Advanced Search

Channel Tunnel

The Channel Tunnel (Fixed Link)

The section provides an overview of the arrangements and protocols covering the management of the Channel Tunnel.

For guidance over jurisdictional issues, see <Jurisdiction: Law and Order Offences on UK/French/Belgian trains, and successive sections, below in this section.>

See also, <New Offences and extension of existing legislation> below in this section for guidance on these topics.


Principle

The Channel Tunnel is only one of a number of ways of entering the United Kingdom (UK) and in that sense it is the same as any sea or airport. But the Channel Tunnel is different because:

  • it is Great Britain's only land boundary with a foreign country.
  • frontier controls are not normally carried out at the point of entry to the UK or the foreign country, but are carried out at the point of departure.

The Tunnel is used by Eurotunnel's own shuttle services to carry road vehicles between the terminal areas at Cheriton in Kent and Coquelles in France, and by the national railways of the UK, France and Belgium operating passenger and freight services between their capital cities and beyond.

This guide is intended to assist prosecutors who will be making decisions about offences occurring in the Channel Tunnel, on trains using the tunnel and in control zones. It is not intended to be exhaustive. Some Crown Prosecutors have had time to become familiar with the Treaties and legislation. If further assistance is required, please contact Policy Group for help. Information on how the legal regime is working in practice would also be appreciated. Policy Group will need to be made aware of the practical difficulties encountered in dealing with offences occurring in the Tunnel, on trains using the Tunnel or in the control zones.

Top of page

Guidance

Documents To Consult

Documents you may need to consult:

  • The Treaty

A treaty between the United Kingdom of Great Britain and Northern Ireland and the French Republic concerning the construction and operation by private concessionaires of a Channel Fixed Link with Exchange of Notes Canterbury 12th February, 1986.

  • The Concession Agreement

The Channel Tunnel Concession Agreement of 14th March, 1986 between Eurotunnel and the United Kingdom and French governments dealing with the construction of the Tunnel.

  • The Act

The Channel Tunnel Act, 1987. Subordinate legislation (the Orders as described below) has been made in the exercise of powers conferred by Section 11 of the Act.

  • The Sangatte Protocol

The Protocol between the government of the United Kingdom of Great Britain and Northern Ireland and the government of the French Republic concerning frontier controls and policing, cooperation in criminal justice, public safety and mutual assistance relating to the Channel Fixed Link made at Sangatte 25th November, 1991. Terms defined in the Treaty have the same meaning in the Sangatte Protocol.

  • The 1993 Order

The Channel Tunnel (International Arrangements) 1993 Order. The "International Articles" referred to are provisions of the Sangatte Protocol which are brought into force in the United Kingdom in Schedule 2 (1993 Order Article 2(3)). The provisions of the Sangatte Protocol which are brought into force are: 1 (except 1(2)(f)); 2(1); 5-12; 14; 16-18; 19(2); 20­24; 26; 28-31; 34-36; 37(1); 38-44 and 46-47. By virtue of the 1993 Order the Sangatte Protocol as specified shall have force of law within the Tunnel system and within a control zone (and elsewhere for authorised purposes) (1993 Order Article 3(1)).

  • The 1993 Memorandum

The Channel Tunnel (International Arrangements) 1993 Order 1993 Explanatory Memorandum. This is intended to aid the interpretation of the 1993 Order.

  • The Tripartite Agreement and Protocol

This is an agreement and Protocol between the UK, Belgium and France concerning rail traffic between Belgium and the UK using the Channel Tunnel signed at Brussels on 15th December, 1993 which came into force on the 1 st December 1997.

  • The 1994 Order

The Channel Tunnel (Miscellaneous Provisions) Order, 1994 (www.hmso.gov.uk/si/si1994/uksi-19941405-en-1.htm#end) which came into force on 1st December 1997 implemented in the United Kingdom appropriate provisions of the Tripartite Agreement and Protocol.

  • The 1994 Memorandum

The Channel Tunnel (Miscellaneous Provisions) Order, 1994 Explanatory Memorandum which will aid the interpretation of the 1994 Order.

  • The Tripartite Agreement

The arrangement for the implementation of the agreement between Belgium, France and the UK concerning rail traffic between Belgium and the UK using the Channel Tunnel with respect to Frontier Controls on non-stop trains and cooperation in criminal justice. For trains to and from Belgium where a reference to the Tripartite Agreement or Protocol is noted "adjoining state" this should be taken to mean "other state".

  • The 1994 Security Order

The Channel Tunnel (Security) Order, 1994. (www.hmso.gov.uk/si/si1994/uksi-19940570-en-1.htm#end) (Archbold, 25-216)

  • The Technical Arrangements

Technical arrangements, including a map showing the extent of the control zones, drawn up between National Authorities deal with through trains and the carriage of firearms.

  • The Franco-British Arrangement for Through Trains

The Franco-British arrangement for the implementation of the Sangatte Protocol concerning frontier controls and policing, cooperation in criminal justice, public safety and mutual assistance with respect to frontier controls on through trains using the Channel Tunnel is implemented through written technical arrangements held locally at each frontier control point.

Top of page

Definitions

The following paragraphs define the important geographical areas, trains, operators, control zones and terminal control points.

Top of page

The Fixed Link and the Tunnel System

The Fixed Link is the twin bored railway tunnel with an associated service tunnel under the English Channel between Cheriton in Kent and Coquelles in France, including terminal areas and any freight and road link which may be agreed to form part of the Fixed Link (Treaty Article 1(2)). The detailed plans for the Fixed Link and its means of access delimit control zones, restricted zones, railway lines and the area of the frontier control installations and their means of access (Sangatte Protocol Article 14).

The Tunnel System is the Tunnel rail link with associated works facilities and installations (the Act Section 1(7)).

For the purposes of the 1993 Order the Fixed Link means the same as the Tunnel System (1993 Order Article 2(3)). Similarly in the 1994 Order the expression Fixed Link in the Tripartite Articles has the same meaning as the Tunnel System in Section 1(7) of the Act (1994 Order Article 2(3)).

Top of page

The Frontier Between English and French Territory

The frontier marks the division between the UK and France within the Tunnel. The land on the English side of the frontier is incorporated into England and forms part of the District of Dover in the County of Kent. The law of England applies in the normal way (the Act Section 10(1)). The frontier is marked with a line at the midpoint in the tunnel.

Top of page

Host State and Adjoining State

The host State means the State in whose territory the controls of the other State are effected. The adjoining State means the other State (Sangatte Protocol Article 1(2)(b) and (c); see also Tripartite Article 1(7); 1994 Order Schedule 2 part I). In other words, where French officers carry out frontier controls in a control zone in England, England is the host State and France the adjoining State, and vice versa.

