179.This contains extracts from the Convention, setting out the meanings of terms used in the Convention, as referred to in sections 1(6), 3(7) and 6(10) of the Act. The following Convention definitions are included:
Cluster munition and related terms
Cluster munition
Explosive submunition
Unexploded submunition
Self-destruction mechanism
Self-deactivating
Explosive bomblet
Dispenser
Mine
Cluster munition remnants and related terms
Cluster munition remnants
Failed cluster munition
Unexploded submunition
Abandoned cluster munition
Unexploded bomblet
180.This Schedule sets out the offences to which the interoperability defence in section 9 applies, and when it applies.
181.Paragraphs 1 to 6 provide that the interoperability defence would be available to any person charged with possession or making arrangements for another person to transfer prohibited munitions (or with attempting or conspiring to do either of those things). It would also be available to a person charged with assisting, encouraging or inducing another to use, possess, transfer, or make arrangements under which another person transfers, a prohibited munition, as well as to a person charged with other forms of secondary or inchoate liability relating to these types of conduct. A person charged with attempt or conspiracy in relation to any of the types of secondary and inchoate liability covered by paragraphs 2 to 5 would also be able to invoke the defence.
182.Paragraph 7 stipulates that, with regard to conduct related to the use or transfer of a prohibited munition (including making arrangements under which another transfers a prohibited munition), the interoperability defence will only apply if the person charged can demonstrate that the use or transfer was, or was to be, only by a member or members of the armed forces of, or a person or persons acting under the authority of, a State not party to the Convention, or that they had reasonable cause to believe this to be the case.
183.Paragraph 8 disapplies the interoperability defence with respect to members of a visiting force of a State not party to the Convention and those working with such a force (as defined in section 8) when they are charged with:
the offence of possession of a prohibited munition (section 2(1)(e));
making arrangements under which another person transfers a prohibited munition if that other person was a member of the visiting force of a State not party to the Convention and the arrangements were for that person to move the prohibited munition into or out of the UK or enter into a contract to do so;
an offence specified in paragraphs 2 to 6 of Schedule 2 where the conduct was related to anything set out in sub-paragraph (4) of paragraph 8. Sub-paragraph (4) applies to: the possession of a prohibited munition by a member of a visiting force of a State not party to the Convention, or a person working with such a force; the movement of a prohibited munition into or out of the UK; the entering into a contract (by a member of a visiting force of a State not party to the Convention) to move a prohibited munition into or out of the UK; the making of arrangements by a member of a visiting force of a State not party to the Convention, or a person working with such a visiting force, under which a member of such a visiting force moves a prohibited munition into or out of the UK, or enters into a contract for such a movement.
184.This Schedule contains consequential amendments to the Criminal Justice and Police Act 2001 and to the Serious Crime Act 2007.
185.Under paragraph 1, the powers of seizure conferred by the Act are inserted in Schedule 1 to the Criminal Justice and Police Act 2001 which sets out the powers to which section 50 of the 2001 Act applies (additional powers of seizure from premises). The effect of this amendment is to extend the powers of seizure conferred by the Act in cases where it is not reasonably practicable for it to be determined on the premises whether or not property is seizable property and in cases where the seizable property is comprised in something from which it is not reasonably practicable for it to be separated.
186.The offence under section 2(2) of this Act will be added to the list of offences in Schedule 3 to the Serious Crime Act 2007. Under section 2(2) the Act contains a specific offence of assisting, encouraging and inducing another person to engage in prohibited conduct under section 2(1). The amendment will be made so as to avoid the possibility of a person being prosecuted under Part 2 of the Serious Crime Act 2007 for assisting or encouraging another person to assist, encourage or induce a contravention of section 2(1).