1.These explanatory notes relate to the Cluster Munitions (Prohibitions) Act which received Royal Assent on 25 March 2010. They have been prepared by the Foreign and Commonwealth Office in order to assist the reader in understanding the Act. They do not form part of the Act and have not been endorsed by Parliament.
2.The notes need to be read in conjunction with the Act. They are not, and are not meant to be, a comprehensive description of the Act. So, where a section or part of a section does not seem to require any explanation or comment, none is given.
3.The main purpose of this Act is to create criminal offences in order to enforce the prohibitions set out in Article 1 of the Convention on Cluster Munitions that was signed by the Foreign Secretary in Oslo on 3 December 2008, and to which the United Kingdom wishes to become a State Party. The Convention on Cluster Munitions will be referred to in these notes as “the Convention.”
4.Article 1 of the Convention prohibits States Parties from using, developing, producing, otherwise acquiring, stockpiling, retaining or transferring cluster munitions; and from assisting, encouraging or inducing anyone else to engage in these prohibited activities. The Article 1 prohibitions also apply to explosive bomblets that are specifically designed to be dispersed or released from dispensers affixed to aircraft. Criminalising these prohibited activities is necessary because Article 9 of the Convention stipulates that:
“Each State Party shall take all appropriate legal, administrative and other measures to implement this Convention, including the imposition of penal sanctions to prevent and suppress any activity prohibited to a State Party under this Convention undertaken by persons or on territory under its jurisdiction or control.”
5.The Act consists of 34 sections.
6.Section 1 defines the prohibited munitions to which this Act applies. Sections 2 to 4 create and define the criminal offences for breaches of the prohibitions in Article 1 of the Convention, and make provision for the offences to have some extra-territorial effect. For those offences, sections 5 to 9 provide defences for certain purposes permitted under the Convention. Section 10 ensures that only an evidential burden of proof with respect to the defences is required of the defendant.
7.Sections 11 to 19 are provisions about identifying prohibited munitions, and securing the removal, immobilisation and destruction of them; and for creating offences relating to interfering with or obstructing destruction.
8.Sections 20 to 23 make provision for the production of information and records for the purposes of the Convention, the investigation of alleged offences, and disclosure of information. Sections 24 to 26 make provision relating to proceedings for an offence under the Act.
9.Sections 27 to 34 are general provisions which include safeguards on powers of entry, a power to modify the Act, how notices are served, the application of the Act to the Crown and the extent of the Act.
10.There are three Schedules to the Act. Schedule 1 sets out definitions from Article 2 of the Convention to assist interpretation. Schedule 2 sets out the offences to which section 9 (interoperability defence) applies. Schedule 3 contains minor and consequential amendments of other Acts.
11.The Act extends to England and Wales, Scotland and Northern Ireland. Provisions of the Act may be extended by Order in Council to any of the Channel Islands, the Isle of Man or any British Overseas territory.
12.This sets out the munitions to which the Act applies and provides definitions of the Convention and of munitions, including references to their definitions in the Convention as set out in Schedule 1 to the Act.
13.Section 2 creates the criminal offences which are central to this Act. The offences apply to breaches of the prohibitions set out in Article 1(1) of the Convention. These criminal offences are the penal sanctions required by Article 9 of the Convention set out in paragraph 4 above.
14.Subsection (1) makes it an offence for a person to use, develop or produce, acquire, possess or transfer prohibited munitions. It also makes it an offence to make arrangements under which another person either acquires or transfers a prohibited munition.
15.Subsection (2) makes it an offence for a person to assist, encourage or induce another to engage in any conduct mentioned in subsection (1).
16.Subsection (3) provides that an offence under this section will be punishable on conviction on indictment with imprisonment for up to fourteen years or an unlimited fine, or both.
17.This section specifies the meaning to be given to “acquire” or “transfer” a prohibited munition.
18.Subsection (2) provides that a person acquires a prohibited munition if the person acquires it or enters into a contract to acquire it.
19.Subsection (3) defines what “transfer” of a prohibited munition means. Transferring means:
disposing of it
moving it into or out of the United Kingdom (UK)
entering into a contract to dispose of it, or to move it into or out of the UK.
20.Subsection (4) defines the meaning of “acquire” as “buy, hire, borrow or accept as a gift”, and defines “dispose” as “sell, let on hire, lend or give”.
21.Under subsection (5) a person who acquires or disposes of an interest in, or right over, land which contains cluster munition remnants is not taken to acquire or dispose of a prohibited munition.
22.Subsection (6) defines “cluster munition remnants” with reference to Schedule 1 and Article 2 of the Convention, as failed cluster munitions, abandoned cluster munitions, unexploded submunitions and unexploded bomblets.
23.Section 4 defines where the offences in section 2 apply. The conduct described in section 2 would be an offence by anyone if it took place in the UK. It would also be an offence if it took place anywhere in the world and was by a UK national or a UK legal entity.
24.Subsection (1) specifies that the offences in section 2(1) apply to conduct inside or outside the UK. Subsection (2) specifies that section 2(2) applies to assistance, encouragement and inducements in the UK or elsewhere. They must be read in conjunction with subsections (3) and (4).
25.Subsection (3) provides that section 2(1) and (2) apply extraterritorially only to UK nationals and to legal entities formed under UK law, so that they would be liable to prosecution in the UK for acts committed abroad in contravention of section 2. This extraterritorial application is required by Article 9 of the Convention.
26.Subsection (4) provides that the offence in section 2(2), of assistance, encouragement and inducement, applies regardless of whether the principal offence (the conduct assisted, encouraged or induced) takes place inside or outside the UK.
27.Subsection (5) enables application of section 2 to be extended by Order in Council to acts done outside the UK by bodies incorporated under the law of any of the Channel Islands, the Isle of Man or any Overseas Territory. Natural persons from these places are likely to be covered by subsection (6).