Top of page

Shuttle Trains

Shuttle trains are trains travelling solely within the Fixed Link.

Top of page

UK/French Through Trains

Through trains are trains travelling through the Fixed Link, but originating and terminating outside it. The term through trains is intended to apply to passenger as well as to freight trains operating between capital cities and on regional services (for example, beyond London to other parts of the UK).

Top of page

UK/French/Belgian Trains

For trains travelling to and from Belgium:

  • trains means international trains travelling between Belgian and UK territory using the Fixed Link and travelling through French territory (Tripartite Agreement Article 1(3); 1994 Order Schedule 2 Part I);
  • non-stop trains means international trains travelling between Belgian and UK territory using the Fixed Link and crossing French territory without making a commercial stop but they may make a technical stop;
  • a commercial stop means that passengers may ordinarily leave or board the train;
  • a technical stop is for re-fuelling or maintenance. Tripartite Agreement Article 1(4); 1994 Order Schedule 2 Part 1);
  • a through train is a train other than a shuttle train which for the purposes of Sections 11 and 12 of the Act is engaged on an international service (1994 Order Schedule 1).

Top of page

Operators

The concessionaires are the person or persons who have the function of constructing and operating the Tunnel System (the Act Section 1(8)). In the UK this is Eurotunnel PLC. The concessionaires have made by-laws under the power conferred on them by Section 20 of the Act and these have been confirmed by the Secretary of State under Section 21 of the Act.

The by-laws deal with vehicles, restricted areas, interference with Eurotunnel operations and property, compliance with requirements of constables or Eurotunnel, other prohibited activities, prohibited and restricted goods, lost property, fire and safety precautions and animals.

Top of page

Control Zones

A control zone is the part of the territory of the host State (determined by mutual agreement between the governments) within which the officers of the adjoining State are empowered to effect controls. The control zone can be the train itself in the case of non-stop trains to and from Belgium.

Top of page

Control Zones for the Fixed Link

The two governments agreed to establish juxtaposed national control bureaux in the terminal installations situated at either end of the tunnel. This means that French frontier controls are carried out in what would otherwise be the UK, and vice versa.

Top of page

Control Zones: Shuttle Trains

Frontier controls are carried out in the terminal in the State of departure. In other words, people entering the Tunnel on the English side are cleared before they board the shuttle train so that they are free to leave immediately when leaving the Tunnel in France. Supplementary frontier controls may exceptionally be carried out in the Fixed Link by officers of the State of arrival on its own territory.

The delimitation of the control zones is drawn on maps. Broadly speaking, the control zones include the area in each terminal in which controls are conducted on passengers and on freight. Passengers and vehicles leaving the UK will pass through UK and French controls respectively in the control zone at Cheriton.

Passengers and vehicles leaving France pass through French and UK controls respectively in the control zone at Cheriton.

The control zone at Cheriton remains part of the UK, but French officers may exercise certain powers.

The control zone at Coquelles remains part of France, but UK officers may exercise certain powers.

In an emergency, the local representatives of the authorities concerned may, by mutual agreement, provisionally alter the delimitation of the control zones, if necessary (Sangatte Protocol Article 19(2)).

Top of page

Control Zones: UK/French Through Trains

Each State may carry out its frontier controls during the journey (Sangatte Protocol Article 7(1)).

The two governments may agree to an extension of the control zones for through trains as far as London and Paris respectively (Sangatte Protocol Article 7(2)) for example, in the event of breakdowns.

For passengers on through trains, the control zone will be the train itself on the route between terminal control points in London and Paris. At terminal control points the control zone will comprise the part of the track on which the train is standing, the parts of the track and the adjacent platforms on either side of the stationary train, the accommodation for officers and the direct lines of communication, stairways and passages between the platforms and track.

Frontier control checks will generally take place on board the through trains.

The control zone at the terminal control point in the host State may be used only for maintaining arrests and carrying out administrative functions (1993 Memorandum page 4).

Specifically, the control zone will comprise (Franco-British Arrangement Article 2):

  • with respect to controls during the journey, the train itself, (designated under Article 1(3) of the Franco-British Arrangement) on the route between the stations which constitute the terminals of the trains in the territory of each of the parties; or on the route between the stations at which a commercial stop is made, and which is situated one in France and the other in the UK which are designated as terminal control points; and
  • with respect to the operations carried out after controls referred to in the Franco-British Arrangement at Article 3 in the stations where such routes begin or end, the part of the track on which the trains are standing, the parts of the track and the adjacent platforms on either side of stationary trains, the accommodation placed at the disposal of the authorities of the adjoining State for performing their functions and the direct lines of communication, stairways and passages between the platforms and track and that accommodation.

Controls may be effected during the journey on all, or part, of the route, which extends between the stations which constitute the terminals of the trains in the territory of each of the parties. These stations are designated as terminal control points (Franco-British Arrangement Article 1(1)). The stations designated as terminal control points are (Franco-British Arrangement Annex):

For the UK For France
Waterloo International
London
Gare du Nord
Paris
Kensington Olympia
London
(not a commercial station)
Lille-Europe
Ashford International
Kent
Marne la Vallee/Chessy
Frèthun

The controls of the State of departure must not hinder the completion of those of the State of arrival. In practice, French and UK officers will probably move through the train together (Franco-British Arrangement Article 1(3)).

Top of page

Control Zones: UK/French/Belgian Trains

With regard to trains to and from Belgium, the control zone is the part of the host State which includes the non-stop trains within which the officers of the other States are empowered to effect controls (Tripartite Agreement Article 1(6); 1994 Order Schedule 2 Part I).

In an emergency the local representatives of the authorities concerned may by mutual agreement provisionally bring into effect alterations to the delimitation of the control zones which may prove necessary (Tripartite Protocol Article 7(2); 1994 Order Schedule 2 Part 11).

Top of page

Non-stop trains to and from Belgium

UK officers may exercise frontier controls in Belgian and French territory and Belgian officers in UK and French territory (Tripartite Agreement Article 4; 1994 Order Schedule 2 Part I). In principle, frontier controls on non-stop trains shall be effected under the exclusive responsibility of the UK and Belgian authorities (Tripartite Agreement Article 5; 1994 Order Schedule 2 Part 1), although the French authorities reserve the right to conduct controls (Tripartite Agreement Article 6).

In the event of a train stopping unexpectedly in French territory, passengers leaving the train will be required to submit to entry control by the French authorities (Tripartite Agreement Article 7). In an emergency, the local representatives of the authorities concerned may, by mutual agreement, provisionally bring into effect alterations to the delimitation of the control zones which may prove necessary (Tripartite Protocol Article 7(2)).

In practice, Belgian officers will rarely be on board trains, but will instead conduct frontier controls at Brussels-Midi Station. The French reserve the right to conduct controls, but will probably normally not be on board.

