Passports (False Statements and Forgery) (Jersey) Law 201-

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A decision made 4 February 2014:

Decision Reference: MD-HA-2014-0007
Decision Summary Title :	Passports (False Statements and Forgery) (Jersey) Law 201-		Date of Decision Summary:	3 February 2014
Decision Summary Author:	Executive Officer Home Affairs		Decision Summary: Public or Exempt? (State clauses from Code of Practice booklet)	Public
Type of Report: Oral or Written?	Written		Person Giving Oral Report:	n/a
Written Report Title :	Report to accompany the Passports (False Statements and Forgery) (Jersey) Law 201-		Date of Written Report:	3 February 2014
Written Report Author:	Director, Legal Status and Revenue Jersey Customs and Immigration Service		Written Report : Public or Exempt? (State clauses from Code of Practice booklet)	Public
Subject: Passports (False Statements and Forgery) (Jersey) Law 201-
Decision(s): The Minister approved the Passports (False Statements and Forgery) (Jersey) Law 201- and the accompanying report, and requested that arrangements be made for it to be lodged ‘au Greffe’ for consideration by the States on 1 April 2014.
Reason(s) for Decision: There is currently no legislation in place in Jersey relating to offences surrounding the forgery of UK passports, nor to the making of a false statement or falsifying a document when applying to obtain or renew a UK passport. This draft Law addresses that lacuna.
Resource Implications: None.
Action required: The Executive Officer, Home Affairs, to request the Greffier of the States to arrange for the draft Law to be lodged ‘au Greffe’ for consideration by the States on 1 April 2014.
Signature:		Position: Minister for Home Affairs
Date Signed:		Date of Decision (If different from Date Signed):

Passports (False Statements and Forgery) (Jersey) Law 201-

Draft Passports (False Statements and Forgery) (Jersey) Law 201-

Report

There is currently no legislation in Jersey relating to offences surrounding the forgery of UK passports, nor to the making of a false statement or falsifying a document when applying to obtain or renew a UK passport.

Guernsey has had legislation in force for such offences since the 1970s and the introduction of similar legislation in Jersey has the support of the judiciary and is clearly desirable to address this lacuna.

The passport office in Jersey can issue British passports for Jersey resident British citizens and British subjects with the right of abode in the United Kingdom. Jersey-born British citizens who are resident in the United Kingdom can also apply for their passport to the Jersey passport office.

When a person first applies for a British passport there are, understandably, quite a few documents that a person is required to produce, in addition to the passport application form, to prove that they are a British citizen and entitled to a British passport. This may include such things as a full birth certificate and the applicant’s mother’s birth certificate or passport (if the applicant derives British citizenship through the mother) or the father’s passport or birth certificate and the parents’ marriage certificate (if the applicant derives British citizenship through the father). When a person applies to renew an existing British passport, and can produce that passport, there may be less documentation required, depending on the place of issue of the passport.

The Passport (False Statements and Forgery) (Jersey) Law 201- (the draft Law) makes it a statutory offence to make a false application for a passport, to forge a passport or to knowingly purchase, receive or possess a forged passport. The Law not only applies to British passports, but also any passport issued by the United Kingdom Government; the Lieutenant-Governor of Jersey, Guernsey or the Isle of Man; and the Government of any current British overseas territory.

Under Article 2 of the draft Law it is an offence for a person to knowingly or recklessly make either a false or misleading statement, or false or misleading representation when making, or purporting to make an application to obtain or renew a United Kingdom passport. It should be noted that the passport that the individual is trying to obtain or renew does not need to be for their own use for the offence to have been committed (Article 2(3)).

Under the same Article of the draft Law, it is an offence for a person to sign a document (for example the passport application form), knowing it to contain a material omission or for a material particular contained therein to be false. It is also an offence to knowingly or recklessly alter or falsify any document. Further, when applying for a first or new passport, it is an offence to utter a forged passport, or hand over any document, or copy of a document, which the person knows to be false in any material particular or forged.

An explanation of the term ‘forging a passport or document’ is given in Article 1(2) of the Law as ‘making a false passport or document with the intention that it shall be used as genuine’. A definition of ‘utter’ is not contained within the Law but means, inter alia, to pass forged documents off as being genuine.

Further offences relating to the forgery of passports are contained within Article 3 of the Law. It is not only an offence to forge a passport, or utter a forged passport (Article 3(1)), but it is also an offence to knowingly or recklessly receive or purchase a forged passport from another person (Article 3(2)) or to knowingly or recklessly possess a forged passport (Article 3(3)).

The offences under Articles 2 and 3 of the draft Law attract a term of imprisonment of 2 years and an unlimited fine.

Under the remainder of the draft Law, an ‘officer’ is given the powers of arrest and detention (Article 4) and the power to enter premises and search them before arrest (Article 5). ‘Officer’ is defined in the Interpretation Article 1(1) as ‘an immigration officer or a police officer’ unless otherwise specifically stated. ‘Immigration officer’ is also defined in the same Article as ‘an officer appointed as such for the purposes of the Immigration Act in accordance with paragraph 1(1) of Schedule 2 to that Act’. On the basis that the Customs and Immigration Departments fully merged in January 2005 and that the frontier officers are multi-functional, fulfilling both the Customs and Immigration roles, reference to ‘immigration officer’ is to be taken to mean an officer of the Jersey Customs and Immigration Service.

