The Organic Products Regulations 2009

PART 5 Offences and enforcement

Notification requirement

16.  For the purposes of Article 30 of the Council Regulation (measures in case of infringements and irregularities), where a control body believes that an irregularity, severe infringement or infringement with prolonged effect has been found, it must—

(a) notify that belief in writing to the Secretary of State, the local authority and, if there is one, the port health authority for the area concerned; and

(b) give the local authority or port health authority any information which it may reasonably require for the purpose of enforcing these Regulations.

Obtaining samples and analysis etc.

17.—(1) An authorised officer may, for the purposes of ascertaining whether any offence under these Regulations has been committed, purchase or take a sample of any organic product.

(2) An authorised officer who considers that the sample should be analysed, examined or tested, must submit it for that purpose to the public analyst for the area in which it was obtained (or, if the office of the public analyst for the area is vacant, to the public analyst for some other area).

(3) The public analyst must then—

(a) ensure that the sample is analysed, examined or tested as soon as practicable; and

(b) give the person who submitted the sample a certificate specifying the result.

(4) In any proceedings, the production by one of the parties—

(a) of a document purporting to be a certificate under paragraph (3)(b), or

(b) of a document supplied to the party by the other party as being a copy of such a certificate,

is evidence (and, in Scotland, sufficient evidence) of the facts stated in it unless, in a case falling within sub-paragraph (a), the other party requires that the analyst be called as a witness.

(5) In any such proceedings, if a person charged or summonsed intends to produce a certificate of a public analyst or require, under paragraph (4), the analyst to be called as a witness, written notice of the intention together with a copy of the certificate (if appropriate) must be given to the other party at least three clear days before the hearing or trial.

(6) If such notice is not given, the court may adjourn the proceedings on such terms as it thinks fit.

(7) In this regulation, “public analyst” has the same meaning as in—

(a) section 27 of the Food Safety Act 1990(1), except in relation to Northern Ireland; and

(b) regulation 27 of the Food Safety (Northern Ireland) Order 1991(2), in relation to Northern Ireland.

Offences

18.—(1) The Schedule (specified Community provisions) has effect.

(2) It is an offence for a person to contravene any of the specified Community provisions or regulation 6.

(3) It is an offence for a person, knowing a consignment to be a controlled consignment—

(a) to move it or cause it to be moved otherwise than in accordance with the written consent of an authorised officer; or

(b) to remove or cause to be removed from it a label which has been affixed under regulation 7(6).

Penalties

19.  A person guilty of an offence under these Regulations is liable on summary conviction to a fine not exceeding level 5 on the standard scale.

Offence due to fault of another person

20.—(1) Where the commission by a person (“A”) of an offence under regulation 18 is due to the act or default of another person (“B”), B is guilty of the offence.

(2) B may be charged with and convicted of the offence whether or not proceedings are taken against A.

Defence of due diligence

21.—(1) In proceedings against a person for an offence under regulation 18, it is a defence for the person to prove that all reasonable precautions were taken and due diligence was exercised to avoid committing the offence.

(2) However, where the defence provided by paragraph (1) involves an allegation that the commission of the offence was due to the act or default of another person, a person (“A”) is not, without leave of the court, entitled to rely on that defence unless A has served on the prosecutor a notice in writing in accordance with paragraph (3) giving such information identifying or assisting in the identification of that other person as was then in A’s possession.

(3) The notice must be served—

(a) at least seven clear days before the hearing (or, in Scotland, the trial diet), and

(b) where A has previously appeared before a court in connection with the alleged offence, within one month of A’s first such appearance.

Enforcement

22.—(1) Subject to paragraphs (2) and (3), these Regulations and the specified Community provisions are enforced by the local authority within its area.

(2) In relation to products imported from third countries, where there is a port health authority for the place of import, these Regulations and the specified Community provisions are enforced by that authority instead of the local authority.

(3) In relation to cases of a particular description, or a particular case, the Secretary of State may give written directions to a local authority or a port health authority concerning the enforcement of these Regulations, and such directions may also be given—

(a) in relation to Scotland, by the Scottish Ministers;

(b) in relation to Wales, by the Welsh Ministers; and

(c) in relation to Northern Ireland, by the Department of Agriculture and Rural Development.

