Citation, commencement, extent and application

1.—(1) This Order may be cited as the Burma (Restrictive Measures) (Overseas Territories) Order 2009 and shall come into force on 19th November 2009.

(2) This Order shall extend to the territories listed in Schedule 1.

(3) Article 28 shall apply to the Sovereign Base Areas of Akrotiri and Dhekelia as set out in Schedule 2.

(4) Article 28 shall apply to the Falkland Islands and South Georgia and the South Sandwich Islands subject to the modification set out in Schedule 3.

(5) In the application of this Order to any of the said territories the expression “the Territory” in this Order means that territory.

(6) An offence may be committed under articles 4, 5(3), 6, 7(3), 8(3), 9(2), 10(2), 12, 15(3) or (4), 16(2), 19(4), 21(1) or (2), or 26(3) by any person within the Territory and by any person elsewhere who is—

(a) a British citizen, a British overseas territories citizen, a British Overseas citizen, a British subject, a British National (Overseas), or a British protected person and is ordinarily resident in the Territory; or

(b) a body incorporated or constituted under the law of the Territory.

Interpretation

2.—(1) In this Order, the following expressions have, except where otherwise expressly provided, the meanings hereby respectively assigned to them, that is to say—

“aircraft” means a fixed wing, swivel wing, rotary wing, tilt rotor or tilt wing airborne vehicle or helicopter;

“assistance” means any form of assistance including technical assistance, services, financing and financial assistance;

“commander”, in relation to an aircraft, means the member of the flight crew designated as commander of the aircraft by the operator thereof, or, failing such a person, the person who is for the time being the pilot in command of the aircraft;

“document” includes information recorded in any form, and in relation to information recorded otherwise than in legible form, references to its production include references to producing a copy of the information in legible form;

“economic resources” means assets of every kind, whether tangible or intangible, movable or immovable, which are not funds but may be used to obtain funds, goods or services;

“export” includes shipment as stores;

“exportation” in relation to any ship, submersible vehicle or aircraft, includes the taking out of the Territory of the ship, submersible vehicle or aircraft notwithstanding that it is conveying goods or passengers and whether or not it is moving under its own power; and cognate expressions shall be construed accordingly;

“financing and financial assistance” in relation to the provision of assistance related to restricted goods includes financing or financial assistance for any sale, supply, transfer or export of restricted goods;

“funds” means financial assets and benefits of every kind, including (but not limited to)—

“Gazette” means the official gazette of a Territory or any other form in which official information is normally made available in that Territory;

“Governor” means the Governor or other officer administering the Government of the Territory;

“listed enterprise” means any person listed in Annex V or VII (as modified from time to time) to the Regulation or a person identified in a direction by the Governor under article 15(6);

“listed person” means any person listed in Annex VI (as modified from time to time) to the Regulation or a person identified in a direction by the Governor under article 13(1);

“master”, in relation to a ship, includes any person (other than a pilot) for the time being in charge of the ship;

“operator”, in relation to an aircraft or vehicle, means the person for the time being having the management of the aircraft or the vehicle;

“owner”, in relation to a ship, where the owner of a ship is not the operator, means the operator and any person to whom it is chartered;

“person” means any natural or legal person, entity or body;

“prohibited imports” means the goods listed in Annex 1 (as modified from time to time) to the Regulation in the circumstances set out in article 8(1)(a), (b) or (c) of this Order;

“purchase”, “import” or “transport” includes where use is made of any ship, aircraft or vehicle to which article 7 of this Order applies;

“the Regulation” means Council Regulation (EC) No. 194/2008(3) adopted by the Council of the European Union on 25th February 2008 which came into force on 10 March 2008 (the date of its publication) concerning certain restrictive measures in respect of Burma, as amended from time to time;

“relevant institution” means—

“restricted goods” means the goods, software and technology specified in Part I of Schedule 1 to the Export of Goods, Transfer of Technology and Provision of Technical Assistance (Control) Order 2003(4) made under the Export Control Act 2002(5) as extended to the territories listed in Schedule 1 thereto by the Export of Goods, Transfer of Technology and Provision of Technical Assistance (Control) (Overseas Territories) Order 2004(6), equipment that might be used for internal repression as listed in Annex II (as modified from time to time) to the Regulation or the goods and technology listed in Annex III (as modified from time to time) to the Regulation.

