The Plant Health (Official Controls and Miscellaneous Provisions) (Scotland) Regulations 2019

PART 9 S General powers of inspectors and enforcement

Interpretation S

[F1 28.— (1) In this Part—

“ISPM 15 mark” means the mark referred to in Article 96(1) of the F2 ... Plant Health Regulation, which may be applied to wood packaging material to attest that it has been treated in accordance with Annex 1 to ISPM 15,

“premises” includes any place, including any land, building, vehicle, vessel, aircraft, hovercraft, freight container, railway wagon, trailer or movable building or structure,

“wood packaging material” includes any wood or other object which is required to be treated and marked in accordance with Annex 1 to ISPM 15.

(2) For the purposes of regulations 32A and 32B, a person “incorrectly” applies the ISPM 15 mark to wood packaging material if they apply the mark otherwise than in the manner specified in Article 96(1) of the F3 ... Plant Health Regulation, as read with Article 97(1) of the F3 ... Plant Health Regulation.]

Textual Amendments

F1 Reg. 28 substituted (27.6.2020) by The Plant Health (Official Controls and Miscellaneous Provisions) (Miscellaneous Amendments) (Scotland) Regulations 2020 (S.S.I. 2020/176), regs. 1(1), 13

F2 Word in reg. 28(1) omitted (31.12.2020) by virtue of The Plant Health (EU Exit) (Scotland) (Amendment etc.) Regulations 2020 (S.S.I. 2020/466), regs. 1(1)(c), 19(1) (with reg. 32)

F3 Word in reg. 28(2) omitted (31.12.2020) by virtue of The Plant Health (EU Exit) (Scotland) (Amendment etc.) Regulations 2020 (S.S.I. 2020/466), regs. 1(1)(c), 19(1) (with reg. 32)

Commencement Information

I1 Reg. 28 in force at 14.12.2019, see reg. 1(1)

Powers of entry S

29.—(1) A plant health inspector may enter any premises at a reasonable time for the purpose of—

[F4 (a) performing official controls to verify that—

(i) an operator is complying with the Official Controls Regulation,

(ii) a professional operator is complying with the F5 ... Plant Health Regulation,

(iii) a person is complying with these Regulations, or

(iv) any plants, plant products or other objects which are subject to [F6 a plant health rule comply with that rule]] ,

(b) carrying out other official activities which are to be performed by the Scottish Ministers pursuant to the Official Controls Regulation, the F7 ... Plant Health Regulation or these Regulations,

(c) enforcing the Official Controls Regulation, the F8 ... Plant Health Regulation or these Regulations,

(d) verifying information supplied by a person in connection with an application for registration or for an authorisation or permit granted, or to be granted, under these Regulations,

(e) ascertaining whether a condition of an authorisation or permit granted by the Scottish Ministers for the purpose of the F9 ... Plant Health Regulation or the Official Controls Regulation is being or has been complied with.

(2) A plant health inspector must, if requested to do so, produce evidence of the inspector's authority before entering any premises for the purposes specified in paragraph (1).

(3) Paragraph (1) does not apply to any premises which are used wholly or mainly as a private dwelling unless 24 hours' notice has been given to the occupier.

(4) A plant health inspector who enters premises for a purpose specified in paragraph (1) or under a warrant issued by a sheriff, a summary sheriff or a justice of the peace may—

(a) examine, photograph or mark any part of the premises, any object on the premises or anything that is attached to or otherwise forms part of the premises,

(b) in the case of premises being used to manufacture wood packaging material, examine or test any treatment facility, machinery, tools or other equipment used for the manufacture of wood packaging material or observe and monitor the manufacture of wood packaging material,

(c) take samples of or from any plant pest or any plant, plant product or other object or any container, package or item which has been or may have been in contact with a plant pest or plant, plant product or other object,

(d) open any container or package or require the owner or person in charge of any container or package to open the container or package,

(e) inspect or make copies of any documents or records (in whatever form they may be held) relating to the production of, or any activities relating to, any plant, plant product or other object.