28.Subsection (6) defines the expression “UK national” so that it covers all individuals over whom the UK has jurisdiction on the basis of nationality in accordance with international law. The following are UK nationals:
British citizens, including:
British overseas territories citizens (persons whose British nationality derives from their connection with a United Kingdom Overseas Territory),
British Nationals (Overseas) (Hong Kong British Dependent Territory Citizens who registered before 1 July 1997 to become a British National (Overseas)),
British Overseas citizens (persons who were citizens of the UK and Colonies immediately before the commencement of the British Nationality Act 1981 and did not at commencement become British citizens or British Dependent Territories citizens),
British subjects under the British Nationality Act 1981,
British protected persons within the meaning of the British Nationality Act 1981 (that is, persons connected with British protectorates, British protected states or UK trust territories).
29.Subsection (7) provides that proceedings for an offence committed under section 2 outside the UK may be taken in any convenient court in the UK and the offence may be treated as having been committed in any place in the UK. Subsections (8) and (9) deal with the operation of subsection (7) in Scotland.
30.Under Article 3 of the Convention States Parties are obliged to destroy all the cluster munitions under their jurisdiction and control.
31.Subsections (1) to (6) provide defences for prohibited conduct in the cases of:
possession of a prohibited munition for the purpose of enabling it to be destroyed (where a person is charged with an offence under section 2(1)(e)) (see subsection (1))
transferring a prohibited munition to enable it to be destroyed (where a person is charged with an offence under section 2(1)(f)) (see subsection (2))
making arrangements for transfer by another of a prohibited munition, to enable it to be destroyed (where a person is charged with an offence under section 2(1)(g)) (see subsection (3))
acquiring a prohibited munition, by means of a transfer for the purpose of enabling its destruction, for the same purpose (where a person is charged with an offence under section 2(1)(c)) (see subsection (4))
making arrangements for the acquisition by another person of a prohibited munition if at the time the arranger had reasonable cause to believe that the acquisition would be by a transfer for the purpose of enabling destruction, and the arrangements made were to enable the prohibited munition to be destroyed (where a person is charged with an offence under section 2(1)(d)) (see subsection (5))
assisting, encouraging or inducing another person to engage in conduct mentioned in section 2(1) if it was believed that other person would have had a defence relating to enabling the destruction of a prohibited munition under subsections (1) to (5) (where a person is charged with an offence under section 2(2)) (see subsection (6)).
32.Section 6 reflects Article 3 of the Convention which provides for limited exceptions to the general prohibition on retention, acquisition and transfer for the purposes of developing detection, clearance and destruction techniques in relation to cluster munitions, explosive bomblets and explosive submunitions, training in such techniques and developing cluster munition counter-measures.
33.Subsection (1) provides a defence to the offence in section 2(1)(e) of possessing a prohibited munition if the person charged can show that he possessed the prohibited munition with the intention that it would be used only for ‘permitted purposes’ (as defined in subsection (8)) and that the possession was in accordance with the terms of an authorisation given by the Secretary of State. Subsection (2) provides an equivalent defence in the case of the offence in section 2(1)(f) of transferring a prohibited munition.
34.Subsections (3) to (5) make defences available to persons charged with the offences in section 2(1)(c), (d) and (g) of acquiring a prohibited munition and making arrangements under which another acquires or transfers a prohibited munition. Again, the defendant must show an intention, at the time of the conduct in question, that the prohibited munition would be used only for permitted purposes. The defendant must also show that the transfer which led to the acquisition (section 2(1)(c) offence) or for which the defendant made arrangements (section 2(1)(g) offence) had been authorised by the Secretary of State or that the defendant had reasonable cause to believe that the acquisition would be by means of a transfer which had been authorised by the Secretary of State (section 2(1)(d) offence).
35.Subsection (6) provides that a person charged under section 2(2) with assisting, encouraging or inducing conduct mentioned in section 2(1), will have a defence if they had reasonable cause to believe that the person assisted, encouraged or induced would have had a defence under subsections (1) to (5) to a charge against them.
36.The intent of subsection (7) is that the amount of prohibited munitions retained or acquired should not exceed the number necessary for permitted purposes.
37.Subsection (8) defines what are the permitted purposes for this section:
for development of techniques for the detection, clearance, and destruction of prohibited munitions and explosive submunitions;
for training in those techniques;
for development of counter-measures to be used against prohibited munitions and explosive submunitions;
for any criminal proceedings or investigation in which the prohibited munition is or may be evidence: this includes proceedings and investigations overseas as well as in the UK.
38.Subsection (9) defines “explosive submunition” as having the same meaning as in the Convention:
“A conventional munition that in order to perform its task is dispersed or released by a cluster munition and is designed to function by detonating an explosive charge prior to, on or after impact.”
39.Subsection (10) provides that this definition is set out in Schedule 1 to the Act.
40.Subsection (1) provides that it is a defence for a person, when charged with an offence of using, acquiring, making arrangements for another to acquire, possessing, transferring or making arrangements for another to transfer a prohibited munition, to show that he did not know nor suspect, nor have reason to suspect, that the object in question was a prohibited munition.
41.Subsection (2) provides a defence to a charge of possession under section 2(1)(e), if the defendant can show that he took all reasonable steps, as soon as reasonably practicable, after he first had knowledge or suspicion that the object was a prohibited munition to inform the Secretary of State or a constable or a member of the service police force (as defined in subsection (5)).
42.It is a defence under subsection (3) to a charge of possession of a prohibited munition if the defendant can show that he had no knowledge or suspicion, nor any reason for suspicion, that the object was a prohibited munition, until he became aware that the Secretary of State was exercising in relation to the prohibited munition a power conferred on him by the Act.
43.Under subsection (4) where a person has been charged with an offence under section 2(2) of the Act, it is a defence if he can show that he had no knowledge or suspicion, nor reason to suspect, that the conduct he was encouraging, assisting or inducing related, or might relate, to a prohibited munition.
