Made | 3rd December 2003 | ||
Laid before Parliament | 5th December2003 | ||
Coming into force | 29th December 2003 |
(4) In regulation 12:
(5) For Regulation 13(6) there shall be substituted the following:
(6) In regulation 18:
(7) After regulation 18 there shall be inserted the following regulation: -
(8) In regulation 21(1) after the words "regulation 19" there shall be inserted the words "or paragraph 11(1) of Schedule 9".
(9) In regulation 22(1) after the words "regulation 19" there shall be inserted the words "or paragraph 11(1) of Schedule 9".
(10) For Schedule 9 there shall be substituted the following Schedule: -
(2) in Northern Ireland:
2.
The Secretary of State may enforce these Regulations.
3.
In this Schedule -
4.
Nothing in these Regulations shall authorise any enforcement authority to bring proceedings in Scotland for an offence.
(3) A suspension notice served by an enforcement authority for the purpose of prohibiting a person for any period from doing the things mentioned in sub-paragraph (1) above in relation to any apparatus may also require that person to keep the authority informed of the whereabouts throughout that period of any of the apparatus in which he has an interest.
(4) Where a suspension notice has been served on any person in respect of any apparatus, no further such notice shall be served on that person in respect of the same apparatus unless -
are pending at the end of the period specified in the first-mentioned notice.
(5) A consent given by an enforcement authority for the purposes of sub-paragraph (1) above may impose such conditions on the doing of anything for which the consent is required as the authority considers appropriate.
(6) Any person who contravenes a suspension notice shall be guilty of an offence and liable on summary conviction to imprisonment for a term not exceeding three months or to a fine not exceeding level 5 on the standard scale or to both.
(7) Where an enforcement authority serves a suspension notice in respect of any apparatus, the authority shall be liable to pay compensation to any person having an interest in the apparatus in respect of any loss or damage caused by reason of the service of the notice if -
(8) Any disputed question as to the right to or the amount of any compensation payable under this paragraph shall be determined by arbitration or, in Scotland, by a single arbiter appointed, failing agreement between the parties, by the sheriff.
6.
Appeals against suspension notices
(1) Any person having an interest in any apparatus in respect of which a suspension notice is for the time being in force may apply for an order setting aside the notice.
(2) An application under this paragraph may be made -
(b) where no such proceedings have been so brought, by way of complaint to a magistrates' court; or
(c) in Scotland, by summary application to the sheriff.
(3) On an application under this paragraph to a magistrates' court in England and Wales or Northern Ireland the court shall make an order setting aside the suspension notice only if the court is satisfied that there has been no contravention in relation to the apparatus of any regulation.
(4) On an application under this paragraph to the sheriff he shall make an order setting aside the suspension notice only if he is satisfied that at the date of making the order -
have not been brought or, having been brought, have been concluded.
(5) Any person aggrieved by an order made under this paragraph by a magistrates' court in England and Wales or Northern Ireland, or by a decision of such a court not to make such an order, may appeal against that order or decision -
and an order so made may contain such provision as appears to the court to be appropriate for delaying the coming into force of the order pending the making and determination of any appeal (including any application under section 111 of the Magistrates' Courts Act 1980[7] or Article 146 of the Magistrates' Courts (Northern Ireland) Order 1981[8] (statement of case)).
7.
Test purchases
(1) An enforcement authority shall have power, for the purpose of ascertaining whether any regulation has been contravened in relation to any apparatus to make, or to authorise an officer of the authority to make, any purchase of any apparatus.
(2) Where -
(c) the authority is requested to do so and it is practicable for the authority to comply with the request,
the authority shall allow the person from whom the apparatus was purchased or any person who is a party to the proceedings or has an interest in any apparatus to which the notice relates to have the apparatus tested.
8.
Powers of search etc
(1) Subject to the following provisions of this Part, a duly authorised officer of an enforcement authority may at any reasonable hour and on production, if required, of his credentials exercise any of the powers conferred by the following provisions of this paragraph.
(2) The officer may, for the purposes of ascertaining whether there has been any contravention of any regulation, inspect any apparatus and enter any premises other than premises occupied only as a person's residence.
