British Maritime Law Association
Criminal Offences committed on Foreign Flagged Ships
Note: the answers below relate to the
SECTION A : QUESTIONS 1 – 4
General Criminal Jurisdiction (not under SUA)
Question 1: Under your national criminal law, is there jurisdiction to try an alleged offender in your State in respect of general criminal offences committed on a foreign flagged ship:
A. On the high seas?
The general rule is that the courts of
There are, however, exceptions which have been created or codified by statute :
1. The Aviation and Maritime Security Act 1990 Part II gives effect to the Convention for the Suppression of Unlawful Acts against the Safety of Maritime Navigation 1988 (“SUA 1988”) and the Fixed Platforms Protocol 1988 and aims, in general, to penalise acts of terrorism towards ships and offshore fixed platforms. Sections 9 to 13 create offences over which the national courts have jurisdiction regardless of the offender’s nationality and regardless of where the offence is committed. In other words, they do not have any jurisdictional boundaries except where the ship involved is a warship, naval auxiliary or ship used by customs or police where the offence can only be committed if (a) the person seizing or exercising control of the ship is a United Kingdom national, or (b) his act is committed in the UK, or (c) the ship is used in the naval or customs service of the UK or in the service of any police force in the UK. The relevant offences are :
1.1 The unlawful seizing of a ship or exercise of control of it, by the use of force or threats of any kind (hijacking a ship), s.9.
1.2 The destruction or damage of a ship, its cargo or a platform or the committing thereon of an act of violence, so as to endanger or be likely to endanger, the safe navigation of the ship or safety of the platform. This includes the placing or causing to be placed of a device such as a bomb which is likely to destroy or damage a ship, its cargo or a fixed platform so as to endanger the safe navigation of the ship or safety of the platform, s.11.
1.3 The destruction, damage or serious interference with the operation of marine navigation facilities, such as lighthouses, so as to endanger the safe navigation of a ship (s.12).
1.4 Procuring the committing of one of the offences by threats, s.13.
S.281 Merchant Shipping Act 1995 confers
jurisdiction over a British subject who commits a criminal offence under
the Act on board any foreign ship to which he does not belong. (Under the Merchant Shipping Act 1995, the
Secretary of State can appoint inspectors to report to him in respect of
certain matters including (i) the nature and cause of any accident or damage in
relation to a ship; (ii) the inspection of the hull and machinery of a ship to
ensure that they are sufficient and in good condition; (iii) measures taken to
prevent the escape of oil. Offences
under the Act include (i) the intentional obstruction of an inspector in the
exercise of his power; (ii) failure to comply without reasonable excuse with a
requirement imposed under the Act; (iii) the making of a false
declaration.) Additionally, however, by
virtue of the Magistrates’ Courts Act 1980, s.3A and the Supreme Court Act
1981, s.46A, this section applies in relation to other offences under the law
3. S.282 Merchant Shipping Act 1995 confers jurisdiction on the national courts where an offence is committed against property or person, ashore or afloat, by a person who, at the time of the offence or within the three months preceding it, was employed as a master, seaman or apprentice in any British ship regardless of where the offence was committed.
Shipping and Maritime Security Act 1997 incorporates into national law, the
offence of piracy contained in Article 101 of the United Nations Convention on
the Law of the Sea 1982. It is defined
so as to require that it be committed either on the high seas or in a place
outside the jurisdiction of any State. Our national courts have jurisdiction in
respect of the offence wherever it occurred on the high seas and whatever the
nationality of the ship or defendants involved.
However, where a person who is located in
5. In respect of offences under the Terrorism Act 2000, please see the answer to question 1(B) below.
B. In territorial (or other) waters?
In respect of this jurisdiction’s territorial and internal waters only :
S.2 Territorial Waters Jurisdiction Act 1878 confers jurisdiction on our courts over criminal offences where the offence was committed on a foreign flagged ship in this jurisdiction’s territorial and internal waters.
In respect of the territorial and internal waters of another country / state :
S.281 Merchant Shipping Act 1995 confers jurisdiction over a British subject who commits an offence inter alia in a foreign port or harbour i.e. in the territorial / internal waters of another state. It has been held that offences committed by British subjects on a French vessel while it was in the port of Dieppe but still had its ramp down were committed on the vessel, rather than being committed in Dieppe itself (Cumberworth (1989) 89 Cr. App R 187).