44.This section provides defences to members of a visiting force of a State not party to the Convention, or to persons working with that visiting force. It is a consequence of Article 21(3) of the Convention which states:
“Notwithstanding the provisions of Article 1 of this Convention and in accordance with international law, States Parties, their military personnel or nationals, may engage in military cooperation and operations with States not party to this Convention that might engage in activities prohibited to a State Party.”
45.Section 30(3) defines a State Party as a State which has ratified, accepted or approved the Convention, or has acceded to it, and either the Convention is in force in relation to that State or the State is applying Article 1 of the Convention on a provisional basis until the Convention enters into force for it. Conversely, for the purposes of section 8 a State not party to the Convention is one that does not meet these criteria.
46.Subsection (1) affords to members of a visiting force of a State not party to the Convention, or persons working with such a force, a defence to a charge of having a prohibited munition in their possession on UK territory. Subsection (2) affords only to members of the visiting force a defence to a charge of being involved in the movement or contracting for the movement of prohibited munitions into or out of the UK. This means that no person working with a visiting force will be able to move, or enter into a contract to move, a prohibited munition into or out of the UK without incurring criminal liability. Subsection (3) affords to members of a visiting force or persons working with them a defence to a charge of making arrangements under which a member of a visiting force either moves or contracts to move a prohibited munition into or out of the UK.
47.In relation to the offences of possession or movement, the defence is only available if these activities were in accordance with the terms of an authorisation given to the State not party to the Convention by the Secretary of State. In relation to the offence of arranging a transfer by another person, this defence is only available to the arranger if they had reasonable cause to believe the transfer would be in accordance with the terms of an authorisation given to the State not party to the Convention by the Secretary of State.
48.Subsection (4) provides a defence to the offence of assisting, encouraging or inducing another person to engage in prohibited conduct if, at the relevant time, the person providing the assistance, encouragement or inducement was a member of a visiting force of a State that was not a party to the Convention or was working with such a force, and had reasonable cause to believe that the other person would have a defence under subsections (1) to (3).
49.Subsection (5) defines which persons are considered to be “working with a visiting force”; it covers contractors or others assisting the visiting force in any way.
50.Subsection (6) provides, by reference to the Visiting Forces Act 1952, definitions of “visiting force” and “member” of a visiting force.
51.This section provides defences for persons involved in conduct that takes place in the course of certain international military co-operation and operations with States not party to the Convention. This defence will be referred to in these notes as “the interoperability defence.”
52.The intent of the interoperability defence is to give effect to Article 21(3) of the Convention which is quoted in paragraph 44 above. Article 21(4) of the Convention qualifies Article 21(3) by stipulating that:
“Nothing in paragraph 3 of this Article shall authorize a State Party:
(a)To develop, produce or otherwise acquire cluster munitions;
(b)To itself stockpile or transfer cluster munitions;
(c)To itself use cluster munitions; or
(d)To expressly request the use of cluster munitions in cases where the choice of munitions used is within its exclusive control.”
53.Subsection (1) provides a defence (the interoperability defence) to a person charged with any offence specified in Schedule 2, paragraphs 1 to 6. Paragraphs 7 and 8 of Schedule 2 set out limits to the application of the defence in the case of offences relating to the use and transfer of prohibited munitions and offences relating to conduct by visiting forces (see subsection (6)). The interoperability defence is not available, in accordance with Article 21(4) of the Convention, if a person is charged with the offence of: using a prohibited munition; developing or producing a prohibited munition; acquiring a prohibited munition; making arrangements under which another person acquires a prohibited munition; or transferring a prohibited munition. For the interoperability defence to apply the conduct must be in the course of or for the purposes of an international military operation or an international military co-operation activity as defined in subsections (2) and (3). This reflects Article 21(3) of the Convention.
54.Subsection (2) defines an “international military operation” as any military operation with the following characteristics: it involves members of UK armed forces and the armed forces of one or more other States; at least one of the other States is not a party to the Convention; it involves (or might involve) conduct by armed forces of a State not a party to the Convention, or by persons under its authority, that, if it was done by armed forces of a State which is a party to the Convention, or by persons under its authority, would contravene the Convention.
55.Subsection (3) defines “an international military co-operation activity” as any activity, other than a military operation, with the following characteristics: it involves the UK and another State or States in which their governments co-operate for purposes related to the defence or the armed forces of either the UK or any of those States; at least one of the other States is not party to the Convention; it involves (or might involve) conduct by armed forces of a State not a party to the Convention (or by persons under its authority) that, if it were done by armed forces of a State which is a party to the Convention or by persons under that State’s authority, would contravene the Convention.
56.Subsections (4) and (5) provide that, if a question arises in any judicial or similar proceeding as to whether subsection (2)(a) or (3)(a) applies the certificate of the Secretary of State about any fact relating to the question will be conclusive evidence of that fact so far as the court or tribunal is concerned.
57.For the purposes of this section “Her Majesty’s armed forces” is to be given the same meaning as that given in the Armed Forces Act 2006 (subsection (7)). Subsection (7) also provides that a “military operation” includes any operation by a navy or an air force.
58.The main purpose of this section is to provide that the burden of proof on an accused who wishes to rely on a defence under the Act is an evidential burden only.
59.Subsections (1) and (2) provide that where an accused puts forward evidence in support of a defence, if the defence evidence is such that it raises an issue with respect to the defence, the Court must take the defence to be established unless the prosecution proves beyond reasonable doubt that it is not.
60.Subsection (3) provides that, for the purposes of section 6 (permitted purposes) and section 8 (visiting forces), authorisations given by the Secretary of State before the Act enters into force will have the same effect as those given on or after the Act enters into force.
