PART 6U.K.OFFENCES, ENFORCEMENT AND PENALTIES

Offences relating to prohibitions in Parts 2, 3 and 4U.K.

34.—(1) Subject to paragraphs (2) and (7), a person who contravenes a prohibition in Part 2 or 4 of this Order commits an offence and shall be liable on summary conviction to a fine not exceeding level 3 on the standard scale.

(2) A person who—

(a)did not know, and had no reason to suppose, that the goods referred to in article 20 were destined for an embargoed destination; and

(b)is able to show the matters stated in sub-paragraph (a)

shall not be guilty of an offence under paragraph (1) by reason of a contravention of the prohibition in article 20.

(3) A person who contravenes a prohibition in Part 2 or 3 of this Order that is engaged because the person—

(a)has been informed;

(b)is aware; or

(c)has grounds for suspecting

that goods, software or technology are or may be intended, in their entirety or in part, for WMD purposes commits an offence and may be arrested.

[F1(3A) A person who contravenes a prohibition in Part 2 of this Order that is engaged because the person has been informed by the Secretary of State that dual-use goods, software or technology are or may be intended, in their entirety or in part, for use by a relevant entity referred to in article 12A (military end-use control supplementing the dual-use Regulation), commits an offence and may be arrested.]

(4) A person guilty of an offence under paragraph (3) [F2or (3A)] shall be liable—

(a)on summary conviction—

(i)in F3... Scotland, to a fine not exceeding the statutory maximum or to imprisonment for a term not exceeding twelve months, or to both;

(ii)in Northern Ireland, to a fine not exceeding the statutory maximum or to imprisonment for a term not exceeding six months, or to both; or

[F4(iii)in England and Wales, to a fine not exceeding the statutory maximum or to imprisonment for a term not exceeding the general limit in a magistrates’ court, or to both; or]

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

(5) Subject to paragraph (7), a person knowingly concerned in activity prohibited by Part 2, 3 or 4 of this Order with intent to evade the relevant prohibition commits an offence and may be arrested.

(6) A person guilty of an offence under paragraph (5) shall be liable—

(a)on summary conviction—

(i)in F5... Scotland, to a fine not exceeding the statutory maximum or to imprisonment for a term not exceeding twelve months, or to both;

(ii)in Northern Ireland, to a fine not exceeding the statutory maximum or to imprisonment for a term not exceeding six months, or to both; or

[F6(iii)in England and Wales, to a fine not exceeding the statutory maximum or to imprisonment for a term not exceeding the general limit in a magistrates’ court, or to both; or]

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

(7) Paragraphs (1) and (5) do not create offences related to prohibitions on the exportation of goods (as to which see CEMA).

(8) In [F7paragraphs (4)(a)(iii) and (6)(a)(iii)] as they apply to England and Wales in the case of an offence committed before [F82nd May 2022], for “[F9the general limit in a magistrates’ court]” substitute “six months”.

Textual Amendments

Offences relating to prohibitions and restrictions in the [F10retained dual-use Regulation] U.K.

35.—(1) Subject to paragraph (8), a person who contravenes a prohibition or restriction in Article 3(1) (controls on listed goods), 4(2) (military end-use control), 4(3) (end-use control relating to use in items exported or transferred without authorisation) F11... of the [F12retained dual-use Regulation] commits an offence and shall be liable on summary conviction to a fine not exceeding level 3 on the standard scale.

(2) A person who—

(a)contravenes a prohibition or restriction in Article 4(1) (WMD purposes end-use control) [F13or Article 5(1) (brokering services)] of the [F12retained dual-use Regulation]; or

(b)fails to comply with the requirement in Article 4(4) (requirement to notify [F14the Secretary of State] in the case of awareness of end-use for [F15certain military or] WMD purposes) of the [F12retained dual-use Regulation]

commits an offence and may be arrested.

