The Ozone-Depleting Substances Regulations 2015

PART 3 U.K. Offences, penalties and enforcement

Offences in relation to Part 2 U.K.

8.—(1) Any person who fails to comply with paragraph (1), (2), (3) or (4) of regulation 6 commits an offence.

(2) A training employer who fails to comply with paragraph (1), (2) or (3) of regulation 7 commits an offence.

Offences in relation to the EU Regulation U.K.

9.—(1) Any person who breaches a provision of the EU Regulation set out in Schedule 4 commits an offence.

(2) Failure to comply with any of the following is an offence—

(a) an enforcement notice;

(b) a notice issued by the Secretary of State under regulation 18.

(3) It is an offence—

(a) intentionally to obstruct any person acting in the enforcement of the EU Regulation;

(b) without reasonable cause, to fail to give to any such person any assistance or information which that person may reasonably require for those purposes;

(c) to furnish to any such person any information knowing it to be false or misleading; or

(d) to fail to produce a document or record to any such person when required to do so.

Penalties U.K.

10.  A person guilty of an offence under these Regulations is liable—

(a) on summary conviction, to a fine not exceeding the statutory maximum; or

(b) on conviction on indictment, to a fine.

Corporate offences U.K.

11.—(1) If an offence under these Regulations committed by a body corporate is proved—

(a) to have been committed with the consent or connivance of an officer; or

(b) to be attributable to any neglect on the part of an officer,

the officer, as well as the body corporate, is guilty of the offence and liable to be proceeded against and punished accordingly.

(2) In paragraph (1) “officer”, in relation to a body corporate, means—

(a) a director, manager, secretary or other similar officer of the body; or

(b) a person purporting to act in any such 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 it applies to an officer of a body corporate.

(4) If an offence under these Regulations committed by a partnership is proved—

(a) to have been committed with the consent or connivance of a partner; or

(b) to be attributable to any neglect on the part of a partner,

the partner, as well as the partnership, is guilty of the offence and liable to be proceeded against and punished accordingly.

(5) For the purpose of proceedings for an offence alleged to have been committed by a partnership in Scotland, section 70 of the Criminal Procedure (Scotland) Act 1995 M1 applies as it applies in relation to a body corporate.

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

(7) Subject to paragraph (10), proceedings for an offence alleged to have been committed by an unincorporated association must be brought in the name of the association and not in the name of any of its members.

(8) For the purposes of such proceedings—

(a) rules of the court relating to service of documents have effect as if the association were a body corporate; and

(b) the following provisions apply as they apply to a body corporate—

(i) section 33 of the Criminal Justice Act 1925 M2 and Schedule 3 to the Magistrates' Courts Act 1980 M3 ;

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

(iii) section 18 of the Criminal Justice Act (Northern Ireland) 1945 M4 and Schedule 4 to the Magistrates' Courts (Northern Ireland) Order 1981 M5 .

(9) A fine imposed on an unincorporated association on its conviction for an offence must be paid out of the funds of the association.

(10) If an offence committed by an unincorporated association, other than a partnership, is proved—

(a) to have been committed with the consent or connivance of an officer of the association or a member of its governing body, or

(b) to be attributable to any neglect on the part of such an officer or member,

that officer or member as well as the association is guilty of the offence and is liable to be proceeded against and punished accordingly.

Marginal Citations

M1 1995 c. 46. Section 70 was amended by section 28 of the Criminal Proceedings etc. (Reform)(Scotland) Act 2007 (2007 asp 6).

M2 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 Courts Act 1952, section 132 and Schedule 6.

M3 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).

M4 1945 c. 15 (N.I.).

M5 S.I. 1981/1675 (N.I. 26).

Enforcement U.K.

12.—(1) Part 2 of these Regulations is enforced by the appropriate agency, the local authority or the port health authority.

(2) In relation to—

(a) cases of a particular description; or

(b) a particular case,

the Secretary of State, as regards England, the Welsh Ministers, as regards Wales, or the Scottish Ministers as regards Scotland may direct that Part 2 of these Regulations is enforced by them instead.

(3) The appropriate agency and the local authority enforce the EU Regulation and are each an enforcing authority for the purpose of these Regulations.

