§ 8.52 p.m.
§ Lord Brabazon of Tara
My Lords, I beg to move that the Bill be now read a second time.
I wish to start the debate by giving a little background to why I am introducing this Bill today. A little over a year ago my attention was drawn to a number of serious offences that had taken place on foreign registered aircraft landing in this country. These included the attempted rape of a stewardess on a flight from Hong Kong, a serious assault on a flight service director on a Qantas flight from Australia and a fight among three British passengers on a Royal Air Maroc flight to Manchester which resulted in grievous bodily harm. In each case when the aircraft landed here the police were unable to take action because the incidents took place on foreign registered aircraft outside United Kingdom airspace.
These matters have been drawn to my attention by the Board of Airline Representatives in the UK, BAR-UK, which represents almost 90 airlines, all but six of them foreign airlines, flying to and from this country, which are of course vulnerable to the loophole in the law which this Bill would stop. Qantas had earlier commissioned a legal opinion on the subject by Mr. Robert Webb QC, Mr. David Hart and my noble friend Lord Hacking, who I am sure will say more about this in his speech later.
The Bill before your Lordships this evening has been prepared for me by BAR-UK, and it has the support of the Association of Chief Police Officers, the Air Transport Users Committee, which is the statutory consumer protection body set up by the Civil Aviation Authority, the airport companies BAA plc and Manchester Airport, British Airways and the Police Federation.
During my Question in the House a year ago, my noble friend Lady Blatch undertook to look into the matter and in due course the Home Office published a note reviewing the position. In it it posed a number of questions: first, is there a gap in the criminal law, and is it a serious gap—are serious offenders getting away? Secondly, are there a sufficient number of incidents each year in which offenders escape justice for action to be necessary; and, lastly, if action is required what measures can be taken?
On the first point, I quote from the Home Office paper, paragraph 25:Unless the offence takes place on a British-registered aircraft, on a foreign-registered aircraft in UK airspace, or on a foreign registered aircraft outside UK airspace where the safety of the aircraft is endangered, our police and courts have no authority to take action against the perpetrator. Serious physical and sexual assaults against members of the cabin crew or passengers may be committed with impunity unless the state of registration of the aircraft decides to instigate extradition proceedings. Even if it decides to do so the police here can only detain the alleged offender until such time as they establish that an offence has not been committed within UK jurisdiction; this may not allow enough time to arrange for issue of a provisional warrant of arrest pending extradition. Not only may serious offenders therefore escape justice but the victim(s) of the offence will not be afforded any protection under the law".That I believe makes the case for me.
1790 On the second point, the number of incidents, a survey was undertaken during September and October last year. This showed some 10 incidents on aircraft landing at Heathrow, Gatwick and Manchester. Of these, four occurred on British aircraft, two leading to charges and two to cautions. One of those charged was sent to gaol for assault. Six took place on foreign aircraft, including cases of drunkenness and abusive behaviour, spitting at the crew and assaulting passengers and crew. In each of these cases the aircraft was met by the police but they were powerless to act. I believe these and the incidents that I have already described demonstrate that there is a problem that needs to be addressed.
This is a particular problem for this country. I was somewhat amused to read in paragraph 31 of the Home Office paper the description of Heathrow as,probably the UK's busiest airport with a large number of scheduled flights by foreign airlines".Heathrow is not,probably the UK's busiest airport";it is easily the UK's busiest airport, with some 52 million passengers a year, rising at 6 per cent. a year. It is the busiest international airport in the world, with 82 foreign airlines operating at it, which I suspect is a world record, and with an average of some 550 arrivals a day.
On the third question, if action is required, what measures can be taken, I believe this Bill provides the best solution; that is, to amend Section 92 of the Civil Aviation Act 1982, which deals with the application of criminal law to British controlled aircraft, to cover UK-bound foreign aircraft. I am well aware that we are talking here about extra-territorial jurisdiction, and that is an issue that has received much attention recently.
I would say that this country already exercises extra-territorial jurisdiction, and has done for many years in a number of areas. Slavery, piracy and war crimes are examples. Under the Merchant Shipping Act of 1995 which consolidated the old 1894 Act, British subjects, not being crew members, on foreign ships and foreigners on British ships may be tried in this country if they commit offences which would have been offences if they had occurred in the UK. The Aviation Security Act 1982 has given jurisdiction to the UK courts over hijacking and other offences committed on or in relation to aircraft in flight, wherever they are and whatever their country of registration. But these provisions apply only to conduct which destroys, damages or endangers the safety of the aircraft, or may do so. With a few exceptions, if the aircraft is not harmed or put at risk, the courts have no jurisdiction over the sort of cases I have described.
We are out of step with the rest of the world. Many countries, including the US, Canada, Australia, France, and Belgium, already have similar jurisdiction. The laws in France and Belgium include the commendably simple formula that if the aircraft lands in those countries after the offence, the offenders may be charged and prosecuted.
Far from creating difficulties with other countries, the Bill would bring us into line with much of the rest of the world. Legal advice has confirmed that there would 1791 be no conflict with the treaties. The Tokyo convention on crime on board aircraft expressly states that it is not to exclude criminal jurisdiction under national law.
