Commentary on Sections
Schedule 17: Offences relating to nuclear material and nuclear facilities
510.Part 1 of Schedule 17 adds the necessary new offences by amendment to the 1983 Act. It also deals with penalties for the new offences and the existing ones and makes various other related changes.
511.The offences in Article 7 of the CPPNM as amended relate only to nuclear material used for peaceful purposes (and not used or retained for military purposes) and to nuclear facilities used for peaceful purposes (and not containing any nuclear material used or retained for military purposes). Section 6(1) of the 1983 Act defines “nuclear material” by reference to the CPPNM. Paragraph 6(4) of Schedule 17 adds a definition of “nuclear facility” to that section. The term is also defined consistently with the CPPNM.
512.Paragraph 2 inserts a new subsection (1A) into section 1 of the 1983 Act. It gives extraterritorial extent to various existing offences (such as murder, grievous bodily harm or criminal damage) where the act constituting the offence was an act directed at, or interfering with the operation of, a nuclear facility and causes death, injury or damage as a result of the emission of radiation or the release of radioactive material. The penalty for the extraterritorial offences is, on conviction on indictment, a maximum of life imprisonment. The penalty is provided for by new section 1A(1) and (4), inserted by paragraph 3 of Schedule 17.
513.Paragraph 3 inserts new sections 1A, 1B, 1C and 1D into the 1983 Act.
514.New section 1A deals only with penalties. As well as providing the penalty for the offences in new subsection (1A) of section 1, this new section increases the penalty for a number of offences which exist already in the law of England and Wales and Northern Ireland (both as a result of the 1983 Act and otherwise) to the extent that they contribute to the implementation of existing and amended Article 7 of the CPPNM. In these cases the new penalty is, on conviction on indictment, a maximum of life imprisonment. As mentioned above, the CPPNM requires that the offences should be punishable by penalties that are severe enough to reflect the grave nature of the offences. For example, existing England and Wales and Northern Ireland offences relating to causing death, injury and property damage are relied on to implement the CPPNM requirement for an offence dealing with acts directed at a nuclear facility. However, the maximum penalty is not in all cases sufficiently severe. Therefore, new section 1A(1) and (2)(b) increases the penalty to a maximum of life imprisonment. In relation to Scotland, all of the relevant offences relied upon to implement the Convention already have a maximum penalty of life imprisonment, with the exception of an offence under section 52 of the Criminal Law (Consolidation) (Scotland) Act 1995. The latter is a summary only offence and would not be relied upon for prosecuting conduct with severe consequences.
515.New section 1B creates new offences relating to damaging the environment, as required by Article 7(1)(a) and Article 7(1)(e) of the amended CPPNM. Article 7(1)(a), to the extent that it deals with environmental damage, requires an offence constituted by –
“the intentional commission of…an act without lawful authority which constitutes the receipt, possession, use, transfer, alteration, disposal or dispersal of nuclear material and which causes or is likely to cause…substantial damage…to the environment.”
516.Article 7(1)(e) in the amended CPPNM, to the extent that it deals with environmental damage, requires an offence constituted by –
“the intentional commission of…an act directed against a nuclear facility, or an act interfering with the operation of a nuclear facility, where the offender intentionally causes, or where he knows that the act is likely to cause…substantial damage…to the environment by exposure to radiation or release of radioactive substances, unless the act is undertaken in conformity with the national law of the State Party in the territory of which the nuclear facility is situated.”
517.New section 1B(1) and (2) implements Article 7(1)(a) as it relates to environmental damage. New section 1B(1) and (3) implements Article 7(1)(e) as it relates to environmental damage. New section 1B(4) provides for a maximum penalty of life imprisonment on conviction on indictment.
518.New section 1C creates the necessary new extraterritorial offences of (without lawful authority) importing or exporting nuclear material or shipping such material as stores. The amended Convention requires each State Party to have in its law a suitably serious offence covering conduct outside its territory which involves the movement of nuclear material into or out of any State in the world without lawful authority. It also requires each State to ensure that, as far as conduct in its territory is concerned, the unlawful import or export (etc.) of nuclear material is punishable by penalties which take account of the grave nature of such conduct. Offences already exist in UK law which cover (broadly speaking) activities in the UK relating to the import from and export to the UK without lawful authority of nuclear material – although changes are required to the penalties, as discussed below.
