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[NOTE: The words marked in bold type were inserted by the Lords to avoid |
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Make provision for giving effect to the Convention on Cluster Munitions. |
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Be it enacted by the Queen’s most Excellent Majesty, by and with the advice and |
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consent of the Lords Spiritual and Temporal, and Commons, in this present |
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Parliament assembled, and by the authority of the same, as follows:— |
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Munitions to which Act applies |
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1 | Munitions to which Act applies |
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(1) | This section applies for the purposes of this Act. |
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(2) | “The Convention” means the Convention on Cluster Munitions, signed by the |
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United Kingdom at Oslo on 3 December 2008. |
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(3) | “Prohibited munition” means— |
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(a) | a cluster munition, or |
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(b) | an explosive bomblet that is specifically designed to be dispersed or |
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released from dispensers affixed to aircraft (“a relevant explosive |
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(4) | “Prohibited munition” does not include a mine. |
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(5) | “Cluster munition”, “explosive bomblet”, “dispenser” and “mine” have the |
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same meaning as in the Convention. |
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(6) | Schedule 1 sets out the definitions of “cluster munition”, “explosive bomblet”, |
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“dispenser” and “mine” given by Article 2 of the Convention (together with |
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definitions of related terms). |
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(1) | It is an offence for a person to— |
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(a) | use a prohibited munition, |
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(b) | develop or produce a prohibited munition, |
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(c) | acquire a prohibited munition, |
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(d) | make arrangements under which another person acquires a prohibited |
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(e) | have a prohibited munition in the person’s possession, |
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(f) | transfer a prohibited munition, or |
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(g) | make arrangements under which another person transfers a prohibited |
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(2) | It is an offence for a person to assist, encourage or induce any other person to |
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engage in any conduct mentioned in paragraphs (a) to (g) of subsection (1). |
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(3) | A person guilty of an offence under this section is liable, on conviction on |
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indictment, to imprisonment for a term not exceeding 14 years or to a fine, or |
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3 | Meaning of acquisition and transfer |
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(1) | This section applies for the purposes of this Act. |
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(2) | A person acquires a prohibited munition if the person acquires it or enters into |
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a contract to acquire it. |
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(3) | A person transfers a prohibited munition if the person— |
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(b) | moves it into or from the United Kingdom, or |
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(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 |
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sell, let on hire, lend or give. |
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(5) | A person is not to be taken to acquire or dispose of a prohibited munition by |
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reason only of the person’s acquisition or disposal of an interest in or right over |
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land containing cluster munition remnants. |
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(6) | “Cluster munition remnants” has the same meaning as in the Convention. |
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(7) | Schedule 1 sets out the definition of “cluster munition remnants” given by |
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Article 2 of the Convention (together with definitions of related terms). |
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4 | Application of section 2 |
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(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 |
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United Kingdom or elsewhere. |
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(3) | But in their application to conduct, and to assistance, encouragement and |
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inducements, outside the United Kingdom, subsections (1) and (2) of section 2 |
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(a) | United Kingdom nationals, |
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(b) | Scottish partnerships, and |
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(c) | bodies incorporated under the law of any part of the United Kingdom. |
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(4) | Section 2(2) applies whether or not the conduct assisted, encouraged or |
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induced takes place, or (if it takes place) will take place, in the United Kingdom |
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(5) | Her Majesty may by Order in Council provide that this section is to have effect |
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as if the list of persons in subsection (3) included bodies incorporated under the |
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law of any of the Channel Islands, the Isle of Man or any British overseas |
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(6) | For the purposes of this section a United Kingdom national is an individual |
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(a) | a British citizen, a British overseas territories citizen, a British National |
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(Overseas) or a British Overseas citizen, |
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(b) | a person who under the British Nationality Act 1981 is a British subject, |
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(c) | a British protected person within the meaning of that Act. |
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(7) | Proceedings for an offence under section 2 committed outside the United |
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Kingdom may be taken, and the offence may for incidental purposes be treated |
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as having been committed, in any place in the United Kingdom. |
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(8) | In the application of subsection (7) to Scotland, any such proceedings against a |
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(a) | in any sheriff court district in which the person is apprehended or is in |
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(b) | in such sheriff court district as the Lord Advocate may determine. |
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(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). |
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(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 P had the prohibited munition in P’s possession for the purpose of |
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enabling it to be destroyed. |
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(2) | It is a defence for a person (P) charged with an offence under section 2(1)(f) to |
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show that P transferred the prohibited munition for the purpose of enabling it |
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(3) | It is a defence for a person (P) charged with an offence under section 2(1)(g) to |
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show that P made the arrangements for the transfer of the prohibited munition |