(5) A plant health inspector may destroy or otherwise dispose of any sample taken under this regulation when the sample is no longer required.

[F10 (6) A plant health inspector may—

(a) [F11 be accompanied by such persons as the inspector considers necessary,]

(b) bring onto the premises such equipment and vehicles as the inspector considers necessary.

F12 (6A) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .]

(7) A person accompanying a plant health inspector under paragraph (6) may—

(a) remain on the premises and from time to time re-enter the premises without a plant health inspector,

(b) bring onto the premises any equipment or vehicles that the person considers necessary,

(c) carry out work on the premises in a manner directed by a plant health inspector.

Textual Amendments

F4 Reg. 29(1)(a) substituted (27.6.2020) by The Plant Health (Official Controls and Miscellaneous Provisions) (Miscellaneous Amendments) (Scotland) Regulations 2020 (S.S.I. 2020/176), regs. 1(1), 14(a)

F5 Word in reg. 29(1)(a)(ii) omitted (31.12.2020) by virtue of The Plant Health (EU Exit) (Scotland) (Amendment etc.) Regulations 2020 (S.S.I. 2020/466), regs. 1(1)(c), 19(2)(a)(i)(aa) (with reg. 32)

F6 Words in reg. 29(1)(a)(iv) substituted (31.12.2020) by The Plant Health (EU Exit) (Scotland) (Amendment etc.) Regulations 2020 (S.S.I. 2020/466), regs. 1(1)(c), 19(2)(a)(i)(bb) (with reg. 32)

F7 Word in reg. 29(1)(b) omitted (31.12.2020) by virtue of The Plant Health (EU Exit) (Scotland) (Amendment etc.) Regulations 2020 (S.S.I. 2020/466), regs. 1(1)(c), 19(2)(a)(ii) (with reg. 32)

F8 Word in reg. 29(1)(c) omitted (31.12.2020) by virtue of The Plant Health (EU Exit) (Scotland) (Amendment etc.) Regulations 2020 (S.S.I. 2020/466), regs. 1(1)(c), 19(2)(a)(ii) (with reg. 32)

F9 Word in reg. 29(1)(e) omitted (31.12.2020) by virtue of The Plant Health (EU Exit) (Scotland) (Amendment etc.) Regulations 2020 (S.S.I. 2020/466), regs. 1(1)(c), 19(2)(a)(ii) (with reg. 32)

F10 Reg. 29(6)(6A) substituted for reg. 29(6) (27.6.2020) by The Plant Health (Official Controls and Miscellaneous Provisions) (Miscellaneous Amendments) (Scotland) Regulations 2020 (S.S.I. 2020/176), regs. 1(1), 14(b)

F11 Reg. 29(6)(a) substituted (31.12.2020) by The Plant Health (EU Exit) (Scotland) (Amendment etc.) Regulations 2020 (S.S.I. 2020/466), regs. 1(1)(c), 19(2)(b) (with reg. 32)

F12 Reg. 29(6A) omitted (31.12.2020) by virtue of The Plant Health (EU Exit) (Scotland) (Amendment etc.) Regulations 2020 (S.S.I. 2020/466), regs. 1(1)(c), 19(2)(c) (with reg. 32)

Commencement Information

I2 Reg. 29 in force at 14.12.2019, see reg. 1(1)

Right of entry conferred by a warrant issued by a sheriff, a summary sheriff or a justice of the peace S

30.—(1) A sheriff, a summary sheriff or a justice of the peace may by signed warrant permit a plant health inspector to enter premises under regulation [F13 16, 29 or 32(1)] if necessary by reasonable force, if the sheriff, the summary sheriff or the justice of the peace, on sworn information in writing, is satisfied that—

(a) there are reasonable grounds to enter those premises, and

(b) any of the conditions in paragraph (2) are met.

(2) The conditions are that—

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

(b) asking for admission to the premises, or giving notice of the intention to apply for a warrant, would defeat the object of the entry,

(c) entry is required urgently,

(d) the premises are unoccupied or the occupier is temporarily absent.

(3) A warrant is valid for one month.

