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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Securing destruction of prohibited munitions
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Suspicious objects
(1)
This section applies where—
(a)
the Secretary of State has grounds to suspect that an object is a
prohibited munition, and
5
(b)
it does not appear to the Secretary of State that the only persons in
possession of the object (assuming it is a prohibited munition) are
persons who, if charged with an offence under section 2(1)(e), would
have a defence under section 5 or 6.
(2)
The Secretary of State may serve a notice on—
10
(a)
any person who appears to the Secretary of State to have possession of
the object;
(b)
any other person who appears to the Secretary of State to have an
interest which the Secretary of State believes would be materially
affected if the object were to be destroyed.
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(3)
The notice must—
(a)
describe the object and state its location,
(b)
state that the Secretary of State suspects that the object is a prohibited
munition and give the reasons for that suspicion,
(c)
state that the Secretary of State is considering whether to secure the
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destruction of the object under sections 14 to 16,
(d)
refer to the obligation imposed by subsection (4) and specify a date for
the purposes of that subsection, and
(e)
refer to the right conferred by subsection (5).
(4)
A person on whom a notice is served under this section and who, at the time
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the notice is served, has possession of the object must not relinquish possession
before the date specified in the notice.
(5)
A person on whom a notice is served under this section may make
representations to the Secretary of State that—
(a)
the object is not a prohibited munition;
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(b)
the only persons in possession of the object (assuming it is a prohibited
munition) are persons who, if charged with an offence under section
2(1)(e), would have a defence under section 5 or 6.
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Power to enter premises and search for prohibited munitions
(1)
The Secretary of State may authorise a person to enter and search premises if
35
the Secretary of State has reasonable cause to believe that conditions A to C
are satisfied.
(2)
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 there is reasonable cause
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to believe that conditions A and B are satisfied.
(3)
Condition A is that there is an object on the premises that is a prohibited
munition.

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(4)
Condition B is that the case is not one where the only persons in possession of
the object (assuming it is a prohibited munition) are persons who, if charged
with an offence under section 2(1)(e), would have a defence under section 5 or
6.
(5)
Condition C is that—
5
(a)
the public has access to the premises, or
(b)
the premises are occupied by a person who consents to the premises
being entered and searched.
(6)
Subsections (1) and (2) apply whether or not a notice has been served under
section 11.
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(7)
An application for a warrant under subsection (2)—
(a)
may be made by any person acting under the authority of the Secretary
of State, and
(b)
must specify the premises in respect of which the application is made.
(8)
A warrant issued under subsection (2) may authorise entry on one occasion
15
only.
(9)
A warrant issued under subsection (2)—
(a)
continues in force for the period of one month beginning with the date
on which it was issued, and
(b)
may be executed by any person acting under the authority of the
20
Secretary of State.
(10)
In the application of subsection (2) to Scotland—
(a)
the references to a justice of the peace are to be read as including
references to the sheriff, and
(b)
the reference to information on oath is to be read as a reference to
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evidence on oath.
13
Removal or immobilisation of prohibited munitions
(1)
A person authorised by a warrant issued under section 12(2) to enter premises
may, if necessary, use force to enter the premises.
(2)
A person who enters premises under an authorisation given under section
30
12(1) or a warrant issued under section 12(2) may take such other persons and
such equipment on to the premises as appear to that person to be necessary.
(3)
If a person enters premises under such an authorisation or warrant and a
prohibited munition is found on the premises, the person may make the
prohibited munition safe.
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(4)
Where subsection (3) applies, the person may also—
(a)
if it is reasonably practicable to do so, seize and remove the prohibited
munition, or
(b)
in any other case, affix a warning to the prohibited munition, or in a
conspicuous position to something near the prohibited munition,
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stating that the prohibited munition is not to be moved or interfered
with before the date specified in the warning and that the warning is
not to be interfered with before that date.
(5)
But a person may not exercise the powers under subsections (3) and (4) if
satisfied that—
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(a)
the prohibited munition is in the possession of one or more persons,
and
(b)
that person, or each of those persons, is a person who, if charged with
an offence under section 2(1)(e), would have a defence under section 5
or 6.
5
(6)
An authorisation given under section 12(1) or a warrant issued under section
12(2) may provide that the person who exercises the powers conferred by the
authorisation or the warrant may, if that person is not a constable, do so only
in the presence of a constable.
(7)
For the purposes of subsection (3) a prohibited munition is made safe if,
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without being destroyed, it is prevented from being an immediate danger.
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Power to destroy removed prohibited munitions
(1)
This section applies if a prohibited munition is removed from premises under
section 13(4)(a).
(2)
Before the end of the first six-month period, the Secretary of State must serve a
15
notice on—
(a)
any person who appears to the Secretary of State to have had
possession of the prohibited munition immediately before its removal,
and
(b)
any other person who appears to the Secretary of State to have an
20
interest which the Secretary of State believes would be materially
affected by the destruction of the prohibited munition.
