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FIRST SUCCESSFUL DEFENCE

Added: (Thu Dec 21 2000)

Pressbox (Press Release) - Davies Lavery Solicitors recently raised the tripartite defence successfully in a case where 25 clandestine entrants were found aboard an unaccompanied trailer shipped from Calais to Dover in early July. It was the first successful defence in the UK.

There are two defences available under the Act for potentially responsible parties. Under the defence of duress, a responsible party must show that they were forced to transport clandestine entrants. Such a defence would be extremely difficult to establish and, presumably, physical duress would need to be directed against a driver or captain for it to succeed. The second defence requires that:

- The Defendant was unaware, and had no reason to be aware, of any clandestine entrants on board the transporter.

- Suitable procedures were in place to avoid clandestines boarding the transporter.

- Those procedures were being operated at the material time.

Under the Immigration and Asylum Act, a 2,000 penalty can be imposed following every clandestine entry into the UK - and those liable may include vehicle owners, hirers or drivers if the trailer is attached, and trailer owners, operators or hirers if the trailer is unattached. In the case of a ship or aircraft, those responsible are owners or captains.

THE VERDICT:

The Secretary of State confirmed that no further action will be taken and all security and detention charges paid will be refunded. The operator, Transport Mutual Services (UK) Ltd, implemented a proper system designed to minimise risk of entry by clandestine entrants, following the guidelines. The operator's driver had properly applied the system, but the clandestines had gained entry undetected. At Dover, it was discovered that the T.I.R. cord - a rope that acts as a seal around the trailer - had been severed and reconnected to appear unbroken. The driver checked the cord on leaving the trailer in the hands of the ferry line. The line's own check also found everything satisfactory. Furthermore, it was found that the operator had no reasonable grounds to suspect that clandestines were on board.

Successful defences in this type of case are rare - in the first wave of court cases all 47 hauliers were found guilty.

LEADING TRANSIT LAWYER:

Kay Psyden, a senior litigation partner and head of the Transit Team at Davies Lavery Solicitors, is a leader in her field of multimodal transport. Kay is an adviser to the British International Freight Association, and at present is also heavily involved in advising in the area of clandestine entrants under the Immigration and Asylum Act 1996. She was the first person to successfully defend (Transport Mutual Services (UK) Ltd) on clandestine entrants.

ABOUT DAVIES LAVERY:

Founded in 1987 to provide a specialist service to the insurance industry, Davies Lavery now has offices in the City, Birmingham and Maidstone. Davies Lavery specialises in insurance related work. It is particularly experienced in such areas as personal injury, policy disputes, property damage, professional negligence, product liability, health, life and accident and transit claims.

FOR FURTHER INFORMATION CONTACT:

Paula Allerton, Marketing Manager, Davies Lavery Solicitors on 01622 625 625 (email: Paula.Allerton@davies-lavery.co.uk )

The Davies Lavery website can be found at http://www.davies-lavery.co.uk

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