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

[F16(a)on summary conviction in F17... Scotland, to a fine not exceeding the statutory maximum or to imprisonment for a term not exceeding twelve months, or to both; or]

[F18(iii)in England and Wales, to a fine not exceeding the statutory maximum or to imprisonment for a term not exceeding the general limit in a magistrates’ court, or to both; or]

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

(4) Subject to paragraph (8), a person knowingly concerned in an activity prohibited or restricted by Article 3(1), 4(1), 4(2), 4(3) [F19, 5(1) F20...] of the [F12retained dual-use Regulation] with intent to evade the relevant prohibition or restriction commits an offence and may be arrested.

(5) A person guilty of an offence under paragraph (4) shall be liable—

[F21(a)on summary conviction in F22... Scotland, to a fine not exceeding the statutory maximum or to imprisonment for a term not exceeding twelve months, or to both; or]

[F23(iii)in England and Wales, to a fine not exceeding the statutory maximum or to imprisonment for a term not exceeding the general limit in a magistrates’ court, or to both; or]

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

(6) A person who fails to comply with [F24Article 9(2) (provision of relevant information for export authorisation applications) or 10(2) (provision of relevant information for authorisation applications for brokering services)] of the [F12retained dual-use Regulation] commits an offence and shall be liable on summary conviction to a fine not exceeding level 3 on the standard scale and any licence which may have been granted in connection with the application shall be void as from the time it was granted.

[F25(7) A person who fails to comply with Article 20 (record-keeping) F26... of the [F12retained dual-use Regulation] commits an offence and shall be liable on summary conviction to a fine not exceeding level 3 on the standard scale.]

(8) Paragraphs (1) and (4) do not create offences related to prohibitions or restrictions on the exportation of goods from the United Kingdom (as to which see CEMA).

(9) In [F27paragraphs (3)(a)(iii) and (5)(a)(iii)] as they apply to England and Wales in the case of an offence committed before [F282nd May 2022], for “[F29the general limit in a magistrates’ court]” substitute “six months”.

Textual Amendments

F15Words in art. 35(2)(b) inserted (16.6.2009) by The Export Control (Amendment) Order 2009 (S.I. 2009/1305), arts. 1(1), 2

Offences relating to prohibitions and restrictions in the torture RegulationU.K.

36.—(1) A person who contravenes a prohibition or restriction in Article 3(1) (export prohibition) of the torture Regulation in respect of the supply of technical assistance as defined in the torture regulation commits an offence and shall be liable on summary conviction to a fine not exceeding level 3 on the standard scale.

(2) A person knowingly concerned in the provision of technical assistance as defined in the torture Regulation with intent to evade the prohibition on the provision of technical assistance in article 3(1) of the torture Regulation commits an offence and may be arrested.

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

(a)on summary conviction—

(i)in F30... Scotland, to a fine not exceeding the statutory maximum or to imprisonment for a term not exceeding twelve months, or to both;

(ii)in Northern Ireland, to a fine not exceeding the statutory maximum or to imprisonment for a term not exceeding six months, or to both; or

[F31(iii)in England and Wales, to a fine not exceeding the statutory maximum or to imprisonment for a term not exceeding the general limit in a magistrates’ court, or to both; or]

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

(4) A person who contravenes a prohibition or restriction in Article 4(1) (import prohibition) of the torture Regulation in respect of the acceptance of technical assistance as defined in the torture Regulation commits an offence and shall be liable on summary conviction to a fine not exceeding level 3 on the standard scale.

(5) A person knowingly concerned in the acceptance of technical assistance as defined in the torture Regulation with intent to evade the prohibition on the acceptance of technical assistance in article 4(1) of the torture Regulation commits an offence and may be arrested.

(6) A person guilty of an offence under paragraph (5) shall be liable—

(a)on summary conviction—

(i)in F32... Northern Ireland, to a fine not exceeding the statutory maximum or to imprisonment for a term not exceeding three months, or to both; or

(ii)in Scotland, to a fine not exceeding the statutory maximum or to imprisonment for a term not exceeding twelve months, or to both; or

[F33(iii)in England and Wales, to a fine not exceeding the statutory maximum or to imprisonment for a term not exceeding the general limit in a magistrates’ court, or to both; or]

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

(7) A person who fails to comply with [F34Article 20(8)] (provision of relevant information for licence applications) of the torture Regulation commits an offence and shall be liable on summary conviction to a fine not exceeding level 3 on the standard scale and any licence which may have been granted in connection with the application shall be void as from the time it was granted.

