UK Antarctic Legislation
This legislation implements legally binding agreements under the Antarctic Treaty, and most significantly, the Antarctic Treaty’s Protocol on Environmental Protection, into domestic law. The Protocol’s key aim is the comprehensive protection of the Antarctic environment and dependent and associated ecosystems. Among other things, the Act establishes a permitting system for British expeditions, stations, vessels and aircraft in or entering Antarctica. Enforcing this legislation is not simply a legal obligation but is crucial in meeting the UK’s international responsibilities under the Antarctic Treaty and its Environmental Protocol.
The Antarctic Act 1994 creates a number of criminal offences. For example, without a permit issued by the Secretary of State it is illegal to: enter Antarctica; take a vessel or aircraft into the Antarctic Treaty area; or stay on or construct a station/base. The Act also prohibits any minerals-related activities, other than in accordance with a permit for scientific research; the harming or disturbing of the native flora and fauna; or the introduction of non-native species or entry into areas protected under either the Protocol or the Convention for the Conservation of Antarctic Marine Living Resources (CCAMLR), except in accordance with a permit. It is illegal under the Act as amended by the Antarctic Act 2013 to damage or destroy objects from a historical site or monument but under Clause 15 4a & b, objects may be removed for conservation or repair. It is also illegal to breach a condition of a permit or fail to produce a permit when required to do so.
The FCO recognises the need to ensure that Antarctic legislation is clear and well publicised. The Antarctic pages on the GOV.UK website (https://www.gov.uk/visits-to-antarctica-how-to-apply-for-a-permit and https://www.gov.uk/government/news/british-antarctic-legislation) set out guidance and information on Antarctica as a whole and also give guidance for those wishing to visit Antarctica on how to comply with the law. There is a full explanation of the permitting system including extensive and specific guidance for yachts. As part of this outreach, the FCO also consults and keeps key stakeholders, such as regular operators in Antarctica, informed of developments and changes in the system, has an annual stakeholder meeting and keeps in regular contact with IAATO (International Association of Antarctic Tour Operators).
Principles of Enforcement
The FCO believes in firm and fair regulation and thus has adopted four enforcement principles based on those of the Department for Environment, Food and Rural Affairs (DEFRA) who have a more significant level of regulations to enforce.
Proportionality – While some offences will be more significant than others the FCO will nevertheless, in order to protect the integrity of the system, seek a criminal prosecution whenever appropriate.
Consistency – A consistent approach; similar handling for similar cases is essential to a fair system, however a level of discretion is necessary to take into account the large number of variables potentially involved. It is important to our stakeholders, especially those regularly permitted by PRD, to see a consistency of approach and punishment of those found guilty of an offence in order for the permitting system not to be undermined.
Transparency – As described in section 1 the FCO seeks to ensure that Antarctic legislation is transparent and easy to understand and that there is sufficient guidance available to newcomers to the process. Part of this is to ensure that the punishments available for breaking the law are widely known along with the reciprocal knowledge about potential remedial action, including the existence of the Antarctic Act Tribunal for those who have had their permit revoked or altered.
Targeted– Due to the size and distance of Antarctica, detection and information on offenders is by its nature sporadic. The FCO is reliant on the Ministry of Defence, British Antarctic Survey, other Treaty Parties and other stakeholders to inform them of any potential breaches in the law. While the FCO will target the most serious offences it will nevertheless investigate all alleged breaches or infringements.
In cases where FCO has evidence of UK permit holders operating outside the conditions set out in the permit, or where UK nationals have entered or conducted activities in Antarctica without a permit, the FCO policy is to proceed to a criminal investigation whenever the evidence allows. This is intended to protect the integrity of the permitting process and the Environmental Protocol, thus maintaining the UK’s position internationally as one of the most rigorous enforcers of the Protocol. Without this approach the support and confidence of stakeholders may also be lost.
It will also be important to consider what alternative courses of action might be appropriate instead of a criminal prosecution such as the issuing of a formal warning, vessel de-registration, temporary or permanent ban on entering the Antarctic. Depending upon the individual circumstances, the FCO may consider a number of alternative actions including:
Issue of a formal written warning. This would be taken into account in the event of any future transgressions.
Changing the permit conditions – the FCO may alter the conditions on a permit from year to year, or in extreme cases within the Antarctic season, to ensure full compliance with the requirements of the Antarctic Treaty, and in particular to enhance safety or protection of the Antarctic environment.