At the most recent meeting of the International Air Transport Association in Kuala Lumpur last October, the following resolution was adopted:Whereas offences continue to be committed against passengers and crew on board aircraft without states being able to take effective legal action in certain circumstances against the perpetrators when the aircraft lands;The 51st Annual General Meeting calls upon States to take all steps necessary in order to enable the exercise of full jurisdiction over all offences committed outside their airspace on board aircraft operating to and from their territories".Therefore, unlike some measures on extra-territorial jurisdiction, I believe that the Bill would be popular throughout the world, not just in this country.
The Government have announced a review of the law on extra-territorial jurisdiction which would cover crimes on foreign aircraft, but only by UK nationals. This could result in an anomalous situation if British but not foreign participants in an affray on the aircraft were to be prosecuted. Incidentally, that might make an interesting story for the tabloid press if it ever happened like that.
The proposals to extend the jurisdiction of our courts to deal with sexual and other offences abroad which were recently debated in this House have drawn attention to the practical difficulties of prosecuting those committing offences abroad where it may be impractical to get victims and other witnesses to give evidence in court here. Those difficulties would not apply to crimes on aircraft where all the parties are present in the UK immediately after the commission of the offence. The overseas airlines in membership of BAR-UK have given me an assurance that in appropriate cases their staff will come to this country to give evidence in court later.
I acknowledge the need for clarity as to what offences would be caught by the Bill. The solution proposed is simple. The Bill would give our courts jurisdiction over crimes on foreign aircraft which actually arrive in the UK. This would apply whether the arrival were scheduled or not. Thai: is necessary, for example, to cover the case where a foreign aircraft makes an unscheduled stop to put off a violent passenger. Conversely, where a flight has several stops, only offences committed on the last leg before arrival in the UK would be covered by the Bill.
Proper control over bringing prosecutions would be exercised in England and Wales by the Director of Public Prosecutions, whose consent would be required to proceedings, just as it is where offences are committed on British controlled aircraft. The law allows suspects to be arrested and detained while the DPP's consent is sought. That in practice is often obtained within hours.
I hope that I have demonstrated the need for the Bill, that it would work and that we need it now. The police are, I know, frustrated by their inability to act in the cases I have described. It goes against all their professional instincts and training. For other passengers on a flight, it can be an alarming and frightening experience to witness violence or worse, with no means 1792 of escape. But, above all, for the victims of the crime it must be heartbreaking to find out that even when the police have met the plane on landing they are powerless to act and the offender will get off scot-free. I hope your Lordships will support the Bill. As noble Lords know, most Second Reading speeches end with that phrase, but for a Private Member's Bill it is absolutely essential that it be supported by all sides of the House. I very much hope that that will be the case this evening.
Moved, That the Bill be now read a second time.—(Lord Brabazon of Tara.)
§ 9.4 p.m.
§ Baroness Mallalieu
My Lords, from these Benches this short, commendably clear and necessary Bill has our support. We are satisfied that there is a real problem which is causing growing disquiet about our law among overseas airlines flying to this country. We are satisfied that there is at present a gap in our law which, in consequence, leaves both passengers and crew members on foreign aircraft flying here in some cases without effective protection from crime committed on board, during the flight and before the aeroplane reaches British airspace. We are also satisfied that the Bill provides a means of closing the present lacuna in the law which on occasions denies that protection to airline staff and travellers alike.
This House is grateful to the noble Lord, Lord Brabazon of Tara, for outlining the need for the Bill and its provisions with such clarity and force. The present position is clearly wholly unsatisfactory. In general terms, as I understand it, the police in the UK can arrest a passenger on a foreign registered aircraft on arrival following the commission of a criminal offence committed on board during the flight only if the offence either occurred in UK airspace or involves an act of violence which endangers the actual safety of the aircraft. That last phrase is currently being interpreted by the enforcement authorities as meaning an act which interferes with the body of the aircraft—for example, damage of a kind likely to cause decompression—or an attack on a member of the flight crew who is actually in control of the plane.
Where the United Kingdom authorities do not consider that they have jurisdiction under those provisions, the alternative recourse is to the Tokyo Convention, under the provisions of which the offender may be extradited back to the country where the aeroplane is registered. But then, as the noble Lord has already indicated, difficulties arise in obtaining provisional warrants under Section 8 of the Extradition Act, both because it takes time and also because the country which has jurisdiction may take the view that the cost and trouble of extradition proceedings are disproportionate to the offence, especially if the victim is not one of its own nationals. That country can and often does decide to do nothing, sometimes even in serious cases, and then the offender escapes scot-free.
The noble Lord, Lord Brabazon, has already given two examples which have come to his notice. A third serious one came to mine. On a flight from Bahrein to Heathrow, a male passenger sexually assaulted a female 1793 passenger, then assaulted another woman and her husband for good measure, before being arrested and restrained for the rest of the flight. He was then handed over to police here, but they decided they had no jurisdiction because the offences had occurred before reaching British airspace. In that case, the best that the police here were able to do, because the man was still drunk when reaching United Kingdom airspace, was to ensure that he was taken before a court for being drunk and disorderly, for which he received a small fine.
Offences of theft, sexual assault and violence are being committed, unhappily, with impunity in those circumstances. The problem is not likely to decrease; rather the reverse, as more people travel by air and more people use long-haul flights. It simply cannot be right that someone travelling to this country on a foreign airline can get away with impunity with sexually molesting the stewardess, punching his fellow passengers or stealing their belongings simply because he commits the offence before entering United Kingdom airspace.