61.The purpose of this section is to ensure that whilst information is being collected to establish the nature of any object suspected to be a prohibited munition, the person in possession of the suspected prohibited munition does not let it out of their possession. This is achieved by conferring a power on the Secretary of State to issue a notice requiring the person who has the suspected prohibited munition in his possession to retain the suspected prohibited munition until a specified date.
62.Subsection (1) describes the conditions under which this section will apply. The Secretary of State must have grounds to suspect that an object is a prohibited munition and it must also appear that the persons in possession of the object would not have a defence under section 5 or 6 (possession for destruction or permitted purposes), if charged with the offence of possession under subsection (1)(e) of section 2.
63.Subsection (2) states upon whom the Secretary of State may serve a notice. This is both the person who appears to have physical possession of the object, and any other person who the Secretary of State believes may be materially affected if the object were destroyed; for example, the owner of the object.
64.Subsection (3) stipulates what the notice must include. Subsection (4) provides that a person who has possession of the object when the notice is served must retain it for the period specified in the notice.
65.Subsection (5) makes provision for any person served with a notice to object by claiming that either the object is not a prohibited munition, or that the persons who have the object in their possession would have a defence under section 5 or 6 if charged with an offence of possession (possession for destruction or permitted purposes). The persons making the case may include not only the person who has the object in their possession, but any person who was served with a notice because they were understood to be materially affected: they may have relevant information to put forward about another person’s possession.
66.The purpose of this section is to provide a procedure whereby persons authorised by the Secretary of State can obtain access to premises and search for prohibited munitions in cases where there is reasonable cause to believe there are prohibited munitions present.
67.The term “premises” is defined in section 30 and includes land, moveable structures, vehicles, vessels, aircraft and hovercraft.
68.Subsection (1) stipulates the conditions which the Secretary of State must have reasonable cause to believe are satisfied before authorising a person to enter and search premises. The conditions referred to as A to C are set out in subsections (3), (4) and (5) respectively. The conditions to be satisfied are:
Condition A: that there is a prohibited munition present on the premises.
Condition B: the persons in possession of the prohibited munition would not have a defence under section 5 or 6 (possession for destruction or permitted purposes).
Condition C: that the public has access to the premises, or the occupier of the premises consents to the premises being entered and searched.
69.Subsection (2) stipulates the conditions under which a justice of the peace may issue a warrant authorising persons acting under the authority of the Secretary of State to enter and search premises. The justice of the peace must be satisfied, based on information given on oath, that there is reasonable cause to believe that a prohibited munition is present on the premises and that the persons in possession of the prohibited munitions would not have a defence under section 5 or 6. This power is necessary for authorising access to private premises when the occupier does not consent to entry and search i.e. where only conditions A and B are met, not condition C.
70.The effect of subsection (6) is that the use of the powers of entry and search in subsections (1) and (2) does not depend on first serving a notice under section 11. Subsection (7) provides that any person acting under the authority of the Secretary of State can apply for a warrant and the application must specify the relevant premises. Subsection (8) provides that a warrant can authorise entry on only one occasion.
71.Under subsection (9) the warrant can be executed by anyone authorised by the Secretary of State during the period of one month from the date of issue.
72.Subsection (10) addresses how in their application to Scotland the references to “justice of the peace” and “information on oath” in subsection (2) should be interpreted.
73.This section confers powers on persons authorised by the Secretary of State to either remove any prohibited munition found as the result of the powers of entry conferred by section 12 for the purposes of destruction or leave it in place forbidding anyone to interfere with it or move it within a specified period.
74.Under subsection (1) the persons authorised by a warrant under section 12(2) to enter the premises may use force, if necessary, to enter the premises.
75.Subsection (2) enables the persons entering under a warrant or under an authorisation issued by the Secretary of State to take with them other people and such equipment as appear necessary, if for example it is expected that this object will be large and difficult to handle, or dangerous.
76.Under subsection (3) the person entering under a warrant or under an authorisation issued by the Secretary of State may make safe any prohibited munition found. Subsection (7) defines what is “safe” for the purposes of this section. The prohibited munition is made safe by preventing it from being an immediate danger, but without it being destroyed.
77.Where in the course of an authorised search, a prohibited munition is found, the authorised person may also under subsection (4) seize and remove the prohibited munition, if it is reasonably practicable to do so. If it is not reasonably practicable to remove it, they can affix a notice either on the prohibited munition itself or in a conspicuous position near it. Subsection (4)(b) stipulates that this notice should state that the prohibited munition is not to be moved or interfered with before a specified date. The notice itself is also not to be interfered with before the specified date.
78.Subsection (5) provides for the situation when a prohibited munition is found in the possession of persons who would have a defence to a charge of possession under section 5 or 6. In that case, neither the powers to make safe, seize or remove the prohibited munition, nor the power to affix a warning notice to it, may be exercised.
79.The restriction in subsection (5) will not operate in the case of a prohibited munition that has been abandoned.
80.Under subsection (6) the authorisation given under section 12(1) or warrant issued under section 12(2) can provide that the authorised person may only exercise the powers conferred on them if accompanied by a constable (if they are not a constable themselves).
81.The effect of section 14 is to confer powers on the Secretary of State to authorise the destruction of prohibited munitions that have been seized and removed under section 13. The section stipulates the procedure which must be followed before destruction. The intention of this procedure is to give anyone with an interest in the prohibited munition an opportunity to persuade the Secretary of State that the prohibited munition should not be destroyed.
82.Subsection (1) states that this section applies when a prohibited munition has been removed under section 13(4)(a). The succeeding subsections then divide the period of twelve months following the removal of the prohibited munition into two six-month stages.
83.Subsection (2) addresses the first six months following the removal of the prohibited munition. Within this period the Secretary of State must serve a notice on both any persons who appear to have had the prohibited munition in their possession before its removal, and any persons who appear to have an interest which would be materially affected by its destruction. The use of the word “appears” means that the Secretary of State is not required to be certain that the persons concerned fall into one of these groups. This first period of six months is intended to allow time for investigation, or for new facts to come to light.