In respect of the territorial and internal waters of any state including this state :
The definition of piracy contained in the Merchant Shipping & Maritime Security Act 1997 refers only to acts committed on the “high seas” or “in a place outside the jurisdiction of any state”. Consequently, there is no jurisdiction over acts of piracy committed within territorial waters of this or any other state. However, similar offences which are committed in territorial or internal waters can now be prosecuted in this jurisdiction under the Aviation and Maritime Security Act 1990 (see above) which applies to offences committed in territorial / internal waters as well as on the high seas. In fact when Parliament was debating this Act when still in draft, it was explained that one of the reasons for its creation was precisely to fill this anomaly in the law, namely that acts of violence which occurred on the high seas or outside the jurisdiction of a state could be prosecuted (as the offence of piracy) but the same acts committed within territorial waters, could not.
The Terrorism Act 2000 contains our national
anti-terrorism legislation. Terrorism is defined in s.1 as action which
includes (a) serious violence against a person, or (b) serious damage to
property, or (c) the endangering of another’s life and the use or threat is
designed to influence the government or to intimidate the public or section of
the public and is made for the purpose of advancing a political, religious or
ideological cause. S.63 specifically states that if a person does anything
Question 2: In particular, under your national criminal law is there jurisdiction to try an alleged offender who is a foreign national, where the victim is a national of your State, in respect of general criminal offences committed on a foreign flagged ship:
A. on the high seas?
The two distinctions between the wording of Question 1 and the wording of this question are that in respect of this question (a) the offender is specified as a foreign national; and (b) the victim is specified as a national of this state.
As regards (a), the fact that the offender is a foreign national means that offences would be committed under the Aviation and Maritime Security Act 1990, s.282 Merchant Shipping Act 1995, the Merchant Shipping and Maritime Security Act 1997 and the Terrorism Act 2000 but there would be no offence committed under s.281 Merchant Shipping Act 1995 which only applies to British nationals.
As regards (b), the nationality of the victim is irrelevant
and would not affect the answers to question 1. The
B. in territorial (or other) waters?
As for 2.A. above.
Question 3: Where there is an alleged criminal offence committed, on a foreign flagged ship, by a foreign national against one of your nationals, would your State, in practice:
A. prosecute the alleged offender?
It should be noted that even though our national law may
confer jurisdiction on the national courts in respect of a particular offence,
the relevant authorities and the courts may choose not to prosecute in this
jurisdiction. In Blackstone’s Criminal Practice 2002, it is noted that there is
scant authority on, for example, the offence of piracy. The authors of Blackstone’s consider that
this is an indication that, in practice, the courts are slow to assume
jurisdiction where there is no real connection with
The authors of Blackstone’s submit that the true test as to
whether the courts will assume jurisdiction is “whether the geographical circumstances, the nationality or identity of
the offenders, victims and vessel, and other factors suggest the propriety of
assuming jurisdiction; or whether the offence has security or defence
implications or may otherwise affect the national interest of the United
Kingdom, the European Union or a friendly State.” They suggest that in cases where there is no
real connection with
It may be that this principle applies not only to piracy but
to a wider context where extra-jurisdictional criminal offences are
involved. Case law (before the recent
statutes mentioned above) suggests a judicial reluctance to assume jurisdiction
where there is no real connection with
The statutes referred to above are relatively recent (for example, the Terrorism Act 2000) and it is difficult therefore to know at this stage how the courts will deal with such cases and whether they will accept jurisdiction. It is submitted that where a national of this state is involved – as a defendant or victim – the courts may be more ready to assume jurisdiction.
Under the Terrorism Act 2000, in respect of the majority of offences, proceedings cannot be instituted without the consent of the Director of Public Prosecutions and if it appears to the DPP that the offence is committed for a purpose connected with the affairs of a country other than the UK, proceedings cannot be instituted without the consent of the Attorney General, (s.117).
B. receive or remove the alleged offender from the ship?
Section 15 of the Aviation and Maritime Security Act 1990 expressly gives the Master of a ship the power to deliver to an appropriate officer in the United Kingdom or any other Rome Convention country any person who he has reasonable grounds to believe has (a) committed an offence under sections 9 to 13 of the Act, or (b) attempted to commit such an offence, or (c) aided, abetted, counselled, procured or incited in the commission of an offence. The Master has that power wherever the ship may be and whatever the state, if any, in which it may be registered.