Surely it is also important that Britain should play its part in seeking a general improvement in international air safety, including safety from in-flight crime, by enacting legislation such as that proposed in the Bill which is already in force elsewhere. I understand that there has already been extensive consultation and widespread support for the Bill. We should not allow crime in the air to go unpunished simply because there is a gap in our law. This Bill is a means by which that gap might be closed.
§ 9.8 p.m.
§ Lord Lester of Herne Hill
My Lords, as the noble Baroness, Lady Mallalieu, just said, the noble Lord, Lord Brabazon of Tara, deserves public gratitude for having introduced this Bill to tackle a real mischief. As the noble Lord so clearly explained, the mischief is that our courts have no power to deal with crimes committed on board foreign aircraft while in flight to the United Kingdom, even when this is the first country in which the aircraft lands after the crime has been committed.
Unlike the position in Australia, Canada, the United States and other countries, Parliament has failed to extend extra-territorial jurisdiction over serious criminal offences, for example, as was stated, involving physical and sexual assault committed in foreign aircraft on scheduled flights. In the case of Canadian and United States law, the jurisdiction of their courts apparently includes incidents between passengers. Again, unlike the laws of Canada and the United States, our law does not permit prosecutions to be brought for other serious offences committed on board foreign aircraft, such as receiving stolen property or theft.
The noble Lord and the noble Baroness gave graphic examples of serious incidents that have taken place on foreign flights to UK airports in the recent past. Those incidents, involving considerable disturbance to other passengers and crew and serious offences against the person, have not been able to be dealt with by our courts even though all the witnesses were present in this 1794 country in the aftermath of the crimes, and even though this was the first country in which the aircraft had landed after the crimes had been committed. Nor have the perpetrators of those crimes been extradited. The fact that the Bill has the support of the Board of Airline Representatives of the United Kingdom, of the police and of consumer organisations is cogent testimony to a pressing need for the Bill so as to provide passengers and air crew with more effective legal protection.
It is just 30 years since the publication of a third edition of the book by Shawcross and Beaumont, Air Law, to which I contributed, as one of three editors, as a young, aspiring aviation lawyer who never quite made it in that field. In that sense, I declare a professional interest, although my only experience of the criminal law in this field is in defending glamorous women pilots, one of whom flew under a bridge on the motorway on the way to Oxford in making a film. In that book, I quoted all those years ago from a splendid lecture given by the noble and learned Lord, Lord Wilberforce. I am sorry he is not in his place. It was on crime in aircraft, and was published in the journal of the Royal Aeronautical Society in 1963. The lecture is even more relevant today than it was when it was given. I hope noble Lords will allow me to quote a passage from it. This is what the noble and learned Lord wrote:50 years ago the idea that aircraft might become a field for the application of the criminal law would have seemed fanciful. Even 30 years ago our legislators would have thought it premature to contemplate legislation on the subject. A dozen or so people, probably all men, flying together for an hour or two in conditions of discomfort would have hardly had either the opportunity or the vitality to be otherwise than law abiding. Now we have 100–200 people flying together, commonly for four to seven hours, at times from 12 to 15 hours. They fly in conditions of security and comfort. They have room to move about. They include both sexes. They are plentifully supplied with alcoholic stimulants…and the purely statistical chances of abnormal behaviour are obviously greatly increased. Moreover, aircraft pass rapidly over frontiers which on land may be carefully controlled. They offer great opportunities for the transfer from one country to another, possibly a thousand miles or more away, of commodities for which a high price will be paid and which cannot pass to their most profitable market by land or sea: things such as gold, drugs, diamonds, secret plans and designs. It is very tempting for passengers on these aircraft and for their crews to undertake or lend themselves as accessories to these trades. So crimes may be committed on aircraft, and aircraft may be used for unlawful activities".Those observations by the noble and learned Lord, Lord Wilberforce, have even greater force today, 33 years later, when there are ever larger aircraft, many more passengers and much more frequent use of long-haul flights. The incidence of in-flight violence and other crimes on aircraft have become a real and pressing problem for the airlines, their crews and their passengers.
In that lecture the noble and learned Lord, Lord Wilberforce, also pointed out that many different parties, often with differing interests, may be concerned when a crime has been committed on board an aircraft. For example, when a crime which occurs on an aircraft registered in state A while flying over state B is committed by a national of state C against a national of state D, after which the aircraft lands in state E, all five states A, B, C, D and E may claim jurisdiction; and 1795 the aircraft operator, the captain, the crew, the ground authorities and the passengers all have particular interests requiring consideration. I believe that the state in which the aircraft lands—for these purposes the UK—has as legitimate an interest in dealing with crimes committed on the aircraft as does the state in which the aircraft is registered.
I have asked myself whether there is any objection in principle to extending extra-territorial jurisdiction in the way proposed by the Bill, whether as a matter of international law and international comity or as a matter of British constitutional principle and convention. I do not consider that there is such an objection in the situations covered by this Bill.
The traditional basis for criminal jurisdiction in this country is territorial. Our courts are concerned only with conduct which is an offence against our law. The general assumption, as we all know, is that to be an offence against English law, conduct must in some degree be connected with the territory of England and Wales. In most cases that means that the conduct must occur in England or Wales. Unless the contrary appears expressly or by necessary implication, Acts of Parliament are not concerned with matters taking place beyond UK territorial limits.
