The Telecommunications Terminal Equipment Regulations 1992

PART VII ENFORCEMENT

Enforcement authorities and powers

Enforcement authorities

61.—(1) It shall be the duty of the following authorities to enforce these Regulations—

(a) in Great Britain, weights and measures authorities; and

(b) in Northern Ireland, the Department of Economic Development.

(2) The Secretary of State may enforce these Regulations.

(3) Nothing in this regulation shall authorise a weights and measures authority to bring proceedings in Scotland for an offence.

(4) In these Regulations, “enforcement authority” means any person who is, pursuant to the provisions of this regulation, authorised to act as an enforcement authority.

Test purchases

62.—(1) The enforcement authority shall have power, for the purpose of ascertaining whether applicable terminal equipment complies with the requirements of regulation 8 or 12 above to make, or to authorise an officer of the authority to make, any purchase of terminal equipment, connection-capable equipment or radio connection-capable equipment.

(2) Where—

(a) any equipment purchased under this regulation by or on behalf of the enforcement authority is submitted to a test; and

(b) the test leads to—

(i) the bringing of proceedings for an offence under regulation 70, 71 or 73 below in relation to the equipment or the forfeiture of equipment of the same description under regulation 82 or 83 below; or

(ii) the serving of a suspension notice in respect of any equipment; and

(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 equipment was purchased or any person who is a party to the proceedings or has an interest in any equipment to which the notice relates to have the equipment tested.

Powers of search etc

63.—(1) Subject to regulation 64 below, a duly authorised officer of the 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 regulation.

(2) The officer may, for the purpose of ascertaining whether there has been a contravention of any of the requirements of Part II of these Regulations—

(a) inspect any terminal equipment, connection-capable equipment or radio connection-capable equipment and enter any premises other than premises occupied only as a person’s residence; or

(b) examine any procedure (including any arrangements for carrying out a test) connected with the production of any such equipment.

(3) If the officer has reasonable grounds for suspecting that there has been a contravention of any of the requirements of Part II of these Regulations, he may for the purpose of ascertaining (by testing or otherwise) whether there has been any such contravention, seize and detain any terminal equipment, connection-capable equipment or radio connection-capable equipment.

(4) The officer may seize and detain—

(a) any terminal equipment, connection-capable equipment, radio connection-capable equipment, document, record or information of which the officer may require production under regulation 69 below, or any other thing, which he has reasonable grounds for believing may be required as evidence in proceedings for an offence under these Regulations; or

(b) any terminal equipment, connection-capable equipment or radio connection-capable equipment which he has reasonable grounds for suspecting may be liable to be forfeited under regulation 82 or 83 below.

(5) The officer may, for the purpose of the exercise of his powers under paragraph (3) or (4) above to seize any thing—

(a) require any person having authority to do so to open any container; and

(b) himself open or break open any such container where a requirement made under sub-paragraph (a) above in relation to the container has not been complied with.

Provisions supplemental to regulation 63

64.—(1) An officer seizing any equipment, records, documents, information or other thing under regulation 63 above shall inform the person from whom they are seized that such equipment, records or other thing have been so seized.

(2) If a justice of the peace—

(a) is satisfied by any written information on oath that there are reasonable grounds for believing either—

(i) that any equipment, documents, records, information or other thing which any officer has power to inspect under regulation 63 above are on any premises (which may be premises occupied only as a person’s residence) and that, if their inspection reveals that the equipment is applicable terminal equipment or connection-capable equipment or radio connection-capable equipment to which regulation 12(1) above applies or that the documents, records, information or other thing relates to such equipment, such inspection is likely to disclose evidence that there has been a contravention of any provision of Part II of these Regulations; or

(ii) that such a contravention has taken place, is taking place or is about to take place on any premises; and

(b) is also satisfied by any such information either—

(i) that admission to the premises has been or is likely to be refused and that notice of intention to apply for a warrant under this paragraph has been given to the occupier; or

(ii) that an application for admission, or the giving of such a notice, would defeat the object of the entry or that the premises are unoccupied or that the occupier is temporarily absent and it might defeat the object of the entry to await his return,

the justice may by warrant under his hand, which shall continue in force for one month, authorise any officer of the enforcement authority to enter the premises, if need be by force.