(4) A plant health inspector who enters any unoccupied premises must leave them as effectively secured against unauthorised entry as they were before entry.

Textual Amendments

F13 Words in reg. 30(1) substituted (27.6.2020) by The Plant Health (Official Controls and Miscellaneous Provisions) (Miscellaneous Amendments) (Scotland) Regulations 2020 (S.S.I. 2020/176), regs. 1(1), 15

Commencement Information

I3 Reg. 30 in force at 14.12.2019, see reg. 1(1)

Information notices S

31.—(1) A plant health inspector or any other officer of the Scottish Ministers may by notice in writing require an appropriate person to give to the inspector or officer, within the time specified in the notice, any information which the person may possess as to—

(a) the plants grown or products stored at any time on the premises specified in the notice,

(b) any plant pest or plant, plant product or other object referred to in paragraph (4)(b),

(c) the persons who have had, or are likely to have had, any plant pest or plant, plant product or other object referred to in paragraph (4)(b) in their possession or under their charge.

(2) The time within which the information is required to be given to the plant health inspector or other officer must be reasonable.

(3) An appropriate person must produce for examination by the plant health inspector or other officer any authorisation, official statement, certificate, plant passport, record, invoice or other document relating to a plant pest or any plant, plant product or other object specified in the notice.

(4) In this regulation, “appropriate person” means—

(a) in relation to any premises to be specified in a notice under paragraph (1), a person who is the owner, occupier or other person in charge of the premises,

(b) a person who has, has had, or is reasonably suspected by the plant health inspector or officer to have or have had, possession or charge of—

(i) a controlled plant pest,

(ii) any plant, plant product or other object which was carrying a controlled plant pest or which was infested by or infected with a controlled plant pest,

(iii) any plant, plant product or other object which the inspector or officer knows or suspects to have been imported into or exported from Scotland,

(c) a person who, as auctioneer, salesman or otherwise, has sold, offered for sale or otherwise disposed of a controlled plant pest.

Commencement Information

I4 Reg. 31 in force at 14.12.2019, see reg. 1(1)

Failure to comply with a notice S

32.—(1) If a person fails to comply with a notice served on that person under these Regulations, a plant health inspector may enter any affected premises at all reasonable times to take or cause to be taken any steps that the plant health inspector considers necessary to ensure compliance with the notice or to remedy the consequences of the failure to carry them out.

(2) A plant health inspector acting under paragraph (1) must, if requested to do so, show evidence of the inspector's authority to act.

(3) Paragraph (1) does not apply to any premises which are used wholly or mainly as a private dwelling unless 24 hours' notice has been given to the occupier.

(4) Paragraph (1) does not affect any right of entry conferred by a warrant issued by a sheriff, a summary sheriff or a justice of the peace.

(5) A plant health inspector may be accompanied by such F14 ... persons F15 ... and bring onto the premises such equipment and vehicles as the inspector considers necessary.

(6) A person accompanying a plant health inspector under paragraph (5) may—

(a) remain on the premises and from time to time re-enter the premises without a plant health inspector,

(b) bring onto the premises any equipment or vehicles that the person considers necessary,

(c) carry out work on the premises in a manner directed by a plant health inspector.

Textual Amendments

F14 Word in reg. 32(5) omitted (31.12.2020) by virtue of The Plant Health (EU Exit) (Scotland) (Amendment etc.) Regulations 2020 (S.S.I. 2020/466), regs. 1(1)(c), 19(3)(a) (with reg. 32)

F15 Words in reg. 32(5) omitted (31.12.2020) by virtue of The Plant Health (EU Exit) (Scotland) (Amendment etc.) Regulations 2020 (S.S.I. 2020/466), regs. 1(1)(c), 19(3)(b) (with reg. 32)

Commencement Information

I5 Reg. 32 in force at 14.12.2019, see reg. 1(1)

[F16 Removal of ISPM 15 mark from wood packaging material S

32A.   Where an inspector knows, or has reasonable grounds for suspecting, that the ISPM 15 mark has been incorrectly applied to wood packaging material, a plant health inspector may remove the mark or, by notice in writing, require another person to remove it.

