34 Defences to claim that penalty is due under section 32.U.K.
[F1(1)A person (“the carrier”) shall not be liable to the imposition of a penalty under section 32(2) if he has a defence under this section.]
(2)It is a defence for the carrier to show that he, or an employee of his who was directly responsible for allowing the clandestine entrant to be concealed, was acting under duress.
(3)It is also a defence for the carrier to show that—
(a)he did not know, and had no reasonable grounds for suspecting, that a clandestine entrant was, or might be, concealed in the transporter;
(b)an effective system for preventing the carriage of clandestine entrants was in operation in relation to the transporter; and
(c)F2. . . on the occasion in question the person or persons responsible for operating that system did so properly.
[F3(3A)It is also a defence for the carrier to show that—
(a)he knew or suspected that a clandestine entrant was or might be concealed in a rail freight wagon, having boarded after the wagon began its journey to the United Kingdom;
(b)he could not stop the train or shuttle-train of which the wagon formed part without endangering safety;
(c)an effective system for preventing the carriage of clandestine entrants was in operation in relation to the train or shuttle-train; and
(d)on the occasion in question the person or persons responsible for operating the system did so properly.]
(4)In determining, for the purposes of this section, whether a particular system is effective, regard is to be had to the code of practice issued by the Secretary of State under section 33.
(5)F4. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
[F5(6)Where a person has a defence under subsection (2) in respect of a clandestine entrant, every other responsible person in respect of the clandestine entrant is also entitled to the benefit of the defence.]
Textual Amendments
F1S. 34(1) substituted (8.12.2002 for certain purposes, 11.5.2012 in so far as not already in force) by Nationality, Immigration and Asylum Act 2002 (c. 41), ss. 125, 162(1), Sch. 8 para. 6(2) (with s. 159); S.I. 2002/2811, art. 2, Sch. (with art. 4), S.I. 2012/1263, art. 2
F2Word in s. 34(3)(c) repealed (8.12.2002) by Nationality, Immigration and Asylum Act 2002 (c. 41), ss. 125, 161, 162(1), Sch. 8 para. 6(3), Sch. 9 (with s. 159); S.I. 2002/2811, art. 2, Sch. (with art. 4)
F3S. 34(3A) inserted (8.12.2002 for certain purposes, 11.5.2012 in so far as not already in force) by Nationality, Immigration and Asylum Act 2002 (c. 41), ss. 125, 162(1), Sch. 8 para. 6(4) (with s. 159); S.I. 2002/2811, art. 2, Sch. (with art. 4), S.I. 2012/1263, art. 2
F4S. 34(5) repealed (8.12.2002 for certain purposes, 11.5.2012 in so far as not already in force) by Nationality, Immigration and Asylum Act 2002 (c. 41), ss. 125, 161, 162(1), Sch. 8 para. 6(5), Sch. 9 (with s. 159); S.I. 2002/2811, art. 2, Sch. (with art. 4), S.I. 2012/1263, art. 2
F5S. 34(6) substituted (8.12.2002 for certain purposes, 11.5.2012 in so far as not already in force) by Nationality, Immigration and Asylum Act 2002 (c. 41), ss. 125, 162(1), Sch. 8 para. 6(6) (with s. 159); S.I. 2002/2811, art. 2, Sch. (with art. 4), S.I. 2012/1263, art. 2
Modifications etc. (not altering text)
C1S. 34 applied (with modifications) (7.2.2001 for certain purposes and otherwise 1.3.2001) by S.I. 2001/280, arts. 1-4 (with art. 5)
Commencement Information
I1S. 34 partly in force; s. 34 not in force at Royal Assent, see s. 170(4); s. 34 in force for certain purposes at: 3.4.2000 by S.I. 2000/464, art. 2, Sch.; 18.9.2000 by S.I. 2000/2444, art. 2, Sch. 1 (subject to arts. 3, 4, Sch. 2); 8.12.2002 by S.I. 2002/2815, art. 2, Sch.