The Burma (Sanctions) (Overseas Territories) Order 2013

Citation, commencement and extent

1.—(1) This Order may be cited as the Burma (Sanctions) (Overseas Territories) Order 2013.

(2) It comes into force on 11th July 2013.

(3) It extends to the territories listed in Schedule 1.

Application of the Order

2.—(1) This Order applies to—

(a) any person in the Territory,

(b) any person elsewhere who is—

(i) a British citizen, a British overseas territories citizen, a British Overseas citizen, a British subject, a British National (Overseas) or a British protected person and is ordinarily resident in the Territory, or

(ii) a body incorporated or constituted under the law of any part of the Territory, and

(c) any person onboard a ship or aircraft that is registered in the Territory.

(2) Article 4(2) and paragraph 3 of Schedule 2 also apply to any relevant person mentioned in those provisions (and for this purpose “relevant person” has the meaning given in article 4(4) and (5)).

(3) Article 13 applies to—

(a) the Sovereign Base Areas of Akrotiri and Dhekelia as set out in Schedule 3,

(b) the Falkland Islands and South Georgia and the South Sandwich Islands subject to the modification set out in Schedule 4, and

(c) St Helena, Ascension and Tristan da Cunha as set out in Schedule 5.

(4) Article 14 applies to the Sovereign Base Areas of Akrotiri and Dhekelia as set out in Schedule 3.

(5) In the application of this Order to any territory listed in Schedule 1, the expression “the Territory” in this Order means that territory.

Interpretation

3.—(1) In this Order, unless otherwise provided—

“aircraft” means a fixed wing, swivel wing, rotary wing, tilt rotor or tilt wing airborne vehicle or helicopter;

“assistance” means any form of assistance, including advice, training, technical assistance, financing and financial assistance, investment services, brokering services or other services, and the transfer of financial resources and services;

“brokering services” means—

(a)

the negotiation or arrangement of transactions for the purchase, sale or supply of goods and technology or of financial and technical services, including from a third country to any other third country, or

(b)

the selling or buying of goods and technology or of financial and technical services, including where they are located in third countries for their transfer to another third country;

“commander”, in relation to an aircraft, means the member of the flight crew designated as commander of the aircraft by the operator of the aircraft, or, if there is no operator, the person who is for the time being the pilot in command of the aircraft;

“the Council Regulation” means Council Regulation (EU) No. 401/2013 adopted by the Council of the European Union on 2nd May 2013(1) concerning restrictive measures in respect of Burma;

“document” includes information recorded in any form, and in relation to information recorded otherwise than in legible form, references to its production include references to producing a copy of the information in legible form;

“export” includes shipment as stores;

“exportation” in relation to any ship or aircraft, includes taking the ship or aircraft out of the Territory, whether or not it is conveying goods or passengers or moving under its own power, and cognate expressions are to be construed accordingly;

“financing and financial assistance”, in relation to the provision of assistance related to restricted goods, includes in particular grants, loans and export credit insurance for any sale, supply, transfer or export of restricted goods;

“goods” includes items, materials and equipment;

“Governor” means the Governor or other officer administering the Government of the Territory;

“insurance” means an undertaking or commitment where a natural or legal person is obliged, in return for a payment, to provide another person, in the event of materialisation of a risk, with an indemnity or a benefit as determined by the undertaking or commitment;

“master”, in relation to a ship, includes any persons for the time being in charge of the ship;

“officer”, in relation to a body corporate, means a director, manager, secretary or other similar officer of the body corporate or any person who has purported to act in any such capacity;

“operator”, in relation to an aircraft or vehicle, means the person for the time being having the management of the aircraft or vehicle;

“owner”, in relation to a ship, where the owner is not the operator, means the operator and any person to whom it is chartered;

“person” means any natural or legal person, entity or body;

“restricted goods” means—

(a)

the goods, software and technology specified in Schedule 2 to the Export Control Order 2008(2), and

(b)

so far as not covered by paragraph (a), the goods, software and technology specified in the Common Military List of the European Union(3) as amended from time to time, and

(c)

any equipment which might be used for internal repression listed in Annex I to the Council Regulation;

“ship” includes every description of vessel used in navigation;

“shipment” includes loading into an aircraft;

“stores” means goods for use in a ship or aircraft and includes fuel and spare parts and other articles of equipment, whether or not for immediate fitting, but excludes any goods for use in a ship or aircraft as merchandise for sale by retail to persons carried in them;

“technical assistance” means any technical support related to repairs, development, manufacture, assembly, testing, maintenance, or any other technical service, and may take forms such as instruction, advice, training, transmission of working knowledge or skills or consulting services, including verbal forms of assistance;

“the Territory” has the meaning given in article 2(5);

“vehicle” means land transport vehicle.

