Cluster Munitions (Prohibitions) Bill [HL]

House of Commons

Session 2009 - 10
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Cluster Munitions (Prohibitions) Bill [HL]

Cluster Munitions (Prohibitions) Bill [HL]
1

[NOTE: The words marked in bold type were inserted by the Lords to avoid
questions of privilege.]
A
Bill
To
Make provision for giving effect to the Convention on Cluster Munitions.
Be it enacted by the Queen’s most Excellent Majesty, by and with the advice and
consent of the Lords Spiritual and Temporal, and Commons, in this present
Parliament assembled, and by the authority of the same, as follows:—
Munitions to which Act applies
1
Munitions to which Act applies
(1)
This section applies for the purposes of this Act.
(2)
“The Convention” means the Convention on Cluster Munitions, signed by the
United Kingdom at Oslo on 3 December 2008.
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(3)
“Prohibited munition” means—
(a)
a cluster munition, or
(b)
an explosive bomblet that is specifically designed to be dispersed or
released from dispensers affixed to aircraft (“a relevant explosive
bomblet”).
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(4)
“Prohibited munition” does not include a mine.
(5)
“Cluster munition”, “explosive bomblet”, “dispenser” and “mine” have the
same meaning as in the Convention.
(6)
Schedule 1 sets out the definitions of “cluster munition”, “explosive bomblet”,
“dispenser” and “mine” given by Article 2 of the Convention (together with
15
definitions of related terms).
Offences
2
Offences
(1)
It is an offence for a person to—
(a)
use a prohibited munition,
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(b)
develop or produce a prohibited munition,

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Cluster Munitions (Prohibitions) Bill [HL]
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(c)
acquire a prohibited munition,
(d)
make arrangements under which another person acquires a prohibited
munition,
(e)
have a prohibited munition in the person’s possession,
(f)
transfer a prohibited munition, or
5
(g)
make arrangements under which another person transfers a prohibited
munition.
(2)
It is an offence for a person to assist, encourage or induce any other person to
engage in any conduct mentioned in paragraphs (a) to (g) of subsection (1).
(3)
A person guilty of an offence under this section is liable, on conviction on
10
indictment, to imprisonment for a term not exceeding 14 years or to a fine, or
to both.
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Meaning of acquisition and transfer
(1)
This section applies for the purposes of this Act.
(2)
A person acquires a prohibited munition if the person acquires it or enters into
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a contract to acquire it.
(3)
A person transfers a prohibited munition if the person—
(a)
disposes of it,
(b)
moves it into or from the United Kingdom, or
(c)
enters into a contract to do anything mentioned in paragraph (a) or (b).
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(4)
“Acquire” means buy, hire, borrow or accept as a gift, and “dispose” means
sell, let on hire, lend or give.
(5)
A person is not to be taken to acquire or dispose of a prohibited munition by
reason only of the person’s acquisition or disposal of an interest in or right over
land containing cluster munition remnants.
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(6)
“Cluster munition remnants” has the same meaning as in the Convention.
(7)
Schedule 1 sets out the definition of “cluster munition remnants” given by
Article 2 of the Convention (together with definitions of related terms).
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Application of section 2
(1)
Section 2(1) applies to conduct in the United Kingdom or elsewhere.
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(2)
Section 2(2) applies to assistance, encouragement and inducements in the
United Kingdom or elsewhere.
(3)
But in their application to conduct, and to assistance, encouragement and
inducements, outside the United Kingdom, subsections (1) and (2) of section 2
apply only to—
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(a)
United Kingdom nationals,
(b)
Scottish partnerships, and
(c)
bodies incorporated under the law of any part of the United Kingdom.
(4)
Section 2(2) applies whether or not the conduct assisted, encouraged or
induced takes place, or (if it takes place) will take place, in the United Kingdom
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or elsewhere.

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(5)
Her Majesty may by Order in Council provide that this section is to have effect
as if the list of persons in subsection (3) included bodies incorporated under the
law of any of the Channel Islands, the Isle of Man or any British overseas
territory.
(6)
For the purposes of this section a United Kingdom national is an individual
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who is—
(a)
a British citizen, a British overseas territories citizen, a British National
(Overseas) or a British Overseas citizen,
(b)
a person who under the British Nationality Act 1981 is a British subject,
or
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(c)
a British protected person within the meaning of that Act.
(7)
Proceedings for an offence under section 2 committed outside the United
Kingdom may be taken, and the offence may for incidental purposes be treated
as having been committed, in any place in the United Kingdom.
(8)
In the application of subsection (7) to Scotland, any such proceedings against a
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person may be taken—
(a)
in any sheriff court district in which the person is apprehended or is in
custody, or
(b)
in such sheriff court district as the Lord Advocate may determine.
(9)
In subsection (8) “sheriff court district” is to be construed in accordance with
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the Criminal Procedure (Scotland) Act 1995 (see section 307(1) of that Act).
Defences
5
Enabling destruction
(1)
It is a defence for a person (P) charged with an offence under section 2(1)(e) to
show that P had the prohibited munition in P’s possession for the purpose of
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enabling it to be destroyed.
(2)
It is a defence for a person (P) charged with an offence under section 2(1)(f) to
show that P transferred the prohibited munition for the purpose of enabling it
to be destroyed.
(3)
It is a defence for a person (P) charged with an offence under section 2(1)(g) to
30
show that P made the arrangements for the transfer of the prohibited munition
for the purpose of enabling it to be destroyed.
(4)
It is a defence for a person (P) charged with an offence under section 2(1)(c) to
show that—
(a)
the acquisition of the prohibited munition was by means of a transfer
35
made for the purpose of enabling it to be destroyed, and
(b)
P acquired the prohibited munition for that purpose.
(5)
It is a defence for a person (P) charged with an offence under section 2(1)(d) to
show that —
(a)
at the time when P made the arrangements for the acquisition of the
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prohibited munition, P had reasonable cause to believe that the
acquisition would be by means of a transfer made for the purpose of
enabling it to be destroyed, and
(b)
P made the arrangements for that purpose.

