Social Security Act 1973

Section 92(4).

SCHEDULE 23 Proceedings

General provisions as to prosecutions

1 Proceedings in England or Wales for an offence under this Act shall not be instituted except by or with the consent of the Secretary of State or by an inspector or other officer authorised for that purpose by special or general directions of the Secretary of State.

2 Any inspector or other officer so authorised may, although not of counsel or a solicitor, prosecute or conduct before a magistrates' court any proceedings for such an offence.

3 (1) Notwithstanding any enactment prescribing the period within which summary proceedings may be commenced, proceedings for an offence under this Act may be commenced at any time within the period of 3 months from the date on which evidence, sufficient in the opinion of the Secretary of State to justify a prosecution for the offence, comes to his knowledge, or within the period of 12 months after the commission of the offence, whichever period last expires.

(2) For the purposes of sub-paragraph (1) above, a certificate purporting to be signed by or on behalf of the Secretary of State as to the date on which the evidence referred to in that paragraph came to his knowledge shall be conclusive evidence of the date on which it did so.

(3) In relation to Scotland, for sub-paragraph (1) above there shall be substituted the following sub-paragraph—

“(1) Proceedings for an offence under this Act may be commenced at any time within the period of 3 months from the date on which evidence sufficient in the opinion of the Secretary of State to justify a report to the Lord Advocate with a view to consideration of the question of prosecution comes to the knowledge of the Secretary of State, or within the period of 12 months after the commission of the offence, whichever period last expires ; and section 23(2) of the [1954 c. 48.] Summary Jurisdiction (Scotland) Act 1954 (time limits) shall apply for the purposes of this sub-paragraph as it applies for the purposes of that section.”

4 In proceedings for an offence under this Act, the wife or husband of the accused shall be competent to give evidence, whether for or against the accused:

Provided that the wife or husband shall not be compellable either to give evidence or, in giving evidence, to disclose any communication made to her or him by the accused during the marriage.

Evidence

5 (1) As respects any period during which, under regulations made by virtue of paragraph 5(1) of Schedule 1 to this Act, basic scheme or reserve scheme contributions fall to be paid in like manner as income tax, a certificate of a collector of taxes that any amount by way of contributions which a person is liable to pay to that collector for any period has not been paid to him, or, to the best of his knowledge and belief, to any other person to whom it might lawfully be paid, shall, until the contrary is proved, be sufficient evidence in any proceedings before any court that the sum mentioned in the certificate is unpaid and due ; and any document purporting to be such a certificate as aforesaid shall be deemed to be such certificate until the contrary is proved.

(2) A statutory declaration by an officer of the Secretary of State that the searches specified in the declaration for a particular contribution card or for a record of the payment of a particular contribution have been made and that the card in question or a record of the payment of the contribution in question has not been found shall be admissible in any proceedings for an offence as evidence of the facts stated in the declaration.

(3) Nothing in sub-paragraph (2) above shall be deemed to make a statutory declaration admissible as evidence in proceedings for an offence except in a case where, and to the extent to which, oral evidence to the like effect would have been admissible in those proceedings.

(4) Nothing in sub-paragraphs (2) and (3) above shall be deemed to make a statutory declaration admissible as evidence in proceedings for an offence—

(a) unless a copy thereof has, not less than 7 days before the hearing or trial, been served on the person charged with the offence in any manner in which a summons or, in Scotland, a citation in a summary prosecution may be served ; or

(b) if that person, not later than 3 days before the hearing or trial or within such further time as the court may in special circumstances allow, gives notice to the prosecutor requiring the attendance at the trial of the person by whom the declaration was made.

6 Where an offence under this Act which has been committed by a body corporate is proved to have been committed with the consent or connivance of, or to be attributable to any neglect on the part of, a director, manager, secretary or other similar officer of the body corporate, or any person who was purporting to act in any such capacity, he, as well as the body corporate, shall be guilty of that offence and be liable to be proceeded against accordingly.

Where the affairs of a body corporate are managed by its members, this paragraph shall apply in relation to the acts and defaults of a member in connection with his functions of management as if he were a director of the body corporate.

Recovery of contributions etc. on prosecution

7 Where a person has been convicted of the offence under section 92(1) of this Act of failing to pay a contribution or premium at or within the time prescribed for the purpose and the contribution or premium remains unpaid at the date of the conviction, he shall be liable to pay to the Secretary of State a sum equal to the amount which he failed to pay.

8 In any case where—

(a) a person is convicted of an offence under section 92(2)(b) of this Act, or of an offence under section 13 of the [1891 c. 38.] Stamp Duties Management Act 1891 as applied by regulations made under paragraph 6(3) of Schedule 1 to this Act, or of an offence of contravening or failing to comply with regulations made under this Act; and

(b) the evidence on which he is convicted shows that he, for the purpose of paying any contribution which he was liable or entitled to pay, has affixed to any contribution card any used contribution stamp; and

(c) the contribution (not being a Class 3 contribution) in respect of which the stamp was affixed remains unpaid at the date of the conviction,

he shall be liable to pay to the Secretary of State a sum equal to the amount of the contribution.