Powers of entry

23.—(1) An authorised officer may, on producing (if so required) a duly authenticated document showing the officer’s authority, at all reasonable hours enter any premises for the purposes of enforcing the specified Community provisions or these Regulations.

(2) The authorised officer may be accompanied by such other persons as the officer considers necessary, including any representative of the European Commission.

(3) If a justice of the peace is satisfied on sworn information or, in Northern Ireland, on a complaint on oath that there are reasonable grounds for believing—

(a) that an offence under these Regulations is being, or has been committed on any premises, and

(b) that any of the conditions in paragraph (4) is met in relation to the premises,

the justice of the peace may by signed warrant authorise an authorised person to enter the premises, if need be by force.

(4) The conditions referred to are—

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

(b) that the case is one of urgency and the premises are unoccupied or the occupier is temporarily absent;

(c) that an application for admission to the premises or the giving of notice of the intention to apply for a warrant would defeat the object of entry.

(5) A warrant under this regulation is valid for one month.

(6) An authorised officer who enters any premises that are unoccupied or from which the occupier is temporarily absent must leave them as effectively secured against unauthorised entry as they were before entry.

(7) It is an offence for a person who has entered premises under or by virtue of these Regulations to disclose any information obtained on the premises with regard to any trade secret, unless the disclosure is made in the performance of the person’s duty.

(8) In relation to Scotland—

(a) “justice of the peace” means a full justice as defined by section 9 of the District Courts (Scotland) Act 1975(3);

(b) any reference in paragraph (3) to a justice of the peace includes a reference to a sheriff, and

(c) the reference in that paragraph to “on sworn information” is read as a reference to “by evidence on oath”.

(9) In this regulation, “premises” includes any vehicle, stall or moveable structure but does not include any premises, or part of any premises, used only as a dwelling.

Powers following entry

24.—(1) An authorised officer entering premises under regulation 23 may—

(a) inspect any documents or records (in whatever form they are held) relating to a business dealing with any organic product; and

(b) seize and detain any such records which the officer has reason to believe may be required as evidence in any proceedings under these Regulations.

(2) For the purposes of paragraph (1), an authorised officer may—

(a) have access to, inspect and check the operation of any computer and any associated apparatus or material which is or has been in use in connection with the records;

(b) require any person having charge of, or otherwise concerned with the operation of, any such computer, apparatus or material to give the officer such assistance as may reasonably be required;

(c) where the records are kept by means of a computer, require them to be produced in a form in which they may be taken away.

(3) If it is decided that records seized and detained under paragraph (1)(b) are no longer needed as evidence in proceedings under these Regulations, an authorised officer must return them as soon as reasonably practicable after that decision.

(4) In this regulation, “business” includes any undertaking whether it operates for profit or not and any undertaking or activity carried on by a public authority, including a local authority.

Power to require assistance

25.  An authorised officer may require any person to provide the officer with such assistance, information or facilities as the officer may reasonably require for the purposes of carrying out functions under these Regulations.

Obstruction etc. of authorised officers

26.—(1) It is an offence for a person—

(a) intentionally to obstruct a person acting in the execution or enforcement of these Regulations or the specified Community provisions; or

(b) without reasonable excuse, the proof of which lies on the person, to fail to comply with any requirement made by an authorised officer under regulation 25.

(2) A person who, in response to a requirement made under regulation 25, makes any representation which is false or misleading in a material particular and does so recklessly or knowing it to be false or misleading in that particular is guilty of an offence.

(3) Nothing in paragraph (1)(b) requires a person to answer any question or give any information if to do so might incriminate the person.

Offences by bodies corporate etc.

27.—(1) If an offence committed by a body corporate is proved to have been committed with the consent or connivance of, or to be attributable to neglect on the part of, an officer of the body corporate, that officer as well as the body corporate is guilty of the offence and is liable to be proceeded against and punished accordingly.

(2) In paragraph (1), “officer” means a director, manager, secretary or other similar officer of the body corporate, or a person purporting to act in such a capacity.

(3) If the affairs of a body corporate are managed by its members, paragraph (1) applies in relation to the acts and defaults of a member in connection with the member’s functions of management as if the member were a director of the body corporate.

(4) If an offence committed by a partnership is proved to have been committed with the consent or connivance of, or to be attributable to any neglect on the part of, a partner, that partner as well as the partnership is guilty of the offence and liable to be proceeded against and punished accordingly.