(3) An officer entering any premises by virtue of regulation 63 above or a warrant under paragraph (2) of this regulation 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 paragraph (2) of this regulation, 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) Where any equipment seized by an officer under regulation 63 above is submitted to a test, the officer shall inform the person mentioned in paragraph (1) of this regulation of the result of the test and, if—

(a) proceedings are brought for an offence in respect of a contravention in relation to any equipment of any provision of these Regulations or for the forfeiture of any equipment under regulation 82 or 83 below, or a suspension notice is served in respect of any equipment; and

(b) the officer is requested to do so and it is practicable to comply with the request,

the officer shall allow any person who is party to the proceedings or, as the case may be, has an interest in the equipment to which the notice relates to have the equipment tested.

(6) In the application of this regulation to Scotland, the reference in 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.

(7) In the application of this regulation to Northern Ireland, the references in paragraph (2) above to any information on oath shall be construed as references to any complaint on oath.

Appeals against detention of equipment

65.—(1) Any person having an interest in any equipment, document, record, information or other thing which is for the time being detained under any provision of this Part by the enforcement authority or by an officer of such authority may apply for an order requiring the equipment to be released to him or to another person.

(2) An application under this regulation may be made—

(a) to any magistrates' court in which proceedings have been brought in England and Wales and Northern Ireland—

(i) for an offence under regulation 70, 71 or 73 below; or

(ii) for the forfeiture of the equipment under regulation 82 below;

(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 regulation to a magistrates' court or to the sheriff, an order requiring equipment to be released shall be made only if the court or sheriff is satisfied—

(a) that proceedings—

(i) for an offence under regulation 70, 71 or 73 below in respect of the equipment; or

(ii) for the forfeiture of the equipment under regulation 82 or 83 below,

have not been brought or, having been brought, have been concluded without the equipment being forfeited; and

(b) where no such proceedings have been brought, that more than six months have elapsed since the equipment was seized.

(4) Any person aggrieved by an order made under this regulation 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—

(a) in England and Wales, to the Crown Court;

(b) in Northern Ireland, to the county court;

and an order so made may contain such provisions as appears to the court 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(1) or Article 146 of the Magistrates' Courts (Northern Ireland) Order 1981(2) (statement of case)).

Prohibition notices

66.—(1) Where the Secretary of State considers that—

(a) any applicable terminal equipment does not comply with the requirements of regulation 8 above; or

(b) any connection-capable equipment or radio connection-capable equipment to which paragraph (1) of regulation 12 above applies does not comply with the requirements of that paragraph,

he may serve on the manufacturer, supplier or user of such equipment, or on the operator of any public telecommunication system to which such equipment is connected, a notice (“a prohibition notice”) prohibiting—

(i) that manufacturer, supplier or user from manufacturing, supplying, putting into service, connecting or permitting to remain connected to any telecommunication system or using that equipment as the case may require; or

(ii) that operator from permitting—

(aa) such equipment to remain connected to that system; or

(bb) the supply of telecommunication services by means of that system to a person using such equipment,

except with the consent of the Secretary of State.

(2) Schedule 7 hereto shall have effect with respect to prohibition notices.

(3) A consent given by the Secretary of State for the purposes of a prohibition notice may impose such conditions on the doing of anything for which the consent is required as the Secretary of State considers appropriate.

Suspension notices

67.—(1) Where the enforcement authority has reasonable grounds for suspecting that regulation 8 or 12 above has been, is being or is likely to be contravened, the authority may serve a notice (“ a suspension notice”) on the manufacturer, supplier, or user of the terminal equipment, connection-capable equipment or radio connection-capable equip-ment concerned or on the operator of any public telecommunication system to which such equipment is connected, prohibiting—

(a) that manufacturer, supplier or user from manufacturing, supplying, putting into service, connecting or permitting to remain connected to any public tele-communication system or using the equipment concerned as the case may require; or

(b) that operator from permitting—

(i) such equipment to remain connected to that system; or

(ii) the supply of telecommunication services by means of that system to a person using such equipment,

for such period ending not more than six months after the date of the notice as is specified therein, without the consent of that authority.

(2) A suspension notice served by the enforcement authority in respect of any such equipment shall—

(a) describe the equipment to which it relates in a manner sufficient to identify it;

(b) set out the grounds on which the authority suspects that regulation 8 or 12 above has been, is being or is likely to be contravened, as the case may be; and

(c) state that, and the manner in which, the person on whom the notice is served may appeal against the notice under regulation 68 below.