(3)
The notice must—
(a)
describe the prohibited munition and state its location,
(b)
state that the Secretary of State proposes to secure its destruction and
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give the reasons for this proposal,
(c)
refer to the right of objection conferred by subsection (4), and
(d)
refer to the conditions to which the exercise of that right is subject by
virtue of subsection (5) and specify a date for the purposes of that
subsection.
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(4)
A person on whom a notice is served under subsection (2) may object to the
Secretary of State’s proposal to secure the destruction of the prohibited
munition.
(5)
Any objection made under subsection (4) must—
(a)
be made in writing to the Secretary of State before such date as is
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specified in the notice, and
(b)
state why the prohibited munition should not be destroyed.
(6)
The Secretary of State may, at any time during the second six-month period,
decide that the prohibited munition should be destroyed, and if the Secretary
of State so decides the Secretary of State may authorise a person to destroy it.
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(7)
Before reaching a decision under subsection (6) the Secretary of State must—
(a)
allow any person on whom a notice has been served under subsection
(2) time to respond, and
(b)
take into account any objections to the proposed destruction of the
prohibited munition (whether made in response to a notice or
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otherwise).

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(8)
If a prohibited munition is destroyed under this section the Secretary of State
may recover from any person who had possession of the prohibited munition
immediately before its removal any costs reasonably incurred by the Secretary
of State in connection with the removal and destruction.
(9)
Subsection (10) applies where—
5
(a)
the Secretary of State has not, by the end of the second six-month
period, authorised the destruction of the prohibited munition, and
(b)
a person had possession of the prohibited munition immediately before
its removal.
(10)
The Secretary of State must return the prohibited munition to the person
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mentioned in subsection (9)(b) or, if there is more than one such person, to such
of them as the Secretary of State thinks appropriate.
(11)
For the purposes of this section—
(a)
the “first six-month period” is the period of six months beginning with
the day after the removal of the prohibited munition, and
15
(b)
the “second six-month period” is the period of six months beginning
with the day after the first six-month period ends.
15
Destruction of immobilised prohibited munitions
(1)
This section applies if a warning relating to a prohibited munition has been
affixed under section 13(4)(b).
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(2)
Before the end of the first six-month period, the Secretary of State must serve a
notice on—
(a)
any person who appears to the Secretary of State to have had
possession of the prohibited munition immediately before the warning
was affixed, and
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(b)
any other person who appears to the Secretary of State to have an
interest which the Secretary of State believes would be materially
affected by the destruction of the prohibited munition.
(3)
The notice must—
(a)
describe the prohibited munition and state its location,
30
(b)
state that the Secretary of State proposes to secure its destruction and
give the reasons for this proposal,
(c)
refer to the right of objection conferred by subsection (4), and
(d)
refer to the conditions to which the exercise of that right is subject by
virtue of subsection (5) and specify a date for the purposes of that
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subsection.
(4)
A person on whom a notice is served under subsection (2) may object to the
Secretary of State’s proposal to secure the destruction of the prohibited
munition.
(5)
Any objection made under subsection (4) must—
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(a)
be made in writing to the Secretary of State before such date as is
specified in the notice, and
(b)
state why the prohibited munition should not be destroyed.
(6)
The Secretary of State may, at any time during the second six-month period,
decide that the prohibited munition should be destroyed, and if the Secretary
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of State so decides the prohibited munition may be destroyed in accordance
with section 16.
(7)
Before reaching a decision under subsection (6) the Secretary of State must—
(a)
allow any person on whom a notice has been served under subsection
(2) time to respond, and
5
(b)
take into account any objections to the proposed destruction of the
prohibited munition (whether made in response to a notice or
otherwise).
(8)
If a prohibited munition is destroyed in pursuance of a decision taken under
subsection (6) the Secretary of State may recover from any person who had
10
possession of the prohibited munition immediately before the warning was
affixed any costs reasonably incurred by the Secretary of State in connection
with the destruction.
(9)
For the purposes of this section—
(a)
the “first six-month period” is the period of six months beginning with
15
the day after the warning was affixed, and
(b)
the “second six-month period” is the period of six months beginning
with the day after the first six-month period ends.
16
Power to enter premises and destroy immobilised prohibited munitions
(1)
Subsection (2) applies where—
20
(a)
the Secretary of State decides under section 15(6) that a prohibited
munition should be destroyed, and
(b)
the prohibited munition is on premises to which the public has access
or on premises which are occupied by a person who consents to action
being taken under subsection (2).
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(2)
The Secretary of State may authorise a person to enter the premises and destroy
the prohibited munition if it is found there.
(3)
Subsection (4) applies where a justice of the peace is satisfied, on information
on oath, that—
(a)
the Secretary of State has decided under section 15(6) that a prohibited
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munition should be destroyed, and
(b)
the prohibited munition is on premises where a warning relating to that
prohibited munition was affixed under section 13(4)(b).
