Cluster Munitions (Prohibitions) Act (c.11) which received Royal Assent on 25 March 2010

Cluster Munitions (Prohibitions) Act 2010

2010 CHAPTER 11

Commentary on Sections

Section 8: Visiting forces

44. This section provides defences to members of a visiting force of a State not party to the Convention, or to persons working with that visiting force. It is a consequence of Article 21(3) of the Convention which states:

“Notwithstanding the provisions of Article 1 of this Convention and in accordance with international law, States Parties, their military personnel or nationals, may engage in military cooperation and operations with States not party to this Convention that might engage in activities prohibited to a State Party.”

45. Section 30(3) defines a State Party as a State which has ratified, accepted or approved the Convention, or has acceded to it, and either the Convention is in force in relation to that State or the State is applying Article 1 of the Convention on a provisional basis until the Convention enters into force for it. Conversely, for the purposes of section 8 a State not party to the Convention is one that does not meet these criteria.

46. Subsection (1) affords to members of a visiting force of a State not party to the Convention, or persons working with such a force, a defence to a charge of having a prohibited munition in their possession on UK territory. Subsection (2) affords only to members of the visiting force a defence to a charge of being involved in the movement or contracting for the movement of prohibited munitions into or out of the UK. This means that no person working with a visiting force will be able to move, or enter into a contract to move, a prohibited munition into or out of the UK without incurring criminal liability. Subsection (3) affords to members of a visiting force or persons working with them a defence to a charge of making arrangements under which a member of a visiting force either moves or contracts to move a prohibited munition into or out of the UK.

47. In relation to the offences of possession or movement, the defence is only available if these activities were in accordance with the terms of an authorisation given to the State not party to the Convention by the Secretary of State. In relation to the offence of arranging a transfer by another person, this defence is only available to the arranger if they had reasonable cause to believe the transfer would be in accordance with the terms of an authorisation given to the State not party to the Convention by the Secretary of State.

48. Subsection (4) provides a defence to the offence of assisting, encouraging or inducing another person to engage in prohibited conduct if, at the relevant time, the person providing the assistance, encouragement or inducement 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 had reasonable cause to believe that the other person would have a defence under subsections (1) to (3).

49. Subsection (5) defines which persons are considered to be “working with a visiting force”; it covers contractors or others assisting the visiting force in any way.

50. Subsection (6) provides, by reference to the Visiting Forces Act 1952, definitions of “visiting force” and “member” of a visiting force.