UK Offence Report

Application of criminal law to a Control Zone in France

article 12(3) of The Nationality, Immigration and Asylum Act 2002 (Juxtaposed Controls) Order 2003

This offence was read from the text as made, and no revised version was available, so a later revocation could not be ruled out. Check the current text at legislation.gov.uk.

What the provision says

3 An act or omission which constitutes an offence under paragraph 4 (assaulting

a detainee custody officer) or paragraph 5 (obstructing detainee custody officers) of Schedule

11 to the Immigration and Asylum Act 1999 shall also be an offence if it takes place in

a Control Zone in France.

Text as made, from legislation.gov.uk. © Crown copyright, reused under the Open Government Licence v3.0. This is the text as originally made; later amendments are not shown here.

Who it binds, and what has to be proved

Binds
an detainee custody officer
Conduct
obstructing an official exercising a power
Fault element
Strict liability
Burden of proof
No statutory defence — prosecution proves everything

The prosecution must prove that the conduct happened. This is a strict liability offence as drafted: the provision uses no word of intention, knowledge, recklessness or negligence, so there is no need to show that an detainee custody officer meant to do it, knew about it, or was careless.

Intention, knowledge and carelessness are irrelevant to guilt. They may still matter a great deal to sentence.

The provision states no defence, so the prosecution bears the burden on every element of the offence.

Classifier’s reasoning: no word of intention, knowledge, recklessness or negligence in the offence or its provision.

What would breach article 12(3)?

These are illustrations, not law. They are generated from the provision’s own words to show the shape of the offence. Whether any particular conduct is caught depends on the full text, on any amendment since, and on the facts.

  1. On these words an offence is committed where an detainee custody officer takes place in a Control Zone in France.
  2. Refusing to let an inspector onto premises they are entitled to enter under the Nationality, Immigration and Asylum Act 2002 (Juxtaposed Controls) Order 2003.
  3. Sending an official away, or telling staff to say nothing, where the power being exercised does not depend on anyone's consent.
  4. Physically blocking an examination, or removing something an officer has said they intend to inspect.

Penalty

Mode of trial
Set by another provision — the instrument states the penalty by reference to an Act or to another regulation
Maximum fine
Not determined
Maximum prison (summary)
Not determined

The instrument does not state a penalty itself. It sets one by reference to paragraph 18 of Schedule 7 to the Terrorism Act 2000.

penalty is that of the referenced enactment; not stated in this instrument.

No penalty was determined from this instrument. It may be in the enabling Act, or in a general penalties provision this pass did not connect to the offence. Absence of a figure here is not evidence that the offence carries no penalty.

Sentencing

Offences of this kind are usually sentenced under the guidelines below. This is a mapping by subject, not a finding about this provision, and the links go to a search of the Sentencing Council’s own site.

Prosecution figures

No published per-offence figure was found for this provision, and it could not be matched to a Ministry of Justice offence code. Offences created by statutory instrument very largely do not have one. Absence of a figure is not evidence that the offence is unused.

Status and lifecycle

Current status
Status not determined
Made
4 November 2003
In force from
Not determined
Extent
Not stated

How this was established: read from the text as made; no revised version available, so later revocation could not be ruled out.

What the instrument is for

(This note is not part of the Order) — the explanatory note published with the instrument, © Crown copyright.

This Order gives effect to the Treaty between the United Kingdom and France providing for the exercise of immigration control by the authorities of each State in the sea ports of the other State. The ports in question to which the two States have agreed the Treaty should for the time being apply are designated in Schedule 1 to the Order. Within each port the two States have delimited an area comprising a Control Zone within which the immigration authorities of each State will be empowered to exercise immigration control in the territory of the other State. Criminal offences and powers of arrest relating to breaches of immigration control will be extended to the Control Zone and immigration officers may call upon the assistance of the police in exercising these powers. In addition, some offences which are committed by or against immigration officers or the police will apply in the Control Zone. The area comprising the Control Zone has been confirmed through the exchange of diplomatic notes between the two States and a copy can be obtained by writing to the address set out at the end of this Note. Part 1 of the Order provides for its commencement and defines some of the terms used in the Order. Article 1 provides that, save for article 10, the Order comes into force on the date when the Treaty enters into force. Article 10, which allows the Secretary of State to require a manager of a designated port in the United Kingdom to provide accommodation and other facilities for the use of French officers, comes into force on the day after the Order is made. Part 2 of the Order contains provisions relating to the exercise of immigration control by French officers in a Control Zone in the United Kingdom. Such officers are permitted to carry out their functions in such a Control Zone, including arresting and detaining those who are being examined for the purposes of immigration control. It is an offence to obstruct, without reasonable excuse, such an officer when carrying out his functions (articles 3 and 4). A French officer is not liable to prosecution in the United Kingdom for an offence committed in the exercise of his functions in a Control Zone (article 6) and a claim for compensation by, or against, such an officer is subject to French law (article 8). A French officer is permitted to carry a firearm while exercising his functions in a Control Zone (article 9). Part 3 of the Order contains provisions relating to the exercise of immigration control by immigration officers in a Control Zone in France. The Immigration Act 1971, and Schedules 7, 8 and 14 to the Terrorism Act 2000 which relate to port controls, are among the enactments extended by article 11 to such a Control Zone (with the modifications set out in Schedule 2). A number of criminal offences, principally under the Immigration Act 1971, are extended by article 12 to a Control Zone in France. That article also extends the criminal law to such a Control Zone in relation to things done by an immigration officer or a constable in the exercise of his functions and in relation to the protection of such officers and their property. An immigration officer may exercise his usual powers of arrest, search and seizure in a Control Zone in France and may request the assistance of a constable when so doing (article 13 (1) and (2)). A constable may also exercise a power of arrest under the Police and Criminal Evidence Act 1984 in respect of any offence extended by the Order to such a Control Zone (article 13 (3)). A compliance cost assessment of the effect that this instrument would have on the cost of business is available from: “UK Immigration Service—South East District, No 1 Control Building, Eastern Docks, Dover, Kent CT16 1JD”.

Read the full note and every offence in this instrument

What Parliament said

Mentions of this instrument in Hansard. Parliamentary material is reused under the Open Parliament Licence v3.0.

Other offences in the same instrument

How this was identified as an offence

Everything above rests on the judgement that this provision creates a criminal offence, rather than mentioning one. That judgement is made by rule, from the words of the provision, and this is the rule that made it — with a confidence of 0.75.

Basis
the provision says the conduct “constitutes an offence”
Confidence
0.75 of 1.00

A provision that states a penalty for an offence created elsewhere can read very like one that creates an offence, and the rules can mistake the one for the other. If the text quoted above sets a penalty for something made an offence by another provision, treat the classification on this page with that in mind, and read the instrument.

Check the source