9 (1) Subject to and in accordance with the following sub-paragraphs, where a person is convicted of an offence mentioned in paragraph 7 or 8(a) above, evidence may be given of any previous failure by him to pay contributions or premiums under this Act within the time prescribed for the purpose; and in those sub-paragraphs " the conviction " and " the offence " mean respectively the conviction referred to in this sub-paragraph and the offence of which the person is convicted.

(2) Such evidence may be given only if notice of intention to give it is served with the summons or warrant or, in Scotland, the complaint on which the person appeared before the court which convicted him.

(3) If the offence is one of failure to pay a Class 1 contribution, a reserve scheme contribution or a reserve scheme premium, evidence may be given of failure on his part to pay (whether or not in respect of the same person) such contributions or premiums during the 2 years preceding the date of the offence.

(4) If the offence is one of failure to pay Class 2 contributions or is one of those mentioned in paragraph 8(a), evidence may be given of his failure to pay such contributions during those 2 years.

(5) On proof of any matter of which evidence may be given under sub-paragraph (3) or (4) above, the person convicted shall be liable to pay to the Secretary of State a sum equal to the total of all amounts (whether contributions, premiums or both) which he is so proved to have failed to pay and which remain unpaid at the date of the conviction.

10 (1) Where in England and Wales a person charged with such an offence as is mentioned in paragraph 7 or 8(a) above is convicted of that offence in his absence under section 1(2) of the [1957 c. 29.] Magistrates' Courts Act 1957, then if—

(a) it is proved to the satisfaction of the court, on oath or in the prescribed manner, that notice under paragraph 9(2) above has been duly served specifying the other contributions or premiums in respect of which the prosecutor intends to give evidence ; and

(b) the clerk of the court has received a statement in writing purporting to be made by the accused or by a solicitor acting on his behalf to the effect that if the accused is convicted in his absence of the offence charged he desires to admit failing to pay the other contributions or premiums so specified or any of them,

paragraph 9 above shall have effect as if the evidence had been given and the failure so admitted had been proved, and the court shall proceed accordingly.

(2) In sub-paragraph (1) above "prescribed " means prescribed by rules made under section 15 of the [1949 c. 101.] Justices of the Peace Act 1949.

11 (1) In England and Wales, where a person is convicted of any such offence as is mentioned in paragraph 7 or 8(a) above, and an order is made under Part I of the [1948 c. 58.] Criminal Justice Act 1948 placing the offender on probation or discharging him absolutely or conditionally, paragraphs 7 to 10 above shall apply as if it were a conviction for all purposes.

(2) In Scotland, where a person is convicted on indictment of, or is charged before a court of summary jurisdiction with, any such offence, and an order is made under Part I of the [1949 c. 49.] Criminal Justice (Scotland) Act 1949 discharging him absolutely or placing him on probation, paragraphs 7 to 9 above shall apply as if—

(a) the conviction on indictment were a conviction for all purposes; or

(b) as the case may be, the making of the order by the court of summary jurisdiction were a conviction.

12 Where a body corporate fails to pay any sum which it is liable to pay under paragraphs 7 to 10 above, that sum (or such part of it as remains unpaid) shall be a debt due to the Secretary of State jointly and severally from any directors of the body corporate who knew, or could reasonably be expected to have known, of the failure to pay the contributions or premiums in question.

13 In England and Wales, any sum which a person is liable to pay under those paragraphs shall be recoverable from him as a penalty.

14 (1) The following sub-paragraphs apply with respect to sums recovered by the Secretary of State under paragraphs 7 to 13 above.

(2) In so far as those sums represent basic scheme contributions of any class, they are to be treated for all purposes of Part I of this Act (including in particular the Treasury supplements and the application of section 44) as contributions of that class received by the Secretary of State under that Part.

(3) In so far as those sums represent reserve scheme contributions or premiums, they are to be treated for all purposes of Part III of this Act (including in particular the application of sections 74 and 79) as contributions and premiums paid to the Secretary of State under that Part.

(4) Without prejudice to sub-paragraphs (2) and (3) above, those sums, in so far as they represent—

(a) primary Class 1 or Class 2 contributions ; or

(b) primary or secondary reserve scheme contributions ; or

(c) reserve scheme premiums,

are to be treated as being contributions or (as the case may be) premiums paid in respect of the person in respect of whom they were originally payable ; and provisions of this Act relating to earnings factors and the entitlement of that person to reserve scheme pension and the rate of pension shall apply accordingly.

Interpretation

15 (1) In this Schedule " contribution card " means any card issued under regulations for the purpose of payment of contributions by affixing contribution stamps thereto.

(2) In any proceedings under section 92(2) of this Act with respect to used stamps, a stamp shall be deemed to have been used if it has been affixed to a contribution card or cancelled or defaced in any way whatsoever and whether it has actually been used for the purpose of payment of a contribution or not.