(8) In [F35paragraphs (3)(a)(iii) and (6)(a)(iii)] as it applies to England and Wales in the case of an offence committed before [F362nd May 2022], for “[F37the general limit in a magistrates’ court]” substitute “six months”.

Textual Amendments

[F38Further offences relating to the prohibitions etc. in the torture RegulationU.K.

36A.—(1) In this article—

(a)references to “Articles” are references to articles in the torture Regulation; and

(b)“brokering services” and “transit” bear the same meaning as they have in that regulation.

(2) A person who is concerned in an activity prohibited by [F39Article 5(1)] (prohibition of transit), [F40Article 6] (prohibition of brokering services), [F41Article 7] (prohibition of training), [F42Article 8] (trade fairs) or [F43Article 9] (advertising) commits an offence.

(3) A person who fails to comply with [F44Article 15(1)] (authorisation requirement for certain services) or [F45Article 19(1)] (authorisation requirement for certain services) commits an offence.

(4) A person who is knowingly concerned in an activity prohibited by [F39Article 5(1)], [F40Article 6], [F41Article 7], [F42Article 8], [F43Article 9], [F46Article 13] (prohibition of transit) or [F47Article 18] (prohibition of transit) with intent to evade that prohibition commits an offence and may be arrested.

(5) A person who knowingly fails to comply with [F44Article 15(1)] or [F45Article 19(1)] with intent to evade the requirements in those Articles commits an offence and may be arrested.

(6) A person guilty of an offence under paragraph (2) or (3) is liable upon summary conviction to a fine not exceeding level 3 on the standard scale.

(7) A person guilty of an offence under paragraph (4) or (5) is liable—

(a)on summary conviction—

(i)in England and Wales, to a fine or to imprisonment for a term not exceeding three months, or to both;

(ii)in Scotland and Northern Ireland, to a fine not exceeding the statutory maximum or to imprisonment for a term not exceeding six months, or to both; or

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

Textual Amendments

[F48Misleading applications for licences F49...] U.K.

37.—(1) Where for the purpose of obtaining a licence F50... a person (“the applicant”) either—

(a)makes a statement or furnishes a document or information which to the applicant's knowledge is false in a material particular; or

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

the applicant commits an offence and any licence F50... that has been granted in connection with the application for which the false statement was made or the false document or information was furnished is void as from the time it was granted.

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

(a)on summary conviction—

(i)in England and Wales or Northern Ireland, to a fine not exceeding the statutory maximum or to imprisonment for a term not exceeding three months, or to both;

(ii)in Scotland, to a fine not exceeding the statutory maximum or to imprisonment for a term not exceeding twelve months, or to both; or

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

Textual Amendments

Failure to comply with licence conditionsU.K.

38.—(1) A person who, having acted under the authority of a licence or the [F51general export authorisation], fails to comply with—

(a)any of the requirements or conditions to which the licence or the [F51general export authorisation] is subject; or

(b)any obligation under article 28, 29 F52... or 31

commits an offence unless paragraph (2) applies.

(2) This paragraph applies if—

(a)the licence was modified after the completion of the act authorised; and

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

(3) A person guilty of an offence under paragraph (1) shall be liable—

(a)on summary conviction—

(i)in England and Wales or Northern Ireland, to a fine not exceeding the statutory maximum or to imprisonment for a term not exceeding three months, or to both;

(ii)in Scotland, to a fine not exceeding the statutory maximum or to imprisonment for a term not exceeding twelve months, or to both; or

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

Textual Amendments

F52Word in art. 38(1)(b) omitted (22.2.2017) by virtue of The Export Control (Amendment) Order 2017 (S.I. 2017/85), arts. 1, 2(7)

Customs powers to require evidence of destinationU.K.

39.—(1) This article applies where a person (“the exporter”) has exported goods and required a licence to do so.

(2) The Commissioners may require the exporter to provide within such time as the Commissioners may determine evidence of the destination to which the goods in question were delivered.