“ship” includes every description of vessel used in navigation;

“shipment” includes loading into an aircraft;

“stores” means goods for use in a ship or aircraft and includes fuel and spare parts and other articles of equipment, whether or not for immediate fitting, but excludes any goods for use in a ship or aircraft as merchandise for sale by retail to persons carried therein;

“Supreme Court” means the court of the Territory having unlimited jurisdiction in civil proceedings;

“the 2004 Order” means the Burma (Restrictive Measures) (Overseas Territories) Order 2004(7) as amended by the Burma (Restrictive Measures) (Overseas Territories) (Amendment) Order 2004(8) and by the Judicial Proceedings in Specified Overseas Territories (Restrictive Measures) Order 2009(9);

“vehicle” means land transport vehicle.

(2) For the purpose of the definition of “relevant institution” in paragraph (1)—

(a) the activity of accepting deposits has the meaning given in any relevant order made under section 22 of the Financial Services and Markets Act 2000(10); and

(b) a person is not regarded as accepting deposits by way of business if—

(i) the person does not hold themself out as accepting deposits on a day to day basis, and

(ii) any deposits which they accept are accepted only on particular occasions, whether or not involving the issue of any securities.

(3) In determining for the purposes of paragraph (2)(b)(ii) whether deposits are accepted only on particular occasions, regard is to be had to the frequency of those occasions and to any characteristics distinguishing them from each other.

Publicly available list of listed persons, restricted goods, listed enterprises and prohibited imports

3.—(1) The Governor shall—

(a) maintain a list of listed persons;

(b) cause the list of listed persons to be published in the Gazette of the Territory as necessary from time to time;

(c) cause a list of restricted goods to be made available to persons in the Territory in such a manner as the Governor thinks fit as necessary from time to time;

(d) cause a list of listed enterprises to be made available to persons in the Territory in such a manner as the Governor thinks fit as necessary from time to time; and

(e) cause a list of prohibited imports to be made available to persons in the Territory in such a manner as the Governor thinks fit as necessary from time to time.

(2) Except where this Order provides otherwise, expressions used in the Regulation which are also used in this Order have the same meaning in this Order as they have in the Regulation.

RESTRICTED GOODS, ASSISTANCE AND TRAINING AND PROHIBITED IMPORTS

Supply of restricted goods

4.  Any person who, except under the authority of a licence granted by the Governor under this article or article 5,

(a) supplies or delivers,

(b) agrees to supply or deliver, or

(c) does any act calculated to promote the supply or delivery of,

restricted goods to any person or place in Burma shall be guilty of an offence under this Order unless they prove that they did not know and had no reason to suppose that the goods in question were to be supplied or delivered to a person or place in Burma.

Exportation of restricted goods to Burma

5.—(1) Except under the authority of a licence granted by the Governor under this article, restricted goods are prohibited to be exported from the Territory to any destination in Burma or to any destination for the purpose of delivery, directly or indirectly, to or to the order of any person in Burma.

(2) Any restricted goods which are exported or attempted to be exported shall be liable to forfeiture under the customs and excise laws of the Territory.

(3) Any person knowingly concerned in the exportation or attempted exportation of such goods shall be guilty of an offence under this Order.

(4) In any case where a person would, apart from this paragraph, be guilty of an offence under paragraph (3) and of an offence under article 4, the person shall not be guilty of the offence under paragraph (3).

Provision of assistance, advice or training

6.  Any person who, except under the authority of a licence granted by the Governor under this article, directly or indirectly provides to any person in, or for use in, Burma any assistance, advice or training related to military activities or to the provision, manufacture, maintenance or use of any restricted goods shall be guilty of an offence under this Order, unless the person proves that they did not know and had no reason to suppose that the assistance, advice or training in question was to be provided to a person in, or for use in, Burma.

Use of ships, aircraft and vehicles: restricted goods or prohibited imports

7.—(1) Without prejudice to the generality of article 4 or 8, no ship or aircraft to which this article applies, and no vehicle within the Territory, shall be used—

(a) for the carriage of restricted goods if the carriage is, or forms part of, carriage from any place outside Burma to any destination therein; or

(b) for the transport of prohibited imports from Burma as prohibited in article 8(1)(c) below.

(2) This article applies to ships registered in the Territory, to aircraft so registered and to any other ship or aircraft that is for the time being chartered to any person who is—

(a) a British citizen, a British overseas territories citizen, a British Overseas citizen, a British subject, a British National (Overseas), or a British protected person and is ordinarily resident in the Territory; or

(b) a body incorporated or constituted under the law of the Territory.