Top of page

Control Zones: Operation of Data Protection Legislation

Articles 4(2) and (3) of the 1993 Order extend to a control zone in France data protection legislation which provides safeguards against the misuse of computerised personal data.

This means that data used, or processed, by UK Police, Immigration, Customs Officers or other officers in a control zone will not be subject to French data protection law. It is subject to the provisions of the Data Protection Act, 1984 in the same way as other data used or processed in the UK by any other officials under the Act.

Similarly, French data protection law will apply to data used, or processed, by French officers in their control zones in England. These data will be exempt from UK data protection legislation.

For UK/French/Belgian trains, see the 1994 Order Articles 4(2) and (3).

Top of page

Terminal Control Points

A terminal control point is a place which is an authorised terminal control point for international services for the purposes of Sections 11 and 12 of the Act (1993 Order Schedule 1; 1994 Order Schedule 1).

International Service means any service (including a shuttle service) for the carriage of passengers or goods by way of the Tunnel System (the Act Section 13(6); 1993 Order Schedule 1; 1994 Order Schedule 1).

Top of page

International Stations

International Stations are formally designated by the Immigration (International Stations) Order, 1994 for the purposes of the Immigration Act, 1971. At present, Waterloo International and Kensington Olympia are designated as far as London is concerned and Ashford International is designated in Kent.

Top of page

Officers

Officers are persons responsible for policing and frontier controls who are under the command of persons or authorities designated in accordance with Article 2(1) of Sangatte Protocol (i.e. by their respective governments) (Sangatte Protocol Article 1(2)(d); Tripartite Agreement Article 1(5); 1994 Order Schedule 2 Part 1). The term officers is intended to refer to those with operational functions and does not include administrative and support staff who do not.

The policing of the UK part of the tunnel system is undertaken by the Kent Constabulary (the Act Section 14(1)).

On through trains, policing can also be undertaken by the Metropolitan Police and the British Transport Police.

UK officers exercising their functions in the control zones will include Immigration, Customs and Excise and Special Branch Officers. Note: Schedule 3 of the 1993 Order ("Powers of Officers") also applies to trains to and from Belgium with the modification specified in the 1994 Order in Schedule 3.

Top of page

Officers' Authority in the Fixed Link and on Trains

Within the Fixed Link, each government permits officers of the other State to carry out their functions in its own territory in exercising the officers' frontier control powers (Sangatte Protocol Article 8). Officers of both States can circulate freely in the whole of the Fixed Link for official purposes. (Sangatte Protocol Article 26).

With regard to through trains, the train itself will generally be a control zone so that officers will be able to exercise their frontier control powers while on the train.

With regard to trains to and from Belgium, the officers of the three States are authorised to circulate freely over the whole of the route between London and Brussels for official purposes (Tripartite Agreement Article 5; 1994 Order Schedule 2 Part I).

On non-stop trains, UK officers may exercise frontier controls in Belgian and French territory and Belgian officers in UK and French territory (Tripartite Agreement Article 4; 1994 Order Schedule 2 Part 1).

Top of page

Officers' Authority in the Control Zones

Within the control zone, officers of the adjoining State are permitted to exercise any power of arrest conferred by a frontier control enactment or conferred by the Police and Criminal Evidence Act, 1984 in respect of an offence under such an enactment relating to frontier controls of their own State; and shall be permitted to detain or arrest persons sought by the authorities of their own State or wanted on warrant and conduct such persons to the territory of their State (Sangatte Protocol Article 10(1); 1993 Order Article 3(2); Tripartite Protocol Article 3(1); 1994 Order Schedule 2 Part II).

A person sought by the authorities of their own State has been defined in the 1993 Order as a person whose name or description, or both, together with particulars of an arrestable offence, (within the meaning of Section 24 of PACE) of which there are reasonable grounds for suspecting him to be guilty, have been made available by a Chief Officer of Police to other such officers (1993 Order Schedule 3 Paragraph 2(l)(c)).

With regard to through trains from Belgium, Belgian and French officers have, to the extent specified in the Tripartite Articles rights, obligations and powers to carry out functions in the UK (1994 Order Article 3(2)).

Top of page

Protection of Officers

The host State grants the same protection and assistance to officers of the adjoining State in the exercise of their functions as they grant to their own officers (Sangatte Protocol Article 29(1)). Provisions of the criminal law in force in the host State for the protection of officers in the exercise of their functions apply equally to the punishment of offences committed against officers of the adjoining State in the exercise of their functions (Sangatte Protocol Article 29(2); Tripartite Protocol Article 13(2); 1994 Order Schedule 2 Part III).

Therefore, French (and Belgian) police officers have the protection of the offence created by Section 51 of the Police Act, 1964.

Top of page

Offences Committed by Officers: Prosecution

Officers of the adjoining State may not be prosecuted by the authorities of the host State for any acts performed in the control zone or within the Fixed Link whilst in the exercise of their functions. In such a case they come under the jurisdiction of the adjoining State as if the act had been committed in that State. (Sangatte Protocol Article 30(2); Tripartite Protocol Article 14(2); 1994 Order Schedule 2 Part II). See paragraphs 143 to 152 for determination of jurisdiction. For the definition of "whilst in the exercise of their functions" see paragraphs 153 to 160.

The judicial authorities or the police of the host State, having taken steps to record the complaint and to assemble the relevant facts will communicate all the particulars and evidence to the competent authorities of the other State for the purposes of a possible prosecution according to the laws in force in that State (Sangatte Protocol Article 30(3); Tripartite Protocol Article 14(3); 1994 Order Schedule 2 Part H).

Top of page

French Officers

The two French authorities exercising authority in the Channel Tunnel and control zones are:

  • the Police aux Frontières (PAF): the frontier police who deal with immigration, passport controls, air navigation orders and who, on the French side of the Channel Tunnel, are responsible for the maintenance of law and order. PAF staff French entry controls in the control zone at Cheriton and carry out controls and law and order duties in Coquelles;
  • the Douane (Customs); who also have a security role (with respect, for example, to detection of bombs and guns).

Top of page

Jurisdiction Over Offences

It is important to remember that different legal regimes exist for law and order offences in the Fixed Link (including the control zones at Cheriton and Coquelles) and on trains, and for frontier control offences detected in the control zones.

Different rules apply in the following situations:

  • Law and order offences which occur in the Fixed Link on shuttle trains or on UK/French through trains in the Fixed Link (including the control zones);
  • Law and order offences which occur on UK/French through trains which are not in the Fixed Link;
  • Law and order offences which occur on UK/French/Belgian trains; and
  • Frontier control offences and the detection or arrest of persons sought which occur in the control zones (the control zone can be the train itself in the case of UK/French through trains or UK/French/Belgian trains).

