CMI Questionnaire on Criminal Offences Committed on Foreign Flagged Ships

 

Replies – Scotland

 

Note :              Reference is made to the accompanying Answers submitted for England & Wales.  All Acts of Parliament referred to in those Answers are of UK-wide application, and so the replies are equally applicable to Scotland. 

 

This note of replies considers where there is a difference between Scotland and England & Wales, that is to say, in the common law powers of the Scottish Courts.  The Scottish Courts will assert jurisdiction by virtue of the presence of the offender in Scotland.

 

 

 

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?

 

         YES

         Piracy may be tried by the Scottish Courts irrespective of the nationality of the ship – Renton & Brown para 1-22.

 

B.           in territorial (or other waters)?

 

         YES

         HMA –v- Cameron & Ors; Piracy may be tried by the Scottish Courts irrespective of the place of the offence – Renton & Brown para 1-22

 

 

 

 

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?

 

         YES

         Piracy may be tried by the Scottish Courts irrespective of the nationality of the offender – Renton & Brown para 1-22

 

B.           in territorial (or other) waters?

 

         YES

         HMA –v- Cameron & Ors; Piracy may be tried by the Scottish Courts irrespective of the place of the offence – Renton & Brown para 1-22

 

 

 

 

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?

 

         YES

 

B.           receive or remove the alleged offender from the ship?

 

         YES

 

C.           detain the alleged offender?

 

         YES

 

D.           return the alleged offender to the flag State/State of the alleged offender’s nationality/or other State?

 

NO

 

 

 

 

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?

 

         YES

 

B.           receive or remove the alleged offender from the ship?

 

         YES

 

C.           detain the alleged offender?

 

         YES

 

D.           return the alleged offender to the flag State/State of the alleged offender’s nationality /or other State?

 

NO.  The State may however entertain an extradition request made by the State of the victim.

 

 

Coastal (or Port) State Procedure under SUA

 

 

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)?

 

Police [AMSA 1990 Section 15 (8)(a)] - the Aviation & Maritime Security Act 1990 is a UK Statute, and hence applies in Scotland as it does in England.

 

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)?

 

A full investigation would be carried out by the police, commensurate with the gravity of the offence.  The investigation would not depend upon any decision made under SUA.

 

 

Question 6:      On the outline facts of the “Tajima” case, what action would your State have taken as a coastal (or port State)?  In particular,

 

A.           Would you have accepted delivery of the alleged offender?

 

         YES.  This would be under the common law provisions described in questions 1-4, without any necessary consideration of the statutory framework.  In this way, the Scottish Courts have the same statutory powers as England, but the common law would allow delivery of the offender without consideration of any prerequisite danger to navigation.  

 

B.           Did the facts bring the case within article 3(1)(b) of SUA?

 

         Albeit that murder falls within an act of violence in terms of Section 11 of AMSA 1990, the murder of one Officer could be argued not to necessarily endanger the safe navigation of the ship.  This evaluation would depend upon factors such as the size of the vessel, her state of passage, the weather, and the number of crew.  As mentioned in ‘A’ above, the Scottish Courts would not require to make this subjective decision.

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