(4) In relation to—

(a) cases of a particular description; or

(b) a particular case,

the Secretary of State, as regards England, the Welsh Ministers, as regards Wales, the Scottish Ministers as regards Scotland or the Department of the Environment as regards Northern Ireland may direct that the EU Regulation is enforced by them instead and a person or body making such a direction is to that extent an enforcing authority for the purposes of these Regulations.

(5) Where the Secretary of State makes a direction under paragraph (2) or (4), the Secretary of State may delegate to the Director of Public Prosecutions functions in relation to the prosecution of offences under these Regulations.

(6) The Secretary of State enforces the EU Regulation in relation to offshore installations and to that extent is an enforcing authority for the purposes of these Regulations.

(7) Nothing in these Regulations authorises an enforcing authority to bring proceedings in Scotland for an offence.

(8) In this Regulation—

(a) “the appropriate agency” means—

(i) as regards England, the Environment Agency;

(ii) as regards Wales, the Natural Resources Body for Wales; and

(iii) as regards Scotland, the Scottish Environment Protection Agency;

(b) “local authority” means—

(i) in England, where there is, within the meaning of the Local Government Changes for England Regulations 1994 M6 , a unitary authority, that authority;

(ii) otherwise in England—

(aa) a district Council,

(bb) a London borough Council,

(cc) the Common Council of the City of London, or

(dd) the Council of the Isles of Scilly;

(iii) in relation to Wales—

(aa) a county council, or

(bb) a county borough council;

(iv) in relation to Scotland, a council constituted under section 2 of the Local Government etc. (Scotland) Act 1994 M7 ;

(v) in relation to Northern Ireland, a district council;

(c) “port health authority” means—

(i) in relation to London port health district (within the meaning given by section 7(1) of the Public Health (Control of Disease) Act 1984 M8 ), the Common Council of the City of London; and

(ii) in relation to any port health district constituted by order under section 2(3) of that Act, the port health authority for that district constituted by order under section 2(4) of that Act.

Marginal Citations

M6 S.I. 1994/867.

M7 1994 c. 39.

M8 1984 c. 22.

Authorised persons U.K.

13.—(1) The authorities specified in regulation 12(1) and (2) may authorise a person in writing for the purposes of enforcing Part 2 of these Regulations pursuant to section 108 of the Environment Act 1995.

(2) An enforcing authority may authorise a person in writing for the purposes of enforcing the EU Regulation—

(a) in England, Scotland and Wales, pursuant to section 108 of the Environment Act 1995 M9 (powers of enforcing authorities and persons authorised by them); or

(b) in Northern Ireland, pursuant to Article 72 of the Waste and Contaminated Land (Northern Ireland) Order 1997 M10 .

(3) The powers in section 108 of the Environment Act 1995 are extended to the marine area for the purpose of enforcing the EU Regulation.

Marginal Citations

M9 1995 c.25.

M10 S.I. 1997/2778 (N.I.19).

Powers of an authorised person in relation to Part 2 U.K.

14.—(1) An authorised person may, on production (if so required) of the authority of that authorised person, exercise any of the powers specified in paragraph (2) for the purpose of enforcing Part 2 of these Regulations.

(2) The powers are—

(a) at any reasonable time to enter premises, other than premises used wholly or mainly for residential purposes, which the authorised person has reason to believe it is necessary for the authorised person to enter;

(b) on entering any premises by virtue of sub-paragraph (a), to take with the authorised person any other person whose presence appears to the authorised person to be required in connection with the exercise by the authorised person of any power under this regulation, including, if the authorised person has reasonable cause to apprehend any serious obstruction in the execution of the duty of the authorised person, a constable;

(c) to carry out such inquiries and to make such examination as may be necessary;

(d) to require any person whom the authorised person reasonably believes can give any information relevant to any examination or investigation under sub-paragraph (c)—

(i) to answer (in the absence of anyone other than someone nominated by that person to be present and anyone whom the authorised person may allow to be present) such questions as the authorised person thinks fit to ask; and

(ii) to sign a declaration of the truth of the answers of that person;

(e) to require the production of, or where the information is recorded in computerised form, the furnishing of extracts from, any records which it is necessary for the authorised person to see for the purposes of any examination or investigation under sub-paragraph (c) and to inspect and take copies of, or any entry in, the records; and

(f) to require any person to afford the authorised person such facilities and assistance with respect to any matters or things within that person's control or in relation to which that person has responsibilities as are necessary to enable the authorised person to exercise any of the powers conferred on the authorised person by this regulation.