(3) If any ship, aircraft or vehicle is used in contravention of paragraph (1) then—

(a) in the case of a ship registered in the Territory or any aircraft so registered, the owner and the master of the ship or, as the case may be, the operator and the commander of the aircraft; or

(b) in the case of any other ship or aircraft, the person to whom the ship or aircraft is for the time being chartered and, if he is such a person as is referred to in paragraph (2)(a) or (b), the master of the ship or, as the case may be, the operator and the commander of the aircraft; or

(c) in the case of a vehicle, the operator of the vehicle,

shall be guilty of an offence under this Order, unless the person proves that they did not know and had no reason to suppose that—

(i) the carriage of the goods in question was, or formed part of, carriage from any place outside Burma to any destination therein; or

(ii) the transport of the goods in question was, or formed part of, transport as prohibited in article 8(1)(c) below.

(4) Nothing in paragraph (1) shall apply when the supply or delivery or exportation from the Territory of the goods concerned to Burma, or the importation, purchase or transport of the goods concerned from Burma, was authorised by a licence granted by the Governor under article 4, 5 or 8.

(5) Nothing in this article shall be construed so as to prejudice any other provision of law prohibiting or restricting the use of ships, aircraft or vehicles.

Importation, purchase or transport of prohibited imports

8.—(1) Except under the authority of a licence granted by the Governor under this article, the importation, purchase or transport of goods listed in Annex 1 (as modified from time to time) to the Regulation from Burma is prohibited if—

(a) the importation or attempted importation is of such goods which originated in Burma or have been exported from Burma;

(b) the purchase or attempted purchase is of such goods which are located in Burma; or

(c) the transport or attempted transport is of such goods which originated in Burma or are being exported from Burma to another country, and their final destination is in the Territory.

(2) Any prohibited imports which are imported, purchased or transported or attempted to be imported, purchased or transported shall be liable to forfeiture under the customs and excise laws of the territory.

(3) Any person knowingly concerned in the importation, purchase or transport of such goods shall be guilty of an offence under this Order.

(4) Imports, purchases and transport of goods which are occasional and consist solely of products for the personal use of the recipients or travellers or their families shall not be considered as prohibited by paragraph 1.

PROHIBITIONS CONCERNING LISTED PERSONS

Freezing funds and economic resources

9.—(1) A person (including the listed person) shall not deal with funds or economic resources owned, held or controlled by a listed person unless authorised by a licence granted under article 14.

(2) A person who contravenes the prohibition in paragraph (1) shall be guilty of an offence under this Order.

(3) In proceedings for an offence under this article, it is a defence for a person to show that they did not know and had no reasonable cause to suspect that the funds or economic resources were owned, held or controlled by a listed person.

(4) In this article, “deal with” means—

(a) in respect of funds—

(i) use, alter, move, allow access to or transfer;

(ii) deal with in any other way that would result in any change in volume, amount, location, ownership, possession, character or destination; or

(iii) make any other change that would enable use, including portfolio management; and

(b) in respect of economic resources, exchange or use in exchange for funds, goods or services.

Making funds and economic resources available

10.—(1) A person shall not make funds or economic resources available, directly or indirectly, to or for the benefit of a listed person unless authorised by a licence granted under article 14.

(2) A person who contravenes the prohibition in paragraph (1) shall be guilty of an offence under this Order.

(3) In proceedings for an offence under this article, it is a defence for a person to show that they did not know and had no reasonable cause to suspect funds or economic resources were being made available, directly or indirectly, to or for the benefit of a listed person.

Exceptions

11.—(1) A person is not guilty of an offence under article 9 or 10 if he credits a frozen account with:

(a) interest or other earnings due on the account; or

(b) payments due under contracts, agreements or obligations that were concluded or arose prior to the first date on which the account became subject to a direction under article 8 of the 2004 Order or became a frozen account under this Order.

(2) It is not an offence under article 10 for a relevant institution to credit a frozen account where it receives funds transferred by a third party to a frozen account under this Order.

(3) Article 9 applies to any funds credited to a frozen account in accordance with this article.

(4) In this article: “frozen account” means an account with a relevant institution which is held or controlled by a listed person.

(5) In this article: “third party” means a person other than the account holder or the relevant institution with which the account is maintained.

Circumventing prohibitions etc

12.  Any person who participates, knowingly and intentionally, in activities the object or effect of which is, directly or indirectly, to—

(a) circumvent a prohibition in article 9(1) or 10(1); or

(b) enable or facilitate the commission of an offence under article 9(2) or 10(2),

shall be guilty of an offence under this Order.

Governor’s power to give directions

13.—(1) Where the Governor has reasonable grounds for suspecting that a person is a person listed in Annex VI to the Regulation, the Governor may give a direction that such person is a listed person for the purposes of this Order.

