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Civil Aviation (Amendment) Bill [H.L.]

9.5 p.m.

The Lord Brabazon of Tara: My Lords, I beg to move that the House do now resolve itself into Committee on this Bill.

Moved, That the House do now resolve itself into Committee.--(Lord Brabazon of Tara.)

On Question, Motion agreed to.

House in Committee accordingly.

[The DEPUTY CHAIRMAN OF COMMITTEES (Baroness Nicol) in the Chair.]

Clause 1 [Applications of criminal law to United Kingdom-bound foreign aircraft]:

The Minister of State, Home Office (Baroness Blatch) moved Amendment No. 1:

Page 1, line 8, leave out from ("inserted") to end of line 9 and insert (""or (subject to subsection (1A) below) a foreign aircraft".").

The noble Baroness said: In moving the amendment, I shall, with the leave of the Committee, speak also to Amendments Nos. 2, 4, 6 and 7 which are tabled in my name. Amendment No. 2 is the core of this series of amendments. It imports into the Bill the principle of dual criminality. The effect of the amendment is to limit the jurisdiction of the courts conferred by this Bill to those offences committed on board foreign aircraft whose first landing after the commission of the act is in the United Kingdom, where the act in question is an offence both in this country and in the state of registration of the aircraft.

The United Kingdom regularly opposes attempts by other countries to impose their laws on United Kingdom companies or nationals, when outside the territory of the state concerned. There have, for example, been attempts recently by some countries to impose their laws on the conduct of people in British aircraft flying to their countries, to the detriment of the airlines concerned. We resist these attempts by foreign states to impose their laws on our companies and therefore we cannot seek to impose our laws on others in similar circumstances.

The purpose of the Bill is to give our courts the power to hear cases where an offence takes place on board a foreign aircraft. In almost all cases, the kinds of crimes which are, regrettably, committed on board aircraft will have the requisite dual criminality.

Some noble Lords at Second Reading expressed concern that the inclusion of a dual criminality provision in the Bill would make it more difficult to investigate offences and convict offenders. Of course I should not have proposed such a provision without first consulting those who will prosecute those offenders. However, in view of the concerns expressed by some noble Lords at

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Second Reading, and following a constructive meeting with my noble friends Lord Hacking and Lord Brabazon and the noble and learned Lord, Lord Wilberforce, I have gone back to the prosecuting authorities to put the points to them. I am pleased to report to the Committee that the prosecuting authorities consider that the dual criminality provision, as expressed in the amendments, would give rise to no significant difficulties in the prosecution of offenders.

The last part of Amendment No. 2 inserts a new subsection (1B) into Section 92 of the Civil Aviation Act, which provides that an act or omission punishable under the law in force in any country is an offence under that law for the purposes of dual criminality however it is described in that law. This provision together with the provisions of Amendment No. 4 should make it more simple to determine the requirement of dual criminality. Under the provisions of Amendment No. 4, the dual criminality test is deemed to be satisfied unless the defence shows grounds that it is not. If the defence is able to show grounds that the test is not satisfied, it will then be for the prosecution to prove that it is, though, in the Crown Court, that will be a matter for the judge alone to decide. These provisions taken together should ensure that the dual criminality test places no undue burden on the prosecution.

Amendments Nos. 1 and 6 amend the definition of foreign aircraft in the Bill. The amendments are necessary to ensure that all non-British controlled aircraft are covered by the term "foreign aircraft", even those which have no official state of registration. Amendment No. 1 in effect deletes the definition in the unamended Bill and Amendment No. 6 inserts the new definition.

Amendment No. 7 is consequential to the change in the definition of foreign aircraft achieved by Amendments Nos. 1 and 6. It concerns the powers of a consular official to investigate offences on board a foreign aircraft and restricts that power to situations where the courts would have jurisdiction over the offence. I beg to move.

Baroness Mallalieu: There are two aspects of this group of amendments which the noble Baroness has just introduced which concern me.

Baroness Blatch: I am grateful to the noble Baroness for giving way. I wonder whether it might be for the convenience of the Committee if we discussed the two amendments that are amendments to my amendments and then had one debate on the amendments to my amendments and my group of amendments. That might cut down the time we spend on the Bill.

The Deputy Chairman of Committees (Baroness Nicol): That is a rather complicated procedure to try to follow. I think it might be better if we proceeded in the normal fashion. As I understand it, I shall call Amendment No. 2 and then the amendment to it.

On Question, amendment agreed to.

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Baroness Blatch moved Amendment No. 2:

Page 1, line 9, at end insert--
("( ) After that subsection there shall be inserted--
"(1A) Subsection (1) above shall only apply to an act or omission which takes place on board a foreign aircraft where--
(a) the next landing of the aircraft is in the United Kingdom, and
(b) in the case of an aircraft registered in a country other than the United Kingdom, the act or omission would, if taking place there, also constitute an offence under the law in force in that country.
(1B) Any act or omission punishable under the law in force in any country is an offence under that law for the purposes of subsection (1A) above, however it is described in that law.".").