(3) No answer given by a person in pursuance of a requirement imposed under paragraph (2)(d) is admissible in evidence against the person in any proceedings.

(4) Nothing in this regulation is to be taken to compel the production by any person of a document of which that person would be entitled to withhold production on the grounds of—

(a) legal professional privilege on an order for disclosure and inspection in an action in the High Court; or

(b) confidentiality in proceedings in the Court of Session in Scotland.

Offences in relation to regulation 14 U.K.

15.  A person who—

(a) intentionally prevents another person from—

(i) appearing before an authorised person under regulation 14; or

(ii) answering any questions to which an authorised person, may by virtue of that regulation require an answer;

(b) intentionally obstructs an authorised person in the exercise or performance of the powers of that authorised person;

(c) furnishes to an authorised person any information which the person knows to be false or misleading;

(d) fails to produce a record when required to do so by an authorised person; or

(e) pretends to be an authorised person

commits an offence.

Enforcement notices U.K.

16.—(1) An enforcement notice is a notice requiring a person to take specified steps to remedy or avert a contravention.

(2) An authorised person who is of the opinion that a person has contravened, is contravening or is likely to contravene a provision of the EU Regulation may serve an enforcement notice on that person.

(3) An enforcement notice must—

(a) state that the authorised person is of that opinion;

(b) specify the matters constituting the contravention or the matters making it likely that the contravention will arise, as the case may be;

(c) specify the steps that must be taken to remedy or avert the contravention;

(d) specify the period within which those steps must be taken;

(e) state—

(i) that the person on whom the notice is served has the right of appeal to a magistrates' court or the sheriff; and

(ii) the period within which the appeal may be brought.

(4) An authorised person may at any time withdraw an enforcement notice.

(5) A person on whom an enforcement notice is served must comply with it at their own expense.

(6) If an enforcement notice is not complied with, the enforcement authority may arrange for it to be complied with at the expense of the person on whom it was served.

Appeals against enforcement notices U.K.

17.—(1) A person who is aggrieved by an enforcement notice may appeal against it.

(2) The right of appeal is to a magistrates' court or, in Scotland, to the sheriff.

(3) The procedure on an appeal to a magistrates' court is by way of complaint, and the Magistrates' Courts Act 1980 M11 applies to the proceedings.

(4) An appeal to the sheriff is by summary application.

(5) An appeal may be brought not later than 28 days after the date on which the enforcement notice is served.

(6) An enforcement notice is not suspended pending an appeal unless the court or sheriff orders otherwise.

(7) On an appeal the court or the sheriff may either cancel the notice or confirm it, with or without modification.

Marginal Citations

M11 1980 c. 43.

Powers of the Secretary of State U.K.

18.  The Secretary of State may by notice require a person in possession of a controlled substance, or a product or equipment containing or relying on a controlled substance, that has been produced, placed on the market or imported or is intended to be or is being exported, in contravention of the EU Regulation, to dispose of it or otherwise render it harmless in accordance with the notice.

Power to seize and detain U.K.

19.—(1) A customs official may seize and detain any controlled substance or product or equipment containing or relying on a controlled substance which the official believes is being—

(a) imported in contravention of Article 15 of the EU Regulation; or

(b) exported in contravention of Article 17 of the EU Regulation.

(2) Anything seized and detained under paragraph (1) may be detained for no longer than 5 working days and must be dealt with during the period of its detention in such manner as the Secretary of State may direct under section 5 of the 2009 Act.

(3) In this regulation—

“the 2009 Act” means the Borders, Citizenship and Immigration Act 2009 M12 ;

“customs official” means a general customs official designated under section 3(1) of the 2009 Act, or a customs revenue official designated under section 11(1) of that Act;

“working day” means any day other than a Saturday, a Sunday, Christmas Day, Good Friday or a day which is a bank holiday under the Banking and Financial Dealings Act 1971 M13 in any part of the United Kingdom.

Marginal Citations

M12 2009 c. 11.

M13 1971 c. 80.