But, as the noble Lord said, there are significant exceptions. Particular kinds of conduct by persons outside the territory have been made an offence under English law. If I may add to the list, that applies, for example, to crimes having an international character: hijacking, drug trafficking, terrorism, genocide or torture, where Parliament has enacted legislation to give effect to international conventions dealing with those serious transnational problems.
It is because international carriage of passengers and goods by air requires the highest standards of safety and good order that the international community has entered into the Tokyo, Hague and Montreal Conventions. But those conventions are inadequate in grappling with the problems that the Bill now raises. Luckily, the Tokyo Convention, as the noble Lord said, specifically provides that it does not exclude any criminal jurisdiction exercised in accordance with national law. It leaves the states parties free to enact a Bill of this kind.
Another problem is that the Tokyo Convention obliges countries to take into custody only those who have been involved in a hijacking or who have committed a serious offence according to the penal code of the state of registration of the aircraft. Furthermore, they can keep such persons in custody only for such time as is reasonably necessary to enable extradition proceedings to be instituted.
It is profoundly unsatisfactory that the only safeguard that now exists is the wholly ineffective safeguard that the wrongdoer may be extradited to the state of registration of the aircraft; that is, to the state of the law of the aircraft's flag. It is wholly ineffective not only because the state of registration may he reluctant to apply for extradition, but also because by the time that extradition takes place, all the witnesses will have dispersed across the world and memories will have become stale.
1796 Furthermore, the powers and duties of states in Chapter 4 of the Tokyo Convention have not been fully incorporated into our legislation as they apparently have been in Australia and North America. The result of the failure to enact the convention more fully into our law is that there is apparently no power for UK authorities to take into custody people who have been delivered to them by the aircraft commander pursuant to the Tokyo Convention.
I saw that point in the admirable opinion written by the noble Lord, Lord Hacking, Robert Webb QC and David Hart. I wrote to the noble Baroness the Minister to ask whether the Government agreed with the opinion of the noble Lord, Lord Hacking, on that point. I hope that she will be able to deal with that matter in her reply. I also hope that, if the noble Lord, Lord Hacking, is right—as, with respect, I believe that he is—that further gap in our legislation may be filled by this Bill at Committee stage.
Just as the unique circumstances of the international carriage of passengers and goods by air have caused the world's community to enact conventions dealing with threats to the safety and security of passengers and crews, so our national legislators are, in my view, fully entitled to go beyond international minimum standards and assert criminal jurisdiction over serious criminal wrongdoing recognised as culpable by the national criminal laws of all nations.
I can see that it may be desirable for the scope of the Bill to be confined to the kind of serious offences made unlawful under, for example, Australian, Canadian and United States law. But that is a matter of detail for the Committee stage. In principle, I can see no threat to international comity by asserting criminal jurisdiction concurrently with other states, notably the state of registration of the aircraft and the state of nationality of the criminal wrongdoer. I realise that that may encourage some other states, whose national legal systems are less obviously procedurally fair than is our own system, to assert a similar jurisdiction so that we, the people in this country, may find ourselves liable for similar misconduct to answer for ourselves before foreign courts; as it were, the procedurally unfair courts of Ruritania. However, I do not regard that as a major obstacle to the enactment of the Bill.
The enactment of the Bill may encourage the world community to strengthen the Tokyo Convention on similar lines. I believe that that would be an excellent result because international legislation provides the best means of tackling the menace of crimes in the international airspace, coupled always with strong and effective national measures. I therefore greatly welcome the Bill. I hope that it will have the Government's support and will be speedily enacted. Accordingly, I hope that your Lordships will give the Bill a Second Reading and that the Government will give their crucial support to it both in this House and in another place.
§ 9.21 p.m.
§ Viscount Simon
My Lords, I am delighted that the noble Lord, Lord Brabazon of Tara, introduced this Bill. It may appear odd that a mariner with 10 years' service 1797 as a navigator in the Merchant Navy should be taking part in this aviation Second Reading; after all, I am more familiar with the Merchant Shipping Act. However, as an enthusiastic amateur, I have been a keen follower of aviation matters for many years. I intend to be brief, making only a few general observations.
It is not so long ago that aircraft could fly for a maximum of maybe three or four hours before having to land to refuel for an hour or so before taking off again. That was a not unpleasant means of long-haul travel. Nowadays, aircraft remain airborne for much longer and, despite in-flight entertainment, boredom can set in. That, combined with the effect of alcoholic beverages, can lead to a lack of consideration towards other passengers.
Presumably, because of a lack of self-control, incidents such as those already mentioned can and do occur. On short-haul flights the alcohol alone can be the catalyst. What does the pilot do if suitably worried? He can report the incident to air traffic control, who will report it to the police, who in turn may well be powerless to do anything at all. I would love to know how many times that situation arose when the noble Baroness, Lady Blatch, was an air traffic controller.
That leads me neatly on to the Home Office note and the observation that there may be insufficient instances to warrant any action being taken. I hope that I am not being too simplistic when I say that one sexual assault or one physical attack is one sexual assault or physical attack too many. If that is being naïve, where do we draw the line? If there are very few cases, then they will take up less court time and cost less than if they were numerous. To be able to prosecute everybody who commits an offence on a foreign airline is surely preferable to letting that person go uncharged and able to repeat the offence. The court machinery of course already exists.