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(6)
It is a defence for a person (P) charged with an offence under section 2(2) of
assisting, encouraging or inducing any other person to engage in any conduct
to show that, at the time of the assistance, encouragement or inducement, P had
reasonable cause to believe that the other person would have a defence in
respect of the conduct by virtue of any of subsections (1) to (5).
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6
Other purposes permitted by Convention
(1)
It is a defence for a person (P) charged with an offence under section 2(1)(e) to
show that—
(a)
P had the prohibited munition in P’s possession with the intention that
it would be used only for permitted purposes, and
10
(b)
P’s possession of the prohibited munition was in accordance with the
terms of an authorisation given to P by the Secretary of State.
(2)
It is a defence for a person (P) charged with an offence under section 2(1)(f) to
show that—
(a)
P transferred the prohibited munition with the intention that it would
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be used only for permitted purposes, and
(b)
the transfer was in accordance with the terms of an authorisation given
to P by the Secretary of State.
(3)
It is a defence for a person (P) charged with an offence under section 2(1)(g) to
show that—
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(a)
P made the arrangements for the transfer of the prohibited munition
with the intention that it would be used only for permitted purposes,
and
(b)
the Secretary of State had authorised the transfer.
(4)
It is a defence for a person (P) charged with an offence under section 2(1)(c) to
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show that—
(a)
the acquisition of the prohibited munition was by means of a transfer
which had been authorised by the Secretary of State, and
(b)
P acquired the prohibited munition with the intention that it would be
used only for permitted purposes.
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(5)
It is a defence for a person (P) charged with an offence under section 2(1)(d) to
show that—
(a)
at the time when P made the arrangements for the acquisition of the
prohibited munition, P had reasonable cause to believe that the
acquisition would be by means of a transfer which had been authorised
35
by the Secretary of State, and
(b)
P made the arrangements with the intention that the prohibited
munition would be used only for permitted purposes.
(6)
It is a defence for a person (P) charged with an offence under section 2(2) of
assisting, encouraging or inducing any other person to engage in any conduct
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to show that, at the time of the assistance, encouragement or inducement, P had
reasonable cause to believe that the other person would have a defence in
respect of the conduct by virtue of any of subsections (1) to (5).
(7)
The Secretary of State may not, for the purposes of this section, authorise the
possession or transfer of prohibited munitions in numbers in excess of what is
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necessary for permitted purposes.
(8)
For the purposes of this section the following are “permitted purposes”—

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(a)
the development of, and training in, techniques for the detection,
clearance or destruction of cluster munitions, explosive submunitions
and relevant explosive bomblets,
(b)
the development of counter-measures in respect of cluster munitions,
explosive submunitions and relevant explosive bomblets, and
5
(c)
the purposes of any proceedings under this Act, or of any criminal
investigation or other criminal proceedings (whether in the United
Kingdom or elsewhere), in which the prohibited munition is or may be
evidence.
(9)
In subsection (8) “explosive submunition” has the same meaning as in the
10
Convention.
(10)
Schedule 1 sets out the definition of “explosive submunition” given by Article
2 of the Convention (as a term related to the definition of “cluster munition”).
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Defences relating to state of mind of defendant etc.
(1)
It is a defence for a person (P) charged with an offence under section 2(1)(a) or
15
(c) to (g) to show that, at the time of the conduct constituting the offence, P
neither knew nor suspected, nor had reason to suspect, that the object in
question was a prohibited munition.
(2)
It is a defence for a person (P) charged with an offence under section 2(1)(e) to
show that, having come to know or suspect while the object in question was in
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P’s possession that it was a prohibited munition, P took all reasonable steps, as
soon as reasonably practicable after P first had that knowledge or suspicion, to
inform the Secretary of State, or a constable or member of a service police force,
of P’s knowledge or suspicion.
(3)
It is a defence for a person (P) charged with an offence under section 2(1)(e) to
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show that P did not have any knowledge or suspicion that the object in
question was a prohibited munition, nor any reason for such a suspicion, until
P became aware of the Secretary of State’s exercise in the case of that object of
a power conferred on the Secretary of State by this Act.
(4)
It is a defence for a person (P) charged with an offence under section 2(2) to
30
show that, at the time of the assistance, encouragement or inducement, P
neither knew nor suspected, nor had reason to suspect, that the conduct
assisted, encouraged or induced related, or might relate, to a prohibited
munition.
(5)
In subsection (2), “service police force” means—
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(a)
the Royal Navy Police,
(b)
the Royal Military Police, or
(c)
the Royal Air Force Police.
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Visiting forces
(1)
It is a defence for a person (P) charged with an offence under section 2(1)(e) to
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show that—
(a)
at the time when P had possession of the prohibited munition, P 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
(b)
P’s possession of the prohibited munition was in accordance with the
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terms of an authorisation given to that State by the Secretary of State.