(4)
The justice of the peace may issue a warrant authorising a person acting under
the authority of the Secretary of State to enter the premises and destroy the
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prohibited munition if it is found there.
(5)
An application for a warrant under subsection (4)—
(a)
may be made by any person acting under the authority of the Secretary
of State, and
(b)
must specify the premises in respect of which the application is made.
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(6)
A warrant issued under subsection (4) may authorise entry on one occasion
only.
(7)
A warrant issued under subsection (4)—
(a)
continues in force for the period of one month beginning with the date
on which it was issued, and
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(b)
may be executed by any person acting under the authority of the
Secretary of State.
(8)
A person authorised by a warrant issued under subsection (4) to enter premises
may, if necessary, use force to enter the premises.
(9)
A person who enters premises under an authorisation given under subsection
5
(2) or a warrant issued under subsection (4) may take such other persons and
such equipment on to the premises as appear to that person to be necessary.
(10)
An authorisation given under subsection (2) or a warrant issued under
subsection (4) may provide that the person who exercises the powers conferred
by the authorisation or the warrant may, if that person is not a constable, do so
10
only in the presence of a constable.
(11)
In the application of subsections (3) and (4) to Scotland—
(a)
the references to a justice of the peace are to be read as including
references to the sheriff, and
(b)
the reference to information on oath is to be read as a reference to
15
evidence on oath.
17
Compensation for destruction
(1)
This section applies if a person (P) claims that—
(a)
a prohibited munition has been destroyed under section 14 or 16,
(b)
P had an interest which was materially affected by the destruction,
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(c)
P sustained loss as a result of the destruction, and
(d)
no notice was served on P under section 14 or (as the case may be)
section 15 (whether or not one was served on any other person).
(2)
P may make an application for compensation to the High Court or, in Scotland,
the Court of Session.
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(3)
If the Court finds that P’s claim is justified, the Court may order the Secretary
of State to pay to P such amount (if any) by way of compensation as the Court
considers just.
(4)
If the Court believes that the prohibited munition would have been destroyed
even if a notice had been served on P under the section concerned, the Court
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must not order compensation to be paid under this section.
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Offences relating to destruction etc.
(1)
A person (P) is guilty of an offence if, without reasonable excuse, P contravenes
section 11(4) (relinquishing possession of suspicious object).
(2)
A person (P) is guilty of an offence if P wilfully obstructs another person in the
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doing by that other person of any of the following—
(a)
entering or searching premises under an authorisation given or
warrant issued under section 12(1) or (2);
(b)
making a prohibited munition safe, seizing or removing a prohibited
munition, or affixing a warning, under section 13(3) or (4);
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(c)
destroying a prohibited munition under an authorisation given under
section 14(6);
(d)
entering premises under an authorisation given or warrant issued
under section 16(2) or (4);

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(e)
destroying a prohibited munition under an authorisation given or
warrant issued under section 16(2) or (4);
(f)
attempting to do anything mentioned in any of paragraphs (a) to (e).
(3)
A person (P) is guilty of an offence if—
(a)
a warning relating to a prohibited munition has been affixed under
5
section 13(4)(b),
(b)
before the date specified in the warning, P moves or interferes with the
prohibited munition or interferes with the warning, and
(c)
P has no reasonable excuse for doing so.
(4)
A person guilty of an offence under any of subsections (1) to (3) is liable—
10
(a)
on summary conviction, to a fine not exceeding the statutory
maximum, or
(b)
on conviction on indictment, to a fine.
(5)
A person who knowingly makes a false or misleading statement in response to
a notice served under section 11, 14 or 15 is guilty of an offence and liable—
15
(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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Securing destruction of prohibited munitions: supplementary
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The powers conferred by sections 11 to 16 are in addition to, and do not affect,
any power exercisable in relation to an object otherwise than by virtue of those
sections.
Information and records
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Information and records for Convention purposes
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(1)
The Secretary of State may serve a notice on any person requiring the person
to give such information as is described in the notice.
(2)
The information required to be given by a notice served under subsection (1)—
(a)
must be information that the Secretary of State has reasonable cause to
believe is or will be needed in connection with anything to be done for
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the purposes of the Convention;
(b)
may relate to a state of affairs subsisting before the coming into force of
this Act or the entry into force of the Convention.
(3)
A notice served under subsection (1) may specify—
(a)
the form in which the information must be given;
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(b)
the period within which the information must be given.
(4)
The Secretary of State may also serve a notice on any person requiring the
person to keep such records as are specified in the notice.
(5)
The records required to be kept by a notice served under subsection (4) must
be records that the Secretary of State has reasonable cause to believe will
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facilitate the giving of information which that person may at any time be
required to give under subsection (1).