I shudder to think what will happen when our aircraft can fly to and from Australia without landing. Perhaps a suitable sleeping draught will be put into passengers' drinks to overcome potential problems. I support the Bill.
§ 9.24 p.m.
§ Lord Hacking
My Lords, my noble friend Lord Brabazon and the noble Lord, Lord Lester, were kind enough to refer to a legal opinion that I wrote three years ago with Mr. Robert Webb QC and Mr. David Hart of counsel. It therefore may be of some interest to the House if I explain my involvement in this matter. I do not do so to declare a financial interest—at least not a relevant financial interest—but because I always think that one of the helpful things which your Lordships can do in coming to the House is to give the benefit of professional and other experience outside the House.
It was four years ago, in about June 1992, that Quantas Airways, which instructed then my former law firm, sought my advice about one of the incidents to which my noble friend Lord Brabazon referred. It was a very painful incident. A British passenger boarded a Quantas flight in Bangkok on a flight bound for London. 1798 He was only taken on board by the flight service director, who noticed that he showed signs of intoxication as he stood at the cabin door. Because it was the night of the Bangkok riots and because there was a great deal of uncertainty in Bangkok that night, out of kindness to a passenger Quantas took that passenger aboard.
He behaved disgracefully during the flight and culminating his appalling conduct with a "Liverpool kiss" to the flight service director. Unfortunately, the flight service director did not know what a Liverpool kiss was and certainly did not have time to avoid the vicious headbutt that was occasioned to his face. So serious was the headbutt that it damaged the nasal septum of his nose. He had serious numbness in the cheekbone and suffered cervical spine damage.
It is some time since I practised in the criminal courts—if I get this wrong I think the noble Baroness, Lady Mallalieu, will be able to help me—but I identified that offence, if it had taken place in the United Kingdom, as grievous bodily harm with intent under, if my memory serves me correctly, Section 18 of the Offences against the Person Act. I am very glad to have nods from the noble Baroness because I have not looked at that for some time.
I had to advise Quantas Airways that, regrettably, the police at London airport were correct when they refused to exercise jurisdiction over this offender. I was then instructed to institute civil proceedings, but the difficulty there was that the assailant had disappeared off—he was an oil-rigger—to Pattaya City in Thailand and service difficulties of the civil documents was such that the case had to be abandoned. It was in those circumstances that Quantas Airways generously instructed my then law firm and Mr. David Hart of counsel and Mr. Robert Webb QC to write the opinion. Therefore, it has been most satisfying that since that opinion was written in June 1993 there have been such wide consultations.
I would particularly like to refer to the Home Office memorandum of March 1995 of my noble friend the Minister which I found to be a very constructive document looking at this problem. It has also been very reassuring to find the support that has been given to the Bill—support by all the speakers in the debate. I am delighted to note that the noble Baroness and the noble Lord, Lord Lester, found no threat to international comity in Britain seeking to extend jurisdiction in the circumstances of the Bill. A number of noble Lords who are unable to be present in the House tonight have indicated to me their support for the Bill—the noble and learned Lord, Lord Archer of Sandwell, the noble Lord, Lord Geddes, the noble and learned Lord, Lord Griffiths, and the noble Lord, Lord Williams of Mostyn.
It has also been nice to record the support of the BAA, Manchester Airport and the police. Congratulations should go to the Board of Airline Representatives in the UK for the initiative that it has taken and to overseas airlines for all the support they have provided. It is very nice that the managing director in Europe of Quantas Airways is present in the House 1799 tonight and that there are representatives listening to your Lordships' debate from Cathay Pacific, Austrian Airlines, United Airlines and British Airways.
Indeed, the chief executive of British Airways wrote a letter to my noble and learned Lord the Lord Chancellor, which I hope has been shown to my noble friend the Minister. In the second paragraph of that letter he wrote:I very much hope that the Government will support the proposed legislation. The commission of criminal offences on board aircraft is increasing, and we consider that the proposed legislation will close a loophole in the law which effectively exonerates offenders who commit crimes on board foreign registered aircraft en route to the United Kingdom".The letter goes on to give particular reasons why British Airways itself supports this Bill.
While the number of incidents may be limited, our failure to exercise jurisdiction does cause grievous upset. Perhaps I may refer to another incident which my noble friend mentioned—the incident on a flight from Hong Kong. The airline concerned, Cathay Pacific, was so upset that it wrote to the Minister of State in these terms: we are,left in the invidious position of being legally unprotected against assaults by passengers when operating into the United Kingdom".Crime, as this Bill recognises, has become an international matter. As the noble and learned Lord, Lord Griffiths, said in the Somchai case:Unfortunately in this century crime has ceased to be largely local in origin and effect. Crime is now established on an international scale and the common law must face this reality".So must statutory law, and therefore we should all be very grateful to my noble friend for introducing this Bill.
