Cluster Munitions (Prohibitions) Act 2010

Section 9(1) and (6)

SCHEDULE 2 E+W+S+N.I. Offences to which section 9 applies

Specified offences E+W+S+N.I.

1 An offence under section 2(1)(e) or (g). E+W+S+N.I.

2 An offence under subsection (2) of section 2 of assisting, encouraging or inducing another person to engage in any conduct mentioned in paragraphs (a) or (e) to (g) of subsection (1) of that section. E+W+S+N.I.

3 An offence under Part 2 of the Serious Crime Act 2007 in relation to— E+W+S+N.I.

(a) an offence under section 2(1)(a) or (f), or

(b) an offence specified in this Schedule.

4 An offence committed by inciting the commission of— E+W+S+N.I.

(a) an offence under section 2(1)(a) or (f), or

(b) an offence specified in this Schedule.

5 An offence committed by aiding, abetting, counselling or procuring the commission of— E+W+S+N.I.

(a) an offence under section 2(1)(a) or (f), or

(b) an offence specified in this Schedule.

6 An offence of attempting to commit or conspiring to commit an offence specified in this Schedule. E+W+S+N.I.

Application of defence under section 9(1): offences relating to use or transfer E+W+S+N.I.

7 (1) This paragraph applies where a person is charged with— E+W+S+N.I.

(a) an offence under section 2(1)(g) (making arrangements under which another person transfers a prohibited munition),

(b) an offence specified in any of paragraphs 2 to 5 where the conduct constituting the offence relates to the use or transfer of a prohibited munition, or

(c) an offence specified in paragraph 6 where the conduct constituting the offence consists of attempting or conspiring to commit an offence mentioned in paragraph (a) or (b).

(2) The defence under section 9(1) applies in relation to the offence only if the person also shows that—

(a) the use or transfer was (or was to be) only by members of the armed forces of a State that was not a party to the Convention or by other persons acting under the authority of such a State, or

(b) the person had reasonable cause to believe that the use or transfer was (or was to be) only as mentioned in paragraph (a).

Application of defence under section 9(1): offences relating to conduct by visiting forces etc. E+W+S+N.I.

8 (1) The defence under section 9(1) does not apply where a person is charged with an offence under section 2(1)(e) if it is proved that, at the time of the conduct constituting the offence, the person 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. E+W+S+N.I.

(2) The defence under section 9(1) does not apply where a person is charged with an offence under section 2(1)(g) if it is proved that—

(a) at the time of the conduct constituting the offence, the person 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) the conduct consisted of the person making arrangements under which a member of such a visiting force 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 Kingdom.

(3) The defence under section 9(1) does not apply where a person is charged with an offence specified in paragraphs 2 to 6 if it is proved that—

(a) at the time of the conduct constituting the offence, the person 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) the conduct was related to anything to which sub-paragraph (4) applies.

(4) This sub-paragraph applies to—

(a) the possession of a prohibited munition by a member of a visiting force of a State that was not a party to the Convention or a person working with such a force,

(b) the movement of a prohibited munition into or from the United Kingdom by a member of such a visiting force,

(c) the entering into a contract by a member of such a visiting force to move a prohibited munition into or from the United Kingdom,

(d) the making of arrangements by a member of such a visiting force or a person working with such a force under which a member of such a force—

(i) moves a prohibited munition into or from the United Kingdom, or

(ii) enters into a contract to move a prohibited munition into or from the United Kingdom.

(5) In this paragraph “member of a visiting force” and “person working with such a force” are to be construed in accordance with section 8.