Note : Reference is made to the
accompanying Answers submitted for
This note of replies considers where
there is a difference between
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.
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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