Schedule 7: Maritime Powers
- Paragraph 1 provides for amendments to Part 3A of the Immigration Act 1971, which concerns maritime enforcement.
- Paragraph 2 inserts new section 28LA. This provides that relevant officers may exercise the powers conferred to them by Part A1 (see paragraph 9 of this Schedule) in UK waters, foreign waters or international waters. They may exercise these powers in relation to a UK ship, a ship without nationality, or a ship registered to another country or territory. Such powers detailed in Part A1 are only to be exercised with the purpose of preventing, detecting, investigating, or prosecuting an offence.
- Paragraphs 3 to 5 remove references to "immigration officer" and "enforcement officer" in sections 28M, 28N and 28O. This means that only constables may exercise the enforcement powers in these sections.
- "An English and Welsh constable" refers to a member of a police force in England and Wales, a member of the British Transport Police Force, or a port constable (section 28Q of the 1971 Act).
- "A Scottish constable" refers to a person who is "a chief constable, other senior officers, any special constable, any constable on temporary service outwith the Police Service, and any individual engaged on temporary service as a constable of the Police Service".
- "A Northern Ireland constable" refers to a person who is "a member of the Police Service of Northern Ireland, a member of the Police Service of Northern Ireland Reserve, a person appointed as a special constable in Northern Ireland" (section 28Q of the 1971 Act).
- Paragraph 6 also serves to remove references to "immigration officer" and "enforcement officer" from section 28P, which allows Immigration Officers to carry out hot pursuit of ships in UK waters.
- Paragraph 7 inserts new section 28PA "Power to seize and dispose of ships etc.". The current disposal regime under the UK Borders Act 2007 and the Immigration (Disposal of Property) Regulations 2008 (S.I. 2008/786) allows for the disposal of seized property; however, in practice this requires the property to be held for 12 months before it can be disposed of unless the owner has been found guilty of a criminal offence; a court order has been obtained allowing the property to be disposed of earlier under certain conditions; or the property is perishable or its custody involves unreasonable expense or inconvenience.
- The section allows an Immigration Officer to seize a ship (or any part of a ship), and property on that ship if an Immigration Officer has reasonable grounds to suspect that the ship has been used in the commission of a relevant offence in UK waters, or foreign waters, as long as the ship is encountered in UK waters and the Secretary of State gives her authority. Where the ship seized is a ship without nationality, it allows the Secretary of State to dispose of that ship and other property or retain it after 31 days from the day of seizure and disapplies Section 26 of the UK Borders Act 2007 and any regulations made under that Act in relation to such ships. This paragraph provides flexibility specifically for those small boats encountered in the exercise of these powers, as opposed to that currently available to any items seized under existing legislation.
- There is provision for Immigration Officers to notify the home state or relevant territory if a foreign ship or ship registered under the law of a relevant territory is seized.
- Paragraph 8 amends the interpretation of section 28Q to insert definitions of "foreign waters", "international waters", "Part 1A powers", "relevant offence" and "United Kingdom waters". The definition of "ship" is broadened to include any "other structure…constructed or used to carry persons, goods, plant or machinery by water", which is intended to include anything which may be used to cross the English Channel.
- Paragraphs 9 and 10 insert new Part A1 into Schedule 4A setting out enforcement powers in relation to ships. Part A1 sets out new powers afforded to Immigration Officers and enforcement officers, collectively referred to as "relevant officers".
- A1 sets out the powers exercisable by the named officers as a result of section 28LA and explains the meaning of "items subject to legal privilege" and "ship" in doing so. References to "items subject to legal privilege" mean communication between a legal adviser and their client, and any items enclosed with or referred to, in connection with the giving of legal advice or legal proceedings, which are protected from disclosure. References to "the ship" relate only to the ship in relation to which powers are exercised.
- B1 confers powers to the relevant officer to stop, board, divert, detain, or require a ship to leave the UK territorial seas. The current maritime powers allow a ship to be required to be taken only to a port in the UK and detained there. Therefore this paragraph provides the capability to require a vessel to be taken to a place outside of the UK. Any tactics employed to divert a ship will only be used where it was safe to do so, in line with international law, including UNCLOS.
- The powers conferred under the 1971 Act do not allow for a ship to be taken elsewhere, only to a port in England and Wales. This paragraph permits relevant officers to require the ship to be taken to a foreign port and be detained or to another place on water or land.
- This paragraph also requires that the Secretary of State’s permission is obtained before relevant officers require a ship to be taken to any place outside the UK.
