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explosives [2017/06/15 20:18] frescom |
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This Guidance is not intended to be exhaustive. Rather it is designed to provide a quick reference point to the main offences under the relevant statutes and regulations or other parts of the Guidance. | This Guidance is not intended to be exhaustive. Rather it is designed to provide a quick reference point to the main offences under the relevant statutes and regulations or other parts of the Guidance. | ||
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Guidance | Guidance | ||
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A prosecution may not be required, or alternative diversionary procedures may be appropriate, where the contravention is technical and there has been no risk to public safety and the offence resulted from an oversight or misunderstanding | A prosecution may not be required, or alternative diversionary procedures may be appropriate, where the contravention is technical and there has been no risk to public safety and the offence resulted from an oversight or misunderstanding | ||
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The "Explosives Acts" | The "Explosives Acts" | ||
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Note: Where the term "gunpowder" is used section 39 of the Act makes that term applicable to all other explosives covered by the Act. | Note: Where the term "gunpowder" is used section 39 of the Act makes that term applicable to all other explosives covered by the Act. | ||
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The Explosive Substances Act 1883 (ESA) | The Explosive Substances Act 1883 (ESA) | ||
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If your case is one that potentially fits into the above category SCCTD can be contacted during office hours on 020 3357 0690 / 0699 / 0686. An out of office hours rota system is in place and is available via CPS Direct. | If your case is one that potentially fits into the above category SCCTD can be contacted during office hours on 020 3357 0690 / 0699 / 0686. An out of office hours rota system is in place and is available via CPS Direct. | ||
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Consent to Prosecute under the Explosive Substances Act 1883 | Consent to Prosecute under the Explosive Substances Act 1883 | ||
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Section 27(1) of the Consumer Protection Act 1987 defines the enforcement duty for possession and use for the above offences. | Section 27(1) of the Consumer Protection Act 1987 defines the enforcement duty for possession and use for the above offences. | ||
The above regulation offences are within the Penalty Notice for Disorder Scheme. Regulation 12 makes these regulations enforceable by the police. | The above regulation offences are within the Penalty Notice for Disorder Scheme. Regulation 12 makes these regulations enforceable by the police. | ||
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Evidential Factors to Consider | Evidential Factors to Consider | ||
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Definition of Explosive | Definition of Explosive | ||
Whilst there are definitions of "explosive" and "explosive substance" found in the Explosives Act 1875 section 3 and the Explosive Substances Act 1883, section 9 it is important to consider the particular definition of explosive in the relevant legislation creating the offence under consideration as the definitions vary between the various different Acts and Regulations. Prosecutors cannot rely on a definition in one Act as applying across to another Act or Regulation. | Whilst there are definitions of "explosive" and "explosive substance" found in the Explosives Act 1875 section 3 and the Explosive Substances Act 1883, section 9 it is important to consider the particular definition of explosive in the relevant legislation creating the offence under consideration as the definitions vary between the various different Acts and Regulations. Prosecutors cannot rely on a definition in one Act as applying across to another Act or Regulation. | ||
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Charging Practice | Charging Practice | ||
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Consideration may need to be given to the severity of Regulation 9 of the Control of Explosives Regulations, 1991 where minor offences are involved (see section on Sanctions, below). | Consideration may need to be given to the severity of Regulation 9 of the Control of Explosives Regulations, 1991 where minor offences are involved (see section on Sanctions, below). | ||
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Sanctions | Sanctions | ||
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Section 4: imprisonment not exceeding 14 years and forfeiture of the explosive substance. | Section 4: imprisonment not exceeding 14 years and forfeiture of the explosive substance. | ||
Regulation 9 of the Control of Explosives Regulations, 1991 stipulates that where there is a conviction under the ESA (even if a custodial sentence is not imposed) a lifetime prohibition is imposed on the defendant from working in an employment where he handles explosive substances or restricted substances. See section on Charging Practice, above. | Regulation 9 of the Control of Explosives Regulations, 1991 stipulates that where there is a conviction under the ESA (even if a custodial sentence is not imposed) a lifetime prohibition is imposed on the defendant from working in an employment where he handles explosive substances or restricted substances. See section on Charging Practice, above. | ||
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Other related Prosecution Agencies | Other related Prosecution Agencies | ||
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In the event of a joint prosecution with the HSE, CPS prosecutors should refer to the protocol for liaison between HSE, the police and CPS. See section on Relations with Other Prosecuting Agencies, elsewhere in the Legal Guidance. | In the event of a joint prosecution with the HSE, CPS prosecutors should refer to the protocol for liaison between HSE, the police and CPS. See section on Relations with Other Prosecuting Agencies, elsewhere in the Legal Guidance. | ||
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Annexes | Annexes | ||
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Selling over 50 kilograms of fireworks in contravention of the requirements provided - Regulation 25(2). | Selling over 50 kilograms of fireworks in contravention of the requirements provided - Regulation 25(2). | ||
Note: There is an Approved Code of Practice ("ACoP") produced in relation to MSER which has special legal status and document may be cited in allegations relating to breaches of MSER. It is for the duty holder to satisfy the court that what has been done was the equal or in excess of the requirements in the ACoP. | Note: There is an Approved Code of Practice ("ACoP") produced in relation to MSER which has special legal status and document may be cited in allegations relating to breaches of MSER. It is for the duty holder to satisfy the court that what has been done was the equal or in excess of the requirements in the ACoP. | ||
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Annex B - The Control of Explosives Regulations, 1991 ("COER") | Annex B - The Control of Explosives Regulations, 1991 ("COER") |