Law and order offences will be dealt with separately from frontier control offences.

Top of page

Jurisdiction: Law and Order Offences in the Fixed Link

The key question is whether the English courts have jurisdiction over the offence. Jurisdiction may be established either as a matter of fact or as a matter of law.

After jurisdiction is established, the criteria in the Code for Crown Prosecutors must be considered in the usual way (see below for information on the determination of jurisdiction).

Inside the tunnel, the English side of the frontier is part of England, and accordingly the law of England applies to it (the Act Section 10(1)). Beyond the frontier is France, and the law of France applies to it. When an offence is committed in the territory of the UK or France, including the territory within the Fixed Link, up to its frontier that State has jurisdiction (Sangatte Protocol Article 38(1)). Therefore if it is clear that an offence occurred on the English side of the frontier (for example because it occurred only a few minutes after leaving the English terminal) English law will apply.

Similarly, if a law and order offence occurs in a control zone in England, the area is clearly part of English sovereign territory and English law will apply.

If there is an allegation that a law and order offence has been committed by a French or Belgian officer on the English side of the frontier, refer to paragraph 143.

Example:

  • a man leaving a through train at Waterloo is being escorted to the accommodation assigned to French Officers. On the way he argues with another man and hits him. The English courts have jurisdiction over the offence.

In addition, there are three situations in which either State has jurisdiction and either can apply its own law (Sangatte Protocol Article 38(2)(a)):

  • when it cannot be determined with certainty where an offence has been committed; or
  • when an offence committed in the territory of one State is related to an offence committed in the territory of the other State; or
  • when an offence has begun in or has been continued into its own territory.

If this occurs:

  • the State which first receives the person suspected of having committed an offence in those circumstances has priority in exercising jurisdiction (Sangatte Protocol Article 38(2)(b));
  • if the receiving State decides not to exercise its priority jurisdiction, it must inform the other State without delay;
  • the other State may then exercise jurisdiction over the offence but if it decides not to; then
  • the receiving State shall be obliged to exercise its jurisdiction (Sangatte Protocol Article 38(3)).

The decision about whether or not to accept jurisdiction under Sangatte Protocol Article 38(2)(b) may to some extent be determined by practical considerations. These might include the seriousness of the offence, the convenience of the immediate presence of the alleged offender, the victims and witnesses on one or the other side of the Fixed Link and the nationality of the persons involved. If the victim, the witnesses and the alleged offender are all French this would suggest that the UK might decline jurisdiction. If the parties are of mixed nationality the decision is more difficult.

Precise information about where a particular train was at a certain time in its journey through the tunnel may be available from Eurotunnel. So if witnesses can say that an offence occurred 30 minutes from the time at which the train left the English terminal, Eurotunnel will be able to give an indication of where that train was at the time.

If a person is charged with an offence the Crown Prosecutor must first enquire whether the English courts have jurisdiction (as a matter of fact or law) before proceeding to apply the Code.

Examples:

  • a French woman's purse is stolen from her during the journey to England in a shuttle train. She has no idea when the theft occurred. As she arrives at the English terminal she sees her purse in the possession of a French man. He is arrested by the Kent Police and taken to a Police station where all of the woman's property is recovered. The Custody Officer decides to decline jurisdiction, and informs the French authorities. The French authorities also decline jurisdiction. In that case, the Custody Officer is obliged to accept jurisdiction and to decide whether or not the man should be charged just as he would if he were dealing with any person in his custody alleged to have committed an offence;
  • a theft occurs minutes after the train leaves the English terminal. Based on the times given by witnesses, Eurotunnel confirms that the train was on the English side of the frontier. The theft has clearly occurred on English territory and jurisdiction over the offence is English (Sangatte Protocol Article 38(1));
  • a French woman is raped by a stranger whilst she is travelling on a train in the tunnel to England. She thinks that the rape occurred in the middle of the journey, but cannot give a precise time. A French man who matches the description she gave to the police is taken into custody. England is the "first receiving" State. The Custody Officer will probably decide that England is able to accept jurisdiction because it cannot be ascertained with certainty where the offence was committed (Sangatte Protocol Article 38(2)(i)). However, as both the victim and the accused are French the Custody Officer may decline to accept jurisdiction for practical reasons and notify the French authorities of this;
  • English football supporters returning from a match commit numerous acts of criminal damage on a shuttle train as it travels through the Tunnel from France to England. Some acts of criminal damage probably took place in France and some in England. It is difficult to separate out all the acts of criminal damage in terms of where they were committed. Some witnesses are French and some are British, including some UK police officers. The first receiving State is England. After an examination of the facts the Custody Officer may decide that England may exercise jurisdiction over all the offences as the offences which occurred in France were related to those committed in England (Sangatte Protocol Article 38(2)(ii)). The Custody Officer will probably decide to accept jurisdiction because the accused are British and many of the witnesses are British, including some police officers;
  • After the train leaves the French terminal a British man quarrels with a Frenchman and then attacks him physically. The assault lasts most of the journey. Witnesses are both British and French. Upon arrival in England the Frenchman reports the offence. The Custody Officer will probably conclude that England has jurisdiction over the offence as it began in France and continued into England (Sangatte Protocol Article 38(2)(iii)). The Custody Officer may well decide to accept jurisdiction as the offender was British and many of the witnesses are British and all persons involved are available to be interviewed at the terminal at Cheriton.

Top of page

Summary

Part VI of the Sangatte Protocol (Articles 38-41) enables the authorities to avoid having to institute extradition proceedings in the circumstances described above.

It should be noted that strict time limits apply to action authorised under Part VI of the Sangatte Protocol. If these limits are not observed, normal extradition arrangements may be the only alterative method of recovering suspects.

Top of page

Jurisdiction: Law and Order Offences on UK/French Through Trains

The Channel Tunnel Byelaws 1994 apply to the UK section of the tunnel. On a through train, passengers can move about the length of the train (a quarter of a mile) and there are retail outlets, refreshments (including alcohol) and meals are available. The journey time is much longer and the usual local rail by-laws apply in the United Kingdom.

Offences may occur on through trains either when they are in the Tunnel, or when the train is in either England or France. If the offence occurs while the train is in the Tunnel, the procedures outlined above in Section 6.1 will be followed. If the offence occurs in either England or France, the offence will be dealt with in the same way as if it had occurred on any train in those countries.

Complications arise when officers of one State are present, or are appealed to for assistance, when an offence occurs while the train is in the other State's territory. Only the citizen's power of arrest is then available to the foreign officer.

Top of page

Jurisdiction: Law and Order Offences on UK/French/Belgian Trains

When an offence is committed on a train travelling to or from Belgium on the territory of one of the three States, that State has jurisdiction.

