Recommendation 68

HM Government Rejected

Clause 18 introduces a new offence of endangering another during a sea crossing. The clause specifies a clear, defined situation (a crossing by water to the UK from France, Belgium or the Netherlands) to which it applies, and is clear in the action it is intended to capture – an act that risks or causes serious injury or death of another. The intention is to take action against dangerous acts that create additional risk on an already dangerous journey. Sadly, there continue to be fatalities during sea crossings and the Government is committed to taking action to prevent such fatalities, an aim that we trust is shared by the Committee. We note the concerns raised in the report and we would like to provide clarification on some of the points raised. Paragraphs 55–56 of the report observe that the offence is drawn more widely than certain examples previously provided of behaviour to which the offence would be relevant, however, those were examples of activities potentially relevant to the offence and were not presented as an exhaustive list. The offence provides sufficient flexibility to reflect that a variety of acts could result in causing, or risking, the serious injury or death of another during such a crossing. Given the severity of the outcome this aims to address (serious injury or death), this flexibility is considered a proportionate approach. Paragraph 57 of the report refers to a Hansard extract explaining the intelligence-led approach, targeted at those believed to be working in connection with organised criminal networks. We would like to clarify that the Hansard extract to which the report refers was during discussion of new organised immigration offences targeting preparatory stages of organised immigration crime, not the endangerment offence. The endangerment offence is designed to target specific acts that constitute egregious and dangerous forms of behaviour. The report recommends amending clause 18 to include a requirement that the individual intended to cause or create a risk of, serious injury or death. We cannot support such an amendment on the basis that it would risk undermining the effectiveness of the offence. Focusing on whether someone committed the act intentionally pulls the focus of the offence away from the serious harm or risk of such harm caused to vulnerable people in these situations, and crucially, could make it easy for criminals to evade the offence. We recognise the concern that an individual may commit a relevant act under duress or as a result of exploitation, and existing protections are in place in this instance, including in the defence under section 45 of the Modern Slavery Act 2015 (Defence for slavery or trafficking victims who commit an offence); within prosecutorial public interest consideration; and the general criminal defence of duress. More generally, the wider prosecutorial consideration may include taking into consideration factors such as those relating to mental health conditions or disorders, which is relevant to the example provided in paragraph 59. The report raises concern of the liability of children and parents. In addition to the prosecutorial consideration and safeguards raised above, in which the full facts of the case would be considered, there are risks associated with blanket exemptions. For example, a defence for parents could inadvertently raise significant safeguarding issues, put children at risk of exploitation/harm, and raise risk of aggression by those seeking to circumvent the offence by attempting to appear to be a child’s parent when they are not. A defence for children may put them at greater risk of exploitation by criminals seeking to evade justice and reduce disruption of criminal activities.