He has referred to other jurisdictions, as indeed has the noble Lord, Lord Lester, which exercise jurisdiction over incidents taking place in aircraft coming into their airports. I believe that the most touching reference I can make is the application of United States law which exercises, as the noble Lord, Lord Lester, said, jurisdiction in these circumstances. Judge Jack Weinstein, a well-known Federal judge in New York, said this about American law:The criminal statutes at issue here afford comfort to both American and foreign passengers flying aboard foreign airlines into United States … There can be little doubt that some passengers travelling with young children might feel some added sense of security in knowing that this country was reaching out its protective arm from the point of embarkation abroad to the point of arrival in this country. While the effect on number of passengers may be slight, it is not too negligible for Congress's … concern".That does contrast, does it not, with the anguished protest that one of our foreign airlines had to give to our Government when it felt helpless as a result of no jurisdiction being exercised when one of its air hostesses suffered a fearful attack?
I believe that this Bill provides a simple remedy and it is therefore very reassuring that my noble friend has received such good support. However, the noble Lord, Lord Lester, raised an interesting point about a deficiency in our current law relating to the Tokyo Convention and Article 13(2), as the noble Lord knows. Consideration was given by my noble friend, who was kind enough to invite me into the consultations concerning the preparation of this Bill, as to whether we could include this measure which the noble Lord, 1800 Lord Lester, suggested. It was not included for a very practical reason. It was thought that if we exercised jurisdiction and dealt with the offenders here in the United Kingdom, there was no need to take that additional step under the Tokyo Convention. Therefore, it was really a practical approach.
Perhaps I may end by pointing out the practical advantage of the measures proposed in this Bill. Years ago, when I practised in criminal matters at the Bar, I remember being instructed in affray and assault cases. The problem then was that the victim went in one direction and the witnesses went in another and the evidence became dispersed over the streets. The fact that an offence is taking place in an aircraft is an evidential dream to a prosecutor because out of that cylinder of the aircraft comes the victim, the offender and all the witnesses. They are all there ready to give evidence. As a prosecutor one cannot think of a more perfect collection of evidence. Of course, it arises out of very imperfect circumstances. We should be grateful to my noble friend Lord Brabazon for introducing this measure.
While the safety of the aircraft may not be at risk, the safety of the persons in it is certainly at risk. There is great fear among other passengers who are travelling in the aircraft to have a serious violent incident in such a small restricted area as an aeroplane. There is no escape from this very frightening experience. I am delighted that my noble friend has introduced this Bill to your Lordships' House. I hope that my noble friend will accept it and accelerate its journey on to the statute book.
§ 9.35 p.m.
§ Lord Mountevans
My Lords, I hope to be brief because so many of my points have already been well made, not least by my noble friend Lord Brabazon of Tara in his opening speech. Since leaving the Front Bench, he has developed a remarkable record in getting Private Members' Bills on to the statute book. I hope that his luck stays with him on this Bill. I share the view of all other speakers that it is a Bill of the greatest importance. Any Bill that is to do with transportation safety is a matter of the greatest importance. I believe that every speaker has used the word "safety", en passent, in his or her remarks.
The list of supporting bodies mentioned by my noble friend—I looked for the word "endorsements", but for those with driving licences, it means something else—underlines the importance that the aviation industry and related parties place upon our efforts tonight. While BARUK is essentially a body for foreign airlines, it has five or six British members. Although they are not covered by the Bill that we are discussing this evening, those airlines—our own very successful British industry—also support it. That seems to me to be of the greatest importance. That impresses me, as does the brief supplied to me by the police authorities at Manchester Airport. Recently voted the world's best airport, Manchester is at the heart of Euro 96, the European football championships. Football violence is a fact of life and is not confined to the Brits or to terra firma. The police at Manchester have experience 1801 of offences provided for under the Bill but not, alas, under the present legislation. We would do well to note the force's wish that they already had the powers which the Bill seeks to give them.
Many noble Lords have spoken of crimes of a personal nature: assault, affray, attempted rape and drunkenness. Another dimension is fire. Many airlines operate no smoking policies, including those that fly domestic sectors in the US where smoking in flight carries a penalty of up to $10,000. Much more insidious, vicious and certainly more dangerous are the asylum-seekers who, at embarkation, have survived the carrier's liability enforced (wrongly so in my view) upon all airlines flying to the United Kingdom. There are documented cases of such passengers who burn their passports and other relevant documents in flight. I have said before that the potential consequences of such activities terrify me.
Whether on-board offences are against people or property, they differ in two major respects from similar offences on the ground: one is safety; the other is that on the ground bystanders can walk away from an offence, but at 35,000 feet that is not an option.
More than 100 years ago the regulation of railways Act created the offence of endangering the safety of passengers on the railway. The powers are still used. Tonight, we are discussing the opportunity to give similar powers in respect of a specific group of aircraft. It relates perhaps to under 50 per cent. of those aircraft which arrive in this country, but it is a fairly broad band. As I and other noble Lords have said, safety must be our principal motivator. It is for that reason that I wish the Bill a happy landing.
§ 9.40 p.m.
My Lords, I must first congratulate my noble friend Lord Brabazon on introducing this Bill and on his helpful explanation of what it will achieve, and on all the support that he has received from around the Chamber.
I agree with my noble friend that it is wrong that someone should be able to escape prosecution for an offence committed on board an aircraft just because that aircraft was not registered in the United Kingdom. The Government agree that it is right that that anomaly should be addressed and the courts given jurisdiction over offences committed on a journey by air to the United Kingdom, if this country is the first place that the aircraft lands after the commission of the offence.