When it cannot be ascertained where the offence has been committed, the State of arrival has jurisdiction (Tripartite Agreement Article I 1; 1994 Order Schedule 2 Part 1).

Top of page

Jurisdiction: Frontier Control Offences

The law and regulations relating to frontier controls of the adjoining State apply in the control zone in the host State.

These are enforced by the officers of the adjoining State in the same way as the officers would enforce them in their own territory (Sangatte Protocol Article 9).

Accordingly, any act or omission which takes place outside the UK in a control zone (ie in France or Belgium) which would, if taking place in England, constitute an offence under a frontier control enactment, is treated as taking place in England (1993 Order Schedule 2 Part II; Sangatte Protocol Article 11; Tripartite Protocol Article 2(1); 1994 Order Schedule 2 Part II).

Officers of the adjoining State, in the exercise of their national powers, are permitted in the control zone in the host State to detain or arrest persons in accordance with the laws and regulations relating to frontier controls of the adjoining State. These officers are also permitted to conduct such persons to the territory of the adjoining State. (Sangatte Protocol Article 10(1)).

Frontier Controls means police, immigration, customs, health, veterinary and phytosanitary, consumer protection and transport and road traffic controls as well as any other controls provided for in national or European community laws and regulations (Sangatte Protocol Article 1(2)(a); Tripartite Agreement Article 1(1); 1994 Order Schedule 2 Part 1).

In practice, the main types of UK frontier controls are:

  • Passport checks by the Immigration Service;
  • Anti-smuggling controls by Customs and Excise;
  • Prevention of terrorism by Special Branch Officers; and
  • Measures taken by the Ministry of Agriculture, Fisheries and Food to prevent the spread of rabies, checks by the Department of Health to prevent the spread of communicable diseases and vehicle inspections by the Vehicle Inspection Executive Agency.

Top of page

Detention or Arrest of Persons Sought in the Control Zones

Article 10 of the Sangatte Protocol gives officers of the adjoining State powers to detain wanted persons in the control zone of the host State.

Article 10 also permits the officers to conduct such persons to the territory of the adjoining State.

The adjoining State's jurisdiction within a control zone is:

  • jurisdiction over frontier control offences; and
  • persons sought.

If an incident amounting to an offence occurs in a control zone in England which is not itself a frontier control offence, the English police will be responsible for the offender and the English courts will have jurisdiction.

Similarly, with regard to trains to and from Belgium, breaches of the laws and regulations relating to frontier controls of the other States which are detected in the control zone in the host State shall be subject to the laws and regulations of those other States as if the breaches had occurred in the territory of the latter. (Tripartite Protocol Article 4; 1994 Order Schedule 2 Part II).

For the purpose of enabling UK officers to carry out frontier controls, all frontier control enactments shall extend to control zones in France and Belgium (1994 Order Article 4(1)).

Any act or omission which takes place outside the UK in a control zone which would, if it took place in England, constitute an offence under a frontier control enactment shall be treated as talking place in England (1994 Order Article 5(1)).

A frontier control enactment is an Act or an instrument made under an Act which contains provision(s) relating to frontier controls. (1994 Order Schedule 1).

Top of page

New Offences and Extension of Existing Legislation

Some new offences have been created and some existing enactments have been modified to cover offences occurring in the Fixed Link. These include:

  • by-laws made by the concessionaires (the Act Section 20);
  • by-laws made by the Railways Board under Section 67 of the Transport Act, 1962 apply regarding persons and goods being conveyed by the Railways Board on any railway of the concessionaires (the Act Section 22);
  • with possible modifications, enactments relating to road traffic regarding any Tunnel System road to which the public does not have access (as they apply regarding any road to which they do have access) (the Act Section 22);
  • Railway Regulation enactments as dealt with in Schedule 6 of the Act;
  • offences created by Section 17 of the Act which deals with inter­governmental supervision of construction and operation;
  • offences in Part II of Schedule 3 of the 1993 Order regarding animals capable of carrying the rabies virus (see also the 1993 Order Schedule 5 Part ][I paragraph 2);
  • offences under the Immigration Act, 1971 in Schedule 4 of the 1993 Order paragraph 1;
  • offences under the Channel Tunnel (Customs and Excise) Order, 1990 and the 1993 Order Schedule 5 Part H paragraph 7-33;
  • offences under the Terrorism Act 2000 as amended by the 2001 Order ; and
  • offences under the Channel Tunnel (Security) Order, 1994 (see the 1994 Security Order) (Casework Directorate has drafted precedents for these offences).

Top of page

Arrest and Detention

The following guidance applies to law and order offences in the Fixed Link on shuttle trains, UK/French through trains, or in control zones.

Top of page

Power to arrest: Fixed Link; UK/French Through Trains; and Control Zones

An officer's usual power of arrest will apply when the officer is in his or her own State's territory.

In addition, the police and customs officers of one State may, in accordance with their own national laws, make arrests on the territory of the other State in cases where a person is found committing, attempting to commit or just having committed an offence:

  • on board any train which has commenced its journey and is within the Fixed Link; or
  • within any Tunnel as in Article 2(1) of the Treaty (Sangatte Protocol Article 40).

The Sangatte Protocol Article 40 power of arrest does not extend to control zones or to through trains which are not in the Tunnel.

The only power to arrest left to UK police officers in France (on a train or otherwise) is the French citizen's power of arrest. The police have been instructed on this power.

Consequently, a UK Police Officer's Article 40 power of arrest on a through train will only operate during the time when the train is in the Fixed Link. As shuttle trains only travel in the Fixed Link, an officer on a shuttle train will retain the "found committing" power for the entire journey.

Examples:

  • a UK Police Officer sees a man assault another man shortly before the shuttle train arrives at the French terminal in Coquelles and while the train is still in the tunnel. He may arrest the man under the Sangatte Protocol Article 40 "found committing" power; and
  • a UK Officer on a through train which is in the tunnel sees a man rush from a compartment and past him. He is told by a woman in the carriage that the man has sexually assaulted her. The officer may arrest the man under the Sangatte Protocol Article 40 "just having committed" power of arrest.

Top of page

"Continuing" Arrests

When an arrest has been made for an offence in respect of which a State has jurisdiction under Article 38 of the Sangatte Protocol, that arrest shall not be affected by the fact that it continues in the territory of the other State (Sangatte Protocol Article 39).

For the limited purpose of enabling constables to make arrests in France as in Sangatte Protocol Article 40, Sections 24 and 25 of PACE extends to France (1993 Order Schedule 3 paragraph 2(4)).

When an arrest has been made for an offence of the kind mentioned in Sangatte Protocol Article 39 (an arrest continuing onto the territory of the other State) and it falls to the competent authorities in France to determine the exercise of jurisdiction in accordance with Sangatte Protocol Article 38, the person arrested is treated as continuing to be under arrest while in France until he or she is presented to those authorities as required by Sangatte Protocol Article 41(a) (1993 Order Schedule 3 paragraph 2(5)). (For search powers see 1993 Order Schedule 3 paragraph 2(7)).

