods, section 158(4) power to require provision of facilities and section 168(1) counterfeiting
2.10 It should be noted that, so far as its application to customs officials are
concerned, the provisions of the PACE Order26
(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 G27
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 penalty28
to the
person concerned, under the power contained in section 152(a) CEMA 197929
.
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 (SR2007/464).
27 Code G – Para 3.3 „A person who is arrested, or further arrested, must be informed at the time, or assoon 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 havebeen 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 andwhere 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: 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
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) PACE31
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) CEMA32
) 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 offenceoccasioned the seizure, the owner, or one of the owners, of the ship (or their agent) or the master of that
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 summonedto 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 provisions34
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 voyage36
. 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 thevoyage 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).
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 ship37
.
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 ship38
. It
also further provides39
a person is guilty of an offence if on a specified ship40
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 acustoms official. For the purpose of CJICA, a British ship means a ship registered in
the United Kingdom or a colony41
. 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 colony42
.
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 ships39 CJICA section 19 ships used for illicit traffic40 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
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 there43
.
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
43CJICA 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 anyBritish ship where there are reasonable grounds to suspect those on board are trafficking drugs or a
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 benefit54
. 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.
54Article 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 andChildren, supplementing the UN Convention against Transnational Organised Crime 2000 (Human