84.Subsection (3) stipulates what the notice must cover:
it must describe the prohibited munition and where it is;
it must say that the Secretary of State proposes to have it destroyed and why; and
it must tell the recipient of the notice that they can object and how to do so and by when.
85.Subsections (4) and (5) provide the persons on whom a notice is served under this section with the right to object to the destruction of the prohibited munition: they must do so in writing to the Secretary of State by a specified date and state their reason.
86.Subsection (6) addresses the second six-month period. Within this period the Secretary of State can make a decision to destroy the prohibited munition and authorise a person to carry out this destruction.
87.Under subsection (7) the persons on whom a notice has been served must be allowed time to respond and the Secretary of State must consider any objections to the destruction of the prohibited munition. The effect of the wording in brackets in subsection (7)(b) is that the objections to be considered must include any made by a person on whom a notice has not been served.
88.Subsection (8) provides for the Secretary of State to recover “reasonable” costs incurred in removing and destroying the prohibited munition from the person who had possession of the prohibited munition immediately before its removal. This subsection does not enable costs to be recovered from any person who only had an interest in the prohibited munition but did not have it in their possession.
89.The combined effect of subsections (9) and (10) is that if, at the end of the second six-month period, the prohibited munition has not been authorised to be destroyed and a person or persons had possession of the prohibited munition immediately before its removal the prohibited munition must be returned to that person. A prohibited munition that was in the possession of more than one person could be returned to just one of them if the Secretary of State thinks it is appropriate.
90.Subsection (11) defines the times from when the first and second six-month periods are to run.
91.This section sets out the procedure to be followed if, following a search under section 12, a prohibited munition was found but it was not reasonably practicable to remove it from the premises, and a notice has been affixed on or near it under section 13(4)(b).
92.The principles, structure and content of the procedure mirror the provisions of section 14.
93.If the decision is taken under section 15(6) to destroy a prohibited munition, the effect of this section is to confer the power of entry necessary to gain access to premises and the power to destroy the munition.
94.Subsections (1) and (2) provide for a person authorised by the Secretary of State to enter the premises and destroy the prohibited munition. This applies when the prohibited munition is on premises to which the public has access or on premises occupied by a person who consents to the destruction of the prohibited munition.
95.By virtue of subsections (3) and (4) a justice of the peace may issue a warrant authorising a person acting under the authority of the Secretary of State to enter the premises and destroy the prohibited munition.
96.Subsection (5) provides that any person acting under the authority of the Secretary of State can apply for a warrant. The application must specify the premises concerned. Subsection (6) provides that a warrant can authorise entry on only one occasion.
97.Under subsection (7) the warrant can be executed by anyone authorised by the Secretary of State during the period of one month from the date of issue.
98.Under subsection (8) the person authorised by the warrant issued under subsection (4) may use force, if necessary, to enter the premises.
99.Under subsection (9) a person acting under authority given under subsection (2) or under a warrant issued under subsection (4) may take with them other persons and such equipment as appear necessary.
100.Under subsection (10) the person authorised under subsection (2) or under the warrant issued under subsection (4) may be required to be accompanied by a constable under the terms of the authorisation or warrant, when they exercise the powers authorised.
101.Subsection (11) addresses how in their application to Scotland references to “justice of the peace” and “information on oath” in subsections (3) and (4) should be interpreted.
102.This section provides for compensation in limited circumstances where a prohibited munition has been destroyed under section 14 or 16.
103.Subsection (1) stipulates who may make a claim under this section. Under subsection (1)(d), a person can only be entitled to compensation if no notice was served on them, regardless of whether or not a notice was served on any other person. In addition, the claimant must have had an interest which was materially affected by the destruction of the munition and have suffered loss as a result of the destruction.
104.Subsection (2) states which court can adjudicate on claims. The relevant court is the High Court, or in Scotland, the Court of Session.
105.Under subsection (3) it is in the Court’s discretion as to what compensation should be paid to the claimant if the court finds that the claim is justified.
106.The effect of subsection (4) is that the Court is not to award compensation if it believes that the object would have been destroyed even if a notice had been served on the claimant providing the opportunity to make representations opposing destruction to the Secretary of State.
107.This section creates offences related to interference with the procedures on investigations into alleged possession; powers of entry to search for prohibited munitions; and removal, immobilisation and destruction of prohibited munitions. The intended effect is to ensure the procedures contained in sections 11 to 16 are not thwarted or obstructed.
108.Subsection (1) makes it an offence for a person to relinquish possession of a prohibited munition without reasonable excuse, once the Secretary of State has served a notice under section 11 requiring it to be kept.
109.Under paragraphs (a) to (e) of subsection (2) it would be an offence to wilfully obstruct any person authorised under sections 12 (power to enter and search), 13 (power to remove or immobilise), 14 (power to destroy removed munitions) or 16 (power to enter and destroy immobilised munitions) from exercising the powers conferred on them. Subsection (2)(f) has the effect of making any attempt to obstruct an offence.
110.Subsection (3) makes it an offence without reasonable excuse, where a warning notice has been affixed under section 13(4)(b), to move or interfere with the prohibited munition, or to interfere with the warning notice.
111.Subsection (4) provides that the offences under subsections (1) to (3) may be prosecuted either summarily or on indictment. This subsection also lays down what the penalties would be: on summary conviction the penalty is a fine not to exceed the statutory maximum (£5,000); and on conviction on indictment, the penalty is a fine with no limit stipulated.
112.Subsection (5) makes it an offence knowingly to make a false or misleading statement in response to a notice served under section 11, 14 or 15. The offence may be prosecuted either summarily or on indictment. This subsection also lays down what the penalties would be: on summary conviction a fine not exceeding the statutory maximum (£5,000) and on conviction on indictment the penalty may be imprisonment not exceeding two years or an unlimited fine, or both. The penalty is higher for making a false statement than for obstruction because, whilst obstruction may impose a delay, the making of a false statement may frustrate the whole process and prevent a potentially dangerous prohibited munition from being dealt with.
