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The Export Control (Burma) Order 2008

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Citation, commencement and interpretation

1.—(1) This Order may be cited as the Export Control (Burma) Order 2008 and shall come into force on 23rd April 2008.

(2) In this Order—

“the 1979 Act” means the Customs and Excise Management Act 1979(1);

“Annex I items” means goods listed in Annex I to the Regulation (round logs, timber and timber products; coal and certain metals; precious and semi-precious stones);

“Annex II items” means goods or technology listed in Annex II to the Regulation (equipment which might be used for internal repression);

“Annex III items” means goods or technology listed in Annex III to the Regulation (equipment and technology used in logging and timber processing and certain mining operations);

“a Community authorisation” means an authorisation granted under Article 5(3), 8(2) or 9 of the Regulation;

“the customs and excise Acts” and “assigned matter” have the same meanings as in section 1 of the 1979 Act(2);

“the Regulation” means Council Regulation (EC) No 194/2008.

(3) References in this Order to the Regulation are references to the Regulation as amended from time to time in accordance with the procedure set out in Article 18 of the Regulation.

Offences related to import, purchase and transport prohibitions

2.—(1) A person who contravenes any of the following provisions of the Regulation commits an offence—

(a)Article 2(2)(a) (prohibition on import of Annex I items originating in or exported from Burma);

(b)Article 2(2)(b) (prohibition on purchase of Annex I items located in Burma);

(c)Article 2(2)(c) (prohibition on transporting Annex I items originating in or exported from Burma and going to a European Community destination).

(2) A person who is knowingly concerned in an activity, other than the importation of goods to the United Kingdom, prohibited by Article 2(2)(a), (b) or (c) of the Regulation with intent to evade the prohibition in that Article commits an offence and may be arrested.

(3) A person who contravenes Article 2(2)(d) (prohibition on participation, knowingly and intentionally, in activities whose object or effect is, directly or indirectly, to circumvent the prohibition in Article 2(2)(a), (b) or (c)) of the Regulation commits an offence and may be arrested.

Offences related to sale, supply, transfer and export prohibitions

3.—(1) A person who contravenes Article 4 (prohibition on sale etc. to Burma of Annex II items) of the Regulation, except by exporting goods from the United Kingdom, commits an offence.

(2) A person who is knowingly concerned in an activity, other than the exportation of goods from the United Kingdom, prohibited by Article 4 of the Regulation with intent to evade the prohibition in that Article commits an offence and may be arrested.

Offences related to export authorisation requirement

4.—(1) A person who—

(a)does an act for which an authorisation is required by Article 5(3) (authorisation required for export to Burma of Annex III items) of the Regulation, and

(b)does not have the required authorisation

commits an offence.

(2) A person who—

(a)is concerned in an activity for which an authorisation is required by Article 5(3) of the Regulation,

(b)does not have the required authorisation, and

(c)is knowingly concerned in that activity with intent to evade the restriction in that Article

commits an offence and may be arrested.

Offences related to technical assistance prohibitions

5.—(1) A person who contravenes any of the following provisions of the Regulation commits an offence—

(a)Article 7(1)(a) (prohibition on provision to Burma of technical assistance related to military activities etc.);

(b)Article 7(2)(a) (prohibition on provision to Burma of technical assistance related to Annex II items).

(2) A person who is knowingly concerned in an activity prohibited by Article 7(1)(a) or (2)(a) of the Regulation with intent to evade the prohibition in that Article commits an offence and may be arrested.

Offences related to financial assistance prohibitions

6.—(1) A person who contravenes—

(a)Article 7(1)(b) (prohibition on provision to Burma of financial assistance related to military activities etc.);

(b)Article 7(2)(b) (prohibition on provision to Burma of financial assistance related to Annex II items); or

(c)Article 7(3) (prohibition on provision to certain entities in Burma of financial assistance related to Annex III items)

of the Regulation commits an offence unless Article 7(6) (defence that person did not know of and had no reasonable cause to suspect infringement) of the Regulation applies.

(2) A person who is knowingly concerned in an activity prohibited by Article 7(1)(b), (2)(b) or (3) of the Regulation with intent to evade the prohibition in that Article commits an offence and may be arrested.

Offence related to technical and financial assistance anti-avoidance provision

7.  A person who contravenes Article 7(5) (prohibition on participation, knowingly and intentionally, in activities the object or effect of which is to circumvent the prohibition in Article 7(1), (2) or (3)) of the Regulation commits an offence and may be arrested.