(3) A person who fails to comply with a requirement imposed by the Commissioners under paragraph (2) commits an offence and shall be liable on summary conviction to a fine not exceeding level 4 on the standard scale.

Customs powers relating to dual-use goodsU.K.

40.—(1) Goods in relation to which a licence has not been granted and which are brought to any place in the United Kingdom for the purpose of being exported may be detained by the proper officer of Her Majesty's Revenue and Customs as if they were liable to forfeiture, if and so long as that officer has reason to believe that [F53the Secretary of State] (after, if necessary, having had the impending exportation brought to [F54the Secretary of State's] attention) might inform the exporter—

(a)that the goods are or may be intended, in their entirety or in part, for WMD purposes; F55...

[F56(b)as provided in—

(i)Article 4(2) (military end-use control) or (3) (end-use control relating to use in items exported or transferred without authorisation) of the retained dual-use Regulation; or

(ii)Articles 4(1)(b) (military end-use control) or (c) (end-use control relating to use in items exported or transferred without authorisation), 5(1) (cyber-surveillance end-use control) or 10(1) (national control lists pursuant to Article 9) of the EU dual-use Regulation; or]

[F57(c)that the goods are or may be intended, in their entirety or in part, for use by a relevant entity referred to in article 12A (military end-use control supplementing the dual-use Regulation).]

(2) Any goods listed in Annex I to the [F58retained] dual-use Regulation in relation to which a licence has been granted which are brought to [F59any place in Great Britain] for the purpose of being exported to a destination outside the [F60United Kingdom] may be detained by a proper officer of Her Majesty's Revenue and Customs for a period of ten working days as if they were liable to forfeiture where that officer or the Secretary of State has grounds for suspicion that—

(a)relevant information was not taken into account when the licence was granted; or

(b)circumstances have materially changed since the issue of the licence F61....

[F62(2A) Any dual-use goods in relation to which a licence has been granted which are brought to any place in Northern Ireland for the purpose of being exported to a destination outside the United Kingdom may be detained by a proper officer of Her Majesty’s Revenue and Customs for a period of ten working days as if they were liable to forfeiture where that officer or the Secretary of State has—

(a)grounds for suspicion that—

(i)relevant information was not taken into account when the licence was granted;

(ii)circumstances have materially changed since the grant of the licence; or

(b)relevant information regarding the potential application of measures under Article 4(1) of the EU dual-use Regulation.

(2B) For the purposes of paragraph (2A), the period of ten working days shall be extended to 30 working days where the Secretary of State certifies that a request for such an extension in accordance with Article 21(4) (consultation requirement) of the EU dual-use Regulation has been received from the member State which granted the licence.]

(3) In this article, “working day” means a day that is not a Saturday or Sunday, Christmas Day, Good Friday or any day that is a bank holiday under the Banking and Financial Dealings Act 1971 M1 in the part of the United Kingdom where the goods referred to in paragraph (2) have been detained.

Textual Amendments

Marginal Citations

Application of CEMA in respect of offencesU.K.

41.—(1) Where the Commissioners for Her Majesty's Revenue and Customs investigate or propose to investigate any matter with a view to determining—

(a)whether there are grounds for believing that an offence has been committed by reason of a contravention of—

(i)article 3, 4 F63..., [F644A,] F65... 6, F66... 8, F66... 11, 12,[F6712A,] 19, 20, 21, 22, 23, 37, 38 or 39 of this Order;

(ii)article 31 of this Order so far as it relates to the powers of the Commissioners;

(iii)the dual-use Regulation; or

(iv)the torture Regulation; or

(b)whether a person should be prosecuted for such an offence,

the matter shall be treated as an assigned matter.

(2) Section 77A of CEMA (provision as to information powers) M2 shall apply to a person concerned in an activity which, if not authorised by a licence, would contravene—

(a)article 3, 4 F68..., [F694A, ] F70... 6, F71... 8, F71... 11, 12, [F7212A,]19, 20, 21, 22 or 23 of this Order;

(b)the dual-use Regulation; or

(c)the torture Regulation,

and accordingly references in section 77A of CEMA to exportation shall be read as including any such activity.