(3) A consent given by the enforcement authority for the purposes of a suspension notice may impose such conditions on the doing of anything for which the consent is required as that authority considers appropriate.

(4) A suspension notice may require the person on whom it is served to keep the enforcement authority which served the notice informed of the whereabouts throughout the period during which the notice has effect of any of the equipment in which that person has an interest.

(5) Where a suspension notice has been served on any person in respect of equipment, no further such notice shall be served on that person in respect of the same equipment unless—

(a) proceedings against that person for an offence under regulation 70, 71 or 73 below; or

(b) proceedings for the forfeiture of the equipment under regulation 82 or 83 below,

are pending at the end of the period specified in the first-mentioned notice.

Appeals against suspension notices

68.—(1) Any person having an interest in any equipment 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 regulation may be made—

(a) in England and Wales or Northern Ireland—

(i) to any magistrates' court in which proceedings have been brought—

(aa) for an offence under regulation 70, 71 or 73 below; or

(bb) for the forfeiture of the equipment under regulation 82 below; or

(ii) where no such proceedings have been so brought, by way of complaint to a magistrates' court; or

(b) in Scotland, by summary application to the sheriff.

(3) On an application under this regulation 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 equipment of regulation 8 or 12 above as the case may be.

(4) On an application under this regulation 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—

(a) proceedings for an offence under regulation 70, 71 or 73 below; or

(b) proceedings for the forfeiture of the equipment under regulation 83 below,

have not been brought or, having been brought, have been concluded.

(5) Any person aggrieved by an order made under this regulation 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—

(a) in England and Wales, to the Crown Court;

(b) in Northern Ireland, to the county court;

and an order so made may contain such provision as appears to the court 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)).

Power to require production of documents and information etc.

69.  An officer of the enforcement authority may, for the purposes of exercising his functions under this Part, require—

(a) any person who is required by regulation 11 above to retain any document, to produce such document;

(b) any person who is in possession of any such document or a copy thereof at any time to produce it;

(c) a manufacturer or his authorised representative, supplier or user of terminal equipment, connection-capable equipment or radio connection-capable equip-ment to produce such documents or records relating to such equipment as are in his possession or under his control; or

(d) a manufacturer or his authorised representative, supplier or user of any such equipment to give him such information as he may reasonably require,

and such officer may inspect any thing which he may require to be produced under this regulation, and take a copy thereof or of any part thereof.

Offences

Supplying, putting into service, connecting or permitting to remain connected equipment in contravention of regulation 8 or 12

70.—(1) Any person who—

(a) supplies;

(b) puts into service; or

(c) connects, or permits to remain connected to a public telecommunications network,

applicable terminal equipment in contravention of regulation 8 above shall be guilty of an offence.

(2) Any person who—

(a) supplies; or

(b) puts into service;

connection-capable equipment or radio connection-capable equipment to which paragraph (1) of regulation 12 above applies in contravention of that paragraph shall be guilty of an offence.

(3) Any person who connects, or permits to remain connected connection-capable equipment or radio connection-capable equipment to a public telecommunications network in contravention of regulation 12(3) above shall be guilty of an offence.

Contravention of prohibition notice or suspension notice

71.  Any person who contravenes a prohibition notice or a suspension notice shall be guilty of an offence.

False or misleading information

72.  Any person who, in giving any information which he is required to give under regulation 69(c) or (d) above—

(a) makes any statement which he knows is false or misleading in a material particular; or

(b) recklessly makes any statement which is false or misleading in a material particular,

shall be guilty of an offence.

Misuse of the CE mark etc.

73.—(1) Any person who affixes the CE mark or the connection symbol, or the non-connection symbol, or an inscription liable to be confused with any such mark, to any equipment in contravention of regulation 10(2) or 12(1) or (2) above shall be guilty of an offence.

(2) Any person who issues an EC declaration of conformity to type or an EC declaration of conformity in relation to applicable terminal equipment in contravention of regulation 36 or 48 above shall be guilty of an offence.

Obstruction etc of officers of the enforcement authority etc.