The Bill will require some amendment in Committee in order to ensure that the principle of dual criminality applies to offences committed on these aircraft; that is to say, that the act committed must be an offence both in this country and in the state of registration of the aircraft. In practice, I do not think that that condition will inhibit the prosecution of offenders, but it is an important principle. Our courts cannot take jurisdiction unless the act is a criminal offence in this country and should not take jurisdiction if the act is not an offence in the state of registration of the aircraft.
1802 I shall not detain your Lordships by adding to the catalogue of dreadful stories that we have heard. Suffice to say that I do not believe that they have been exaggerated. They are not occurrences which are too common, but they are common enough to give us concern.
The noble Viscount, Lord Simon, asked whether I had ever experienced while on duty in air traffic control an aircraft landing with troublesome passengers. That was not an experience which I ever had. The aeroplanes had usually one person on board and that was the pilot, who was often a test pilot. If there were any passengers, it was often a navigator, but no one more troublesome than that. I cannot say that they were not troublesome when on the ground, but certainly not in the air.
The noble Lord, Lord Lester, was kind enough to let me know that he was to raise the question of the implementation of Chapter 5 of the Tokyo Convention which deals with suspected offenders acting in breach of the convention. He will appreciate that questions relating to this country's compliance with its international obligations are serious ones to which we shall want to give fuller consideration than has been possible in the time available. I believe that I can reassure him in general terms. As my noble friend Lord Hacking said, Article 13 of the Tokyo Convention allows the commander of an aircraft landing in the UK to deliver to the British police any person who has committed an act on board the aircraft which would be an offence according to the law of the state of registration.
Article 13 imposes also an obligation on the UK to take delivery of that person; and a further obligation to take that person into custody, but onlyupon being satisfied that the circumstances so warrant".Custody may last onlyfor such time as is reasonably necessary to enable criminal or extradition proceedings to be instituted".The noble Baroness explained the difficulties with that.
In our view UK law implements that article. A person may be taken into custody on being delivered to the British police by the commander of an aircraft if the circumstances warrant it. Custody will be justified either by a provisional warrant under the Extradition Act 1989 or by the bringing of criminal proceedings, if the offence is one over which we have jurisdiction.
We do not consider that that part of the convention means that the UK must take criminal jurisdiction over all offences committed by persons who may be delivered to the British police under Article 13. Had that been the intention, the convention would have said so in Chapter 2. Moreover, the convention cannot be read as envisaging custody without the prospect of subsequent proceedings, either criminal or extradition. That would be contrary to other, more fundamental, principles of international law.
However, the effect of the Bill is to go beyond the convention by extending UK jurisdiction to offences committed on incoming aircraft. That will make it more likely that a person delivered to British police under Article 13 will be held in custody for the purpose of prosecution.
1803 Therefore, detention would be warranted if an offence was committed on a British registered aircraft or if a provisional warrant had been issued under the Extradition Act. As has already been said, the police would also detain someone who had committed an act of violence which endangered the safety of the aircraft or who had seized the aircraft, whatever the nationality of the offender or the state of registration of the aircraft. Those provisions flow from the Hague and Montreal Conventions rather than the Tokyo Convention, to which the opinion compiled by my noble friend Lord Hacking relates.
The Bill will give us jurisdiction over any offence committed on board a foreign registered aircraft landing in the United Kingdom. I hope that the noble Lord, Lord Lester, will find that explanation helpful. But, as I have already said, we wish to study his remarks carefully and will consider whether anything more is needed. At present our view is that adequate powers exist.
§ Lord Lester of Herne Hill
My Lords, I am grateful for the Minister's clear statement but, obviously, I should like to consider it when I read it in Hansard. Before she moves on perhaps I may ask one question. The Minister raised the possibility of limiting the scope of the Bill with a requirement of double criminality. My concern is that if the law of the state of Ruritania, for example, must be ascertained before a prosecution can take place a great deal of delay may well be caused while witnesses are within the jurisdiction. Is that necessary? Have any of the other countries—for example, the United States, Canada and Australia—which have asserted territorial jurisdiction limited themselves in that way rather than sensibly saying, "Our law will apply only to serious criminal offences which we will define". Presumably all nations would find them criminal. Every nation would regard assault, battery, rape and so forth as crimes of one kind or another. Therefore, is it necessary to include the provision for reasons of international diplomacy or otherwise? Is it not self-defeating and are we not frustrating the object of the Bill by introducing such limitation?
§ Baroness Blatch
My Lords, I do not have the information about all other countries. That is an important issue in respect of which I shall undertake work and return to the noble Lord. Dual criminality is a principle that we regard as important, other than transporting our own version of what is or what is not an offence for these purposes. All we would have to ascertain is whether an offence is an offence in another country. How the offence is dealt with in another country would not be material. It is a question of whether an act is an offence both in this country and in the country of registration. It is an important question and I wish to return to it.
I conclude by warmly welcoming the Bill and its introduction by my noble friend Lord Brabazon. On behalf of the Government, I wish it well through its remaining stages in your Lordships' House and in another place.
§ 9.48 p.m.
§ Lord Brabazon of Tara
My Lords, I am most grateful for the response that the Bill has received tonight. In concluding my opening speech I said that I hoped that Members on all sides of the House would give it a rousing endorsement and that it would become law fairly quickly. However, I did not expect quite such a rousing endorsement, including that from my noble friend the Minister.
