Part 2 - Firearms, ammunition etc.

255.     Clauses 24 to 27 create the new criminal offences of using a person to mind a weapon and of firing a missile from an air weapon beyond the boundary of the premises from which it was fired, as well as raising the age limit for purchasing, acquiring and possessing air weapons from 17 to 18. In each case it will be for the prosecution to prove all elements of the new or amended offence and for the court to determine what sentence to impose on a defendant person who is duly convicted. Accordingly, these provisions do not raise any issue under Article 6(2), which provides that everyone charged with a criminal offence shall be presumed innocent until proved guilty according to law. Any custodial sentence imposed will be justified under Article 5(1)(a) as lawful detention after conviction by a competent court.

256.     Clauses 28 and 29 place restrictions on the sale and purchase of primers (which are components of ammunition) and of ammunition loaders. They create the offences of selling these items other than to approved categories of person, and the corresponding offences of the purchase or attempted purchase of these items by a person who does not fall within those categories. They closely follow the existing offence in section 5 of the Firearms (Amendment) Act 1988 (restriction on sale of ammunition for smooth-bore guns).

257.     Again, it will be for the prosecution to prove all elements of the offence and for the court to determine what sentence to impose on a defendant who is duly convicted. Accordingly, this provision does not raise any issue under Article 6(2). Any custodial sentence so imposed will be justified under Article 5(1)(a) as lawful detention after conviction by a competent court.

Imitation firearms

258.     Clause 30 creates a new criminal offence of manufacturing, selling or importing into Great Britain a realistic imitation firearm. The clause contains a power to prescribe certain exceptions and exemptions from the offence, and it is envisaged that these will include matters such as a sale of an imitation weapon for the purposes of theatre or television. It will be for the court to determine what sentence to impose on a defendant who has committed such an offence. Any custodial sentence so imposed will be justified under Article 5(1)(a) as lawful detention after conviction by a competent court.

259.     This provision engages Article 1 of Protocol 1 (peaceful enjoyment of possessions) since it will interfere with people's ability to manufacture and trade in imitation firearms. The mischief which this clause addresses - the increasing prevalence of imitation firearms which are a cause of concern in circumstances ranging from nuisance to armed robbery - is such that it is a proportionate and reasonable response to a legitimate aim to control the manufacture and trade of imitation firearms in this way. The power to prescribe defences will ensure that legitimate users of realistic imitation firearms will not be adversely affected, and accordingly the interference with Article 1 of Protocol 1 is lawful because it is in the public interest and subject to the conditions provided for by law.

260.     Clause 31 creates a new offence of manufacturing, modifying or selling an imitation firearm other than one which conforms to specifications set out in regulations. It will be for the prosecution to prove all elements of the offence and for the court to determine what sentence to impose on a defendant who is duly convicted. Accordingly, this provision does not raise any issue under Article 6(2). Any custodial sentence so imposed will be justified under Article 5(1)(a) as lawful detention after conviction by a competent court.

261.     Clause 32 creates the new criminal offences of selling an imitation firearm to a minor and a corresponding offence of the purchase of an imitation firearm by a minor. In relation to the first of these, the obligation to prove that a sale to a minor has occurred lies on the prosecution but it is a defence for the accused to show that he reasonably believed the purchaser to be aged 18 or over. The legislation imposes an evidential burden on the accused such that evidence will have to be adduced that raises the issue and it will then be for the prosecution to prove beyond reasonable doubt that the defendant did not believe the purchaser was aged 18 or over. Courts have in the past held such evidential burdens to be compatible with Article 6(2).

262.     Clause 33 effectively doubles from six months to twelve months the custodial element of the maximum sentence for possessing an imitation firearm in a public place without reasonable excuse. The new maximum penalty reflects the potential gravity of the offence, and as it will be for the court to determine what sentence to impose on a defendant who has committed such an offence, any interference with Article 5 is lawful.

Sale etc. of knives and other weapons

263.     Clause 34(4) introduces a new defence to the offence under section 141 of the Criminal Justice Act 1988. This is the offence of manufacturing, selling or hiring, or lending or giving an offensive weapon. There is currently a defence if the sale etc. was for the purpose of functions carried out on behalf of the Crown (or a visiting foreign force), or if it was for the purpose of making the weapon available to a museum or gallery.

264.     The new defence will be available if the purpose of the sale etc. was for use in a theatrical, film or television production. There will be an evidential burden placed on the defendant to show that his conduct was for one of these purposes.