(2) An expression used both in this Order and in the Council Regulation has the meaning given in the Council Regulation.

(3) A reference in this Order to any enactment (including legislation of the European Union) or statutory instrument is to be construed as a reference to that enactment or instrument as amended from time to time.

PART 1 Restricted goods

Providing, obtaining or carrying restricted goods

4.—(1) It is an offence for a person to knowingly sell, supply, transfer or export (directly or indirectly) restricted goods—

(a) to any person in Burma, or

(b) for use in Burma.

(2) It is an offence for a relevant person to knowingly use a ship, aircraft or vehicle falling within paragraph (3) for the carriage of restricted goods if the carriage is, or forms part of, carriage from any place outside Burma to any destination in Burma.

(3) The following fall within this paragraph—

(a) a ship, aircraft or vehicle within the Territory,

(b) a ship or aircraft registered in the Territory, or

(c) any other ship or aircraft that is for the time being chartered to a person mentioned in article 2(1)(a) or (b).

(4) A “relevant person”, in relation to a ship, aircraft or vehicle falling within paragraph (3)(a) or (b), means—

(a) the owner or master of the ship,

(b) the charterer, operator or commander of the aircraft, or

(c) the driver or operator of the vehicle.

(5) A “relevant person”, in relation to a ship or aircraft falling within paragraph (3)(c) means—

(a) the charterer of the ship or aircraft, or

(b) the master of the ship, or operator of the aircraft, if the master or operator is a person mentioned in article 2(1)(a) or (b).

(6) Paragraph (2) is without prejudice to any other provision of law prohibiting or restricting the use of ships, aircraft or vehicles.

(7) Schedule 2 (which contains provision about customs powers and investigations in relation to offences under this article) has effect.

(8) This article is subject to articles 7 and 8.

Providing assistance related to restricted goods

5.—(1) It is an offence for a person to knowingly provide (directly or indirectly) assistance relating to the sale, supply, transfer or export of restricted goods —

(a) to any person in Burma, or

(b) for use in Burma.

(2) It is an offence for a person to knowingly provide (directly or indirectly) assistance relating to the maintenance, manufacture or use of restricted goods—

(a) by any person in Burma, or

(b) for use in Burma.

(3) This article is subject to articles 7 and 8.

Providing assistance related to military activities

6.—(1) It is an offence for a person to knowingly provide (directly or indirectly) assistance relating to military activities in Burma.

(2) This article is subject to articles 7 and 8.

PART 2 General

Licences granted by the Governor

7.—(1) The Governor may, with the consent of the Secretary of State, grant a licence authorising an activity that would otherwise be prohibited under articles 4 to 6.

(2) A person is not guilty of an offence under articles 4 to 6 in respect of anything done by the person under the authority of a licence granted by the Governor.

(3) A licence may, in particular, relate to—

(a) the sale, supply, transfer or export of protective clothing, including flak jackets and military helmets, temporarily exported to Burma by United Nations personnel, personnel of the European Union or its Member States, representatives of the media and humanitarian and development workers and associated personnel for their personal use only;

(b) the sale, supply, transfer or export of non-lethal military equipment, or equipment which might be used for internal repression, intended solely for humanitarian or protective use, or for institution-building programmes of the United Nations and the European Union;

(c) the sale, supply, transfer or export of materiel intended for United Nations and the European Union crisis management operations;

(d) the sale, supply, transfer or export of demining equipment and materiel for use in demining operations;

(e) the provision of financing and financial assistance related to the equipment, programmes or operations referred to in paragraphs (a)-(d);

(f) the provision of technical assistance related to the equipment, programmes or operations referred to in paragraphs (a)-(d).

(4) A licence must specify the acts authorised by it and may be—

(a) general or granted to a category of persons or to a particular person,

(b) subject to conditions, and

(c) of indefinite duration or subject to an expiry date.

(5) The Governor may, with the consent of the Secretary of State, vary or revoke a licence at any time.

(6) On the grant, variation or revocation of a licence, the Governor must—

(a) in the case of a licence granted to a particular person, give written notice of the grant, variation or revocation to that person, and

(b) in the case of a general licence or a licence granted to a category of persons, take such steps as the Governor considers appropriate to publicise the grant, variation or revocation of the licence.

