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19 UKBA Cutter Guidance

19 UKBA Cutter Guidance

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Published by: Apollyon on May 12, 2011
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Cutter Guidance Version 2Final
 The purpose of this document is to provide a general outline of the legal powersavailable to HM Cutters to conduct at-sea law enforcement operations.
A list of therelevant
treaties and legislation (and abbreviations) is at Annex A. An explanation othe 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
HM Cutters and their crew may conduct at-sea law enforcement operations onbehalf of the UK Border Agency. The legal powers available to UK Border Forceofficers
to carry out law enforcement interdictions at sea depend on the target
and nationality (i.e. flag), namely:
(a) Ships (and vessels) of any nationality (or none) in the UK‟s internal
waters;(b) UK (British
) ships;(c) Foreign ships
(or ships without nationality) in the U
K‟s territorial sea;(d) Foreign ships exercising innocent passage in the UK‟s territorial sea
;(e) Ships on the high seas.
UKBA‟s Border Force
is part of the UKBA. UKBA is an executive agency of the Home Office.
CEMA section 1 ship and vessel includes any boat or other vessel whatsoever and to the extentprovided in CEMA section 2, any hovercraft.
British ships and United Kingdom ships are defined within the meaning of section 1 of the MerchantShipping Act 1995. A British ship will not include a ship registered in the Isle of Man or any of theChannel Islands unless it is also registered under Part 2 of the Merchant Shipping Act 1995. A Britishship will include ships registered in any of the 14 British Overseas Territories.
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
Territorial Sea Act 1987 section 1(1) provides the breadth of the territorial sea adjacent to the UnitedKingdom shall for all purposes be 12 nautical miles.
Cutter Guidance Version 2Final
Internal-water interdictions
1.2 The UK retains full sovereignty over its internal waters
. This means that UKBorder Force officers may exercise both customs and immigration
powers to stopand board a suspect ship (regardless of flag) under their relevant legislation whilst it islocated in the internal waters. PACE also applies in relation to anyone detained by aUK Border Force Officer on the boarded ship which at the relevant time is located inthe internal waters.
Territorial-sea interdictions
1.3 With regard to the at-sea anti-smuggling operations in territorial seas, UKBorder Force Officers may rely on their customs powers set out in the Customs andExcise Management Act 1979 (CEMA) to stop and board the target ship whilst it islocated within the limits of a customs port (see Chart LOS2E, and list of customs portapprovals at Annex B)
. The aim of these type of interdiction operations is to enforcethe relevant provisions in the customs and excise acts.1.4
Generally a coastal state‟s zones of maritime
are elective; they donot exist unless declared by the coastal state. The UK has elected to exercisesovereignty over vessels in its territorial seas (extending 12 nautical miles from thebaselines) 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.
This means that HM cutters must not hamper theinnocent passage of a foreign ship through
the UK‟s
territorial seas provided it is notprejudicial to the peace, good order or security of the UK. Amongst the activitieslisted as being so prejudicial, is "the loading or unloading of any commodity, currency
Sovereignty means that the law of England & Wales, Scotland and Northern Ireland applies overvessels in the internal waters as if it would when the vessel is alongside at a port.
Immigration Act 1971, schedule 1, para 1(4) and (5)
Maritime operation around the coastline of the IoM must be carried out in accordance with theprovisions of the MOU and with the consent of the IoM authorities. Legal advice from HOLAB shouldbe sought in the event of a maritime operation around the coastline of Northern Ireland.
Jurisdiction means the authority of a sovereign power (i.e. the UK) to legislate and enforce its laws.
Article 17 UNCLOS
The meaning of 
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 orrendering assistance
Cutter Guidance Version 2Final
or person contrary to the customs, fiscal, immigration or sanitary laws and regulationsof the coastal state
Officers should also be aware of the provision in Article 19.2(l)of UNC
LOS which encompasses “any other activity not hav
ing a direct bearing onpassage
. This does clearly include the transit of ships containing drugs.1.6 UNCLOS
further provides that the criminal jurisdiction of the coastal Stateshould not be exercised on board a foreign ship passing through the territorial sea toarrest any person or to conduct any investigation in connection with any crimecommitted 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 goodorder of the territorial sea; or
if the assistance of the local authorities has been requested by themaster of the ship or by a diplomatic agent or consular officer of theflag State; or
if such measures are necessary for the suppression of illicit traffic innarcotic drugs or psychotropic substances.1.7 By way of example, a foreign ship identified in para 1.1(d) would not beentitled to claim innocent passage if those on board were suspected of smugglingillicit traffic. UK ships, ships without nationality and other vessels
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 inexceptional cases provided for in UNCLOS (e.g. piracy) shall be subject to itsexclusive jurisdiction.
In other words, the flag state may enforce its laws over theship and its crew whilst it is on the High seas unless the authorities of that state agree
UNCLOS Article 19
UNCLOS Article 27 (criminal jurisdiction on board a foreign ship)
The use of the term “vessel” in this not
e does not include foreign ships entitled to exercise theirrights under UNCLOS.
UNCLOS article 92.

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