(3) The officer may, for the purpose of ascertaining whether there has been any contravention of any regulation, examine any procedure (including any arrangements for carrying out a test) connected with the production of any apparatus.
(4) If the officer has reasonable grounds for suspecting that there has been a contravention in relation to any apparatus of any regulation, he may -
(5) The officer may seize and detain -
(6) If and to the extent that it is reasonably necessary to do so to prevent a contravention of any regulation, the officer may, for the purpose of exercising his power under sub-paragraph (4) or (5) above to seize any apparatus or documents or information -
9.
Provisions supplemental to paragraph 8
(1) An officer seizing any apparatus or records under paragraph 8 above shall inform the following persons that the apparatus or documents or information have been so seized, that is to say -
(2) If a justice of the peace -
(b) is also satisfied by any such information either -
the justice may by warrant under his hand, which shall continue in force for a period of one month, authorise any officer of an enforcement authority to enter the premises, if need be by force.
(3) An officer entering any premises by virtue of paragraph 8 above or a warrant under sub-paragraph (2) above may take with him such other persons and such equipment as may appear to him necessary.
(4) On leaving any premises which a person is authorised to enter by a warrant under sub-paragraph (2) above, that person shall, if the premises are unoccupied or the occupier is temporarily absent, leave the premises as effectively secured against trespassers as he found them.
(5) If any person who is not an officer of an enforcement authority purports to act as such under paragraph 8 or this paragraph he shall be guilty of an offence and liable on summary conviction to a fine not exceeding level 5 on the standard scale.
(6) Where any apparatus seized by an officer under paragraph 8 above is submitted to a test, the officer shall inform the persons mentioned in sub-paragraph (1) above of the result of the test and, if -
the officer shall allow any person who is a party to the proceedings or, as the case may be, has an interest in the apparatus to which the notice relates to have the apparatus tested.
(7) In the application of this paragraph to Scotland, the reference in sub-paragraph (2) above to a justice of the peace shall include a reference to a sheriff and the references to written information on oath shall be construed as references to evidence on oath.
(8) In the application of this paragraph to Northern Ireland, the references in sub-paragraph (2) above to any information on oath shall be construed as references to any complaint on oath.
10.
Power of customs officer to detain apparatus
(1) A customs officer may, for the purpose of facilitating the exercise by an enforcement authority or officer of such an authority of any functions conferred on the authority or officer by or under this Schedule in its application for the purposes of these Regulations, seize any imported apparatus and detain it for not more than two working days.
(2) Anything seized and detained under this paragraph shall be dealt with during the period of its detention in such manner as the Commissioners of Customs and Excise may direct.
(3) In sub-paragraph (1) above the reference to two working days is a reference to a period of forty-eight hours calculated from the time when the apparatus in question is seized but disregarding so much of any period as falls on a Saturday or Sunday or on Christmas Day, Good Friday or a day which is a bank holiday under the Banking and Financial Dealings Act 1971[10] in the part of the United Kingdom where the apparatus is seized.
(4) In this paragraph and paragraph 11 below "customs officer" means any officer within the meaning of the Customs and Excise Management Act 1979.
11.
Obstruction of authorised officer
(1) Subject to regulations 21 and 22 any person who -
shall be guilty of an offence and liable on summary conviction to a fine not exceeding level 5 on the standard scale.
(2) A person shall be guilty of an offence if, in giving any information which is required of him by virtue of sub-paragraph (1)(c) above -
(3) A person guilty of an offence under sub-paragraph (2) above shall be liable -
12.
Appeals against detention of apparatus
(1) Any person having an interest in any apparatus which is for the time being detained under any provision of this Part of this Schedule by an enforcement authority or by an officer of such an authority may apply for an order requiring the apparatus to be released to him or to another person.
(2) An application under this paragraph may be made -
(b) where no such proceedings have been so brought, by way of complaint to a magistrates' court; or
(c) in Scotland, by summary application to the sheriff.