Offences related to technical assistance authorisation requirement

8.—(1) A person who—

(a)does an act for which an authorisation is required by Article 8(2) (authorisation required for provision to Burma of technical assistance related to Annex III items) of the Regulation, and

(b)does not have the required authorisation

commits an offence.

(2) A person who—

(a)is concerned in an activity for which an authorisation is required by Article 8(2) of the Regulation,

(b)does not have the required authorisation, and

(c)is knowingly concerned in that activity with intent to evade the restriction in that Article

commits an offence and may be arrested.

Offences related to Community authorisations

9.—(1) If, for the purpose of obtaining a Community authorisation, a person—

(a)makes any statement or furnishes any document or information which to that person’s knowledge is false in a material particular; or

(b)recklessly makes any statement or furnishes any document or information which is false in a material particular,

that person commits an offence; and any Community authorisation granted in connection with the application for which the false statement was made or the false document or information furnished shall be void from the time it was granted.

(2) A person who, having acted under the authority of a Community authorisation, fails to comply with any of the requirements or conditions to which the Community authorisation is subject commits an offence, unless—

(a)the Community authorisation was modified after the completion of the act authorised; and

(b)the alleged failure to comply would not have been a failure had the Community authorisation not been so modified.

Penalties

10.—(1) A person guilty of an offence under article 2(1), 3(1), 4(1), 5(1), 6(1) or 8(1) of this Order is liable on summary conviction to a fine not exceeding level 3 on the standard scale.

(2) A person guilty of an offence under article 2(2) or (3), 4(2), 5(2), 6(2), 7, 8(2) or 9 of this Order is liable—

(a)on conviction on indictment, to imprisonment for a term not exceeding two years or a fine (or both);

(b)on summary conviction, to imprisonment for a term not exceeding three months or to a fine not exceeding the statutory maximum (or both).

(3) Subject to paragraphs (4) and (5), a person guilty of an offence under article 3(2) of this Order is liable—

(a)on conviction on indictment, to imprisonment for a term not exceeding ten years or to a fine (or both);

(b)on summary conviction—

(i)in England and Wales, to imprisonment for a term not exceeding twelve months or to a fine not exceeding the statutory maximum (or both);

(ii)in Scotland or Northern Ireland, to imprisonment for a term not exceeding six months or to a fine not exceeding the statutory maximum (or both).

(4) In relation to an offence that is not committed in the United Kingdom or by a United Kingdom person—

(a)for “ten years” in paragraph (3)(a) substitute “two years”; and

(b)for paragraph (3)(b) substitute—

(b)on summary conviction, to imprisonment for a term not exceeding three months or to a fine not exceeding the statutory maximum (or both).

(5) In relation to an offence committed before the commencement of section 154(1) of the Criminal Justice Act 2003(3), for “twelve months” in paragraph (3)(b)(i) substitute “six months”.

(6) In the case of an offence committed in connection with a prohibition or restriction in Article 4 of the Regulation, sections 68(3)(b) and 170(3)(b)(4) of the 1979 Act shall have effect as if for the words “7 years” there were substituted the words “10 years”.

Application of the 1979 Act

11.—(1) Where the Commissioners for Her Majesty’s Revenue and Customs investigate or propose to investigate any matter with a view to determining—

(a)whether there are grounds for believing that an offence under this Order has been committed; or

(b)whether a person should be prosecuted for such an offence,

the matter shall be treated as an assigned matter.

(2) Section 77A of the 1979 Act (provision as to information powers)(5) shall apply to a person concerned in an activity which, if not authorised by a Community authorisation, would contravene Article 2, 4, 5, 7 or 8 of the Regulation and accordingly references in section 77A of the 1979 Act to exportation shall be read as including any such activity.

(3) Section 138 of the 1979 Act (provision as to arrest of persons)(6) shall apply to the arrest of a person for an offence under this Order as it applies to the arrest of a person for an offence under the customs and excise Acts.

(4) Sections 145(7), 146(8), 146A(9), 147(10), 148, 150(11), 151(12), 152(13), 154(14), and 155(15) of the 1979 Act (proceedings for offences, mitigation of penalties, proof and other matters) shall apply in relation to offences and penalties under this Order as they apply in relation to offences and penalties under the customs and excise Acts.

Revocation of secondary legislation relating to restrictive measures against Burma

12.  The Burma (Sale, Supply, Export, Technical Assistance, Financing and Financial Assistance) (Penalties and Licences) Regulations 2006(16) are revoked.

Malcolm Wicks

Minister of State for Energy

Department for Business, Enterprise and Regulatory Reform

21st April 2008

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