519.New section 1C makes it a criminal offence to be knowingly concerned outside the UK in the unlawful import, export or shipment as stores of nuclear material from or to any country, whatever the nationality of the person concerned. An unlawful export, import or shipment is defined as one that is contrary to an applicable prohibition or restriction having effect under or by virtue of the law of the country concerned (subsection (3)). Evidence of the unlawfulness of the activity may be provided in a statement in a certificate issued by or on behalf of the government of the country concerned (subsection (4)).
520.New section 1D applies enforcement and procedural provisions of the Customs and Excise Management Act 1979 to the offence created by new section 1C.
521.Paragraph 4 of Schedule 17 replaces section 2 of the 1983 Act. In doing so, it makes the necessary changes to the 1983 Act to ensure that certain new offences required by the amended CPPNM are implemented. References to “relevant injury or damage” are defined in new section 2(9).
522.The offence in new section 2(1) and (2) is concerned with activities involving nuclear material which do not necessarily cause death, injury or damage to property but where the offender intends this to be the outcome, or intends to enable someone else to cause this outcome, or is reckless about whether this outcome is caused. This replaces the existing section 2(1) and (2) in implementing the CPPNM requirement (Article 7(1)(a)) to have offences dealing with the misuse of nuclear material where death, injury or property damage is intended or is likely but does not actually occur.
523.The offence in new section 2(1) and (3) covers any act directed at a nuclear facility or interfering with the operation of a nuclear facility where the offender intends to cause death, injury or property damage as a result of the emission of radiation or release of radioactive substances, or intends someone else to be able to cause these kinds of harm or is reckless about whether this would be the result. It does not matter whether harm is actually caused. This offence complements new subsection (1A) of section 1 and the offence in new section 1B(1) and (3). Together with existing UK offences relating to causing death, injury and property damage, these offences implement Article 7(1)(e) of the revised CPPNM.
524.The offences in new section 2(1), (4) and (7) concern the making of threats. These provisions re-enact (with modifications) the existing provisions of section 2(1), (3) and (4) of the 1983 Act and add additional threat offences required by the amended CPPNM. For example, new section 2(1), (4) and (5)(b) creates an offence of threatening to cause environmental damage by means of nuclear material.
525.A person guilty of any of these offences is liable, on conviction or indictment, to a maximum penalty of imprisonment for life (subsection (8)).
526.Paragraph 4 also adds new section 2A to the 1983 Act. New section 2A creates extraterritorial offences of attempting or conspiring to commit, or inciting the commission of, certain of the offences implementing Article 7 of the CPPNM. It also creates extraterritorial offences of secondary participation in certain of those offences. The purpose is to do what is necessary to implement Article 7(1)(h), (i), (j) and (k) of the amended CPPNM.
527.Paragraph 5 inserts a new section 3A into the 1983 Act. The purpose of section 3A is to implement Article 2(4)(b) of the CPPNM. The new section provides that nothing in the 1983 Act applies in relation to acts done by the armed forces of any country or territory in the course of an armed conflict or in the discharge of their functions. The section also provides for the Secretary of State to be able to issue a certificate, to be taken as conclusive evidence in any proceedings, determining whether or not an act done by armed forces was an act to which the 1983 Act does not apply by virtue of new section 3A.
528.Paragraph 6 provides new and amended definitions that are necessary for the existing and new offences, principally definitions of “nuclear facility”, “the environment”, and “radioactive material”. The definition of “nuclear facility” is consistent with the definition in the CPPNM. The definition of “the Convention” is also amended, as once the amended Convention enters into force, its name will change to the “Convention on the Physical Protection of Nuclear Material and Nuclear Facilities”.