(3) Section 138 of CEMA (provision as to arrest of persons) M3 shall apply to the arrest of a person for an offence under this Order as it applies to the arrest of a person for an offence under the customs and excise Acts.

(4) Sections 145 M4, 146 M5, 146A M6, 147 M7, 148, 150 M8, 151 M9, 152 M10, 154 M11, and 155 M12 of CEMA (proceedings for offences, mitigation of penalties, proof and other matters) shall apply in relation to offences and penalties under this Order as they apply in relation to offences and penalties under the customs and excise Acts.

(5) For the purposes of the application of section 145 of CEMA to this Order, only offences related to contraventions of the provisions referred to in paragraph (1)(a) are offences under the customs and excise Acts.

Textual Amendments

F63Word in art. 41(1)(a)(i) omitted (27.1.2010) by virtue of The Export Control (Amendment) Order 2010 (S.I. 2010/121), arts. 1(1), 2(7)

F64Word in art. 41(1)(a)(i) inserted (16.4.2012) by The Export Control (Amendment) Order 2012 (S.I. 2012/929), arts. 1, 3(4)

F65Word in art. 41(1)(a)(i) inserted (temp.) (2.3.2011 at 7 p.m. until it expires on 1.3.2012 in accordance with art. 1(3) of the amending S.I.) by The Export Control (Amendment) (No. 2) Order 2011 (S.I. 2011/580), arts. 1(2), 3(3)

F68Word in art. 41(2)(a) omitted (27.1.2010) by virtue of The Export Control (Amendment) Order 2010 (S.I. 2010/121), arts. 1(1), 2(7)

F70Word in art. 41(2)(a) inserted (temp.) (2.3.2011 at 7 p.m. until it expires on 1.3.2012 in accordance with art. 1(3) of the amending S.I.) by The Export Control (Amendment) (No. 2) Order 2011 (S.I. 2011/580), arts. 1(2), 3(3)

Marginal Citations

M4Section 145 was amended by the Police and Criminal Evidence Act 1984, section 114(1); and by the Commissioners for Revenue and Customs Act 2005 (c. 11), Schedule 4, paragraphs 20 and 23.

M5Section 146 was modified by the Channel Tunnel (Customs and Excise) Order 1990 (S.I. 1990/2167), article 4 and the Schedule, paragraph 22.

M6Section 146A was inserted by the Finance Act 1989 (c. 26), section 16(1) and amended by the Commissioners for Revenue and Customs Act 2005, Schedule 4, paragraphs 20 and 24.

M7Section 147 was amended by the Magistrates' Courts Act 1980 (c. 43), section 154 and Schedule 7, paragraph 176; by the Criminal Justice Act 1982 (c. 48), sections 77 and 78, Schedule 14, paragraph 42 and Schedule 16; and by the Finance Act 1989, section 16(2).

M8Section 150 was amended by the Commissioners for Revenue and Customs Act 2005, Schedule 4, paragraphs 20 and 25.

M9Section 151 was amended by the Magistrates' Courts Act 1980, section 154 and Schedule 7, paragraph 177.

M10Section 152 was amended by the Commissioners for Revenue and Customs Act 2005, section 52, Schedule 4, paragraphs 20 and 26 and Schedule 5.

M11Section 154 was modified by the Channel Tunnel (Customs and Excise) Order 1990 (S.I. 1990/2167), article 4 and the Schedule, paragraph 23.

M12Section 155 was amended by the Commissioners for Revenue and Customs Act 2005, Schedule 4, paragraphs 20, 21 and 27.

Increase of maximum penalty for prohibited exportation provided for in CEMAU.K.

42.  In the case of an offence committed in connection with a prohibition or restriction on exportation in Part 2 of this Order, the dual-use Regulation or the torture Regulation, sections 68(3)(b) and 170(3)(b) M13 of CEMA shall have effect as if for the words “7 years” there were substituted the words “ 10 years ”.

Marginal Citations

M13Sections 68(3)(b) and 170(3)(b) were amended by the Finance Act 1988 (c. 39), section 12(1), (6).