(3) On an application under this paragraph to a magistrates' court or to the sheriff, an order requiring apparatus to be released shall be made only if the court or sheriff is satisfied -
have not been brought or, having been brought, have been concluded without the apparatus being forfeited; and
(b) where no such proceedings have been brought, that more than six months have elapsed since the apparatus was seized.
(4) Any person aggrieved by an order made under this paragraph by a magistrates' court in England and Wales or Northern Ireland, or by a decision of such a court not to make such an order, may appeal against that order or decision -
and an order so made may contain such provision as appears to the court to be appropriate for delaying the coming into force of the order pending the making and determination of any appeal (including any application under section 111 of the Magistrates' Courts Act 1980 or Article 146 of the Magistrates' Courts (Northern Ireland) Order 1981 (statement of case)).
13.
Compensation for seizure and detention
(1) Where an officer of an enforcement authority exercises any power under paragraph 8 above to seize and detain apparatus, the enforcement authority shall be liable to pay compensation to any person having an interest in the apparatus in respect of any loss or damage caused by reason of the exercise of the power if -
(2) Any disputed question as to the right to or the amount of any compensation payable under this paragraph shall be determined by arbitration or, in Scotland, by a single arbiter appointed, failing agreement between the parties, by the sheriff.
14.
Recovery of expenses of enforcement
(1) This paragraph shall apply where a court -
(2) The court may (in addition to any other order it may make as to costs or expenses) order the person convicted or, as the case may be, any person having an interest in the apparatus to reimburse an enforcement authority for any expenditure which has been or may be incurred by that authority -
15.
Power of Commissioners of Customs and Excise to disclose information
(1) If they think it appropriate to do so for the purpose of facilitating the exercise by any person to whom sub-paragraph (2) below applies of any functions conferred on that person by or under these Regulations, the Commissioners of Customs and Excise may authorise the disclosure to that person of any information obtained for the purposes of the exercise by the Commissioners of their functions in relation to imported apparatus.
(2) This sub-paragraph applies to an enforcement authority and to any officer of an enforcement authority.
(3) A disclosure of information made to any person under sub-paragraph (1) above shall be made in such manner as may be directed by the Commissioners of Customs and Excise and may be made through such persons acting on behalf of that person as may be so directed.
(4) Information may be disclosed to a person under sub-paragraph (1) above whether or not the disclosure of the information has been requested by or on behalf of that person.
16.
Service of documents etc
(1) Any document required or authorised by virtue of this Schedule to be served on a person may be so served -
(2) For the purposes of sub-paragraph (1) above, and for the purposes of section 7 of the Interpretation Act 1978[11] (which relates to the service of documents by post) in its application to that sub-paragraph, the proper address of any person on whom a document is to be served by virtue of this Schedule shall be his last known address except that -
and for the purposes of this sub-paragraph the principal office of a company registered outside the United Kingdom or of a partnership carrying on business outside the United Kingdom is its principal office within the United Kingdom.
17.
Savings for certain privileges
(1) Nothing in this Schedule shall be taken as requiring any person to produce any records if he would be entitled to refuse to produce those records in any proceedings in any court on the grounds that they are the subject of legal professional privilege or, in Scotland, that they contain a confidential communication made by or to an advocate or solicitor in that capacity, or as authorising any person to take possession of any records which are in the possession of a person who would be so entitled.
(2) Nothing in this Schedule shall be construed as requiring a person to answer any question or give any information if to do so would incriminate that person or that person's spouse.
18.
Commencement of proceedings
In England and Wales, a magistrates' court may try an information in respect of an offence committed under these Regulations if the information is laid within twelve months from the time when the offence is committed, and in Scotland summary proceedings for such an offence may be begun at any time within twelve months from the time when the offence is committed.
Enforcement in Northern Ireland
19.
The provisions of paragraphs 5 to 17 shall have effect.
20.
Commencement of proceedings
A magistrates' court may try a complaint in respect of an offence committed under these Regulations if the complaint is made within twelve months from the time when the offence is committed.
Forfeiture of apparatus: England and Wales and Northern Ireland
21.
- (1) An enforcement authority in England and Wales or Northern Ireland may apply under this paragraph for an order for the forfeiture of any apparatus on the grounds that there has been a contravention in relation thereto of regulation 5.
