Cluster Munitions (Prohibitions) Bill [HL]

House of Commons

Session 2009 - 10
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Other Bills before Parliament

Cluster Munitions (Prohibitions) Bill [HL]

Cluster Munitions (Prohibitions) Bill [HL]
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(6)
The power conferred by subsection (1) may not be exercised so as to require a
person to give information which might incriminate the person or, if that
person is married or a civil partner, the person’s spouse or civil partner.
(7)
The power conferred by subsection (1) may not be exercised so as to require a
person to give information in respect of which a claim to legal professional
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privilege (or, in Scotland, to confidentiality of communications) could be
maintained in legal proceedings.
(8)
A person who without reasonable excuse fails to comply with a notice served
under subsection (1) or (4) is guilty of an offence and liable—
(a)
on summary conviction, to a fine not exceeding the statutory
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maximum, or
(b)
on conviction on indictment, to a fine.
(9)
A person on whom a notice is served under subsection (1) and who knowingly
makes a false or misleading statement in response to it is guilty of an offence
and liable—
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(a)
on summary conviction, to a fine not exceeding the statutory
maximum, or
(b)
on conviction on indictment, to imprisonment for a term not exceeding
two years or to a fine, or to both.
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Power to search and obtain evidence: issue of warrant
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(1)
A justice of the peace may issue a warrant authorising a person acting under
the authority of the Secretary of State to enter and search premises if the justice
of the peace is satisfied, on information on oath, that either condition A or
condition B is satisfied in relation to those premises.
(2)
Condition A is that there are reasonable grounds for suspecting that an offence
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under this Act is being, has been or is about to be committed on the premises.
(3)
Condition B is that there are reasonable grounds for suspecting that evidence
of the commission of an offence under this Act is to be found on the premises.
(4)
An application for a warrant under this section—
(a)
may be made by any person acting under the authority of the Secretary
30
of State, and
(b)
must specify the premises in respect of which the application is made.
(5)
A warrant issued under this section may authorise entry on one occasion only.
(6)
A warrant issued under this section—
(a)
continues in force for the period of one month beginning with the date
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on which it was issued, and
(b)
may be executed by any person acting under the authority of the
Secretary of State.
(7)
In the application of subsection (1) to Scotland—
(a)
the references to a justice of the peace are to be read as including
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references to the sheriff, and
(b)
the reference to information on oath is to be read as a reference to
evidence on oath.

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Power to search and obtain evidence: supplementary
(1)
A person authorised by a warrant issued under section 21 to enter premises
may, if necessary, use force to enter the premises.
(2)
A person who enters premises under a warrant issued under section 21 may—
(a)
take such other persons and such equipment on to the premises as
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appear to that person to be necessary;
(b)
inspect any document found on the premises which the person has
reasonable cause to believe may be required as evidence for the
purposes of proceedings in respect of an offence under this Act;
(c)
take copies of, or seize and remove, any such document;
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(d)
require information which is stored in an electronic form and is
accessible from the premises to be produced in a form in which it can
be taken away and in which it is visible and legible (or from which it
can readily be produced in a visible and legible form);
(e)
take copies of, or seize and remove, anything produced in pursuance of
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paragraph (d) which the person has reasonable cause to believe may be
required as evidence for the purposes of proceedings in respect of an
offence under this Act;
(f)
inspect, seize and remove any device or equipment found on the
premises which the person has reasonable cause to believe may be
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required as such evidence;
(g)
inspect, sample, seize and remove any substance found on the premises
which the person has reasonable cause to believe may be required as
such evidence.
(3)
Anything seized under subsection (2) may be retained for so long as is
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necessary in all the circumstances.
(4)
A person who seizes anything under subsection (2) must, if requested to do so
by a person who occupied the premises at the time of the seizure or who had
possession or control of the thing immediately before it was seized, provide a
record of its seizure.
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(5)
Subsection (2) does not authorise a person to take action in relation to anything
in respect of which a claim to legal professional privilege (or, in Scotland, to
confidentiality of communications) could be maintained in legal proceedings.
(6)
Subsection (7) applies where a constable enters premises—
(a)
under a warrant issued under section 21, or
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(b)
by virtue of subsection (2)(a) of this section.
(7)
The constable may search any person found on the premises whom the
constable has reasonable cause to believe to be in possession of any document,
device, equipment or substance which may be required as evidence for the
purposes of proceedings in respect of an offence under this Act.
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(8)
No constable may, by virtue of subsection (7), search a person of the opposite
sex.
(9)
A warrant issued under section 21 may provide that the person who exercises
the powers conferred by the warrant may, if that person is not a constable, do
so only in the presence of a constable.
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(10)
A person who wilfully obstructs another in the exercise of any power under
this section is guilty of an offence and liable—