C. detain the alleged offender?
There can be no “detention in custody” other than under the
normal process which applies in respect of general criminal offences committed
D. return the alleged offender to the flag State/State of the alleged offender's nationality / or other State?
The return of an alleged offender can only be effected by way of extradition, in certain circumstances,
under the Extradition Act 1989. Those
circumstances are : (1) a request must be made by that state to the United
Kingdom for extradition; (2) there must be an existing agreement between the UK
and the requesting state which has been given domestic legal effect by Order in
Council or the requesting state is a Commonwealth country; and (3) the relevant
person is accused in the requesting state of the commission of an extradition
offence or is alleged to be unlawfully at large after conviction of an
extradition offence by a court in that state.
“Extradition offences” are contained in section 2 of the 1989 Act and,
broadly, they are offences which carry a term of imprisonment of at least 12
months in the requesting country and in the
For the purposes of this question, we have not considered the issue of asylum.
Question 4: Where there is an alleged criminal offence committed, on a foreign flagged ship, by one of your nationals against a foreign national, would your State, in practice:
A. prosecute the alleged offender?
B. receive or remove the alleged offender from the ship?
C. detain the alleged offender?
D. return the alleged offender to the flag State/State of the alleged offender's nationality/or other State?
The answers to Question 3 will apply equally to this question.
As noted above Sections 9-17 of the Aviation and Maritime Security Act 1990 (“the Act”) give effect to the Convention for the Suppression of Unlawful Acts against the Safety of Maritime Navigation 1988 “(SUA 1988)” in the United Kingdom. The subject matter of this part of the Act is a “reserved matter” for the purposes of the Scotland Act 1988 and therefore is outside the legislative competence of the Scottish Parliament.
Article 3 (1) (b) of SUA 1988 is substantially replicated in Section 11(1)(c) of the Act. This provides:
“11 Destroying ships or fixed platforms or endangering their safety
(1) …, a person commits an offence if he unlawfully and intentionally -…
(c) commits on board a ship … an act of violence which is likely to endanger the safe navigation of the ship…”
This section further provides:
“(4) Except as provided by subsection (5) below, [the war ship, naval or auxiliary, customs or police service exception]
Subsection (1) apply
whether any such act as is mentioned in those subsections is committed in the
It further provides:
“(6) A person guilty of an offence under this section is liable on conviction on indictment to imprisonment for life.”
“any act done in the United Kingdom which constitutes the offence of murder, attempted murder, manslaughter, culpable homicide or assault or an offence under section 18, 20, 21, 22, 23, 24, 28 or 29 of the Offences against the Person Act 1861” or under Section 2 of the Explosive Substances Act 1883. (Causing explosion likely to endanger life or property).
An “act of violence” is stated to include… “(b) any act done outside the United Kingdom which, if done in the United Kingdom, would constitute such an offence as is mentioned in paragraph (a) above.”
Section 11 (7) also gives a definition of “unlawfully”.
Article 3(1)(b) of SUA 1988 requires there to be an “act of violence” which “endangers the safe navigation of the vessel”.
Question 5: If your authorities received information from a master about an act of violence allegedly committed on a foreign flagged ship which might fall within Article 3(1)(b) of SUA 1988, how would your State deal with a request from the master to accept delivery of the alleged offender under article 8? In particular.
A. Which authority would assume responsibility (e.g. Police, Coastguard, Maritime or harbour authority)?
The Master’s power of delivery as prescribed in article 8 of SUA 1988 is given effect at section 15 of the Act which section is entitled “Master’s power of delivery”.
Section 15 substantially replicates Article 8 but in more detailed fashion and with some additional provisions. We recommend that the section be read carefully. Section 15 is attached as Annex A.
provisions in Section 15 do not derive from Article 8. For example sub-section 15 (6) makes it an
offence for the Master of a ship to fail to comply with the stated requirements
of notification to the
Sub-section 15 (2) requires the Master to deliver the person
to an “appropriate officer in the
15(8) defines an “appropriate officer” in relation to the
From our enquires it would appear that the practical sequence of events would be that the ship’s master would pre-warn the ship’s agent in the British port who would then contact immigration and the local police to advise them of the situation.
The police would then attend on board to conduct an investigation of the matter.