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(2)
It is a defence for a person (P) charged with an offence under section 2(1)(f),
which is alleged to have been committed by moving a prohibited munition into
or from the United Kingdom or entering into a contract to move a prohibited
munition into or from the United Kingdom, to show that—
(a)
at the time when P moved the prohibited munition or entered into the
5
contract to move it, P was a member of a visiting force of a State that
was not a party to the Convention, and
(b)
the movement was or (as the case may be) would be in accordance with
the terms of an authorisation given to that State by the Secretary of
State.
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(3)
It is a defence for a person (P) charged with an offence under section 2(1)(g),
which is alleged to have been committed by making arrangements under
which a member of a visiting force of a State that was not a party to the
Convention moves a prohibited munition into or from the United Kingdom or
enters into a contract to move a prohibited munition into or from the United
15
Kingdom, to show that at the time when P made the arrangements—
(a)
P 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
(b)
P had reasonable cause to believe that the movement would be in
accordance with the terms of an authorisation given to that State by the
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Secretary of State.
(4)
It is a defence for a person (P) charged with an offence under section 2(2) of
assisting, encouraging or inducing any other person to engage in any conduct
to show that at the time of the assistance, encouragement or inducement—
(a)
P was a member of a visiting force of a State that was not a party to the
25
Convention or was working with such a force, and
(b)
P had reasonable cause to believe that the other person would have a
defence in respect of the conduct by virtue of any of subsections (1) to
(3).
(5)
For the purposes of this section, a person is working with a visiting force at any
30
time when the person is providing a service to the force under a contract or
helping it in any other way.
(6)
In this section—
(a)
“visiting force” means any such body, contingent or detachment of the
forces of any country as is a visiting force for the purposes of any of the
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provisions of Part 1 of the Visiting Forces Act 1952, and
(b)
“member”, in relation to a visiting force, has the meaning given by
section 12(1) of that Act.
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International military operations and activities
(1)
It is a defence for a person charged with an offence specified in any of
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paragraphs 1 to 6 of Schedule 2 to show that the person’s conduct took place in
the course of, or for the purposes of, an international military operation or an
international military co-operation activity.
(2)
A military operation is an international military operation if—
(a)
both members of Her Majesty’s armed forces and members of the
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armed forces of one or more States other than the United Kingdom
participate in the operation,
(b)
at least one of the other States is not a party to the Convention, and

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(c)
the operation involves or might involve conduct by members of the
armed forces of a State that is not a party to the Convention, or by other
persons acting under the authority of such a State, which would be in
contravention of the Convention if it were conduct by members of the
armed forces of a State that is a party to the Convention or by other
5
persons acting under the authority of such a State.
(3)
An activity is an international military co-operation activity if—
(a)
it is an activity, other than a military operation, undertaken in
pursuance of co-operation between the government of the United
Kingdom and the government of one or more States other than the
10
United Kingdom for any purpose related to—
(i)
the defence of the United Kingdom or any of those States, or
(ii)
Her Majesty’s armed forces or the armed forces of any of those
States,
(b)
at least one of the other States is not a party to the Convention, and
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(c)
the activity involves or might involve conduct by members of the
armed forces of a State that is not a party to the Convention, or by other
persons acting under the authority of such a State, which would be in
contravention of the Convention if it were conduct by members of the
armed forces of a State that is a party to the Convention or by other
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persons acting under the authority of such a State.
(4)
Subsection (5) applies if a question arises in any proceedings as to whether—
(a)
subsection (2)(a) applies in relation to a military operation, or
(b)
subsection (3)(a) applies in relation to an activity.
(5)
A certificate issued by or under the authority of the Secretary of State stating
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any fact relating to that question is conclusive evidence of that fact.
(6)
Paragraphs 7 and 8 of Schedule 2 make further provision about the application
of the defence under subsection (1) in relation to particular offences specified
in that Schedule.
(7)
In this section—
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“Her Majesty’s armed forces” means any of Her Majesty’s forces within
the meaning of the Armed Forces Act 2006;
“military operation” includes any naval or air force operation.
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Supplementary provision: evidential burden and authorisations
(1)
Subsection (2) applies where a person relies on a defence under this Act.
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(2)
If evidence is adduced which is sufficient to raise an issue with respect to the
defence, the court must assume that the defence is satisfied unless the
prosecution proves beyond reasonable doubt that it is not.
(3)
For the purposes of sections 6 and 8, an authorisation given before the coming
into force of this Act has the same effect as one given on or after its coming into
40
force.