265.     Article 6(2) provides that everyone charged with a criminal offence shall be presumed innocent until proved guilty according to law. In accordance with this, it usually falls to the prosecuting authorities to prove the elements of a crime beyond all reasonable doubt. Courts have previously read down provisions that place a legal burden of proof on the defendant as being contrary to Article 6(2). For this reason, the legislation places an evidential burden on the defendant to show that he intended to sell etc. the weapons for use in a theatrical, film or television production. Such a presumption requires evidence to be raised, whether by the defendant or another person, as to whether the defendant intended to sell etc. the weapons for use in a theatrical, film or television production. Where such evidence is raised, it will be for the prosecution to prove beyond all reasonable doubt that the sale etc. was not for that purpose. The courts have often held such an evidential burden to be compatible with Article 6.

266.     Additionally, amendments are being made to sections 141(5), (8) and (9), which set out defences in relation to servants of the Crown and museums and galleries. It has been made clear that these are also evidential burdens, rather than legal burdens of proof. Accordingly, these provisions are compatible with Article 6.

Power to search school pupils for weapons

267.     Clause 35 gives head teachers or staff authorised by them a power to search pupils and their belongings for knives or offensive weapons. This clearly engages Article 8 (right to respect for private and family life) but an interference with that right can be justified under Article 8(2) if it is in accordance with the law, in pursuit of one or more legitimate aims and necessary in a democratic society.

268.     The interference is self-evidently in accordance with the law since it will be permitted under this legislation, and the power pursues the legitimate aims of being in the interest of public safety and for the prevention of crime.

269.     The power is necessary in a democratic society as it pursues the legitimate aim of reducing young people's use of weapons in violent crime. The power is proportionate since 2 per cent of school pupils have carried a knife in school for illegitimate purposes. Members of staff may search a pupil or his belongings only if they have reasonable grounds for suspicion that a pupil is carrying a knife or offensive weapon. They must have been authorised to carry out the search by the head teacher and may not require the pupil to remove any more than outer clothing. The member of staff conducting the search must be of the same sex as the pupil and a second adult, also of the same sex, must be present. Reasonable force can be used only where necessary. For searches of belongings, both the pupil and a second adult must be present.

270.     Furthermore, in the case of maintained schools (which carry out a public function), there is an obligation to act compatibly with Convention rights and schools will be given guidance on how to ensure that searches are carried out compatibly with Convention rights.

Part 3 - Miscellaneous

271.     Clause 38 and Schedule 2 amend the Sexual Offences Act 2003 by adding new powers of forfeiture and detention relating to vehicles, ships and aircraft used or intended to be used in connection with offences of trafficking for exploitation under sections 57 to 59 of that Act. They replicate, in relation to those offences, the powers in sections 25C and 25D of the Immigration Act 1971 in relation to the trafficking offences under that Act. They contain powers for constables or senior immigration officers to detain vehicles etc. following arrest and for the courts to order forfeiture on conviction.

272.     These powers may engage Article 1 of Protocol 1 (right to property) but the Government believes the interference to be justifiable in the public interest in preserving evidence, preventing the commission of further crimes, and, in the case of forfeiture, punishment. An owner of the vehicle concerned will have a right to apply to a court for its release from detention under new section 60B(3) of the 2003 Act and to be heard by the court before any order for forfeiture is made under new section 60A(8).

273.     Clause 39 amends section 82 of the Sexual Offences Act to ensure that persons sentenced to imprisonment for public protection under section 225 of the Criminal Justice Act 2003 are subject to the notification requirements of the Sexual Offences Act for an indefinite rather than a 5 year period. The amendment is to apply to those sentenced before as well as after commencement. The Government does not consider that this provision engages Article 7 of the ECHR as the notification requirements are not regarded as penal for the purposes of Article 7: Ibbotson v UK [1999] Crim LR 153.

274.     Clause 40 ensures that an application for a parenting order can be made in the same proceedings as an application for a sexual offences prevention order. It also applies to on-going proceedings in which a sexual offences prevention order was made before the Bill is passed. This is not considered to raise issues under Article 7 ECHR as both the application for a parenting order (The Queen oao M -v- Inner London Crown Court [2003] EWHC 301) and the application for a sexual offences prevention order (B v Chief Constable of the Avon and Somerset Constabulary [2001] All ER 562 - in relation to sex offender orders) are civil rather than criminal.

Part 4 - General

275.     The Government does not consider that these provisions raise any new human rights issues.

COMMENCEMENT

276.     Clause 45(2) and (3) of the Bill provides for commencement. The following provisions will come into force on Royal Assent:

• Clause 40 and an associated repeal (which relate to Parenting Orders under the Crime and Disorder Act 1988); and

• Clause 45 (which relates to the Bill's short title, commencement and extent).

The remaining provisions of the Act will be brought into force by means of commencement orders made by the Secretary of State or, in the case of clause 35 (power to search school pupils for weapons) so far as it relates to Wales, by the National Assembly for Wales.