Section 10.

SCHEDULEE+W+N.I.Powers in relation to seized equipment

Extent Information

E1In its application to Northern Ireland, this Schedule has effect subject to the modifications set out in s. 14; see 14(4)

Commencement Information

I1Sch. wholly in force; Sch. not in force at Royal Assent see s. 14(2); Sch. in force for England and Wales for specified purposes at 19.9.1996 by S.I. 1996/2219, art. 3; Sch. in force at 23.7.1997 insofar as not already in force for England and Wales by S.I. 1997/1695, art. 2; Sch. in force at 1.9.1997 for Northern Ireland by S.R. 1997/366, art. 2

IntroductoryE+W+N.I.

1E+W+N.I.In this Schedule—

(a)a “noise offence” means—

(i)in relation to equipment seized under section 10(2) of this Act, an offence under section 4 [F1or 4A ] of this Act, and

(ii)in relation to equipment seized under [F2section 81(3) of the M1Environmental Protection Act 1990] [F2section 67(5) of the Clean Neighbourhoods and Environment Act (Northern Ireland) 2011] (as extended by section 10(7) of this Act), an offence under [F3section 80(4)] [F3 section 65(9)] of that Act in respect of a statutory nuisance falling within [F4section 79(1)(g)] [F4section 63(1)(i)] of that Act,

(b)“seized equipment” means equipment seized in the exercise of the power of seizure and removal conferred by section 10(2) of this Act or [F5section 81(3) of the Environmental Protection Act 1990 ] [F5section 67(5) of the Clean Neighbourhoods and Environment Act (Northern Ireland) 2011 ] (as so extended),

(c)“related equipment”, in relation to any conviction of or proceedings for a noise offence, means seized equipment used or alleged to have been used in the commission of the offence,

(d)“responsible local authority”, in relation to seized equipment, means the local authority by or on whose behalf the equipment was seized.

Textual Amendments

F1Words in Sch. para. 1(a)(i) inserted (E.W.) (1.10.2006 for E., 15.3.2007 (being the date on which S.I. 2007/739 came into force) for W.) by Clean Neighbourhoods and Environment Act 2005 (c. 16), s. 108(1)(2), Sch. 1 para. 14; S.I. 2006/2006, art. 2; S.I. 2006/2797, art. 4(kk) and words in Sch. para. 1(a)(i) inserted (N.I.) (1.4.2012) by Clean Neighbourhoods and Environment Act (Northern Ireland) 2011 (c. 23), s. 78, Sch. 1 para. 13; S.R. 2012/13, art. 2(2), Sch. 2

Marginal Citations

RetentionE+W+N.I.

2(1)Any seized equipment may be retained—E+W+N.I.

(a)during the period of twenty-eight days beginning with the seizure, or

(b)if it is related equipment in proceedings for a noise offence instituted within that period against any person, until—

(i)he is sentenced or otherwise dealt with for the offence or acquitted of the offence, or

(ii)the proceedings are discontinued.

(2)Sub-paragraph (1) does not authorise the retention of seized equipment if—

(a)a person has been given a fixed penalty notice under section 8 of this Act in respect of any noise,

(b)the equipment was seized because of its use in the emission of the noise in respect of which the fixed penalty notice was given, and

(c)that person has paid the fixed penalty before the end of the period allowed for its payment.

ForfeitureE+W+N.I.

3(1)Where a person is convicted of a noise offence the court may make an order (“a forfeiture order”) for forfeiture of any related equipment.E+W+N.I.

(2)The court may make a forfeiture order whether or not it also deals with the offender in respect of the offence in any other way and without regard to any restrictions on forfeiture in any enactment.

(3)In considering whether to make a forfeiture order in respect of any equipment a court must have regard—

(a)to the value of the equipment, and

(b)to the likely financial and other effects on the offender of the making of the order (taken together with any other order that the court contemplates making).

(4)A forfeiture order operates to deprive the offender of any rights in the equipment to which it relates.

Consequences of forfeitureE+W+N.I.

4(1)Where any equipment has been forfeited under paragraph 3, a magistrates’ court may, on application by a claimant of the equipment (other than the person in whose case the forfeiture order was made) make an order for delivery of the equipment to the applicant if it appears to the court that he is the owner of the equipment.E+W+N.I.

(2)No application may be made under sub-paragraph (1) by any claimant of the equipment after the expiry of the period of six months beginning with the date on which a forfeiture order was made in respect of the equipment.

(3)Such an application cannot succeed unless the claimant satisfies the court—

(a)that he had not consented to the offender having possession of the equipment, or

(b)that he did not know, and had no reason to suspect, that the equipment was likely to be used in the commission of a noise offence.

(4)Where the responsible local authority is of the opinion that the person in whose case the forfeiture order was made is not the owner of the equipment, it must take reasonable steps to bring to the attention of persons who may be entitled to do so their right to make an application under sub-paragraph (1).

(5)An order under sub-paragraph (1) does not affect the right of any person to take, within the period of six months beginning with the date of the order, proceedings for the recovery of the equipment from the person in possession of it in pursuance of the order, but the right ceases on the expiry of that period.

(6)If on the expiry of the period of six months beginning with the date on which a forfeiture order was made in respect of the equipment no order has been made under sub-paragraph (1), the responsible local authority may dispose of the equipment.

Return etc. of seized equipmentE+W+N.I.

5E+W+N.I.If in proceedings for a noise offence no order for forfeiture of related equipment is made, the court (whether or not a person is convicted of the offence) may give such directions as to the return, retention or disposal of the equipment by the responsible local authority as it thinks fit.

6(1)Where in the case of any seized equipment no proceedings in which it is related equipment are begun within the period mentioned in paragraph 2(1)(a)—E+W+N.I.

(a)the responsible local authority must return the equipment to any person who—

(i)appears to them to be the owner of the equipment, and

(ii)makes a claim for the return of the equipment within the period mentioned in sub-paragraph (2), and

(b)if no such person makes such a claim within that period, the responsible local authority may dispose of the equipment.

(2)The period referred to in sub-paragraph (1)(a)(ii) is the period of six months beginning with the expiry of the period mentioned in paragraph 2(1)(a).

(3)The responsible local authority must take reasonable steps to bring to the attention of persons who may be entitled to do so their right to make such a claim.

(4)Subject to sub-paragraph (6), the responsible local authority is not required to return any seized equipment under sub-paragraph (1)(a) until the person making the claim has paid any such reasonable charges for the seizure, removal and retention of the equipment as the authority may demand.

(5)If—

(a)equipment is sold in pursuance of—

(i)paragraph 4(6),

(ii)directions under paragraph 5, or

(iii)this paragraph, and

(b)before the expiration of the period of one year beginning with the date on which the equipment is sold any person satisfies the responsible local authority that at the time of its sale he was the owner of the equipment,

the authority is to pay him any sum by which any proceeds of sale exceed any such reasonable charges for the seizure, removal or retention of the equipment as the authority may demand.

(6)The responsible local authority cannot demand charges from any person under sub-paragraph (4) or (5) who they are satisfied did not know, and had no reason to suspect, that the equipment was likely to be used in the emission of noise exceeding the level determined under section 5.