- This paragraph provides that relevant officers may require foreign ships to be taken back to the state they departed from or, at the state’s request, to another state willing to receive it.
- A notice is to be given in writing to the master of any ship which is detained under this paragraph. The ship will be detained until another notice is given to withdraw the first notice. A notice to require detention is not needed if the master of the ship cannot be reasonably identified.
- A "home state" is defined as the state in which a foreign ship is registered or is otherwise entitled to fly the flag of.
- C1 confers power to the relevant officers, where there are reasonable grounds to suspect that there is evidence on the ship relating to a relevant offence or to an offence that is connected to a relevant offence, to require persons on the ship to provide information or produce documents, books or records. Officers are permitted to search the ship, anyone on the ship and anything on the ship, including cargo, for evidence and in so doing open containers and make copies or photographs of anything they have required production of.
- D1 confers a power on a relevant officer to seize any evidence found on the ship (excluding anything they have reasonable grounds to believe is subject to legal privilege), where they have reasonable grounds to believe that a relevant offence has been or is being committed on the ship. This paragraph also grants relevant officers a power to arrest anyone suspected of being guilty of an offence, without the need for a warrant. These powers may be exercised on the ship or elsewhere and on anything on the ship including cargo.
- E1 confers a power on relevant officers to search anyone on the ship if they have reasonable grounds to believe they may be concealing an implement, or anything which the officer has reasonable grounds may endanger the safety of the ship. Any such items may be seized and retained by the relevant officer. Officers are not authorised to require a person to remove clothing in public, other than an outer coat, jacket or gloves. These powers may be exercised on the ship, on anyone on the ship or elsewhere.
- F1 allows relevant officers to require anyone on board the ship to produce a nationality document. A "nationality document" refers to a document which may confirm a person’s identity, nationality, citizenship, or where a person has travelled from or is travelling to. Where an officer has grounds to believe a nationality document is being concealed on a person, they may search the person only to the extent that it is reasonably required for the purpose of discovering any such document. In carrying out searches, officers are not authorised to require a person to remove clothing in public, other than an outer coat, jacket or gloves. Officers may retain nationality documents until the person whose document it is arrives in the UK, in cases where the ship is being redirected to the UK. These powers may be exercised on the ship or elsewhere.
- G1 provides that relevant officers may be accompanied by assistants and may take equipment or materials to assist in the exercise of any of the powers under Part A1. Assistants may perform any of the officer’s functions set out under Part A1 but only under a relevant officer’s supervision.
- H1 allows relevant officers to use reasonable force, if necessary, in the performance of functions under this Part of this Schedule.
- I1 requires that relevant officers provide evidence of their authority when asked.
- J1 provides that relevant officers, if purporting to exercise the powers conferred on them by this Part are not to be held responsible if legal action is taken against them. As long as the act was done in good faith and there were reasonable grounds for doing it.
- K1 makes it an offence to obstruct a relevant officer while they are carrying out the powers conferred to them by this Part, in relation to a ship in England and Wales, England and Wales waters, international waters or foreign waters or to fail to comply with any requirements made by the officer while exercising their powers. It is also an offence to knowingly provide false information or fail to disclose information when information has been requested by the relevant officer. This paragraph also permits relevant officers to arrest anyone suspected of an offence under this paragraph. Such persons may be imprisoned for up to 51 weeks (or 6 months if the offence is committed before section 281(5) of the Criminal Justice Act 2003 comes into force), or fined, or both. These offences apply under the law of England and Wales.
- L1 makes it an offence to obstruct a relevant officer while they are carrying out the powers conferred to them by this Part, in relation to a ship in Scotland, Scotland waters, international waters or foreign waters or to fail to comply with any requirements made by the officer while exercising their powers. It is also an offence to knowingly provide false information or fail to disclose information when information has been requested by the relevant officer. This paragraph also permits relevant officers to arrest anyone suspected of an offence under this paragraph. Such persons may be imprisoned for up to 12 months, or fined up to £5,000, or both. These offences apply under the law of Scotland.
- M1 makes it an offence to obstruct a relevant officer while they are carrying out the powers conferred to them by this Part, in relation to a ship in Northern Ireland, Northern Ireland waters, international waters or foreign waters or to fail to comply with any requirements made by the officer while exercising their powers. It is also an offence to knowingly provide false information or fail to disclose information when information has been requested by the relevant officer. This paragraph also permits relevant officers to arrest anyone suspected of an offence under this paragraph. Such persons may be imprisoned for up to 6 months, or fined up to £5,000, or both. These offences apply under the law of Northern Ireland.