(2) The Governor may vary or revoke such a direction at any time.

(3) A direction under paragraph (1) has effect—

(a) for such period as the Governor may specify in the direction, or

(b) until the direction is revoked or set aside.

(4) Where the Governor gives a direction the Governor shall—

(a) take such steps as the Governor considers appropriate to publicise the direction;

(b) give written notice to the person identified in the direction; and

(c) if the direction is varied or revoked—

(i) give written notice of the variation or revocation to the person identified in the direction; and

(ii) take such further steps as the Governor considers appropriate to publicise the variation or revocation.

(5) The Supreme Court may set aside a direction on the application of—

(a) the person identified in the direction; or

(b) any other person affected by the direction.

(6) A person who makes an application under paragraph (5) shall give a copy of the application and any witness statement or affidavit in support to the Governor not later than seven days before the date fixed for the hearing of the application.

Licences

14.—(1) The Governor may grant a licence to disapply the prohibition in article 9(1) or 10(1) in relation to the acts specified in the licence.

(2) A licence may relate to—

(a) basic expenses of listed persons and their dependent family members, including payments for foodstuffs, rent or mortgage, medicines, medical treatment, taxes, insurance premiums and public utility charges;

(b) payment of reasonable professional fees and expenses associated with the provision of legal services;

(c) payment of fees or service charges for the routine holding or maintenance of frozen funds or economic resources;

(d) payment of necessary extraordinary expenses as determined by the Governor provided that the other Member States and the Commission of the European Union have been notified of the grounds for the Governor’s determination at least two weeks before the Governor’s authorisation of payment.

(3) A licence may be—

(a) general or granted to a category of persons or to a particular person;

(b) subject to conditions; and

(c) of indefinite duration or subject to an expiry date.

(4) The Governor may vary or revoke a licence at any time.

(5) Where a licence is granted, varied or revoked by the Governor, the Governor shall—

(a) in the case of a licence granted to a particular person, give written notice of the licence, variation or revocation to that person, and

(b) in the case of a general licence, or of a licence granted to a category of persons, take such steps as the Governor considers appropriate to publicise the licence, variation or revocation.

PROHIBITIONS CONCERNING LISTED ENTERPRISES

Prohibition against financing listed enterprises

15.—(1) Except under the authority of a licence issued by the Governor, a person shall not finance a listed enterprise.

(2) In this article “finance” means—

(a) grant any loan or credit to a listed enterprise;

(b) acquire bonds, certificates of deposit, warrants or debentures issued by any person listed in Annex VII to the Regulation or any person whom the Governor has reasonable grounds for suspecting of being such a person;

(c) acquire or increase a participation or shareholding, including shares or securities of a participating nature, in a listed enterprise;

(3) A person who contravenes the prohibition in paragraph (1) shall be guilty of an offence under this Order.

(4) Any person who participates, knowingly and intentionally, in activities the object or effect of which is, directly or indirectly, to—

(a) circumvent the prohibition in paragraph (1); or

(b) enable or facilitate the commission of an offence under paragraph (3);

shall be guilty of an offence under this Order.

(5) In proceedings for an offence under paragraph (3) or (4), it is a defence for a person to show that they did not know and had no reasonable cause to suspect that the person being financed was a listed enterprise.

(6) Where the Governor has reasonable grounds for suspecting that a person is a person listed in Annex V or Annex VII to the Regulation, the Governor may give a direction that the person is a listed enterprise for the purposes of this Order.

(7) The provisions of article 13(2) to (6) inclusive apply to any direction made by the Governor under paragraph (6) as they apply to a direction given under article 13(1).

Prohibition against creating a joint venture

16.—(1) A person shall not create a joint venture with—

(a) a listed enterprise;

(b) a subsidiary enterprise of a listed enterprise; or

(c) a person under the control of a listed enterprise.

(2) A person who contravenes the prohibition in paragraph (1) shall be guilty of an offence.

(3) In proceedings for an offence under this article, it is a defence for a person to show that they did not know and had no reasonable cause to suspect that the joint venture was being created with a body falling within sub-paragraph (a), (b) or (c) of paragraph (1).

Exceptions

17.—(1) Subject to paragraph (2), a person is not guilty of an offence under article 15 if the financing of the listed enterprise takes place pursuant to an obligation, contract or agreement which arose or was concluded before the date on which the enterprise was first listed as indicated in Annex V or Annex VII to the Regulation.