Revocation of a permit – the FCO has the right to revoke a permit at any time if it feels that the operator has or is likely to break the law or the terms of its permit.
Denial of future permits, either temporarily or permanently– the FCO has the right to refuse a permit application and may impose this for a temporary or permanent period as an enforcement mechanism.
In the case of either options (ii) or (iii) above, the permit holder would have the right of appeal to the Antarctic Act Tribunal.
Public interest considerations
In determining what, if any, action should be taken, it will be necessary to consider what public interests would be served by a prosecution. Relevant factors may include:
UK’s obligations under the Antarctic Treaty and Protocol.
UK’s standing in the Antarctic Treaty System.
Whether there have been any previous prosecutions.
The need to make the public aware of the permit requirements.
The circumstances of the alleged contravention.
What information and/or regulations exists.
Conduct of Criminal Investigations
As mentioned in section 3 above, in the majority of cases, the FCO will consider full prosecution of infringements/offences and will therefore seek to initiate a criminal investigation. The FCO will co-ordinate with other Government Departments and Agencies, but in most cases within the UK, the investigating authority will likely be the home police force of the permit holder. In the case of the permits issued in the UK’s Overseas Territories, the FCO would discuss with the Governor’s Office the best placed authority to carry out an investigation.
The evidence obtained in any investigation could be used to pursue criminal Prosecution.
The commencement of a prosecution is an important part of enforcement. The purpose is to secure a conviction and ensure the defendant may be punished by a court. The FCO policy to proceed to a criminal investigation whenever the evidence allows, is intended to act as a deterrent to the committing of offences under the Antarctic Act 1994, Antarctic Act 2013 and associated regulations.
As the lead investigator, the relevant police authority will collect and consider all the evidence and, in consultation with FCO, make recommendations on whether to prosecute to the Criminal Prosecution Service (CPS). The CPS will take the decision to continue with a prosecution in accordance with the principles set out in the Code for Crown Prosecutors (2009) (6th Edition).
The Code for Crown Prosecutors states that in more serious or complex cases, prosecutors decide whether a person should be charged with a criminal office, and, if so, what that offence should be. The Police apply the same principles in deciding whether to charge or summons a person in those cases for which they are responsible. The Police and the CPS will only commence a prosecution if they are satisfied that there is a “realistic prospect of conviction” on the available evidence.
Prosecutors should identify, and, where possible, seek to rectify evidential weaknesses, but, subject to the Threshold Test, they should swiftly stop cases which do not meet the evidential stage of the Full Code Test and which cannot be strengthened by further investigation, or where the public interest clearly does not require a prosecution. Prosecutors must only start or continue a prosecution when the case has passed both stages of the Full Code Test. Prosecutors and investigators work closely together, but the final responsibility for the decision whether or not a case should go ahead rests with the prosecution service. If the case does not pass this evidential test, it will not go ahead, and the FCO will instead consider alternative options (see section 3).
Where there is sufficient evidence to justify a prosecution or to offer an out-of-court disposal, prosecutors must then go on to consider whether a prosecution is required in the public interest.
The FCO will in all circumstances reaffirm to the Police and the CPS the public interest in conducting prosecutions under the Antarctic Act 1994. The final decision as to whether a prosecution would be in the public interest rests with the CPS.
The Prosecution service is responsible for deciding whether to offer an offender a criminal caution in certain cases. Prosecutors will offer a conditional caution where it is a proportionate response to the seriousness and the consequences of the offending and where the conditions offered meet the aims of rehabilitation, reparation or punishment within the terms of the Criminal Justice Act 2003.
A conditional caution is not a criminal conviction but it forms part of the offender’s criminal record and may be cited in court in any subsequent proceedings. It may also be taken into consideration by persecutors if the offender re-offends. Prosecutors may offer a conditional caution where, having taken into account the views of the victim, they consider that it is in the interest of the subject, victim or community to do so. The offer of a conditional caution which is accepted and complied will take the place of a prosecution.
All court proceedings would take place in the appropriate UK or UK Overseas Territory court.
Penalties/Sanctions on conviction
All offences under Part II under the Antarctic Act 1994 are liable on conviction to a maximum two years imprisonment, a fine not exceeding the statutory maximum or both. Anyone found guilty of an offence may also be banned from travelling Antarctica.