The Trade in Controlled Goods (Embargoed Destinations) (Overseas Territories) Order 2004

Article 3

SCHEDULE 2 PROVISIONS OF THE TRADE IN CONTROLLED GOODS (EMBARGOED DESTINATIONS) ORDER 2004 AS EXTENDED TO THE OVERSEAS TERRITORIES LISTED IN SCHEDULE 1

Commencement

1.  This Order shall come into force in each Territory listed in Schedule 1 on such day as the Governor may by order, published in the official gazette of the Territory, appoint.

Interpretation

2.—(1) In this Order: —

“the Act” means the Export Control Act 2002(1);

“controlled goods” means goods used and unused, specified in Part I of Schedule 1 to the Export of Goods, Transfer of Technology and Provision of Technical Assistance (Control) Order 2003(2) as extended to certain territories by the Export of Goods, Transfer of Technology and Provision of Technical Assistance (Control) (Overseas Territories) Order 2004(3), the supply and delivery of which are prohibited by this Order. For the avoidance of doubt “controlled goods” does not include software and technology;

“country” includes territory;

“customs authorities” means the authorities which, under the law of the Territory, have responsibility for the control of imports and exports;

“embargoed destination” means a country listed in Schedule 4;

“goods in transit” means any controlled goods imported into the Territory for transit or transhipment; and

“United Kingdom person” means a United Kingdom national or a body incorporated or constituted under the law of the Territory, and, for the purposes of this definition, a United Kingdom national is an individual who is ordinarily resident in the Territory and is a British citizen, a British overseas territories citizen, a British National (Overseas), a British Overseas citizen, a person who under the British Nationality Act 1981(4) is a British subject or a British protected person within the meaning of that Act.

(2) Any reference in this Order to time after an event is a reference to a period of that length of time beginning on the day after that event.

CONTROLS ON TRADE IN CONTROLLED GOODS

Supply and delivery of controlled goods

3.—(1) Subject to the provisions of this Order, no person shall directly or indirectly —

(a) supply or deliver;

(b) agree to supply or deliver; or

(c) do any act calculated to promote the supply or delivery of,

any controlled goods to any person or place in an embargoed destination.

(2) Subject to the provisions of this Order, no United Kingdom person shall directly or indirectly —

(a) supply or deliver;

(b) agree to supply or deliver; or

(c) do any act calculated to promote the supply or delivery of,

any controlled goods to any person or place in an embargoed destination.

(3) Sub-paragraph (1) applies to any act, or any part of any act, done in the Territory.

(4) Sub-paragraph (2) applies to any act, or any part of any act, done outside the Territory.

(5) Sub-paragraphs (1) and (2) do not apply to any controlled goods that are present in the Territory unless they are goods in transit.

(6) For the purposes of sub-paragraphs (1) and (2), controlled goods that are goods in transit shall be considered to be located in a place outside the Territory.

(7) Nothing in sub-paragraph (1) or (2) shall be taken to prohibit any activities authorised by a licence granted by the Governor under this Order or any other order made under the Act, provided that all the conditions attaching to the licence are complied with.

(8) Nothing in sub-paragraph (1)(b) or (c) or (2)(b) or (c) shall apply where the supply or delivery of the controlled goods to the person or place concerned is authorised by a licence granted by the Governor under this Order or any other order made under the Act.

LICENCES

Granting and revocation of licences etc.

4.—(1) The Governor may grant licences authorising any act that would otherwise be prohibited under this Order.

(2) Any licence granted by the Governor in pursuance of this Order may be —

(a) either general or individual;

(b) limited so as to expire on a specified date unless renewed; and

(c) subject to, or without, conditions and any such condition may require any act or omission before or after the doing of the act authorised under that licence.

(3) Any licence granted under this Order shall be in writing and may be amended, suspended or revoked by the Governor at any time and in such circumstances and on such terms as he thinks fit by serving a notice to that effect on the holder of the licence.

Registration with the Governor

5.—(1) Not later than 30 days after any person first does any act under the authority of any general licence granted by the Governor that does not provide otherwise, that person shall give to the Governor written notice of his name and the address at which copies of the records referred to in paragraph 6(1) may be inspected by any person authorised by the Governor or the customs authorities under paragraph 6(4).