74.—(1) Any person who—

(a) intentionally obstructs any officer of the enforcement authority who is acting in pursuance of any provision of this Part;

(b) intentionally fails or refuses to comply with any requirement made of him by any officer of the enforcement authority under any provision of this Part;

(c) without reasonable cause fails or refuses to give any officer of the enforcement authority who is so acting any other assistance which the officer may reasonably require of him for the purposes of the exercise of the officer’s functions under any provision of this Part; or

(d) fails to comply with a court order under regulation 81 below,

shall be guilty of an offence.

(2) Any person who falsely pretends to be an officer of the enforcement authority shall be guilty of an offence.

Failure to retain documentation

75.  Any person who contravenes regulation 11 above shall be guilty of an offence.

Defence of due diligence

76.—(1) Subject to the following provisions of this regulation, in proceedings against any person for an offence under regulation 70 or 73 above it shall be a defence for that person to show that he took all reasonable steps and exercised all due diligence to avoid committing the offence.

(2) Where in any proceedings against any person for such an offence the defence provided by paragraph (1) above involves an allegation that the commission of the offence was due—

(a) to the act or default of another; or

(b) to reliance on information given by another,

that person shall not, without the leave of the court, be entitled to rely on the defence unless, not less than seven clear days before the hearing of the proceedings (or, in Scotland, the trial diet), he has served a notice under paragraph (3) below on the person bringing the proceedings.

(3) A notice under this paragraph shall give such information identifying or assisting in the identification of the person who committed the act or default or gave the information as is in the possession of the person serving the notice at the time he serves it.

(4) It is hereby declared that a person shall not be entitled to rely on the defence provided by paragraph (1) above by reason of his reliance on information supplied by another, unless he shows that it was reasonable in all the circumstances for him to have relied on the information, having regard in particular—

(a) to the steps which he took, and those which might reasonably have been taken, for the purpose of verifying the information; and

(b) to whether he had any reason to disbelieve the information.

Liability of persons other than the principal offender

77.—(1) Where the commission by any person of an offence under regulations 70 to 75 above is due to the act or default committed by some other person in the course of any business of his, the other person shall be guilty of the offence and may be proceeded against and punished by virtue of this paragraph whether or not proceedings are taken against the first-mentioned person.

(2) Where a body corporate is guilty of an offence under these Regulations (including where it is so guilty by virtue of paragraph (1) above) in respect of any act or default which is shown to have been committed with the consent or connivance of, or to be attributable to any neglect on the part of, any 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 shall be liable to be proceeded against and punished accordingly.

(3) Where the affairs of a body corporate are managed by its members, paragraph (2) above 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.

(4) In this regulation, references to a “body corporate” include references to a partnership in Scotland and, in relation to such partnership, any reference to a director, manager, secretary or other similar officer of a body corporate is a reference to a partner.

Extension of time for bringing summary proceedings

78.  Notwithstanding section 127 of the Magistrates' Courts Act 1980 and section 331 of the Criminal Procedure (Scotland) Act 1975(3), proceedings for an offence under regulations 70 to 75 above may be commenced at any time within three years from the date of the offence, or one year from the date on which there comes to the knowledge of the prosecutor evidence sufficient to justify a prosecution for that offence, whichever is the earlier; and for the purposes of this regulation—

(a) a certificate of the prosecutor stating that such evidence came to his knowledge on a specified date shall be conclusive evidence of that fact; and

(b) a document purporting to be such a certificate and to be signed by or on behalf of the prosecutor shall be presumed to be such a certificate unless the contrary is proved.

Inference of condition of equipment at time of supply or putting into service

79.  It is hereby declared that, in any proceedings in which it is in issue whether any applicable terminal equipment complied with the requirements of regulation 8 above at the time when it was supplied, put into service or connected to a public telecommunications network as the case may be, a court may infer that such equipment did not so comply at that time if—

(a) it is proved that it does not so comply or did not so comply at a time subsequent to its having been supplied, put into service or so connected; and

(b) having regard to all the circumstances of the case, it appears to the court that the failure of the equipment to comply at the time referred to in paragraph (a) above is not attributable to any cause arising subsequent to its having been supplied, put into service or so connected.

Powers of the court

Penalties

80.—(1) A person guilty of an offence under regulation 71, 72, or 74(2) above shall be liable on summary conviction—

(a) to imprisonment for a term not exceeding three months; or

(b) to a fine not exceeding level 5 on the standard scale,

or to both.