A person who enters France while under arrest of the kind authorised by the 1993 Order Schedule 3 paragraph 2 (control zone arrests and "continuing" arrests) may not be held in France for more than 24 hours (or a further 24 by extension) and that person shall be treated as if the place he or she is held were a police station or Customs Office (with some exceptions) (1993 Order Schedule 3 paragraph 3(1)).

Example:

  • a UK police officer arrests a man for an assault on a through train just after the train has left Cheriton. The man is still under arrest after the train crosses the frontier.

Top of page

Detention

When a person is detained in the UK pending a decision about jurisdiction, certain PACE provisions apply (1993 Order Schedule 3 Part I paragraph 4).

The French police have been informed that when a person is arrested on a train, or in the tunnel, and detained in Britain he or she has the following rights:

  • the right to consult a solicitor. This consultation is not subject to a time limit and the solicitor may be present should the prisoner be interviewed. Although the solicitor may make representations about jurisdiction he or she will have no right to participate in the consideration of jurisdiction;
  • the right to have someone informed of his or her arrest, this not being limited only to close members of his or her family. If the person to be informed is in France, details will be given to the PAF for them to take the necessary action. A UK police officer of the rank of Superintendent may authorise a delay in giving information; and
  • The exercise of prisoners' rights is not meant to delay his or her being handed to the French authorities once it has been decided that the French should exercise jurisdiction.

A person detained in France will be held subject to French law.

Top of page

Determination of Jurisdiction

The person arrested will be presented without delay to the competent authorities of the State of arrival for that State to be responsible for determining the exercise of jurisdiction as required by Sangatte Protocol Article 38 (Sangatte Protocol Article 4 1 (a)).

Where an arrest falling within Sangatte Protocol Articles 39 or 40 has been made and the person arrested enters the UK while under arrest, the person arrested shall be taken to a Police Station (1993 Order Schedule 3 paragraph 4(1) as amended by the 1994 Order Schedule 3 paragraph 5).

At the police station the custody officer shall determine:

  • whether the UK has jurisdiction under Sangatte Article 38(1); and
  • if the UK does not have jurisdiction under Article 38(1) whether the UK may exercise jurisdiction by virtue of Sangatte Protocol Article 38(2) and if so whether jurisdiction is to be exercised (1993 Order Schedule 3 paragraph 4(2)).

The Custody Officer may well seek the advice of a Crown Prosecutor in determining these questions. (Any advice given by the Crown Prosecutor is intended to assist the UK Police).

For the purpose of determining these questions the person may be detained at the police station no longer than the permitted period of 48 hours (1993 Order Schedule 3 paragraph 4(3)). A person so detained is treated as not being detained under Section 37 of PACE and as not being in police custody under Sections 40­43 of PACE (1993 Order Schedule 3 paragraph 4(4)). Once the Custody Officer decides that the UK has, or may exercise, jurisdiction, the person will be informed of the decision and PACE will apply (1993 Order Schedule 3 paragraph 4(6)).

The Kent police and the French police have agreed that following the arrival at Longport Police Station (the police station at the English side of the tunnel) communication and negotiation concerning jurisdiction will be opened with the Procureur with the assistance of an Officer de Police Judiciaire (OPJ). The Procureur or a substitute will be available on a 24 hour basis.

Top of page

Transfer to the other State

When it is decided that jurisdiction will be exercised by the other State, the person may be transferred to the territory of that State. Any such transfer must take place within 48 hours of the presentation of that person, under Sangatte Protocol Article 41(a) (Sangatte Article 41(b)).

The likely means by which the person will be transferred to the territory of the other State by the UK is by handing the person over to the French authorities in the control zone. The French police will then escort the person to France. Conversely, when the French police return a prisoner to Kent police officers in the UK control zone in France, that prisoner may be transported through the Tunnel to England.

If, however, this transfer does not take place within the proscribed time limits it is likely that the only recourse would be for the prosecuting authorities to resort to formal extradition proceedings.

<See Extradition elsewhere in this guidance>

Top of page

Assistance in Investigations

When investigations and proceedings concern offences committed in the Fixed Link, or having a connection with the Fixed Link, the authorities of the host State shall, at the request of the authorities of the adjoining State, undertake official enquiries, examination of witnesses and experts and notification to accused persons of summonses and administrative decisions (Sangatte Protocol Article 16).

This assistance has to be provided in accordance with the laws, regulations and procedures in force in the State providing the assistance, and with international agreements to which that State is a party (Sangatte Protocol Article 17).

This provision might be used by the Crown Prosecutor to request the UK police to liaise with French police to gather further evidence from witnesses who may be in France. Statements taken abroad are admissible in committal proceedings, but cannot be admitted as part of the prosecution's case in evidence at trial (R - v ­ - Bateman, Cooper and Davies 156 IP 193; CA 1991). It may be advisable to check with Policy Group as to the current legislative position.

Please also note that the usual rules of mutual legal assistance apply to offences occurring in the Fixed Link or on trains in the Channel Tunnel.

<refer to Letters of Request elsewhere in this guidance>

Power of Arrest on UK/French Through Trains

Officers have their usual power of arrest when the train is in their own State's territory. In the territory of a foreign State, only the citizen's power of arrest is available. When the train is in the Fixed Link, the officer has the Sangatte Protocol Article 40 power of arrest (see above).

Example:

  • an English police officer on a through train sees a woman steal a wallet from a man just before the train arrives at the Gare du Nord. The only arrest power available to the officer is the French citizen's power of arrest.

The officers of the adjoining State have the right to take from the train and hold in the accommodation provided for the officers of that State, persons detained or arrested, goods awaiting clearance, detained or seized and objects that have been used to conceal fraud, together with any evidence (Franco-British Arrangement Article 3(1)). These will be returned to the adjoining State on the first train that can reasonably be used for the purpose (Franco-British Arrangement Article 3(2).

The authorities of the host State will give such assistance as is necessary to the officers of the adjoining State to maintain in exceptional circumstances the custody of persons who have been arrested or detained (Franco-British Arrangement Article 3(3)).

Top of page

Power of Arrest on UK/French/Belgian Trains

Note that Schedule 3 of the 1993 Order ("Powers of Officers") extends to trains to and from Belgium with specified modifications. With regard to trains to and from Belgium, when a person is arrested in a manner covered by Articles 6, 12, 13 and 14(2) of the Tripartite Agreement the arrest shall be notified without delay to the authorities of the State of arrival (Tripartite Agreement Article 15(1); 1994 Order Schedule 2 Part 1).