(2) A person who has given to the Governor written notice of particulars under sub-paragraph (1) shall, not later than 30 days after any change in those particulars, give to the Governor written notice of the changed particulars.

Record keeping and inspection

6.—(1) Any person who does any act under the authority of any general licence under this Order shall keep registers or records in accordance with this paragraph.

(2) The registers or records shall contain sufficient detail as may be necessary to allow the following information to be identified —

(a) a description of the controlled goods that have been supplied or delivered, or for which arrangements for their supply or delivery have been made;

(b) the date or the period of time over which the goods were supplied or delivered or activities relating to the supply or delivery of controlled goods were carried out;

(c) the quantity of the controlled goods;

(d) the name and address of the end-user of the controlled goods;

(e) the name and address of the supplier of the controlled goods; and

(f) any further information required to be kept by the Governor.

(3) The registers or records referred to in sub-paragraph (1) shall be kept for at least 4 years from the end of the calendar year in which the authorised act took place.

(4) The person referred to in sub-paragraph (1) shall permit any such records to be inspected and copied by any person authorised by the Governor or the customs authorities.

(5) Any person authorised by the Governor or the customs authorities shall have the right, on producing, if required to do so, a duly authenticated document showing his authority, at any reasonable hour to enter for the purpose of sub-paragraph (4) the premises, the address of which has been most recently notified to the Governor under paragraph 5.

(6) Where the registers or records required to be maintained under this paragraph are kept in a form which is not legible the person required under sub-paragraph (1) to maintain such records shall at the request of the person authorised by the Governor or the customs authorities, as the case may be, reproduce such registers or records in a legible form.

Licence refusals etc. and appeals

7.—(1) In the event that the Governor decides not to grant a licence under this Order to any person who has applied for a licence, that person shall be provided with a written notification setting out the reason or reasons for the decision.

(2) In the event that the Governor decides to suspend a licence that has been granted under this Order, the licence holder shall be provided with a written notification setting out the terms of the suspension and the reason or reasons for the decision.

(3) In the event that the Governor decides to revoke a licence that has been granted under this Order, the licence holder shall be provided with a written notification setting out the reason or reasons for the decision.

(4) Any person who has had a licence application refused under paragraph 4 or who has had a licence suspended or revoked under that paragraph shall have 28 calendar days from the date of the written notification in which to submit an appeal in writing to the Governor.

(5) Any appeal submitted under sub-paragraph (4) shall specify the grounds on which that appeal is made and may provide further information or arguments in support of the appeal.

(6) Pending determination of any appeal submitted under sub-paragraph (4), any decision taken by the Governor shall continue to have effect.

GENERAL

Offences and penalties

8.—(1) Any person who contravenes a prohibition or restriction in paragraph 3 shall be guilty of an offence and liable on summary conviction to a fine not exceeding £5,000 or the equivalent.

(2) Any person who knowingly contravenes any prohibition or restriction in paragraph 3 shall be guilty of an offence and may be arrested.

(3) A person guilty of an offence under sub-paragraph (2) shall be liable —

(a) on summary conviction to a fine not exceeding £5,000 or the equivalent or to imprisonment for a term not exceeding six months, or to both; or

(b) on conviction on indictment, to a fine of any amount, or to imprisonment for a term not exceeding ten years, or to both.

(4) No person shall be guilty of an offence under sub-paragraph (1) if he is able to show that he did not know, and had no reason to suppose, that the goods were destined for an embargoed destination.

(5) Where any body corporate is guilty of an offence under this Order, and that offence is proved to have been committed with the consent or connivance of, or to be attributable to any neglect on the part of, any director, manager, secretary or other similar officer of the body corporate or any person who was purporting to act in any such capacity, he as well as the body corporate shall be guilty of that offence and shall be liable to be proceeded against and punished accordingly.

(6) Summary proceedings for an offence under this Order, being an offence alleged to have been committed outside the Territory, may be instituted at any time not later than 12 months from the date on which the person charged first enters the Territory after committing the offence.

(7) Proceedings against any person for an offence under this Order may be taken before the appropriate court in the Territory having jurisdiction where that person is for the time being.