(2) An application under this paragraph may be made -
(3) On an application under this paragraph the court shall make an order for the forfeiture of the apparatus if it is satisfied that there has been a contravention in relation thereto of regulation 5.
(4) For the avoidance of doubt it is hereby declared that a court may infer for the purposes of this paragraph that there has been a contravention in relation to any apparatus of regulation 5 if it is satisfied that that regulation has been contravened in relation to any apparatus (whether by reason of being of the same design or part of the same consignment or batch or otherwise).
(5) Any person aggrieved by an order made under this paragraph by a magistrates' court, or by a decision of such court not to make such an order, may appeal against that order or decision -
and an order so made may contain such provision as appears to the court to be appropriate for delaying the coming into force of an order pending the making and determination of any appeal (including any application under paragraph 111 of the Magistrates' Courts Act 1980, or article 146 of the Magistrates' Courts (Northern Ireland) Order 1981 (statement of case)).
(6) Subject to sub-paragraph (7), where any apparatus is forfeited under this paragraph it shall be destroyed in accordance with such directions as the court may give.
(7) On making an order under this paragraph a magistrates' court may, if it considers it appropriate to do so, direct that the apparatus to which the order relates shall (instead of being destroyed) be released, to such person as the court may specify, on condition that that person -
(b) complies with any order to pay costs or expenses which has been made against that person in the proceedings for the order for forfeiture.
Forfeiture of apparatus: Scotland
22.
- (1) In Scotland a sheriff may make an order for forfeiture of any apparatus for private use or consumption in relation to which there has been a contravention of any provision of regulation 5 -
(2) The procurator-fiscal making an application under sub-paragraph (1)(a) shall serve on any person appearing to him to be the owner of, or otherwise to have an interest in, the apparatus to which the application relates a copy of the application, together with a notice giving him the opportunity to appear at the hearing of the application to show cause why the apparatus should not be forfeited.
(3) Service under sub-paragraph (2) shall be carried out, and such service may be proved, in the manner specified for citation of an accused in summary proceedings under the Criminal Procedure (Scotland) Act 1995.
(4) Any person upon whom a notice is served under sub-paragraph (2) and any other person claiming to be the owner of, or otherwise to have an interest in, the apparatus to which an application under this paragraph relates shall be entitled to appear at the hearing of the application to show cause why the apparatus should not be forfeited.
(5) The sheriff shall not make an order following an application under sub-paragraph (1)(a) -
(6) The sheriff shall make an order under this paragraph only if he is satisfied that there has been a contravention in relation to the apparatus of regulation 5.
(7) For the avoidance of doubt it is declared that the sheriff may infer for the purposes of this paragraph that there has been a contravention in relation to any apparatus of regulation 5 if he is satisfied that that regulation has been contravened in relation to an item of apparatus which is representative of that apparatus (whether by reason of being of the same design or part of the same consignment or batch or otherwise).
(8) Where an order for the forfeiture of any apparatus is made following an application by the procurator-fiscal under sub-paragraph (1)(a), any person who appeared, or was entitled to appear, to show cause why it should not be forfeited may, within twenty-one days of the making of the order, appeal to the High Court by Bill of Suspension on the ground of an alleged miscarriage of justice; and section 182(5)(a) to (e) of the Criminal Procedure (Scotland) Act 1995 shall apply to an appeal under this sub-paragraph as it applies to a stated case under Part X of that Act.
(9) An order following an application under sub-paragraph (1)(a) shall not take effect -
(10) An order under sub-paragraph (1)(b) shall not take effect -
(11) Subject to sub-paragraph (12), apparatus forfeited under this paragraph shall be destroyed in accordance with such directions as the sheriff may give.
(12) If he thinks fit, the sheriff may direct the apparatus to be released to such person as he may specify, on condition that that person does not supply it to any person otherwise than -
Stephen Timms,
Minister of State for Energy, E-Commerce and Postal Services, Department of Trade and Industry
3rd December 2003
[8] S.I. 1981/1675 (N.I. 26).back