(2) A person guilty of an offence under regulation 70, 73, 74(1) or 75 above shall be liable on summary conviction to a fine not exceeding level 5 on the standard scale.

Power of the court to require matter to be remedied

81.—(1) Where a person is convicted of an offence under regulation 70 or 73 above in respect of any matters which appear to the court to be matters which it is in his power to remedy, the court may, in addition to or instead of imposing any punishment, order him, within such time as may be fixed by the order, to take such steps as may be specified in the order for remedying the said matters.

(2) The time fixed by an order under paragraph (1) above may be extended or further extended by order of the court on an application made before the end of that time as originally fixed or as extended under this paragraph, as the case may be.

(3) Where a person is ordered under paragraph (1) above to remedy any matters, that person shall not be guilty of an offence under regulation 70 or 73 above as the case may be in respect of those matters in so far as they continue during the time fixed by the order or any further time allowed under paragraph (2) above.

Forfeiture: England and Wales and Northern Ireland

82.—(1) An enforcement authority in England and Wales or Northern Ireland may apply under this regulation for an order for the forfeiture of—

(a) any applicable terminal equipment on the grounds that there has been a contravention in relation thereto of regulation 8 above;

(b) either—

(i) any terminal equipment other than applicable terminal equipment; or

(ii) any connection-capable equipment or radio connection-capable equipment other than equipment to which regulation 12(1) applies,

on the grounds that there is affixed to it either the CE mark or the connection symbol or the non-connection symbol or any inscription liable to be confused with any such mark in contravention of regulation 10;

(c) any connection-capable equipment or radio connection-capable equipment to which paragraph (1) of regulation 12 above applies on the grounds either that—

(i) it does not comply with the requirements of that paragraph; or

(ii) there is affixed to it the connection symbol or any inscription liable to be confused therewith in contravention of regulation 12.

(2) An application under this regulation may be made—

(a) where proceedings have been brought in a magistrates' court for an offence in respect of an offence in relation to some or all of the equipment under regulation 70, 71 or 73, to that court;

(b) where an application with respect to some or all of the equipment has been made to a magistrates' court under regulation 65 or 68 above, to that court; and

(c) where no application for the forfeiture of the equipment has been made under sub-paragraph (a) or (b) above, by way of complaint to a magistrates' court.

(3) On an application under this regulation the court shall make an order for the forfeiture of the equipment only if it is satisfied that there has been a contravention in relation thereto of regulation 8 or 12 above.

(4) For the avoidance of doubt it is hereby declared that a court may infer for the purposes of this regulation that there has been a contravention in relation to any equipment of regulation 8 or 12 above if it is satisfied that that regulation has been contravened in relation to equipment which is representative of that equipment (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 regulation by a magistrates' court, or by a decision of such court not to make such an order, may appeal against that order or decision—

(a) in England and Wales, to the Crown Court;

(b) in Northern Ireland, to the county court,

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 section 111 of the Magistrates' Courts Act 1980 or Article 146 of the Magistrates' Courts (Northern Ireland) Order 1981 (statement of case)).

(6) Subject to paragraph (7) below, where any equipment is forfeited under this regulation it shall be destroyed in accordance with such directions as the court may give.

(7) On making an order under this regulation a magistrates' court may, if it considers it appropriate to do so, direct that the equipment 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—

(a) does not supply the equipment to any person otherwise than—

(i) to a person who carries on a business of buying equipment of the same description as the first mentioned equipment and repairing or recondition-ing it; or

(ii) as scrap (that is to say, for the value of materials included in the equipment rather than for the value of the equipment itself); and

(b) complies with any order to pay costs or expenses (including any order under regulation 84 below) which has been made against that person in the proceedings for the order for forfeiture.

