Overview
Schedule 2—Investigatory powers of a local weights and measures authority (Trading Standards)
General
133.Paragraph 1 of schedule 2 sets out some overarching limits governing the use of the investigatory powers conferred on Trading Standards(6) by virtue of the schedule. In the main, Trading Standards may use the powers for investigating if offences are being committed under sections 5 and 22.(7) However, to be able to use the more intrusive powers (such as seizing items or documents, requiring information to be produced or seeking a search warrant) a Trading Standards officer has to reasonably suspect that an offence is being committed.
134.In addition, where the powers relate to taking entry to premises, the provisions make clear that access to a private dwelling may only occur where a warrant has been obtained from a sheriff.
Power to purchase fireworks (test purchases)
135.Paragraph 2 of schedule 2 enables Trading Standards officers to carry out test purchases from suppliers of fireworks and pyrotechnic articles in order to ascertain if offences are being committed. To do so, Trading Standards officers can enter any premises which are generally open to the public, inspect products and make purchases. They may also have persons who do not have a fireworks licence attempt to carry out a purchase(8) in order to see if the seller commits an offence.
Power to observe carrying on of business etc.
136.Paragraph 3 of schedule 2 enables Trading Standards officers to enter premises and watch how business is conducted. This may be combined with other powers, such as the power to make test purchases or the power to inspect a firework or items suspected to be a firework.
Power to enter premises without warrant
137.Paragraph 4 of schedule 2 enables Trading Standards officers to visit any premises which aren’t used as a private dwelling for the purposes of checking whether an offence is being committed under section 5 or 22. This is broader than the powers of entry conferred in relation to test purchases or observing business as the premises in question don’t have to be open to members of the public. For example, it may be appropriate to visit premises such as warehouses where fireworks are stored or an office where records relating to sales are kept.
138.In most cases, the officers will notify the occupiers of the premises that they are coming to carry out a routine inspection. This is done by giving notice in writing at least two working days between the date of receipt of the notice and the inspection. The manner in which notice may be given is regulated by section 26 of the Interpretation and Legislative Reform (Scotland) Act 2010.
139.However, where the officer believes that an offence may be being committed or that giving notice would defeat the purpose of the inspection, the officer can enter the premises without giving notice. They may not use force to take entry if it is refused, but the person refusing entry may commit an offence under section 42 (obstructing an officer of a local weights and measures authority).
140.Where the premises are occupied, the officer must produce evidence of their identity and provide a document setting out why entry is necessary and indicating the nature of the offence of obstructing the officer.
Power to inspect and test fireworks
141.Paragraph 5 of schedule 2 confirms that a Trading Standards officer can inspect and test a firework, or an item suspected to be a firework on premises to which entry has been taken under paragraph 4 or 9. Where necessary, the item can be removed from the premises for testing. This may be relevant where there is dubiety over whether an item is a firework or a firework of a particular category.
Power to seize and retain items
142.Paragraph 6 of schedule 2, which must be read with paragraph 1(2), enables a Trading Standards officer to seize and retain an item (other than a document, to which different rules apply). The item involved might be a firework or a piece of evidence which tends to show that an offence has been committed. Where items are to be seized, the officer must first produce evidence of their identity and authority to do so.
143.Where an item is taken, the officer must take reasonable steps to tell the person from whom it has been taken that it has been seized and provide the person with a record of what item has been taken. The “reasonable steps” element covers the possibility that the person from whom items are taken may not be on the premises at the time and that the officer must therefore try to make them aware of the situation.
144.Sub-paragraph (5) places limits on how long any item seized may be held before it is to be returned. The default is three months, but it may be longer if it is reasonably required to be so for the purpose for which it was taken, or if the item is ultimately likely to be forfeited, in which case it may never be returned (see section 48).
Powers in relation to documents
145.Paragraph 7 of schedule 2 details the powers that a Trading Standards officer has in relation to documents. This provision needs to be read with the limitations in paragraph 1(3).
146.It is worth noting for these purposes that “document” takes its meaning from schedule 1 of the Interpretation and Legislative Reform (Scotland) Act 2010, namely: “
147.The officer has a range of powers in relation to documents, as set out in paragraphs (a) to (c) of sub-paragraph (1).
148.The first power is that the officer can require a person who is offering fireworks for sale (“the trader”) or an employee of (or other person acting on behalf of the trader) to produce any document relating to the business to which the person has access. The second is that the officer can make copies of those documents (or any part of them) and the third is that the officer can seize and retain those documents. In addition, an officer can require a person producing a document to explain what it is, and failure to do so may be an offence under section 42.
149.However, paragraph 1(3) of schedule 2 limits the use of such powers to where the officer has reason to suspect that an offence is being committed. And an officer cannot require the production of a document which is legally privileged (such as a letter from a solicitor giving legal advice).
