The Supply of Machinery (Safety) Regulations 1992

Forfeiture: Scotland

5.—(1) In Scotland a sheriff may make an order for forfeiture of any relevant machinery in relation to which there has been a contravention of any provision of regulation 11—

(a) on an application by the procurator-fiscal made in the manner specified in section 310 of the Criminal Procedure (Scotland) Act 1975(1); or

(b) where a person is convicted of any offence in respect of any such contravention, in addition to any other penalty which the sheriff may impose.

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

(3) Service under sub-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 sub-paragraph (2) above and any other person claiming to be the owner of, or otherwise to have an interest in, the relevant machinery to which an application under this paragraph relates shall be entitled to appear at the hearing of the application to show cause why the relevant machinery as the case may be should not be forfeited.

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

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

(b) if no notice under sub-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 paragraph only if he is satisfied that there has been a contravention in relation to the relevant machinery of regulation 11.

(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 relevant machinery of regulation 11 if he is satisfied that regulation 11 has been contravened in relation to an item of relevant machinery which is representative of that relevant machinery (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 relevant machinery is made following an application by the procurator-fiscal under sub-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(2) shall apply to an appeal under this sub-paragraph as it applies to a stated case under Part II of that Act.

(9) An order following an application under sub-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 sub-paragraph (8) above within that period, until the appeal is determined or abandoned.

(10) An order under sub-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 sub-paragraph (12) below, relevant machinery 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 relevant machinery 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 relevant machinery of the same description as the first-mentioned relevant machinery and repairing or reconditioning it; or

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

(1)

1975 c. 21. 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.

(2)

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