When a person is arrested in a manner covered by Articles 6, 12, 13 and 14(2) of the Tripartite Agreement the arrest shall be notified without delay to the authorities of the State of arrival (Tripartite Agreement Article 15(1); 1994 Order Schedule 2 Part I).

Top of page

Continuing Arrests on UK/French/Belgian Through Trains

When an arrest is made for an offence in respect of which one State has jurisdiction under Article 11 of the Tripartite agreement the arrest shall not be affected by the fact that its effects continue in the territory of the other States (Tripartite Agreement Article 12; 1994 Order Schedule 2 Part I).

Top of page

Transfer of Arrested Persons

The person arrested may be transferred to the territory of the State which has jurisdiction under Article 11 of the Tripartite Agreement (Tripartite Agreement Article 15(1); 1994 Order Schedule 2 Part I). Any such transfer shall take place within no more than 24 hours of the notification of the arrest. Each State reserves the right not to authorise the transfer of its own nationals (Tripartite Agreement Article 15(2); 1994 Order Schedule 2 Part I).

Top of page

Custody and Detention

Persons found committing, attempting to commit or just having committed an offence and who are arrested on the train during the journey shall be handed over as soon as possible to the empowered officers of the State which has jurisdiction under Article 11 of the Tripartite Agreement (Tripartite Agreement Article 13; 1994 Order Schedule 2 Part I).

If a person is found committing, attempting to commit or just having committed on board a train in the territory of a State one of the following offences: homicide, rape, arson, armed robbery, kidnapping and hostage talking, or the use of explosives, the train must be stopped to enable the competent authorities of that State to take any measures relevant to their investigations and, where appropriate, detain the person suspected of having committed the offence. If the train cannot be stopped, officers present must take all appropriate interim measures. (Tripartite Agreement Article 14; 1994 Order Schedule 2 Part I).

No person may be held for more than 24 hours in the areas reserved for frontier controls in the host State. Any such detention shall be subject to the requirements and procedures laid down by the legislation of the State of the officers who have made the detention or arrest (Tripartite Protocol Article 3(2); 1994 Order Schedule 2 Part 1).

Top of page

Determination of Jurisdiction on UK/French/Belgian Through Trains

When an offence is committed on the territory of one of the three States (Belgium, France or the UK) that State shall have jurisdiction (Tripartite Agreement Article 11 (1); 1994 Order Schedule 2 Part 1). Where it cannot be ascertained where an offence has been committed the state of arrival shall have jurisdiction (Tripartite Agreement Article 11(2); 1994 Order Schedule 2 Part I).

Top of page

Frontier Controls: Control Zones: power to arrest

Officers of the adjoining State, in the exercise of their national powers, are permitted in the control zone in the host State to detain or arrest persons in accordance with the laws and regulations relating to the frontier controls of the adjoining State, and are permitted to conduct such persons to the territory of the adjoining State (Sangatte Protocol Article 10(1); see also the modifications which apply to trains to and from Belgium in the 1994 Order Schedule 3).

For the powers of arrest by UK constables outside the UK in a control zone, see 1993 Order Schedule 3 paragraph 2; Tripartite Protocol Article 3(1); 1994 Order Schedule 2 Part II). Paragraph 2(2) identifies particular legislation under which specific powers of arrest may be exercised. It provides that the definition of constable in paragraph 2(1) may include immigration and customs officers as well as police officers for those purposes. Immigration Officers may arrest persons who are suspected of facilitating the entry of illegal entrants. They may also arrest persons who are liable to be detained under the Immigration Act, 1971. A customs officer may make arrests in accordance with Section 138 of the Customs and Excise Management Act, 1979 and the Drug Trafficking Offences Act, 1986. The powers of arrest of examining officers under the Terrorism Act 2000 will also be available in a control zone.

Any power conferred by an enactment to search an arrested person may be exercised following an arrest authorised by the 1993 Order Schedule 3 Part I paragraph 2 (control zone arrests) as if the person had been arrested in the United Kingdom (1993 Order Schedule 3 Part I paragraph 2(7)).

Examples:

  • a UK citizen is stopped in the UK control zone at Coquelles after having passed through French exit controls. She is found to be concealing a small dog in her baggage. She may be arrested for attempting to evade the controls on the importation of mammals capable of carrying the rabies virus under the Rabies (Importation of Dogs, Cats and other Mammals) Order, 1974 as amended; and
  • a UK Customs and Excise Officer working in the control zone at Coquelles finds, after a lawful search, that a British citizen is in possession of a large amount of controlled drugs. The person may be arrested and taken to the UK.

Top of page

Frontier Controls: Control Zones: detention

No person may be held more than 24 hours in the areas reserved in the host State for the frontier controls of the adjoining State (Sangatte Protocol Article 10(2)). In exceptional circumstances the 24 hour period may be extended for a further 24 hours in accordance with the legislation of the adjoining State. The extension of the period of detention shall be notified to the authorities of the host State (Sangatte Protocol Article 10(3)).

Any detention in a control zone under Article 10 must be subject to the requirements and procedures laid down by the legislation of the adjoining State. For UK authorities operating in a control zone in France the relevant provisions are to be found in PACE, the Customs and Excise Management Act, Terrorism Act 2000 and the Immigration Act.

The 1993 Order Schedule 3 Part I paragraph 3 sets out the conditions and provisions which apply to arrested persons held in France (see paragraph 3 for details). A person arrested in a control zone in France, or a person who enters France while under arrest of a kind authorised by 1993 Order Schedule 3 paragraph 2 (control zone arrests and "continuing" arrests) may not be held in France for more than 24 hours (or a further 24 by extension) and that person shall be treated as if the place he or she is held were a (non-designated) police station or customs office (with some exceptions) (1993 Order Schedule 3 paragraph 3(1)).

Top of page

Frontier Controls: Control Zones: temporary custody

When a French Officer in a control zone in the UK arrests or detains a person as permitted by Sangatte Protocol Article 10(1), a constable or officer of Customs and Excise may, if requested, make arrangements for the person to be taken into temporary custody. If taken into temporary custody, that person (1993 Order Schedule 3 paragraph 1; 1994 Order Schedule 3):

  • shall be treated as being in lawful custody (it will not be the duty of the Custody Officer to question the validity of the arrest under French law);
  • may be taken to a police station or such other place as may be appropriate, and in that case some of PACE applies (Sections 36(7) and (8), 54-56, and 58); and
  • must be returned before the end of the period stipulated in Sangatte Protocol Article 10 (24 hours or a further 24 hours by extension) to a place where detention under Sangatte Protocol Article 10 can be resumed.