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for the purpose of enabling it to be destroyed. |
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(4) | It is a defence for a person (P) charged with an offence under section 2(1)(c) to |
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(a) | the acquisition of the prohibited munition was by means of a transfer |
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made for the purpose of enabling it to be destroyed, and |
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(b) | P acquired the prohibited munition for that purpose. |
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(5) | It is a defence for a person (P) charged with an offence under section 2(1)(d) to |
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(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 |
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acquisition would be by means of a transfer made for the purpose of |
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enabling it to be destroyed, and |
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(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 |
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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 |
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reasonable cause to believe that the other person would have a defence in |
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respect of the conduct by virtue of any of subsections (1) to (5). |
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6 | Other purposes permitted by Convention |
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(1) | It is a defence for a person (P) charged with an offence under section 2(1)(e) to |
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(a) | P had the prohibited munition in P’s possession with the intention that |
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it would be used only for permitted purposes, and |
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(b) | P’s possession of the prohibited munition was in accordance with the |
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terms of an authorisation given to P 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) to |
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(a) | P transferred the prohibited munition with the intention that it would |
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be used only for permitted purposes, and |
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(b) | the transfer was in accordance with the terms of an authorisation given |
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to P 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) to |
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(a) | P made the arrangements for the transfer of the prohibited munition |
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with the intention that it would be used only for permitted purposes, |
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(b) | the Secretary of State had authorised the transfer. |
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(4) | It is a defence for a person (P) charged with an offence under section 2(1)(c) to |
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(a) | the acquisition of the prohibited munition was by means of a transfer |
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which had been authorised by the Secretary of State, and |
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(b) | P acquired the prohibited munition with the intention that it would be |
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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 |
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(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 |
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acquisition would be by means of a transfer which had been authorised |
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by the Secretary of State, and |
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(b) | P made the arrangements with the intention that the prohibited |
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munition would be used only for permitted purposes. |
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(6) | It is a defence for a person (P) charged with an offence under section 2(2) of |
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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 |
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reasonable cause to believe that the other person would have a defence in |
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respect of the conduct by virtue of any of subsections (1) to (5). |
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(7) | The Secretary of State may not, for the purposes of this section, authorise the |
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possession or transfer of prohibited munitions in numbers in excess of what is |
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necessary for permitted purposes. |
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(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, |
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clearance or destruction of cluster munitions, explosive submunitions |
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and relevant explosive bomblets, |
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(b) | the development of counter-measures in respect of cluster munitions, |
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explosive submunitions and relevant explosive bomblets, and |
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(c) | the purposes of any proceedings under this Act, or of any criminal |
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investigation or other criminal proceedings (whether in the United |
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Kingdom or elsewhere), in which the prohibited munition is or may be |
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(9) | In subsection (8) “explosive submunition” has the same meaning as in the |
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(10) | Schedule 1 sets out the definition of “explosive submunition” given by Article |
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2 of the Convention (as a term related to the definition of “cluster munition”). |
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7 | Defences relating to state of mind of defendant etc. |
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(1) | It is a defence for a person (P) charged with an offence under section 2(1)(a) or |
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(c) to (g) to show that, at the time of the conduct constituting the offence, P |
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neither knew nor suspected, nor had reason to suspect, that the object in |
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question was a prohibited munition. |
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(2) | It is a defence for a person (P) charged with an offence under section 2(1)(e) to |
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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 |
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soon as reasonably practicable after P first had that knowledge or suspicion, to |
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inform the Secretary of State, or a constable or member of a service police force, |
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of P’s knowledge or suspicion. |
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(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 |
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question was a prohibited munition, nor any reason for such a suspicion, until |
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P became aware of the Secretary of State’s exercise in the case of that object of |
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a power conferred on the Secretary of State by this Act. |
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(4) | It is a defence for a person (P) charged with an offence under section 2(2) to |
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show that, at the time of the assistance, encouragement or inducement, P |
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neither knew nor suspected, nor had reason to suspect, that the conduct |
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assisted, encouraged or induced related, or might relate, to a prohibited |
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(5) | In subsection (2), “service police force” means— |
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(a) | the Royal Navy Police, |
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(b) | the Royal Military Police, or |
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(c) | the Royal Air Force Police. |