B. How extensive an investigation would be made (e.g. would the authority make the decision to accept delivery under SUA after a full investigation, or rely on the initial assessment of the master that safety was endangered)?
Question 6: On
the outline facts of the Tajima case, what action would your State have taken
as a coastal (or
A. Would you have accepted delivery of the alleged offender?
Probably yes. Due to our obligations under the Aviation and Maritime Security Act 1990, ss11 and 15.
This would be subject to the police investigation confirming that there were reasonable grounds for the master’s allegations. It could be safely assumed that the killing of an officer would be an act classified as likely to endanger the safe navigation of the ship.
B. Did the facts bring the case within Article 3(1)(b) OF SUA?
The Act is framed in very similar language to the Convention and so the answer for A would apply here also.
For Question 6, please indicate any factor which influenced the answers to A and B.
No specific comments
HOLMAN FENWICK & WILLAN
Trainee Research: Charlotte Butcher
Telephone 020 7488 2300
Fax 020 7481 0316
Aviation and Maritime Security Act 1990
Offences against the Safety of Ships and Fixed Platforms
.Master's power of delivery.
15. (1) The provisions of this section shall have effect for the purposes of any
before any court in the
(2) If the master of a ship, wherever that ship may be, and whatever the State (if any) in which it may be registered, has reasonable grounds to believe that any person on board the ship has—
(a) committed any offence under section 9, 11, 12 or 13 of this Act,
(b) attempted to commit such an offence, or
(c) aided, abetted, counselled, procured or incited, or been art and part in, the commission of such an offence,
in relation to any ship other than
a warship or other ship used as a naval auxiliary or in customs or police
service, he may deliver that person to an appropriate officer in the
Where the master of a ship intends to deliver any
person in the
(a) of his intention to deliver that person to an appropriate officer in that country; and
(b) of his reasons for intending to do so.
(4) Any notification under subsection (3) above must be given—
(a) before the ship in question has entered the territorial sea of the country concerned; or
(b) if in the circumstances it is not reasonably practicable to comply with paragraph (a) above, as soon as reasonably practicable after the ship has entered that territorial sea
(5) Where the master of a ship delivers any person to an appropriate officer in any country under subsection (2) above he shall—
(a) make to an appropriate officer in that country such oral or written statements relating to the alleged offence as that officer may reasonably require; and
(b) deliver to an appropriate officer in that country such other evidence relating to the alleged offence as is in the master's possession.
(6) The master of a ship who without reasonable excuse fails to comply with subsection (3) or (5) above is guilty of an offence and liable on summary conviction to a fine not exceeding level 3 on the standard scale.
(7) It is a defence for a master of a ship charged with an offence under subsection (6) above of failing to comply with subsection (3) above to show that he believed on reasonable grounds that the giving of the notification required by subsection (3) above would endanger the safety of the ship and, except where the country concerned is the United Kingdom, that either—
(a) he notified some other competent authority in the country concerned within the time required by subsection (4) above, or
(b) he believed on reasonable grounds that the giving of notification to any competent authority in that country would endanger the safety of the ship.
(8) In this section—
"appropriate officer" means—
in relation to the
in relation to any other Convention country, an officer
having functions corresponding to the functions in the
"Convention country" means a country in which the Convention for the Suppression of Unlawful Acts against the Safety of Maritime Navigation, which was signed at Rome on 10th March 1988, is for the time being in force; and Her Majesty may by Order in Council certify that any country specified in the Order is for the time being a Convention country and any such Order in Council for the time being in force shall be conclusive evidence that the country in question is for the time being a Convention country, and "master" has the same meaning as in the [1894 c. 60.] Merchant Shipping Act 1894.
 The offences are respectively
s.18 Shooting or attempting to shoot, or wounding, or intent to do grievous bodily harm, or to resist apprehension
s.20 Inflicting bodily injury, with or without weapon
s.21 Attempting to choke etc in order to commit or assist in the committing of any indictable offence
s.22 Using chloroform etc to commit or assist in the committing of any indictable offence
s.23 Maliciously administering poison etc so as to endanger life or inflict grievous bodily harm
s.24 Maliciously administering poison etc with intent to injure, aggrieve, or annoy any other person
s.28 Causing bodily injury by gun powder
s.29 Causing gun powder to explode, or sending to any person an explosive substance, or throwing corrosive fluid on a person, with intent to do grievous bodily harm