Textual Amendments

F16 Regs. 32A, 32B inserted (27.6.2020) by The Plant Health (Official Controls and Miscellaneous Provisions) (Miscellaneous Amendments) (Scotland) Regulations 2020 (S.S.I. 2020/176), regs. 1(1), 16

Marking of wood packaging material: power of seizure S

32B.— (1) This regulation applies where a plant health inspector knows, or has reasonable grounds for suspecting, that a person has incorrectly applied, or intends to incorrectly apply, the ISPM 15 mark to wood packaging material at any premises in Scotland.

(2) The plant health inspector may seize and detain from that person or from those premises any stencil, template or other item of equipment that appears to the inspector to be capable of being used to apply the ISPM 15 mark.

(3) If, in the opinion of the plant health inspector, it is not for the time being practicable for the inspector to seize and remove any item, the inspector may require any person on the premises to secure that the item is not removed or otherwise interfered with until such time as the inspector may seize and remove it.

(4) The plant health inspector must make reasonable efforts to give written notice to the appropriate person—

(a) stating what has been seized and the reason for its seizure,

(b) explaining the effect of paragraphs (5) to (12).

(5) Any item seized under paragraph (2) may be retained by the Scottish Ministers for as long as is necessary in all the circumstances, and in particular for the purposes of proceedings in relation to an offence specified in regulation 37(1).

(6) The Scottish Ministers may apply to the court for the forfeiture of any item retained under paragraph (5).

(7) Where an application is made under paragraph (6), the court may order the item to be forfeited if the court is satisfied that—

(a) an offence specified in regulation 37(1) has been committed in respect of it, or

(b) it was used in the commission of such an offence.

(8) If the court orders the item to be forfeited, the Scottish Ministers may dispose of it in whatever way they think appropriate.

(9) If the court does not order the item to be forfeited, it must order the item to be returned to the appropriate person.

(10) The Scottish Ministers may recover from the appropriate person all reasonable costs incurred by the Scottish Ministers for the purposes of securing the forfeiture of an item under paragraphs (6) to (8).

(11) Where the retention of the item has been, but is no longer, authorised under this regulation—

(a) the item must be returned to the appropriate person,

(b) the appropriate person may apply to the court for an order that the item be returned.

(12) Where the item is required to be returned to the appropriate person and reasonable efforts have been made, without success, to return the item to that person, the Scottish Ministers may dispose of the item in whatever way they think appropriate.

(13) In this regulation—

“appropriate person” means—

(a)

in the case of an item seized from a person, the person from whom the item was seized,

(b)

in the case of an item seized from premises, the occupier or any other person having control of the premises,

(c)

in the case of an item seized from a person or premises which does not belong to a person falling within paragraph (a) or (b), the person to whom it belongs and who asserts ownership over it.

“the court” means a sheriff, summary sheriff or justice of the peace.

(14) Nothing in this regulation affects the powers of a plant health inspector under regulation 32A]

Textual Amendments

F16 Regs. 32A, 32B inserted (27.6.2020) by The Plant Health (Official Controls and Miscellaneous Provisions) (Miscellaneous Amendments) (Scotland) Regulations 2020 (S.S.I. 2020/176), regs. 1(1), 16

Disclosure of information held by Revenue and Customs S

33.—(1) The Commissioners for Her Majesty's Revenue and Customs may disclose any information in their possession to the Scottish Ministers for the purposes of enabling or assisting the Scottish Ministers to carry out any function conferred on them under or by virtue of the F17 ... Plant Health Regulation, the Official Controls Regulation or these Regulations.

(2) Nothing in paragraph (1) affects any other power or requirement of the Commissioners to disclose information.

Textual Amendments

F17 Word in reg. 33(1) omitted (31.12.2020) by virtue of The Plant Health (EU Exit) (Scotland) (Amendment etc.) Regulations 2020 (S.S.I. 2020/466), regs. 1(1)(c), 19(4) (with reg. 32)

Commencement Information

I6 Reg. 33 in force at 14.12.2019, see reg. 1(1)