Where a person has been arrested for an offence under Article 2 or 3 at a place other than a police station or a customs office, a senior officer may authorise in writing an immigration officer to enter and search the place where the person was arrested for relevant evidence. They would need to have reasonable grounds for believing that relevant evidence was in the premises before authorising the search.

Financial and manpower statement

There are no additional manpower or financial implications associated with the draft Law.

Human Rights

Human Rights Notes on the draft Passports (False Statements and Forgery) (Jersey) Law 201-

These Notes have been prepared in respect of the draft Passports (False Statements and Forgery) (Jersey) Law 201- (“the draft Law”) by the Law Officers’ Department. They summarise the principal human rights issues arising from the contents of the draft Law and explain why, in the Law Officers’ opinion, the draft Law is compatible with the European Convention on Human Rights (“ECHR”).

These notes are included for the information of States Members. They are not, and should not be taken as, legal advice.

The draft Law engages two Articles of the ECHR: Article 5, the right to liberty and security; and Article 8, the right to respect for private and family life, the home and correspondence. Both of these are qualified rights and therefore interferences with these rights are lawful if they are justified in accordance with the provisions set out in the ECHR.

Article 5 of the ECHR secures the right to liberty unless the interference is provided for in one of the specified cases listed in Article 5(1) ECHR. Further, any interference must be lawful under domestic law, comply with the general requirements of the ECHR to be sufficiently accessible and precise, and be proportionate having regard to the procedural rights provided in Articles 5(2) to (5) ECHR.

Article 4 of the draft Law provides a power to arrest without warrant and detain a person with a view to ascertaining if an offence has been committed. It is therefore providing the ability for police and immigration officers to interfere with a person’s liberty. However, this provision falls within the case specified in Article 5(1)(c) ECHR, as it is a lawful arrest and detention for the purposes of bringing a person before a competent legal authority. Further, the provisions of Article 4 are sufficiently accessible and precise to be in accordance with the ECHR and the powers are limited by virtue of Article 4(1) of the draft Law so that there must be reasonable suspicion that an offence under the draft Law has been committed before any arrest or detention can take place.

In addition to the above, it is important to note that the police are subject to the Police Procedures and Criminal Evidence (Jersey) Law 2003 (“PPCE”). The procedural safeguards set out in Article 5(2)-(5) of the ECHR are provided for, in particular by Articles 26-29 of the PPCE. These safeguards are also applied in respect of arrests or detention by immigration officers by Article 4(5) of the draft Law. Any detention outside a police station or immigration office that may not be captured by the provisions of the PPCE is limited by virtue of Article 4(2) of the draft Law which provides a maximum period for which a person may be detained.

Therefore, whilst the exercise of the powers to arrest and detain persons may amount to an interference with Article 5 ECHR, that interference falls within one of the specified cases where it can be justified, it is provided for in domestic law in a way that is sufficiently accessible and precise, and is proportionate, in particular with reference to the safeguards set out in Article 5(2)-(5) of the ECHR, which are either reflected in the draft Law or in the applicable provisions of the PPCE. Therefore, Article 4 of the draft is compatible with Article 5 of the ECHR.

Interference with the right to respect for private and family life, home and correspondence in Article 8(1) ECHR can be justified if it is in pursuit of one of the legitimate aims specified in Article 8(2) ECHR, is in accordance with the law and is necessary in a democratic society.

The exercise of powers to enter premises, search premises and seize and retain material contained in Articles 5, 6 and 7 of the draft Law amount to an interference of private and home life, and potentially an interference in family life and correspondence depending on the circumstances of the case. However, these provisions are sufficiently precise and accessible for the powers to be exercised in accordance with the law. Further, the powers provided are justified in pursuit of the legitimate aim of protecting national security, as any falsification of passports or associated offences may lead to weaker border control. The powers may also be justified in pursuit of the legitimate aim of preventing crime.

In order for the powers to be ‘necessary in a democratic society’ they must be proportionate to the aim they are seeking to achieve. A range of safeguards is provided in the draft Law to ensure that these powers are limited and therefore proportionate. These safeguards include the requirement for specific grounds to be satisfied for an application for a warrant to be approved in Article 5 of the draft Law; the procedures that must be followed with respect in Articles 8 and 9 of the draft Law; the specific conditions that are applied with respect to entry and search without a warrant in Article 6 of the draft Law; and the presumption in favour of providing access to any seized material, apart from in specific limited circumstances contained in Article 7 of the draft Law.

Therefore, the provisions in relation to entry, search and seizure contained in Articles 5, 6 and 7 of the draft Law are justified as they are in pursuit of the legitimate aims of national security and the prevention of crime; are provided for in law and are sufficiently accessible and precise; and are necessary in a democratic society as they are proportionate to the aims they are seeking to achieve. Therefore, the draft Law is compatible with Article 8 of the ECHR.