(7) Any notice to be given to a person by the Governor under paragraph (6) may be given—

(a) by posting it to the person’s last known address, or

(b) where the person is a body corporate, partnership or unincorporated body other than a partnership, by posting it to the registered or principal office in the Territory of the body or partnership.

(8) Where the Governor does not have an address in the Territory for the person, the Governor must make arrangements for the notice to be given to the person at the first available opportunity.

(9) Failing to comply with any condition in the licence is acting in a way that is not authorised by the licence unless—

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

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

(10) It is an offence for a person to knowingly or recklessly make any statement or give any document or information which is false in a material particular for the purpose of obtaining a licence.

(11) A licence granted in connection with the application for which the false statement was made or the false document or information given is void from the time it was granted.

Licences granted outside the Territory

8.  A person is not guilty of an offence under articles 4 to 6 in respect of anything done by the person—

(a) outside the Territory, and

(b) under the authority of a licence granted in accordance with any provisions of the law in force in the place where it is done corresponding to the provisions of this Order.

Requirement to publish list of restricted goods

9.—(1) The Governor must—

(a) publish a list of restricted goods, and

(b) keep the list up to date.

(2) The Governor may publish a list under paragraph (1) in any form the Governor considers appropriate, including by means of a website.

Evidence and information

10.  Schedule 6 (which contains further provisions about obtaining evidence and information) has effect.

Functions of the Governor

11.—(1) The Governor may, to such extent and subject to such restrictions and conditions as the Governor thinks proper, delegate or authorise the delegation of any of the Governor’s functions under this Order to any person, or class or description of persons.

(2) References in this Order to the Governor are to be construed accordingly.

(3) The Governor may by regulations specify in the currency of the Territory the amount which is to be taken as equivalent to sums expressed in sterling in this Order.

Circumvention and contravention of prohibitions

12.  It is an offence for a person to intentionally participate in an activity, knowing that the object or effect of the activity is (directly or indirectly)—

(a) to circumvent any of the prohibitions in articles 4 to 6, or

(b) to enable or facilitate the contravention of any such prohibition.

Penalties

13.—(1) A person guilty of an offence under article 4, 5, 6 or 12 is liable—

(a) on conviction on indictment, to imprisonment for a term not exceeding seven years or to a fine or to both; or

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

(2) A person guilty of an offence under article 7(10), paragraph 2(2)(b) or paragraph 3(6)(b) or (c) of Schedule 2, or paragraph 3(b), (c) or (d) of Schedule 6 is liable—

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

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

(3) A person guilty of an offence under paragraph 3(6)(a) of Schedule 2, or paragraph 3(a) or paragraph 5 of Schedule 6 is liable on summary conviction to imprisonment for a term not exceeding six months or to a fine not exceeding £5,000 or its equivalent or to both.

(4) A person guilty of an offence under paragraph 1, 2(2)(a) or 2(5) of Schedule 2 is liable on summary conviction to a fine not exceeding £5,000 or its equivalent.

(5) If an offence under this Order committed by a body corporate is shown—

(a) to have been committed with the consent or connivance of an officer of the body corporate, or

(b) to be attributable to any neglect on the part of an officer of the body corporate,

the officer as well as the body corporate is guilty of an offence and is liable to be proceeded against and punished accordingly.

Proceedings

14.—(1) Proceedings against a person for an offence may be taken before the appropriate court in the Territory having jurisdiction in the place where that person is for the time being.

(2) Summary proceedings for an offence alleged to have been committed outside the Territory may be instituted within the period of 12 months beginning with the date on which the person charged first enters the Territory after committing the offence.

(3) Proceedings for an offence must not be instituted in the Territory except with the consent of the principal public officer of the Territory responsible for criminal prosecutions.

(4) Nothing in paragraph (3) prevents—

(a) the arrest, or the issue or execution of a warrant for the arrest, of any person in respect of an offence, or

(b) the remand in custody or on bail of any person charged with an offence.

(5) A reference in this article to an offence is to an offence under this Order.

Revocation

15.  The following Orders are revoked—

(a) The Burma (Restrictive Measures) (Overseas Territories) Order 2009(4), and

(b) The Burma (Restrictive Measures) (Overseas Territories) (Suspension) Order 2012(5).

Richard Tilbrook

Clerk of the Privy Council