113.The purpose of this section is to make clear that sections 11 to 16 (powers to secure the destruction of prohibited munitions) do not affect any common law power or powers arising under other legislation which might be relevant to the search for and disposal of prohibited munitions.
114.The purpose of this section is to enable the UK to make the reports required under Article 7 of the Convention. As a transparency measure under Article 7 a State Party is required to submit a first report within 180 days of the Convention entering into force for that State Party, and annual reports thereafter, on national implementation measures and other details (which include the cluster munitions retained for permitted purposes). This section confers the necessary powers for the Secretary of State to require people to maintain records and provide information needed for the purposes of the Convention.
115.Subsection (1) enables the Secretary of State to obtain information needed in connection with the Convention by serving a notice on any person requiring the person to provide the information needed.
116.The effect of subsection (2) is that the information required to be given by a notice under this section must be information that the Secretary of State has reasonable cause to believe is, or will be, needed in connection with anything to be done for the purposes of the Convention. Subsection (2)(b) provides that the information required may relate to situations, or events that have taken place, before either the Convention or the Act has entered into force.
117.Subsection (3) provides that the notice served under subsection (1) may say in what form the information must be given, and a date by which the information must be given. It is implicit that the period specified in subsection (3)(b) must be reasonable.
118.Subsections (4) and (5) enable the Secretary of State to serve a notice requiring any person to keep the records specified in the notice. These are records which are thought likely to assist with providing the information which that person may be required to give under subsection (1).
119.Subsection (6) prevents the Secretary of State obtaining information without consent if the information might incriminate the person on whom a notice has been served under subsection (1) or, if that person is married or a civil partner, the person’s spouse or civil partner. Subsection (7) prevents the power in subsection (1) from being used to obtain information protected by legal professional privilege (or, in Scotland, confidentiality of communications).
120.To ensure the procedure in this section is complied with, subsection (8) makes it an offence not to comply with a notice issued under either subsection (1) or (4) without a reasonable excuse; and subsection (9) makes it an offence knowingly to make a false or misleading statement in response to a notice served under subsection (1).
121.In both subsections (8) and (9) penalties are specified. Subsection (8) mirrors the penalties laid down in section 18(4) for obstruction, and subsection (9) mirrors the penalties laid down in section 18(5) for making false or misleading statements.
122.The purpose of this section is to confer powers to enter and search premises to obtain evidence in connection with an offence under the Act.
123.Under subsection (1) a justice of the peace may issue a warrant authorising a person acting under the authority of the Secretary of State to enter and search premises if they are satisfied that either condition A or B is met.
124.There must be reasonable grounds to suspect either: an offence under the Act is being, has been, or is about to be, committed on the premises (condition A, subsection (2)); or that evidence of an offence under the Act having been committed will be found on the premises (condition B, subsection (3)).
125.Subsection (4) provides that any person acting under the authority of the Secretary of State can apply for a warrant. The application must specify the relevant premises. Under subsection (5) the warrant may authorise entry on one occasion only. Under subsection (6) the warrant can be executed by anyone authorised by the Secretary of State during the period of one month from the date of issue.
126.Subsection (7) addresses how in their application to Scotland references to “justice of the peace” and “information on oath” in subsection (1) should be interpreted.
127.This section stipulates what the person authorised under a warrant issued under section 21 may do, and who may accompany him.
128.Under subsection (1) the person authorised under the warrant issued under section 21 may if necessary use force to enter the premises.
129.Subsection (2)(a) permits the person authorised under the warrant issued under section 21 to take other persons and such equipment on to the premises as appear necessary. Paragraphs (b) to (g) of subsection (2) permit the authorised person to:
inspect, seize and remove any document, device, equipment or substance considered to be evidence of an offence under the Act
copy documents or sample substances found on the premises for the same purpose
require information in electronic form to be produced in a form in which it can be removed and read, and take copies of, or seize and remove anything produced considered to be evidence of an offence under the Act.
130.Under subsection (3) anything seized under subsection (2) may only be retained for as long as necessary.
131.Under subsection (4) any person who seizes anything under subsection (2) must provide a record of its seizure if requested by either: the person who occupies the premises at the time of the seizure; or the person who had possession or control of the thing immediately before it was seized.
132.The intention of subsection (5) is to protect claims to legal professional privilege, or in Scotland confidentiality of communications, with respect to information that can be obtained under subsection (2).
133.Subsections (6) and (7) provide for a constable to search persons who are found on the premises and whom he has reasonable cause to believe are in possession of any document, device, equipment or substance required as evidence.
134.Subsection (8) stipulates that no constable shall search a person of the opposite sex.
135.Under subsection (9) the warrant issued under section 21 can stipulate that the powers conferred by the warrant are only exercisable in the presence of a constable.
136.To ensure compliance with the other provisions of this section, subsection (10) makes it an offence for a person to obstruct a person exercising any power under this section. The penalties on summary conviction or conviction on indictment are stipulated. The penalties mirror those in sections 18(4) and 20(8) for obstruction.
137.The purpose of this section is to protect the information obtained under the Act or the Convention. The section does this, subject to certain exceptions, by making it an offence to disclose any information obtained under this Act or the Convention.
138.Subsection (1) specifies the information to be protected by this section. The intention is that it cover all information obtained under, or in connection with anything done under, this Act or the Convention that relates to a particular business or other activity carried on by any person. The information protected by this section is not limited to information obtained and held by the Secretary of State.
139.Subsection (2) stipulates that the information is not to be disclosed while the business or activity is ongoing, unless one of the specific exceptions applies:
with the consent of the person carrying on the relevant business or activity;
for the purposes of the Convention or the Act;
regarding investigation of a criminal offence or for the purposes of criminal proceedings;
relating to enforcement of trade controls;
to ensure the UK’s security.