I thank the noble Baroness, Lady Mallalieu, for her words of support. She was right to say that existing law applies only if the safety of the aircraft is endangered and that we were all right in that regard but not as regards the type of offence that has been described tonight.
As noble Lords will know, I am a great fan of the aviation industry and I do not wish to cause too much alarm and despondency by implying that such incidents happen on every flight every day. They do not. However, there are a sufficient number to make what we are tying to do tonight worthwhile. Both the noble Baroness and the noble Lord, Lord Lester of Herne Hill, said how difficult it is to try to deal with the problem through extradition. Obviously, that has been difficult because it is just not happening at the moment. Therefore, that problem is self-explanatory.
I very much enjoyed the speech of the noble Lord, Lord Lester of Herne Hill, and particularly his reminiscences of what the noble and learned Lord, Lord Wilberforce, said some 33 years ago. As the noble Lord said, aviation has moved on an enormous amount since then. The size of the aircraft has doubled and the distances which can be travelled non-stop have probably more than doubled. Nevertheless, what was said all those years ago is just as relevant today, if not more relevant than it was then. The noble and learned Lord, Lord, Lord Wilberforce, showed a great deal of foresight in saying what he did.
I am grateful to the noble Viscount, Lord Simon, for his support. He brought out the point that before very long we shall have non-stop flights halfway round the world, and the opportunity for this type of incident to occur on such a flight is obviously even greater.
I referred to the opinion which my noble friend Lord Hacking, with others, prepared for Qantas. I was grateful to him for giving the background to that opinion. There is the Tokyo Convention and other measures but this provision seems to me the simplest way of dealing with the problem. To amend the Civil Aviation Act 1982 by changing just a few words is the simplest and, I hope, the best way to deal with the matter.
My noble friend Lord Mountevans was kind enough to say that in recent years, since I left the Government Front Bench in 1992, I have had some success in getting Private Members' Bills through this House. I must confess that although I have managed to get a Bill through this House every year until now, they were all government hand-out Bills which started in the other place through the ballot. Therefore, that was not too difficult. If this Bill is passed, that will be the first time that I have managed to steer through a Bill which started 1805 in this House and which was not a government hand-out. My noble friend the Deputy Chief Whip is trying to indicate that there is no such thing as a government hand-out Bill, or at least that may be what he is trying to say. He and I know better than that, as do other noble Lords.
I am grateful to all those who have spoken, and particularly to the Minister. My noble friend agreed that there is an anomaly which needs addressing. She pointed out the possibility that the Bill may need to be amended in relation to dual criminality, and there was an interesting exchange between my noble friend and the noble Lord, Lord Lester. I am not a lawyer; if that is required in order for the Bill to reach the statute book, I am happy to take that on board.
Finally, I reiterate what I said at the end of my opening speech, to which my noble friend Lady Blatch referred. It is very frustrating for the police, witnesses and, in particular, victims of these crimes when there is no power to do anything about the crimes and the offender gets off scot free. As one noble Lord said, if I go into a pub on the way home this evening and there is a fight taking place I can walk out, but I cannot do that if I am on an aeroplane at a height of 35,000 feet. I can do nothing in that situation. I hope that this Bill will go some way towards addressing that problem.
§ Lord Hacking
My Lords, before my noble friend sits down, could I intervene? In his speech he referred to dual criminality and indicated that he would be happy to include such a provision if that enabled the Bill to pass through both Houses of Parliament. I wonder whether my noble friend and my noble friend the Minister could consider that issue more carefully. I believe that the noble Lord, Lord Lester, put his finger on the difficulty. I have examined the laws of Canada, Australia, and of the United States of America. I can tell your Lordships that none of those laws has a dual criminality requirement. I venture to suggest that that would be an unwise inclusion in the Bill. It would be very much better to rely upon our own law.
After all, the invitation has been made to us by overseas airlines, and effectively by overseas countries, in order to help them. To add the extra complication of having to apply the laws of other countries as well as our own is, in my view, unnecessary. Perhaps my noble friend would also comment on the fact that there is already protection in the system under the Bill; namely, that no prosecutions can be brought without the consent of the Director of Public Prosecutions? That prevents the prospect of the trivial type of offences coming in. Therefore, that mechanism is already available. I wonder whether my noble friends would agree to reconsider the principle of dual criminality.
§ Lord Brabazon of Tara
My Lords, I had not in fact thought about dual criminality; indeed, it was suggested by my noble friend the Minister. I merely said, perhaps naïvely, that if that was what was required to get the Bill through, then I would be happy to accept it. However, it is a Committee point. If amendments are tabled at that stage, then obviously that would be the time to debate the issue.
1806 I take the point that my noble friend Lord Hacking made that, at the beginning of the whole process, it is up to the police to decide whether to take action and that, following on from there, it is up to the Crown Prosecution Service to decide whether to do so. Indeed, action will not happen on its own; it is up to the relevant authorities, when the aircraft lands, to decide whether to take matters forward. That is a most important point. As I said, that is a matter which we can discuss in Committee. I shall of course be in touch with my noble friend the Minister or with her advisers on the matter. We shall see what transpires as a result.
On Question, Bill read a second time, and committed to a Committee of the Whole House.