150.Where the document is in electronic format, the officer may require a copy of the document to be produced in a format that can be taken away. For example, this may be by printing out a page from a database or transferring information onto a portable storage device. However, a person can’t otherwise be asked to create a document (for example by bringing different sources of information together).
151.As with the power relating to the seizure of items other than documents, the officer must take reasonable steps to tell the person from whom the document is seized that it has been taken and provide a written record of what has been taken.
Power to break open container etc.
152.Paragraph 8 of schedule 2 enables a Trading Standards officer to break open containers in order to be able to inspect, copy or seize and retain items or documents where the officer reasonably suspects that an offence has been or is being committed. In this context, containers may be a variety of different things, ranging from a locked cupboard or safe to a computer hard drive or mobile phone.
Power of entry with warrant
153.Paragraph 9 of schedule 2 provides a means for a Trading Standards officer to obtain a search warrant from a sheriff or summary sheriff(9) in certain situations. In order to do so, the officer must—
reasonably suspect that an offence under section 5 or 22 has been, or is being, committed (in accordance with paragraph 1(3) of schedule 2),
satisfy the sheriff, by evidence on oath, that there are reasonable grounds for suspecting that: (i) such an offence has been, or is being committed at the premises or (ii) that there is an item or document on the premises that the officer has the power to inspect or require to be produced, and
satisfy the sheriff (again on oath) that one of the three conditions in paragraph 9(1)(b) is met.
154.A warrant granted under this paragraph lasts for 28 days. It may entitle an officer to—
enter the premises for which the warrant is granted, using force if necessary,
exercise the powers in paragraphs 5 to 8 of schedule 2.
155.It also entitles an officer to be accompanied onto the premises by such other persons as the officer thinks necessary and also to take such equipment onto the premises as the officer thinks necessary. For example, it may be necessary for a locksmith to attend to open any locked containers.
156.Unlike the power of entry in paragraph 4, the officer may be authorised to enter a private dwelling under a warrant granted by a sheriff. This may be necessary in cases where a person is operating a business from home. It also covers the situation where a person is operating out of a vehicle or vessel that someone lives in (such as a campervan or houseboat).
157.If the premises are unoccupied when the officer exercises the power of search under the warrant, the officer has to leave a notice for the occupier informing them that the premises have been entered under a search warrant and must also make sure that the premises are secured as effectively as they were when the officer forced entry.
Power to require assistance from a person on premises
158.Paragraph 10 of schedule 2 is a power available when a Trading Standards officer is visiting or inspecting premises under paragraph 4 or has taken entry under a warrant granted under paragraph 9. While there, the officer can require any person who is on premises to provide the officer with such assistance as the officer reasonably considers necessary. For example, this might involve providing access to locked areas or helping the officer locate and inspect items. A person who fails to help the officer in this way may be committing an offence under section 42.
Access to seized items and documents
159.Paragraph 11 of schedule 2 provides for a person who has had an item or a document seized as part of an investigation to have supervised access to the item or be able to take or request a copy of the document. However, access can be denied if there are reasonable grounds for believing that it might risk the investigation in some way to allow the person to see the item or have a copy.
160.Where a person requests access to an item or a copy of a document, Trading Standards can recover the costs involved in meeting the request.
Notice of testing fireworks and items
161.Paragraph 12 of schedule 2 provides for a person who is (or is to be) prosecuted as a result of a test of a firework or a pyrotechnic item to be told about the results of the test and given the opportunity (if possible) to arrange for the item to be tested by someone else.
Application for release of firework, item or document
162.Paragraph 13 of schedule 2 enables a person who has an interest in a firework, item or document which has been retained by Trading Standards to apply to a sheriff for the release of the item. A sheriff may do so only where either (i) no proceedings for an offence have been brought within the period of 12 months from the day on which the thing was taken, or (ii) proceedings have been brought and are finished and the thing has not been forfeited as part of those proceedings.
163.An application under this paragraph is to be made by summary application; see rule 1.4 of the Act of Sederunt (Summary Applications, Statutory Applications and Appeals etc. Rules) 1999 (S.I. 1999/929).
Compensation
164.Paragraph 14 of schedule 2 makes provision for the payment of compensation by Trading Standards in circumstances where a firework or item has been seized in relation to a suspected offence, but no offence has been disclosed. Provided that the person from whom the item was taken was not negligent or in some way responsible for the item being taken (for example by not co-operating with the investigation) they are entitled to compensation for any or loss or damage suffered as a result of the item being taken and kept. Any disagreement as to the amount of compensation is to be resolved by arbitration.
Described in the Act as a local weights and measures authority.
Supplying unlicensed persons with fireworks (section 5) and selling fireworks otherwise on the permitted days (section 22) on a commercial basis.
Paragraph 2 of schedule 1 provides that an unlicensed person acting under the direction of Trading Standards does not commit an offence in these circumstances.
For an explanation of the authority of a summary sheriff to grant a warrant, see the footnote relating to “