140.To ensure compliance subsection (4) makes it an offence to disclose information covered by this section. The penalties on summary conviction or conviction on indictment are stipulated. The penalties mirror those in sections 18(5) and 20(9) for giving false and misleading information.
141.The effect of subsection (5) is that the exceptions set out in subsection (2)(b) to (f) override other obligations not to disclose the information concerned, for example a contractual duty to preserve its confidentiality.
142.This section requires that proceedings for offences under the Act may be instituted only by or with the consent of the Attorney General or the Attorney General for Northern Ireland. The intention is to prevent frivolous or otherwise undesirable prosecutions by private persons and to ensure consistency of approach. A similar provision is not needed for Scotland since criminal proceedings there are only brought by or on behalf of the Lord Advocate other than in very exceptional circumstances.
143.This section provides that, where a person is convicted of an offence under the Act, the Court may order that objects related to that offence be forfeited.
144.Subsection (1) provides that this section applies where a person is convicted of an offence under the Act.
145.Subsection (2) enables the court which convicts a person for an offence under the Act to order that anything it is satisfied is related to the offence be forfeited and thereafter destroyed, or otherwise dealt with, in the manner specified in an order made by the court.
146.Subsection (3) provides that the court may order under subsection (2) that the object which has been forfeited be dealt with in such a way which the Secretary of State sees fit.
147.Subsection (4) provides that where the Court makes an order under subsection (3), the powers of the Secretary of State include the power to direct destruction of the forfeited item and the power to dispose of it in any other way which seems appropriate.
148.Subsections (5) and (6) provide that, where a court proposes to make an order under subsection (2), if a person claiming to have an interest in the thing to be forfeited applies to make representations to the court, the court must not make such an order unless that person has been given the opportunity to show why the object should not be forfeited.
149.This section contains standard provisions imposing criminal liability on officers of corporate bodies which commit offences under the Act.
150.Subsection (1) provides that where an offence is committed by a body corporate, and the offence is proved to have been committed with the consent or connivance of an officer of that body corporate, or the offence is proved to have been attributable to the neglect of such officer, then that person is guilty of the same offence as the body corporate and is liable to the same penalties.
151.Subsection (2) provides that where an offence is committed by a Scottish partnership and the offence is proved to have been committed with the consent or connivance of a partner, or proved to have been attributable to the neglect of a partner, the partner is liable to be prosecuted as well. In Scotland a partnership is a separate legal entity (unlike in England).
152.Subsection (3) defines “officer of a body corporate” for the purposes of subsection (1) as a director, manager, secretary or other similar officer of the corporate body; or any person who was purporting to act in such a capacity. In relation to a Scottish partnership, “partner” includes any person purporting to act as a partner of the partnership.
153.Subsection (4) defines “director” for the purposes of subsection (3) as a member of the body corporate. This subsection is only relevant where the affairs of the body corporate are managed by its members.
154.A person authorised under section 12(1) or 16(2) to search premises must produce identification and the authority to search to anyone on the premises who asks (subsection (1)).
155.Subsection (2) stipulates that the provisions of subsections (3) to (5) apply where a person enters premises under the authority of a warrant issued under section 12(2), 16(4) or 21(1). Under subsections (3) to (5) the authorised person is required to provide evidence of identity and a copy of the warrant to the occupier or in his absence to whoever is in charge of the premises. If the occupier is absent, and no-one appears to be in charge of the premises, a copy of the warrant must be left there.
156.Subsection (6) provides that entry under section 12(1) or (2), 16(2) or (4) or 21(1) must be at a reasonable hour unless the purpose of entry would be frustrated if done then. Subsection (7) provides that authorised persons entering unoccupied premises under these same sections must take all reasonable steps to leave them as secure as they found them. Subsection (8) provides that the safeguards in subsections (3) to (6) do not apply to a constable entering under a warrant: this is because other statutory provisions cover the conduct of constables.
157.This section sets out how notices under this Act may be served.
158.Subsection (1) provides that a notice to be served on a person may be delivered to the person or sent by post to his usual or last-known residence, or usual or last-known place of business, in the United Kingdom.
159.Details of how notices may be served on a Scottish partnership are set out under subsection (2): delivery in person to a partner of the partnership, or to a person having control or management of the partnership business, at the principal office of the partnership; or by sending it by post to that office to a partner of the partnership, or person who has control or management of the partnership business.
160.Details of how notices may be served on a body corporate are set out under subsection (3). A notice to a body corporate may be served by delivering it to the secretary or clerk of the body corporate at its registered or principal office; or by sending it by post to the secretary or clerk at that office.
161.In relation to a company registered outside the United Kingdom, “principal office” includes the principal office within the United Kingdom (if any). A notice could be served using the company’s principal office outside the UK.
162.Section 29 provides that the Secretary of State may modify the Act by order to give effect to any amendments made to the Convention. Article 13 of the Convention provides for amendments to the Convention, and sets out the procedures whereby amendments may be made to the Convention.
163.The power is limited to implementing amendments to the Convention and is not intended to be used to make other changes to this Act.
164.Subsection (1) empowers the Secretary of State to make amendments to the Act by an order in the form of a statutory instrument to give effect to an amendment to the Convention.
165.Subsection (2) empowers the Secretary of State to include in any order made under subsection (1) consequential modifications, which are necessary or desirable, to any other enactment. Subsection (4) defines enactment and modification for the purposes of this section.
166.Subsection (3) provides for an order under subsection (1) to be subject to the affirmative resolution procedure which would require that a draft of the order be laid before and approved by each House.
167.This section provides interpretation of terms used in the Act.
168.This section introduces Schedule 3, which contains minor and consequential amendments to other Acts.