Top of page

Frontier Controls: Control Zones: assistance in investigations

The Kent police and the French police have agreed that following the decision on jurisdiction over a control zone offence, any evidence gathered by the other State will be handed to the State exercising jurisdiction. When the evidence is collected by a UK officer he or she will be made available to complete a Procès Verbal (a statement under French law) and to participate in legal proceedings. The French police do not foresee any objection should a French officer be called upon to attend court in the UK.

When requested by French Authorities the Police or customs officers may accept custody of a prisoner in the UK and detain him or her on their behalf In such circumstances, a custody record will be kept. The prisoner will have the right to consult a solicitor and the right to have information about his or her detention communicated. The maximum permitted time of 48 hours applies.

When requested to do so by the UK authorities, French police may assist by accepting custody of a prisoner in France. The maximum permitted time of 48 hours will still apply.

Top of page

Arrest of French or Belgian Officers

The 1993 Order Schedule 3 applies with modifications, to trains to and from Belgium.

If it is alleged that an officer has committed an offence and the officer does not enter France whilst under arrest, the arrested officer will be taken to a designated police station (1993 Order Schedule 3 paragraph 5(3)).

Top of page

Offences by Police Officers: Determination of Jurisdiction

If it is alleged that an officer has committed a criminal offence the provisions of Sangatte Protocol Article 30(2) are applicable. The protection of Sangatte Protocol Article 30(2) only applies if the alleged offence is committed in a control zone, or within the Fixed Link. This means that the host State will have jurisdiction to prosecute the officer if:

  • the act was committed outside the control zone or the Fixed Link, or
  • the act was committed inside the control zone or the Fixed Link but the officer was not acting in the exercise of his functions.

The aim of Article 30(2) is broadly to ensure that if a complaint arises from the officer's official, rather than personal, activities, the officer is brought home to answer a complaint rather than be dealt with in a foreign court. The Article applies only if the officer's act was performed "in the exercise of his functions". This is intended to mean more than just "being on duty" or "being at work". The officer's "functions" are to be judged according to the law of his or her own State and the formal arrangements made by the authorities of that State.

It is understood that the responsibility for determining whether an officer was "exercising his functions" rests with the authorities of the host State (police, prosecutors and the courts), although those authorities will be expected to take due account of any statements made by the officer's employers concerning the nature of his or her official functions and any assertions made by those employers about what he or she was supposed to be doing at the material time.

An investigation will be required to determine the facts. Under Sangatte Protocol Article 30(3) it is the responsibility of the host State to record and investigate the complaint. If jurisdiction is found to rest with the adjoining State, all the details and evidence will be passed to the authorities of the adjoining State for the prosecution to be pursued there.

At the police station the custody officer, after consultation with the competent French authorities, has to determine whether the act was performed by the officer whilst in the exercise of his/her functions and may, for the purpose of determining that question, detain the officer for not longer than the permitted period of 48 hours (1993 Order Schedule 3 paragraphs 5(5) and 5(6); or 24 hours in the case of officers working with or on trains to and from Belgium (1994 Order Schedule 3 paragraph 6(e)). During that period the officer is treated as not being detained under Section 37 of PACE and as not being in police custody as in Sections 40-43 of PACE (1993 Order Schedule 3 paragraph 5(7)).

If it is determined that the act was performed whilst in the exercise of his/her functions and that the officer is under French jurisdiction, the custody officer must immediately inform the officer of his or her determination and arrange for the officer to be transferred to France within the permitted period (1993 Order Schedule 3 paragraph 5(8)).

In any other case, the Custody Officer will:

  • immediately inform the officer of his or her determination;
  • the officer will be treated as being in police detention as in part IV of PACE; and
  • part IV of PACE will have effect as if the relevant time in Section 41(l) of PACE were the time at which she/he is informed of the determination (1993 Order Schedule 3 paragraph 5(9)).

If the act was not performed in the exercise of an officer's functions, jurisdiction under Sangatte Protocol Article 38 (and any other applicable provisions in the case of acts talking place outside the Fixed Link) must be considered, as with arrests of other persons (see Section 6 above).

If a French officer enters France while under arrest, he or she must be handed over to the competent French authorities. If, after consultation with the French authorities, it is determined that the act was not performed in the exercise of his functions, he or she should be treated as having continued to be under arrest until taken to a police station (1993 Order Schedule 3 paragraph 5(2) and (3)).

It has been agreed that the order of decision-making in this situation is as follows:

  • has an offence been committed?
  • where was it committed?
  • was the offence committed by the officer "in the exercise of his or her functions"?

Top of page

Defining "In the Exercise of Their Functions"

The French have expressed the view that this term may be interpreted very widely, and that an abuse of an officer's functions will not necessarily mean that the officer is not "exercising" his or her functions. However, the accepted view is that the "exercise of functions" does relate to what the officer was doing at the time, not to whether he or she was simply on duty or not.

Given that there is a body of case law on what constitutes "acting in the execution of his duty" English courts may not take such a wide view of this term and may construe the term with reference to those decisions. It is, however, impossible to know at this stage how the expression will be judicially interpreted.

It is possible that "in the exercise of their functions" will be interpreted quite broadly because the Article does not confer an immunity, but rather determines the jurisdiction in which an officer is to be dealt with.

There may be situations in which it will be desirable for UK authorities to prosecute a French officer for an act committed on UK territory, whether within the Fixed Link or the control zone. For example, if a French officer quarrels with a UK citizen over a personal matter and draws his or her gun and shoots that UK citizen it would be very difficult to convince a British court, or the British public, that it was right to relinquish the French officer to the French authorities.

An even trickier situation might be if a UK citizen alleged that a French officer committed a sexual assault during a search. In that instance, cases defining what acts fall within a police constable's duties may be helpful. One possibility is that if the act is an illegal one, it may not be considered to fall within an officer's duties by definition. It may be that if the alleged assault took place during a search, it is best dealt with by the French authorities as it would be if it occurred in France, unpopular as that result might be with the victim and the public. Again, it should be remembered that the Article does not provide for an immunity from prosecution, only for the determination of jurisdiction.

If a Crown Prosecutor is asked to advise about the detention, or prosecution, of a French officer, then the Crown Prosecutor should contact the Casework Directorate of The Crown Prosecution Service at Headquarters.

If advice is sought outside normal office hours, and it has to be given before normal office hours recommence, then Casework Directorate should be notified of the advice given.

For arrests of UK Officers see 1993 Order Schedule 3 paragraph 6.

Top of page

Procedure

Useful contacts:

CPS Headquarters Policy Directorate/European and International Division

CPS Kent- Trials' Unit Head

Kent Police/Frontier controls

Home Office

Immigration Department

Top of page

Useful Links

www.hmso.gov.uk/si/si1994/uksi-19941405-en-1.htm#end

www.hmso.gov.uk/si/si1994/uksi-19940570-en-1.htm#end

Top of page