The noble Baroness said: I beg to move.

Lord Hacking moved, as an amendment to Amendment No. 2, Amendment No. 3:

Line 13, at end insert--
("(1C) The Secretary of State may by order made by statutory instrument, subject to approval by resolution of each House of Parliament, repeal subsections (1A)(b) and (1B)".").

The noble Lord said: If this is a convenient moment to address the Committee on my amendment to my noble friend's amendment, I certainly do so. In tabling this amendment and addressing the Committee on it, I was trying to find a position between the Bill as introduced by my noble friend Lord Brabazon and the position that my noble friend the Minister has taken in her amendments. I was trying to find a compromise position.

The effect of my amendment is exactly the same as the effect of my Amendment No. 5, and that is to give an opportunity to the Government--after the Bill, hopefully, has come into law and the dual criminality test has come into being--to review the progress of this Bill and how the dual criminality test is working. Then, if the Government find that there are difficulties--I am concerned that there are difficulties both in substantive law and procedural law--it will give the Government an opportunity to address that without having to go back to primary legislation. It is by the affirmative resolution so there would have to be a resolution affirmatively put before both Houses of Parliament. It is not something that we are going to slip under a secondary legislation door, but it is nonetheless an easier way, in my submission, for the matters of difficulty, that I apprehend exist in my noble friend's amendment, to be dealt with.

The precedent for this lies in the Arbitration Bill which has recently passed through this House. In Clause 88 of that Bill precisely such a device was used and approved by noble Lords to deal with the problem of domestic and international arbitrations. Clause 88 of the Arbitration Bill gives power to the Secretary of State to remove this distinction between domestic and international arbitrations after the further consultation period which the Minister of State agreed to undertake. Under my amendment the Government would be in that position without having to come back to the House with primary legislation. That is the purpose of my amendment.

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I am entirely in the Committee's hands. Perhaps it would be convenient if I commented on my noble friend's amendment. If the Committee would like me to make those comments later, I shall do so. However, I wished to explain to the Committee the purpose of my amendment.

9.15 p.m.

Baroness Mallalieu: This might be an appropriate moment for me to raise my anxieties in relation to the whole of the debate on various options raised by the amendments. Two aspects of this part of the suggested changes to the proposed legislation cause me concern.

First, I believe that we are all most anxious that the Bill should reach the statute book with as few obstructions as possible to the successful prosecution of those who commit crimes in the air. I am, therefore, concerned that Amendment No. 2 introduces into the draft Bill the concept of dual criminality which must necessarily mean that acts and omissions which are crimes in this country, and are committed on an aircraft bound for the United Kingdom which then lands here, cannot be prosecuted here.

I hope that the noble Baroness will be able to reassure me. I should like to know from where the impetus for this change to the draft Bill comes. Have the other countries which have already introduced legislation of this nature--I understand from the debate at Second Reading that they include the United States, Canada, Australia, France and Belgium--included dual criminality in their legislation? If so, can the Minister tell us whether difficulties of proof or delays in prosecutions--I am concerned about both if these changes are made--have resulted?

If those countries have not incorporated dual criminality into their legislation, why is it necessary for us to introduce it into ours? It will undoubtedly cause a legal complication in some cases. For my part I should like to be further reassured that it is a necessary and beneficial change.

My other anxiety at this stage concerns Amendment No. 4. The Minister was good enough to write to me and to other noble Lords. In her letter of 19th April she said:

    "The amendments are drafted in such a way as substantially to shift the burden of proof onto the defence which must show grounds for believing that the behaviour which is prosecuted is not a criminal offence in the country of origin".
My reading of Amendment No. 4 is that the burden of proof does not shift. Indeed, I would be greatly concerned if it did. What Amendment No. 4 appears to establish is a presumption that the act or omission constitutes an offence under the law in the country of registration unless and until the defence contends otherwise, either by notice or, if it does not give notice, with leave of the court. In that case, the prosecution is required to prove that it is an offence. As I read Amendment No. 4, it is not for the defence at any stage to prove that an act or omission is not a crime in a foreign country. In other words, the burden remains on the Crown to prove that it is a crime if there is any query about it.

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I am always concerned about criminal legislation which is introduced in which the burden of proof is placed on the defence. It seems to me to be contrary to the general principles of our criminal law, to be generally undesirable and permissible only in exceptional circumstances.

I hope that the Minister will be able to reassure me, notwithstanding the wording of her letter, that under the proposed amendments it will not be for the defence to prove that the matter was not a crime in a foreign country and that, if there is any query, the burden remains on the Crown to establish the matter.

Those are my concerns. I hope that the Minister may be able to meet them.

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