Forfeiture: Scotland

83.—(1) In Scotland a sheriff may—

(a) on an application by the procurator-fiscal made in the manner specified in section 310 of the Criminal Procedure (Scotland) Act 1975(4) ; or

(b) where a person is convicted of any offence in any of the circumstances mentioned in sub-paragraphs (i) to (iii) below, in addition to any other penalty which the sheriff may impose,

make an order for forfeiture of—

(i) any applicable terminal equipment on the grounds that there has been a contravention in relation thereto of regulation 8 above;

(ii) either—

(aa) any terminal equipment other than applicable terminal equipment; or

(bb) any connection-capable equipment or radio connection-capable equipment other than equipment to which regulation 12(1) applies,

on the grounds that there is affixed to it either the CE mark or the connection symbol or the non-connection symbol or any inscription liable to be confused with any such mark in contravention of regulation 10;

(iii) any connection-capable equipment or radio connection—capable equipment to which paragraph (1) of regulation 12 above applies on the grounds either that—

(aa) it does not comply with the requirements of that paragraph; or

(bb) there is affixed to it the connection symbol or any inscription liable to be confused therewith in contravention of regulation 12.

(2) The procurator-fiscal making an application under paragraph (1)(a) above shall serve on any person appearing to him to be the owner of, or otherwise to have an interest in, the equipment 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 equipment should not be forfeited.

(3) Service under paragraph (2) above 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 1975.

(4) Any person upon whom a notice is served under paragraph (2) above and any other person claiming to be the owner of, or otherwise to have an interest in, the equipment to which an application under this regulation relates shall be entitled to appear at the hearing of the application to show cause why the equipment should not be forfeited.

(5) The sheriff shall not make an order following an application under paragraph (1)(a) above—

(a) if any person on whom notice is served under paragraph (2) above does not appear, unless service of the notice on that person is proved; or

(b) if no notice under paragraph (2) above has been served, unless the court is satisfied that in the circumstances it was reasonable not to serve notice on any person.

(6) The sheriff shall make an order under this regulation only if he is satisfied that there has been a contravention in relation to the equipment of regulation 8 or 12 above.

(7) For the avoidance of doubt it is hereby declared that the sheriff may infer for the purposes of this regulation that there has been a contravention in relation to any equipment of regulation 8 or 12 above if he is satisfied that that regulation has been contravened in relation to equipment which is representative of that equipment (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 equipment is made following an application by the procurator-fiscal under paragraph (1)(a) above, 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 452(4)(a) to (e) of the Criminal Procedure (Scotland) Act 1975(5) shall apply to an appeal under this paragraph as it applies to a stated case under Part II of that Act.

(9) An order following an application under paragraph (1)(a) above shall not take effect—

(a) until the end of the period of twenty-one days beginning with the day after the day on which the order is made; or

(b) if an appeal is made under paragraph (8) above within that period, until the appeal is determined or abandoned.

(10) An order under paragraph (1)(b) shall not take effect—

(a) until the end of the period within which an appeal against the order could be brought under the Criminal Procedure (Scotland) Act 1975; or

(b) if an appeal is made within that period, until the appeal is determined or abandoned.

(11) Subject to paragraph (12) below, equipment forfeited under this regulation shall be destroyed in accordance with such directions as the sheriff may give.

(12) If he thinks fit, the sheriff may direct the equipment (instead of being destroyed) to be released to such person as he may specify, on condition that that person does not supply it to any person otherwise than—

(a) to a person who carries on a business of buying equipment of the same description as the first-mentioned equipment and repairing or reconditioning it; or

(b) as scrap (that is to say, for the value of materials included in the equipment rather than for the value of the equipment itself).

Recovery of expenses of enforcement

84.—(1) This regulation applies where a court—

(a) convicts a person of an offence under regulation 70, 71 or 73 above; or

(b) makes an order under regulation 82 or 83 above for the forfeiture of any equipment.

(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 equipment the subject of the order for forfeiture, to reimburse an enforcement authority for any expenditure which has been or may be incurred by that authority—

(a) in investigating the offence, and, without prejudice to the generality of the foregoing, in having the equipment tested;

(b) in connection with any seizure or detention of the equipment by or on behalf of the authority; or

(c) in connection with any compliance by that authority with directions given by the court for the purposes of any order for the forfeiture of the equipment.

(1)

1980 c. 43.

(2)

S.I. 1981/1675 (N.I. 26).

(3)

1975 c. 21.

(4)

Section 310 was amended by paragraph 53 of Schedule 7, and Schedule 8, to the Criminal Justice (Scotland) Act 1980 (c. 62); there are extensions of section 310 not relevant to these Regulations.

(5)

A new section 452 was substituted by paragraph 11 of Schedule 3 to 1980 c. 62.