169.This section provides that, subject to certain qualifications, the Act will bind the Crown ((subsection (1)).
170.Subsection (2) provides that the Crown itself will not be criminally liable for any contravention by the Crown of any provision of the Act.
171.Subsection (3) provides that, notwithstanding the provisions of subsection (2), the Act applies to Crown servants as it applies to other people.
172.Under subsection (4) an interested party may apply to the High Court, or in Scotland the Court of Session, for the Court to declare unlawful any act or omission committed by the Crown which is deemed to be a contravention of the Act.
173.Subsection (5) provides that the Act does not bind the Queen in her private capacity.
174.The purpose of this section is to provide the jurisdictional extent of the Act.
175.Subsection (1) provides that the Act extends to England and Wales, Scotland and Northern Ireland.
176.Subsection (2) provides that an amendment made by this Act will have the same extent as the provision which is amended.
177.Subsection (3) provides that the Queen may by Order in Council extend the Act with modifications (or without modifications) to any of the Channel Islands, the Isle of Man or any British overseas territory.
178.The purpose of this section is to make provision for when the Act comes into force; that is on the day it is passed. It also provides that the Act may be cited as the Cluster Munitions (Prohibitions) Act 2010.
179.This contains extracts from the Convention, setting out the meanings of terms used in the Convention, as referred to in sections 1(6), 3(7) and 6(10) of the Act. The following Convention definitions are included:
Cluster munition and related terms
Cluster munition
Explosive submunition
Unexploded submunition
Self-destruction mechanism
Self-deactivating
Explosive bomblet
Dispenser
Mine
Cluster munition remnants and related terms
Cluster munition remnants
Failed cluster munition
Unexploded submunition
Abandoned cluster munition
Unexploded bomblet
180.This Schedule sets out the offences to which the interoperability defence in section 9 applies, and when it applies.
181.Paragraphs 1 to 6 provide that the interoperability defence would be available to any person charged with possession or making arrangements for another person to transfer prohibited munitions (or with attempting or conspiring to do either of those things). It would also be available to a person charged with assisting, encouraging or inducing another to use, possess, transfer, or make arrangements under which another person transfers, a prohibited munition, as well as to a person charged with other forms of secondary or inchoate liability relating to these types of conduct. A person charged with attempt or conspiracy in relation to any of the types of secondary and inchoate liability covered by paragraphs 2 to 5 would also be able to invoke the defence.
182.Paragraph 7 stipulates that, with regard to conduct related to the use or transfer of a prohibited munition (including making arrangements under which another transfers a prohibited munition), the interoperability defence will only apply if the person charged can demonstrate that the use or transfer was, or was to be, only by a member or members of the armed forces of, or a person or persons acting under the authority of, a State not party to the Convention, or that they had reasonable cause to believe this to be the case.
183.Paragraph 8 disapplies the interoperability defence with respect to members of a visiting force of a State not party to the Convention and those working with such a force (as defined in section 8) when they are charged with:
the offence of possession of a prohibited munition (section 2(1)(e));
making arrangements under which another person transfers a prohibited munition if that other person was a member of the visiting force of a State not party to the Convention and the arrangements were for that person to move the prohibited munition into or out of the UK or enter into a contract to do so;
an offence specified in paragraphs 2 to 6 of Schedule 2 where the conduct was related to anything set out in sub-paragraph (4) of paragraph 8. Sub-paragraph (4) applies to: the possession of a prohibited munition by a member of a visiting force of a State not party to the Convention, or a person working with such a force; the movement of a prohibited munition into or out of the UK; the entering into a contract (by a member of a visiting force of a State not party to the Convention) to move a prohibited munition into or out of the UK; the making of arrangements by a member of a visiting force of a State not party to the Convention, or a person working with such a visiting force, under which a member of such a visiting force moves a prohibited munition into or out of the UK, or enters into a contract for such a movement.
184.This Schedule contains consequential amendments to the Criminal Justice and Police Act 2001 and to the Serious Crime Act 2007.
185.Under paragraph 1, the powers of seizure conferred by the Act are inserted in Schedule 1 to the Criminal Justice and Police Act 2001 which sets out the powers to which section 50 of the 2001 Act applies (additional powers of seizure from premises). The effect of this amendment is to extend the powers of seizure conferred by the Act in cases where it is not reasonably practicable for it to be determined on the premises whether or not property is seizable property and in cases where the seizable property is comprised in something from which it is not reasonably practicable for it to be separated.
186.The offence under section 2(2) of this Act will be added to the list of offences in Schedule 3 to the Serious Crime Act 2007. Under section 2(2) the Act contains a specific offence of assisting, encouraging and inducing another person to engage in prohibited conduct under section 2(1). The amendment will be made so as to avoid the possibility of a person being prosecuted under Part 2 of the Serious Crime Act 2007 for assisting or encouraging another person to assist, encourage or induce a contravention of section 2(1).
187.All the Act’s provisions will come into force on Royal Assent.
The following table sets out the dates and Hansard references for each stage of this Act’s passage through Parliament
| Stage | Date | Hansard reference |
|---|---|---|
| House of Lords | ||
| Introduction | 19 November 2009 | Vol. 715 col 27 |
| Second Reading | 8 December 2009 | Vol. 715 col 991 |
| Committee | 6 January 2010 | Vol. 716 col GC1 |
| Report | 20 January 2010 | Vol. 716 col 996 |
| Third Reading | 8 February 2010 | Vol. 717 col 480 |
| House of Commons | ||
| Introduction | 8 February 2010 | Vol. 505 col 722 |
| Second Reading | 17 March 2010 | Vol. 507 col 884 |
| Committee, Report and Third Reading | 23 March 2010 | Vol. 508 col 150 |
| Royal Assent – 25 March 2010 | House of Lords Hansard vol. 718 col 1057 |
| House of Commons Hansard vol. 508 col 395 |