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Health (Tobacco, Nicotine etc. and Care) (Scotland) Act 2016

Section 20(3) to (8) of the Act

78.Section 20(3) of the Act amends section 5(1) (proceeding for offences under sections 1 to 3) of the 2005 Act to include the offences contained in new sections 4A, 4B and 4C(5) within section 5; and section 20(4) amends the title of section 5 to reflect this change. This links the start of the time limit for summary proceedings to the point at which the Crown is passed sufficient evidence on the offence to justify bringing a prosecution. This will prevent any lengthy or extended hearing processes consequential to the issuing of a fixed penalty notice under Part 1 of the 2010 Act resulting in a subsequent prosecution for that offence being time barred.

79.Section 20(5) amends section 6(2) (fixed penalties) of the 2005 Act to include the offences contained in new sections 4A, 4B and 4C(5) within section 6(2). This means that only an individual (or, put another way, a “natural person”) can be issued with a fixed penalty notice in relation to these offences i.e. fixed penalty notices cannot be issued to bodies corporate etc. who may be accused of committing these offences.

80.Section 20(6) amends section 7 (powers to enter and require identification) of the 2005 Act to apply it appropriately in relation to the offences contained in new sections 4A, 4B and 4C(5). It provides an authorised officer of a local authority, for the area in which the hospitals falls, with powers to enter and search hospital grounds and to require identification (name and address) from an accused or a person with information about the offences.

81.Section 20(7) amends section 40 (regulations or orders) of the 2005 Act so that regulations made under new section 4D(2)(a) and (4)(a) are subject to the affirmative procedure.

82.Section 20(8) amends, and renames, schedule 1 (fixed penalty for offences under sections 1, 2 and 3) to the 2005 Act to account for the new offences in sections 4A, 4B and 4C(5) for which fixed penalty notices may be issued.

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