(2) Paragraph (1) does not apply where the financing of a listed enterprise consists of—

(a) an increase in a participation or shareholding in the enterprise unless the person informs the Governor of their intention to undertake such an increase before it takes place; or

(b) the acquisition of a participation or shareholding in a listed enterprise.

Trade contracts

18.  The prohibition in regulation 15(1) does not apply to—

(a) the execution of trade contracts for the supply of goods or services on usual commercial payment conditions; and

(b) any supplementary agreements connected with the execution of such contracts.

DISCLOSURE BY FINANCIAL INSTITUTIONS

Failure to disclose knowledge or suspicion

19.—(1) If a relevant institution knows or suspects that a relevant person—

(a) is a listed person or a listed enterprise; or

(b) has committed an offence under Article 9(2), 10(2), 12, 15(3) or (4), 16(2) or 21(1) or (2),

it shall disclose to the Governor the information or other matter specified in paragraph (2) as soon as is reasonably practicable after that information or other matter comes to its attention.

(2) A relevant institution, where it discloses to the Governor under paragraph (1), must state—

(a) the information or other matter on which the knowledge or suspicion is based;

(b) any information it holds about the relevant person by which the person can be identified; and

(c) where the relevant person is a listed person or a listed enterprise, the nature and amount or quantity of any funds or economic resources held by the relevant institution for that person since the person or enterprise first became listed under the 2004 Order or this Order.

(3) A relevant institution must inform the Governor without delay if it credits a frozen account in accordance with article 11(2).

(4) A relevant institution which fails to comply with a requirement in paragraph (1), (2) or (3) is guilty of an offence.

(5) In this paragraph, “relevant person” means—

(a) a customer of the institution;

(b) a person who has been a customer of the institution at any time on or after 29th July 2004(11); or

(c) a person with whom the institution has had dealings in the course of its business on or after that date.

(6) Where a relevant institution discloses to the Governor:

(a) its knowledge or suspicion that a person is a listed person or a listed enterprise or a person who has committed an offence under article 9(2), 10(2), 12, 15(3) or (4), 16(2) or 21(1) or (2); or

(b) any information or other matter on which that knowledge or suspicion is based,

the disclosure shall not be treated as a breach of any restriction imposed by statute or otherwise.

GENERAL

Customs powers to demand evidence of destination which goods reach

20.  Any exporter or any shipper of restricted goods which have been exported from the Territory shall, if so required by an officer authorised for the purpose by the Governor, furnish within such time as the Governor may allow proof to the Governor’s satisfaction that the goods have reached a destination to which their exportation was not prohibited by this Order, and, if they fail to do so, the person shall be guilty of an offence under this Order unless they prove that they did not consent to or connive at the goods reaching any destination other than such a destination as aforesaid.

Offences in connection with applications for licences, conditions attaching to licences, etc

21.—(1) If for the purposes of obtaining any licence under this Order, any person makes any statement or furnishes any document or information which to their knowledge is false in a material particular, or recklessly makes any statement or furnishes any document or information which is false in a material particular, they shall be guilty of an offence under this Order.

(2) Subject to paragraph (3), any person who has done any act under the authority of a licence granted by the Governor under this Order and who fails to comply with any conditions attaching to that licence shall be guilty of an offence under this Order.

(3) No person shall be guilty of an offence under paragraph (2) where they prove that the condition with which they failed to comply was modified, otherwise than with their consent, by the Governor after the doing of the act authorised by the licence.

Declaration as to goods: power of search

22.—(1) Any person who is about to leave the Territory shall, if required to do so by any authorised person:

(a) declare whether or not they have with them any restricted goods which are destined for a person or place in Burma for delivery, directly or indirectly, to or to the order of any person in Burma; and

(b) produce any such goods as aforesaid which they have with them.

(2) Any authorised person, and any person acting under their direction, may search that person for the purpose of ascertaining whether they have with them any such goods as aforesaid, provided that no person shall be searched in pursuance of this paragraph except by a person of the same sex.

(3) Any person who without reasonable excuse refuses to make a declaration, or fails to produce any goods or refuses to allow themself to be searched in accordance with the foregoing provisions of this article, shall be guilty of an offence under this Order.

(4) Any person who under the provisions of this article makes a declaration which to their knowledge is false in a material particular or recklessly makes any declaration which is false in a material particular shall be guilty of an offence under this Order.

(5) Before or on exercising any power conferred by this article, an authorised person shall, if requested to do so, produce evidence of their authority.

(6) In this article, “authorised person” means any person authorised by the Governor for the purpose of this article either generally or in a particular case.