529.Paragraph 6 also amends section 6(2) of the 1983 Act. This section provides that if, in any proceedings, a question arises whether material was used for peaceful purposes, a certificate of the Secretary of State stating that it was or was not so used at the relevant time is to be conclusive of that question. The procedure is extended so that it relates also to the question whether a nuclear facility was used for peaceful purposes
530.Part 2 of Schedule 17 makes amendments to penalty provisions of the Customs and Excise Management Act 1979 which impose the penalties for various offences. The purpose is to increase the penalty for existing UK offences relating to the unlawful import, export and shipment of nuclear material. This is because the CPPNM requires the penalty for such an offence to be one which takes account of the grave nature of the conduct.
531.Paragraph 9 provides a power to extend these same provisions of the Customs and Excise Management Act 1979, as amended, to the Channel Islands or any British overseas territory, with or without any necessary changes. The purpose is to facilitate the extension of the amended CPPNM to such territories (with their agreement) if it is decided to do so. An Order in Council made under this paragraph is not subject to any parliamentary procedure.
Section 76: Reasonable force for the purposes of self-defence etc.
532.Section 76 provides a gloss on the common law of self-defence and the defences provided by section 3(1) of the Criminal Law Act 1967 and section 3(1) of the Criminal Law Act (Northern Ireland) 1967, which relate to the use of force in the prevention of crime or making an arrest. It is intended to improve understanding of the practical application of these areas of the law. It uses elements of case law to illustrate how the defence operates. It does not change the current test that allows the use of reasonable force.
533.In line with the case law, notably from the leading case of Palmer v R [1971] A.C. 814, the defence will be available to a person if he honestly believed it was necessary to use force and if the degree of force used was not disproportionate in the circumstances as he viewed them. The section reaffirms that a person who uses force is to be judged on the basis of the circumstances as he perceived them, that in the heat of the moment he will not be expected to have judged exactly what action was called for, and that a degree of latitude may be given to a person who only did what he honestly and instinctively thought was necessary. A defendant is entitled to have his actions judged on the basis of his view of the facts as he honestly believed them to be, even if that belief was mistaken.
534.Section 76 retains a single test for self-defence and the prevention of crime (or the making of an arrest) which can be applied in each of these contexts.
Section 77: Power to alter penalty unlawfully obtaining etc. personal data
535.This section confers a power on the Secretary of State to make an order altering the maximum penalty for an offence under section 55 of the Data Protection Act 1998.
536.Section 55(1) and (3) of that Act provide that a person is guilty of an offence if they knowingly or recklessly, without the consent of the data controller, obtain or disclose personal data or procure the disclosure of personal data to another person. Section 55(4) and (5) provide that a person is guilty of an offence if they sell or offer to sell personal data obtained in breach of section 55(1).
537.Subsection (1) of section 77 allows the Secretary of State to make an order providing for a person guilty of an offence under section 55 to be liable on summary conviction to imprisonment for a term not exceeding the specified period, or to a fine not exceeding the statutory maximum, or to both or on conviction on indictment to imprisonment for a term not exceeding the specified period or to a fine or to both.
538.Subsection (2) provides that the “specified period” must not exceed on summary conviction a maximum term of twelve months imprisonment (or in Northern Ireland, 6 months) and on conviction on indictment a maximum of two years imprisonment.
539.Subsection (3) provides that the Secretary of State must ensure that in the case of summary conviction in England and Wales any specified period which exceeds six months is to be read as a reference to six months in relation to offences committed before section 282(1) of the 2003 Act is commenced. Those provisions increase the maximum term for imprisonment which may be imposed on summary conviction in England and Wales to twelve months.
540.Subsection (4) stipulates that before an order can be made under this section the Secretary of State must consult with interested parties, including the Information Commissioner and media organisations.
Section 78: New defence for purposes of journalism and other special purposes
541.This section inserts a new defence into section 55(2) of the Data Protection Act 1998. The defence applies when a person acts for journalistic, literary or artistic purposes (referred to as the “special purposes”), with a view to the publication of journalistic, literary or artistic material and in the reasonable belief that their actions were justified as being in the public interest.
Section 79: Abolition of common law offences of blasphemy and blasphemous libel
542.Section 79 abolishes the common law offences of blasphemy and blasphemous libel in England and Wales