(8) No proceedings for an offence under this Order shall be instituted in the Territory except by or with the consent of the principal public officer of the Territory having responsibility for criminal prosecutions, but this sub-paragraph shall not prevent the arrest, or the issue or the execution of a warrant for the arrest, of any person in respect of such an offence, or the remand in custody or on bail of any person charged with such an offence, notwithstanding that the necessary consent to the institution of proceedings has not been obtained.

Misleading applications for licences etc.

9.—(1) Where for the purpose of obtaining a licence under this Order any person either —

(a) makes any statement or furnishes any document or information which to his knowledge is false in a material particular; or

(b) recklessly makes any statement or furnishes any document or information which is false in a material particular;

he shall be guilty of an offence.

(2) A person guilty of an offence under sub-paragraph (1) shall be liable —

(a) on summary conviction to a fine not exceeding £5,000 or the equivalent; or

(b) on conviction on indictment, to a fine of any amount, or to imprisonment for a term not exceeding two years, or to both,

and any licence which may have been granted by the Governor in connection with the application for which the false statement was made or the false document or information was furnished shall be void as from the time it was granted.

Failure to comply with licence conditions

10.—(1) Subject to sub-paragraph (3), any person who —

(a) has done any act under the authority of a licence granted by the Governor under this Order, and

(b) fails to comply with —

(i) any conditions attaching to that licence;

(ii) any obligation under paragraph 5; or

(iii) any obligation under paragraph 6,

shall be guilty of an offence.

(2) A person guilty of an offence under sub-paragraph (1) shall be liable —

(a) on summary conviction to a fine of not exceeding £5,000 or the equivalent; or

(b) on conviction on indictment, to a fine of any amount, or to imprisonment for a term not exceeding two years, or both.

(3) No person shall be guilty of an offence under sub-paragraph (1) where —

(a) the licence condition in question had been previously modified by the Governor; and

(b) the alleged failure to comply would not have been a failure had the licence not been so modified; and

(c) the condition with which he failed to comply was modified by the Governor after the doing of the act authorised by the licence.

Application of customs and excise laws

11.—(1) It shall be the duty of the customs authorities to take such action as they consider appropriate to secure the enforcement of paragraphs 3, 9 and 10(1)(b)(i), or any obligation arising under paragraph 6 insofar as the obligation relates to the powers of the customs authorities.

(2) The provisions of the law of the Territory relating to proceedings for offences, mitigation of penalties, proof and other matters in respect of the import and export of goods apply in relation to offences and penalties under this Order, and proceedings for such offences, as they apply in relation to offences and penalties and proceedings for offences under those provisions.

(3) For the purposes of this Order, offences other than those in respect of which a duty is imposed upon the customs authorities by virtue of sub-paragraph (1) shall not be offences in respect of which under any law of the Territory relating to customs and excise proceedings may be taken only by, or by order of, the customs authorities.

Use and disclosure of information

12.—(1) This paragraph applies to information which is held by —

(a) the Governor, or

(b) the customs authorities,

in connection with the operation of controls imposed by this Order on activities which facilitate or are otherwise connected with the supply or delivery of controlled goods.

(2) Information to which this paragraph applies may be used for the purposes of, or for any purposes connected with —

(a) the exercise of functions in relation to any control imposed by this Order or by any other order made under the Act;

(b) giving effect to any European Community or other international obligation of the United Kingdom;

(c) facilitating the exercise by an authority or international organisation outside the Territory of functions which correspond to functions conferred by or in connection with any activity subject to control by this Order or any other order made under the Act; and

may be disclosed to any person for use for these purposes.

(3) No disclosure of information shall be made by virtue of this paragraph unless the making of the disclosure is proportionate to the object of the disclosure.

(4) For the purposes of this paragraph “information” is any information that relates to a particular business or other activity carried on by a person.

(5) Nothing in this paragraph shall be taken to affect any power to disclose information that exists apart from this paragraph.

(6) The information that may be disclosed by virtue of this paragraph includes information obtained before the commencement of this Order.

Service of Notices

13.  Any notice to be given by any person under this Order may be given by an agent of that person and shall be sent by post or delivered to the Governor at an address to be specified in the official gazette of the Territory.

(1)

2002 c. 28.

(2)

S.I. 2003/2764 as amended by S.I. 2004/1050, 2004/2561 and 2004/2741.

(3)

S.I. 2004/3101.

(4)

1981 c. 61.