SCHEDULE 2Test purchases, powers of entry etc and warrants
Test purchases1
1
The market surveillance authority may purchase EEE for the purpose of ascertaining whether the requirements of these Regulations have been complied with in respect of it.
2
If—
a
EEE which has been purchased under sub-paragraph (1) or seized under paragraph 3(1)(c) of this Schedule is submitted to a test;
b
the test leads to the bringing of proceedings for an offence under regulation 37 or the serving of a compliance, enforcement or recall notice; and
c
a person—
i
from whom the EEE was purchased;
ii
who is a party to the proceedings; or
iii
who has an interest in EEE which is identified as an infringing EEE in a compliance enforcement or recall notice,
requests the market surveillance authority to allow that person to have the EEE tested,
the authority must, if it is practicable for such a test to be carried out, allow that person to have the EEE tested.
Power to enter premises2
1
An authorised person may enter premises, except any premises used wholly or mainly as a private dwelling, at any reasonable hour, for the purpose of enforcing these Regulations.
2
Before entering the premises an authorised person must give reasonable notice, unless the authorised person has a reasonable suspicion of a failure to comply with these Regulations.
3
An authorised person must, if requested to do so, produce a written authorisation document.
4
An authorised person may—
a
be accompanied by—
i
such other persons as the authorised person considers necessary,
ii
any representative of the European Commission; and
b
bring on to the premises such equipment as the authorised person considers necessary.
Power to inspect, seize and detain EEE etc3
1
An authorised person may—
a
in order to ascertain if any provision of these Regulations has not been complied with—
i
inspect any EEE, products, goods, substances, records, documents or information;
b
in order to ascertain if any provision of these Regulations has not been complied with, require any person carrying on or employed in connection with a business to produce any EEE, products, goods, substances, records, documents or information and take copies of—
i
any document or record; or
ii
any entry in any document or record;
c
in order to ascertain by testing or otherwise if any provision of these Regulations has not been complied with, and reasonably suspecting such non-compliance, seize and detain any EEE, products, goods, substances, records, documents or information;
d
seize and detain any EEE, products, goods, substances, records, documents or information which may be required as evidence in any proceedings under these Regulations;
e
for the purposes of exercising any powers or duties under these Regulations or RAMS, but only if and to the extent reasonably necessary in order to secure that the provisions of these Regulations are complied with, require any person having authority to do so to break open any container and, if that person does not comply or if there is no person present having authority to open it, break it open using reasonable force.
2
An authorised person may require information stored electronically to be made available in printed form.
3
An authorised person entering any premises whether under a power of entry under paragraph 2 or under a warrant under paragraph 4 must, if the occupier is present, give to the occupier or, if the occupier is absent, leave in a prominent place a notice—
a
summarising the authorised person’s powers of seizure and detention of EEE, products, goods, substances, records, documents and information;
b
disclosing at which office of the market surveillance authority and within which hours a copy of these Regulations is available to be consulted.
4
An authorised person entering any premises which are unoccupied or from which the occupier is temporarily absent must leave them as effectively secured against unauthorised entry as they were before entry.
5
An authorised person exercising any power of seizure and detention must—
a
give to the person against whom the power has been exercised a notice stating what has been seized and detained;
b
detain those things only for as long as is necessary for the market surveillance authority to ascertain whether any provision of these Regulations has not been complied with and, if required, to present the evidence at court.
6
Nothing in this paragraph compels the production by any person of a document which that person would be entitled to withhold production of in any proceedings in any court on the grounds that it is the subject of legal professional privilege or, in Scotland, that it contains a confidential communication made by or to an advocate or solicitor in that capacity.
Warrants4
1
A justice of the peace may by signed warrant permit an authorised person or any other person to enter any premises in the exercise of the powers and duties under these Regulations or Article 19 of RAMS, if necessary by reasonable force, if the justice in England and Wales on sworn information in writing, in Northern Ireland on a complaint on oath, or in Scotland by evidence on oath is satisfied—
a
that there are reasonable grounds to enter those premises for the purposes of enforcing these Regulations; and
b
that any of the conditions in sub-paragraph (3) is met.
2
Reference to a justice of the peace—
a
in Scotland includes a sheriff;
b
in Northern Ireland is a reference to a lay magistrate.
3
The conditions are—
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 such a notice, would defeat the object of the entry;
c
entry is required urgently;
d
the premises are unoccupied or the occupier is temporarily absent.
4
A warrant under sub-paragraph (1) is valid for one month.