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(a)
on summary conviction, to a fine not exceeding the statutory
maximum, or
(b)
on conviction on indictment, to a fine.
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Disclosure of information
(1)
This section applies to information if—
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(a)
it was obtained under, or in connection with anything done under, this
Act or the Convention, and
(b)
it relates to a particular business or other activity carried on by any
person.
(2)
So long as the business or activity continues to be carried on, the information
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must not be disclosed except—
(a)
with the consent of the person for the time being carrying on the
business or activity,
(b)
in connection with anything done for the purposes of the Convention,
(c)
in connection with anything done for the purposes of this Act,
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(d)
for any of the purposes specified in section 17(2)(a) to (d) of the Anti-
terrorism, Crime and Security Act 2001 (disclosure related to criminal
investigation or criminal proceedings),
(e)
in connection with the enforcement of any restriction on imports or
exports, or
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(f)
with a view to ensuring the security of the United Kingdom.
(3)
Section 18 of the Anti-terrorism, Crime and Security Act 2001 (restriction on
disclosure of information for overseas purposes) has effect in relation to a
disclosure authorised by subsection (2)(d) as it has effect in relation to a
disclosure authorised by any of the provisions to which section 17 of that Act
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applies.
(4)
A person who discloses information in contravention of this section is guilty of
an offence and liable—
(a)
on summary conviction, to a fine not exceeding the statutory
maximum, or
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(b)
on conviction on indictment, to imprisonment for a term not exceeding
two years or to a fine, or to both.
(5)
Where any of paragraphs (b) to (f) of subsection (2) applies, the information
may be disclosed notwithstanding any obligation not to disclose it that would
otherwise apply.
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Criminal proceedings
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Consent to prosecution
Proceedings for an offence under this Act may not be instituted—
(a)
in England and Wales, except by or with the consent of the Attorney
General;
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(b)
in Northern Ireland, except by or with the consent of the Attorney
General for Northern Ireland.

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Forfeiture in case of conviction
(1)
This section applies if a person is convicted of an offence under this Act.
(2)
The court by or before which the person is convicted may order that anything
that is shown to the court’s satisfaction to relate to the offence is to be—
(a)
forfeited, and
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(b)
destroyed, or otherwise dealt with, in the manner specified in the order.
(3)
The court may order under subsection (2) that the forfeited item is to be dealt
with as the Secretary of State sees fit.
(4)
If the court so orders, the powers of the Secretary of State include—
(a)
the power to direct the destruction of the forfeited item, and
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(b)
the power to secure the disposal of the forfeited item in any other way
that appears to the Secretary of State to be appropriate.
(5)
Subsection (6) applies where—
(a)
the court proposes to order under subsection (2) that a thing be
forfeited, and
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(b)
a person claiming to have an interest in it applies to be heard by the
court.
(6)
The court must not make the order unless the person has been given an
opportunity to show why it should not be made.
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Offences by bodies corporate etc.
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(1)
Where an offence under this Act is committed by a body corporate and the
offence is proved—
(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
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corporate,

the officer (as well as the body corporate) is guilty of the offence and is liable
to be proceeded against and punished accordingly.
(2)
Where an offence under this Act is committed by a Scottish partnership and the
offence is proved—
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(a)
to have been committed with the consent or connivance of a partner of
the partnership, or
(b)
to be attributable to any neglect on the part of a partner of the
partnership,

the partner (as well as the partnership) is guilty of the offence and is liable to
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be proceeded against and punished accordingly.
(3)
In this section—
“officer”, in relation to a body corporate, means—
(a)
a director, manager, secretary or other similar officer of the
body corporate, or
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(b)
any person who was purporting to act in any such capacity;
“partner”, in relation to a Scottish partnership, includes any person who
was purporting to act as a partner of the partnership.

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(4)
In subsection (3) “director”, in relation to a body corporate whose affairs are
managed by its members, means a member of the body corporate.
General
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Safeguards etc. in connection with exercise of powers of entry
(1)
A person who enters premises under an authorisation given under section
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12(1) or 16(2) (“the authorised person”) must, if requested to do so by a person
on the premises, produce evidence of the authorised person’s identity and
entitlement to exercise the power.
(2)
Subsections (3) to (5) apply where a person (“the authorised person”) enters
premises under a warrant issued under section 12(2), 16(4) or 21(1).
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(3)
If the occupier of the premises is present, the authorised person must—
(a)
produce evidence of the authorised person’s identity,
(b)
produce a copy of the warrant, and
(c)
supply the occupier with a copy.
(4)
If the occupier of the premises is not present, but another person appearing to
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the authorised person to be in charge of the premises is, subsection (3) applies
as if any reference to the occupier were a reference to the person in charge of
the premises.
(5)
If neither the occupier nor any other person appearing to the authorised person
to be in charge of the premises is present, the authorised person must leave a
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copy of the warrant in a prominent place on the premises.
(6)
A person who enters premises under an authorisation given or warrant issued
under section 12(1) or (2), 16(2) or (4) or 21(1) must do so at a reasonable hour
unless it appears to the person that the purpose of entry would be frustrated
by entry at a reasonable hour.
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(7)
A person who enters premises which are unoccupied under an authorisation
given or warrant issued under section 12(1) or (2), 16(2) or (4) or 21(1) must take
all reasonable steps to ensure that the premises are left as secure against entry
as they were when the person found them.
(8)
Subsections (2) to (6) do not apply where the authorised person is a constable
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who enters the premises under a warrant issued under section 12(2), 16(4) or
21(1).
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Service of notices
(1)
A notice required or authorised by this Act to be served on a person other than
a Scottish partnership or a body corporate may be served by—
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(a)
delivering it to the person, or
(b)
sending it by post to the person at the person’s usual or last-known
residence, or usual or last-known place of business, in the United
Kingdom.
(2)
A notice required or authorised by this Act to be served on a Scottish
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partnership may be served by—

