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Lord Brabazon of Tara: I am not your learned friend; I am your noble friend. I might have an advantage not being a lawyer and trying to inject a bit of common sense into this Bill.
Will my noble friend expand on his point about sex between consenting adults on a Turkish basis if the age of consent is 15? Quite honestly, if two consenting Turks are on a Turkish airliner coming into this country, what business is it of ours to say what they should do? It may be an offence in this country and undesirable as far as we are concerned, but what business is it of ours?
Lord Hacking: It is the business of anybody who is concerned when an offence has been committed on an aircraft which is an offence under English law.
I will cite just one example. I will not name the airline, but there was a sexual activity which took place in an airliner which was flying from London to Chicago. That sexual activity caused such offence to some passengers that there ended up being a fight in that aeroplane. When the aeroplane arrived in Chicago, not only were the two persons who perpetrated the act arrested--and they were both well over the age of consent for the activity they were indulging in--but it
ended up at the gate of Chicago airport that six passengers had to be arrested by the police for the disturbance that had been created in that aircraft.We do not live in an isolated world. It may not upset my noble friend that certain forms of activity take place, but it does offend other people. The purpose of our laws is to create stability, and particularly in relation to this Bill to create stability in an aircraft.
Baroness Blatch: I note how strongly my noble friend feels about these matters, but some of his case is rather exaggerated. The concern that he has about somebody who does not speak English arriving in this country accused of an offence on board an aeroplane being somewhat disadvantaged is true. But that disadvantage is just as much a disadvantage whether the condition of dual criminality has to be met or not. It is nevertheless something which has to be dealt with. I can say to my noble friend that the person will be entitled to legal aid; he will be entitled to an interpreter if he cannot speak the language; he will be entitled to put the prosecution to prove dual criminality if there are grounds upon which he can do so. Again, that is unlikely if the offence is what we expect it commonly to be; that is, one of assault.
There are other examples. The Criminal Justice Act 1993 contains the provision and, as my noble friend said, the sexual tourism Bill which is going through this House and another place, also contains it. Work is going on within government on the extension of territorial jurisdiction. It would be quite wrong for us to include in this Bill alone the provision proposed by the noble Lord, Lord Hacking, that, if it turns out in practice not to be working very well--having already given the promise that we shall be monitoring it--the Home Secretary can exercise a power to remove the provision.
We have taken the view that it is an issue; that it should be monitored; and that it should be addressed if it turns out to be a problem. We oppose attempts by other countries to impose their laws on the United Kingdom. We have a strong view that if we are not to include dual criminality in this Bill, we leave ourselves vulnerable. We know that the Americans are anxious to impose their laws on other countries and it is for that reason that, not only the United Kingdom, but also 17 other countries, are extremely concerned that the Americans did not include dual criminality in their own laws and are making protestations on that matter.
My noble friend made much of sexual offences on board aeroplanes. I note the point that he made. However, I do not share his view that the introduction of the dual criminality test will cause difficulties in the prosecution of sexual offences. Non-consensual sexual offences such as rape and sexual assault are, of course, offences in foreign countries and in the case of those offences, which I know are crimes which rightly concern the Bill's sponsors, the dual criminality test will in practice cause no difficulty. Under the Bill, the vast majority of sexual offences committed on board foreign-registered aircraft will be offences which will come within the jurisdiction of our courts.
I am aware that the age of consent for sexual intercourse differs throughout the world. In some countries it is lower than in the UK; in others it is higher. But that is a matter for the authorities of the country or territory concerned, as my noble friend Lord Brabazon said, which will no doubt have framed their legislation in the light of the social and moral climate of their own societies.
If we were to seek to take jurisdiction over sexual acts which were not offences in the country in which the aircraft was registered we would, in effect, be exporting our own laws. Parliament would be claiming authority to legislate in respect of conduct which takes place elsewhere and which is not considered to be an offence in the place where it occurs. No doubt Parliament would resist attempts by the legislative bodies of other countries to purport to legislate for conduct which takes place within its jurisdiction and it would wish to consider very carefully before taking such powers to itself.
I do not believe in practice that that is likely to be a problem in relation to the operation of this Bill. An offensive act (albeit consensual) performed in the presence of other passengers, is likely--by the very fact of being done in public--to constitute an offence in other jurisdictions, as well as in our own. It is inconceivable that some of the more serious acts referred to by my noble friend--if they were consensual and were so disturbing and offensive to other passengers--would not become some form of public order offence and therefore could be coped with under the Bill.
My final point is in no way intended as a threat; it is a matter of fact. We wish to support my noble friend's Bill. It is a good piece of legislation. It will go a long way towards addressing some of the anxieties held by the carriers of passengers by air. But the Government are not in a position to accept my noble friend's amendments. If he insists on the Committee accepting them, we shall have to withdraw our support for the Bill as amended by those amendments.
Lord Hacking: It is my turn to take a position on my amendment. I do not intend to press my amendment. In addressing the Committee, my desire was to draw attention to what I believed to be the difficulties under substantive law and under procedural law following through on the comments made by the noble Baroness, Lady Mallalieu. I have advanced those arguments. I have cited one case. It can result in a public order issue. In the time available I have not had time to research the matter. An enormous map has been opened up on which to consider each and every criminal act, whether it is a criminal act in any country of the world which has registered aircraft which fly into this country.
I certainly do not want to part company from my noble friend--I shall cease calling him "my learned noble friend" because he does not seem to think that that is a compliment. He is to be congratulated on bringing this Bill before your Lordships. On the basis that I have made my concerns known, I beg leave to withdraw my amendment.
Amendment No. 3, as an amendment to Amendment No. 2, by leave, withdrawn.
On Question, Amendment No. 2 agreed to.
Baroness Blatch moved Amendment No. 4:
The noble Baroness said: I beg to move.
[Amendment No. 5, as an amendment to Amendment No. 4, not moved.]
On Question, Amendment No. 4 agreed to.
Baroness Blatch moved Amendment No 6:
On Question, amendment agreed to.
Clause 1, as amended, agreed to.
Clause 2 [Provisions as to evidence in connection with aircraft]:
Baroness Blatch moved Amendment No. 7:
On Question, amendment agreed to.
Clause 2, as amended, agreed to.
Clause 3 [Short title and extent]:
Page 1, line 9, at end insert--
("( ) After subsection (2) there shall be inserted--
"(2A) The requirement in subsection (1A)(b) above shall be taken to be met unless, not later than the rules of court may provide, the defence serve on the prosecution a notice--
(a) stating that, on the facts as alleged with respect to the act or omission, the requirement is not in their opinion met;
(b) showing the grounds for their opinion; and
(c) requiring the prosecution to prove that it is met.
(2B) The court, if it thinks fit, may permit the defence to require the prosecution to prove that the requirement is met without the prior service of a notice under subsection (2A) above.
(2C) In the Crown Court the question whether the requirement is met is to be decided by the judge alone.".").
Page 1, line 10, leave out subsection (3) and insert--
("( ) In subsection (5), after the definition of "British-controlled aircraft" there shall be inserted--
"'foreign aircraft' means any aircraft other than a British-controlled aircraft;".").
Page 2, line 3, leave out subsection (2) and insert--
("( ) In subsection (4), for the words from "any" to "Kingdom" there shall be substituted "--
(a) any offence has been committed on a British-controlled aircraft while in flight elsewhere than in or over the United Kingdom, or
(b) there has taken place on board a foreign aircraft an act or omission which constitutes an offence by virtue of section 92(1) above,".").
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