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(1) | It is a defence for a person (P) charged with an offence under section 2(1)(e) to |
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(a) | at the time when P had possession of the prohibited munition, P was a |
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member of a visiting force of a State that was not a party to the |
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Convention or was working with such a force, and |
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(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), |
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which is alleged to have been committed by moving a prohibited munition into |
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or from the United Kingdom or entering into a contract to move a prohibited |
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munition into or from the United Kingdom, to show that— |
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(a) | at the time when P moved the prohibited munition or entered into the |
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contract to move it, P was a member of a visiting force of a State that |
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was not a party to the Convention, and |
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(b) | the movement was or (as the case may be) would be in accordance with |
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the terms of an authorisation given to that State by the Secretary of |
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(3) | It is a defence for a person (P) charged with an offence under section 2(1)(g), |
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which is alleged to have been committed by making arrangements under |
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which a member of a visiting force of a State that was not a party to the |
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Convention moves a prohibited munition into or from the United Kingdom or |
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enters into a contract to move a prohibited munition into or from the United |
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Kingdom, to show that at the time when P made the arrangements— |
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(a) | P was a member of a visiting force of a State that was not a party to the |
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Convention or was working with such a force, and |
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(b) | P had reasonable cause to believe that the movement would be in |
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accordance with the terms of an authorisation given to that State by the |
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(4) | It is a defence for a person (P) charged with an offence under section 2(2) of |
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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— |
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(a) | P was a member of a visiting force of a State that was not a party to the |
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Convention or was working with such a force, and |
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(b) | P had reasonable cause to believe that the other person would have a |
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defence in respect of the conduct by virtue of any of subsections (1) to |
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(5) | For the purposes of this section, a person is working with a visiting force at any |
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time when the person is providing a service to the force under a contract or |
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helping it in any other way. |
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(a) | “visiting force” means any such body, contingent or detachment of the |
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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 |
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(b) | “member”, in relation to a visiting force, has the meaning given by |
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section 12(1) of that Act. |
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9 | International military operations and activities |
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(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 |
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the course of, or for the purposes of, an international military operation or an |
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international military co-operation activity. |
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(2) | A military operation is an international military operation if— |
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(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 |
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participate in the operation, |
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(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 |
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armed forces of a State that is not a party to the Convention, or by other |
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persons acting under the authority of such a State, which would be in |
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contravention of the Convention if it were conduct by members of the |
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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. |
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(3) | An activity is an international military co-operation activity if— |
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(a) | it is an activity, other than a military operation, undertaken in |
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pursuance of co-operation between the government of the United |
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Kingdom and the government of one or more States other than the |
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United Kingdom for any purpose related to— |
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(i) | the defence of the United Kingdom or any of those States, or |
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(ii) | Her Majesty’s armed forces or the armed forces of any of those |
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(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 |
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armed forces of a State that is not a party to the Convention, or by other |
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persons acting under the authority of such a State, which would be in |
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contravention of the Convention if it were conduct by members of the |
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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. |
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(4) | Subsection (5) applies if a question arises in any proceedings as to whether— |
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(a) | subsection (2)(a) applies in relation to a military operation, or |
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(b) | subsection (3)(a) applies in relation to an activity. |
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(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. |
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(6) | Paragraphs 7 and 8 of Schedule 2 make further provision about the application |
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of the defence under subsection (1) in relation to particular offences specified |
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“Her Majesty’s armed forces” means any of Her Majesty’s forces within |
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the meaning of the Armed Forces Act 2006; |
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“military operation” includes any naval or air force operation. |
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10 | Supplementary provision: evidential burden and authorisations |
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(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 |
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defence, the court must assume that the defence is satisfied unless the |
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prosecution proves beyond reasonable doubt that it is not. |
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(3) | For the purposes of sections 6 and 8, an authorisation given before the coming |
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into force of this Act has the same effect as one given on or after its coming into |
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