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(a)
delivering it to a partner of the partnership, or a person having control
or management of the partnership business, at the principal office of
the partnership, or
(b)
sending it by post to such a partner or person at that office.
(3)
A notice required or authorised by this Act to be served on a body corporate
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may be served by—
(a)
delivering it to the secretary or clerk of the body corporate at its
registered or principal office, or
(b)
sending it by post to the secretary or clerk at the registered or principal
office.
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(4)
In the application of subsection (3) to a company registered outside the United
Kingdom, the references to its principal office include references to its
principal office within the United Kingdom (if any).
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Power to modify Act
(1)
The Secretary of State may by order made by statutory instrument make such
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modifications of this Act as the Secretary of State considers necessary or
desirable to give effect to any amendment of the Convention made in
pursuance of the provisions of the Convention.
(2)
An order under subsection (1) may also make such modifications of any other
enactment (whenever passed or made) as the Secretary of State considers
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necessary or desirable in consequence of the modifications of this Act made by
that order.
(3)
A statutory instrument containing an order under subsection (1) may not be
made unless a draft of the statutory instrument has been laid before and
approved by resolution of each House of Parliament.
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(4)
In this section—
“enactment” means a provision contained in, or in an instrument made
under—
(a)
an Act of Parliament,
(b)
an Act of the Scottish Parliament,
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(c)
a Measure or Act of the National Assembly for Wales, or
(d)
Northern Ireland legislation;
a “modification” includes an addition, repeal or revocation.
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Interpretation
(1)
In this Act—
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“acquisition”, “disposal” (except in clause 25(4)(b)), “transfer”, and related
expressions, are to be construed in accordance with section 3;
“cluster munition”, “prohibited munition” and “relevant explosive
bomblet” have the meanings given by section 1;
“the Convention” has the meaning given by section 1(2);
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“premises” includes land, moveable structures, vehicles, vessels, aircraft
and hovercraft.
(2)
For the purposes of this Act a cluster munition or a relevant explosive bomblet
is to be taken to be destroyed if it is permanently prevented (by dismantling or

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any other means) from being used as a cluster munition or a relevant explosive
bomblet.
(3)
For the purposes of this Act a State is a party to the Convention if it has ratified,
accepted or approved the Convention, or has acceded to it, and either—
(a)
the Convention is in force in relation to the State, or
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(b)
the State is applying Article 1 of the Convention on a provisional basis
in accordance with Article 18 of the Convention.
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Amendments of other Acts
Schedule 3 contains minor and consequential amendments of other Acts.
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Crown application
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(1)
This Act binds the Crown.
(2)
No contravention by the Crown of a provision of this Act makes the Crown
criminally liable.
(3)
Subsection (2) does not affect the criminal liability of persons in the service of
the Crown.
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(4)
The High Court or, in Scotland, the Court of Session may, on the application of
a person appearing to the Court to have an interest, declare unlawful an act or
omission of the Crown which constitutes a contravention of a provision of this
Act.
(5)
Nothing in this section affects Her Majesty in her private capacity.
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(6)
Subsection (5) is to be read as if section 38(3) of the Crown Proceedings Act
1947 (references to Her Majesty in her private capacity) were contained in this
Act.
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Extent
(1)
Subject to the following provisions of this section, this Act extends to England
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and Wales, Scotland and Northern Ireland.
(2)
An amendment made by this Act has the same extent as that of the provision
amended.
(3)
Her Majesty may by Order in Council provide for any of the provisions of this
Act to extend, with modifications (including additions or omissions) or
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without modifications, to any of the Channel Islands, the Isle of Man or any
British overseas territory.
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Commencement and short title
(1)
This Act comes into force on the day on which it is passed.
(2)
This Act may be cited as the Cluster Munitions (Prohibitions) Act 2010.
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(3)
Nothing in this Act shall impose any charge on the people or on public
funds, or vary the amount or incidence of or otherwise alter any such charge
in any manner, or affect the assessment, levying, administration or
application of any money raised by any such charge.