(5) In paragraph (4) “partner” includes a person purporting to act as a partner.

(6) If an offence committed by an unincorporated association (other than a partnership) is proved to have been committed with the consent or connivance of, or to be attributable to any neglect on the part of, an officer of the association or a member of its governing body, that officer or member as well as the association is guilty of the offence and liable to be proceeded against and punished accordingly.

(7) In this regulation and regulation 28, “offence” means an offence under these Regulations.

Offences committed by partnerships and other unincorporated associations

28.—(1) Proceedings for an offence alleged to have been committed by a partnership must be brought in the name of the partnership (and not in that of any of the partners).

(2) Proceedings for an offence alleged to have been committed by an unincorporated association (other than a partnership) must be brought in the name of the association (and not in that of any of its members).

(3) Rules of court relating to the service of documents have effect as if the partnership or unincorporated association were a body corporate.

(4) In proceedings for an offence brought against a partnership or an unincorporated association, the following provisions apply in relation to the partnership or association as they apply in relation to a body corporate—

(a) section 33 of the Criminal Justice Act 1925(4) and Schedule 3 to the Magistrates’ Courts Act 1980(5);

(b) section 70 of the Criminal Procedure (Scotland) Act 1995(6); and

(c) section 18 of the Criminal Justice Act (Northern Ireland) 1945(7) and Schedule 4 to the Magistrates’ Courts (Northern Ireland) Order 1981(8).

(5) Paragraphs (1) and (2) are not to be read as prejudicing any liability of a partner, officer or member under regulation 27(4) or (6).

Extended time limit for bringing prosecutions

29.  No prosecution for an offence under these Regulations may be begun after the expiry of one year from the commission of the offence or six months from its discovery by the prosecutor, whichever is the earlier.

Protection of officers etc. acting in good faith

30.—(1) An authorised officer or an officer or agent of a control body is not liable in any civil or criminal proceedings for anything done in the purported execution of these Regulations, the Council Regulation, Commission Regulation 889/2008 or Commission Regulation 1235/2008 if the court is satisfied that the act was done in good faith and there were reasonable grounds for doing it.

(2) But this does not relieve the Secretary of State, a control body or a local authority from liability in respect of the acts of their officers.

(1)

1990 c. 16. Section 27(2) was amended by the Food Standards Act 1999 (c. 28), section 40(1) and Schedule 5, paragraphs 7, and 8. There are further amendments not relevant to these Regulations.

(2)

S.I. 1991/762 (N.I.7), to which there are amendments not relevant to these Regulations.

(3)

1975 c. 20; the definition of “full justice” was inserted by section 8 of the Bail, Judicial Appointments etc. (Scotland) Act 2000 (asp 9).

(4)

1925 c. 86. Subsections (1) and (2) of section 33 were repealed by the Magistrates’ Courts Act 1952 (c. 55), section 132 and Schedule 6; subsection (3) was amended by the Courts Act 1971 (c. 23), section 56(1) and Schedule 8, part II, paragraph 19; subsection (4) was amended by the Courts Act 2003 (c. 39), section 109(1) and (3), Schedule 8, paragraph 71 and Schedule 10, and by the Magistrates’ Courts Act 1980 (c. 43), section 154 and Schedule 7, paragraph 5; subsection (5) was repealed by the Magistrates’ Court Act 1952, section 132 and Schedule 6.

(5)

1980 c. 43. Sub-paragraph 2(a) was amended by the Criminal Procedure and Investigations Act 1996 (c. 25), section 47, Schedule 1, paragraph 13, and was repealed by the Criminal Justice Act 2003 (c. 44), sections 41 and 332, Schedule 3, part 2, paragraph 51, sub-paragraphs (1), (13)(a), and Schedule 37, part 4 (with effect from a date to be appointed); paragraph 5 was repealed by the Criminal Justice Act 1991 (c. 53), sections 25(2) and 101(2) and Schedule 13; paragraph 6 was amended by the Criminal Justice Act 2003, section 41, Schedule 3, part 2, paragraph 51, sub-paragraphs (1) and (13)(b) (with effect from a date to be appointed).

(6)

1995 c. 46. Section 70 was amended by section 28 of the Criminal Proceedings etc. (Reform) (Scotland) Act 2007 (2007 asp 6).

(7)

1945 c. 15 (N.I.).

(8)

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