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The Making Available on the Market and Supervision of Transfers of Explosives Regulations (Northern Ireland) 2016

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PART 3DEFENCE OF DUE DILIGENCE, APPEALS AGAINST NOTICES AND FURTHER PROVISIONS IN RELATION TO ENFORCEMENT

Defence of due diligence

20.—(1) Subject to sub-paragraphs (2) and (4), in proceedings for an offence under Article 31(1)(c) of the 1978 Order involving a contravention of Part 3 or paragraph 18, it is a defence for a person (“P”) to show that P took all reasonable steps and exercised all due diligence to avoid committing the offence.

(2) P may not rely on a defence under sub-paragraph (1) which involves a third party allegation unless P has—

(a)served a notice in accordance with sub-paragraph (3); or

(b)obtained the leave of the court.

(3) The notice must—

(a)give any information on P’s possession which identifies or assists in identifying the person who—

(i)committed the act or default; or

(ii)supplied the information on which P relied; and

(b)be served on the person bringing the proceedings not less than seven clear days before the hearing of the proceedings.

(4) P may not rely on a defence under sub-paragraph (1) which involves an allegation that the commission of the offence was due to reliance on information supplied by another person unless it was reasonable for P to have relied upon the information, having regard in particular—

(a)to the steps that P took, and those which might reasonably have been taken, for the purpose of verifying the information; and

(b)to whether P had any reason to believe the information.

(5) In this paragraph, “third party allegation” means an allegation that the commission of the offence was due—

(a)to the act or default of another person; or

(b)to reliance on information supplied by another person.

Service of documents

21.  Any document required or authorised by these Regulations to be served on a person may be served by—

(a)delivering it to that person in person;

(b)leaving it at that person’s proper address; or

(c)sending it by post or electronic means to that person’s proper address.

(2) In the case of a body corporate, a document may be served on a director of that body.

(3) In the case of a partnership, a document may be served on a partner or a person having control or management of the partnership business.

(4) For the purposes of this paragraph, “proper address” means—

(a)in the case of a body corporate or its director—

(i)the registered or principal office of that body; or

(ii)the email address of the secretary or clerk of that body;

(b)in the case of a partnership, a partner or person having control or management of the partnership business—

(i)the principal office of the partnership; or

(ii)the email address of the partner or person having that control or management;

(c)in any other case, a person’s last known address, which includes an email address.

(5) If a person to be served with a document has specified an address in the United Kingdom (other than that person’s proper address) at which that person or someone on that person’s behalf will accept service, that address shall also be treated as that person’s proper address.

Action by enforcing authority

22.—(1) The Department may itself take action which an economic operator could have been required to take by a notice served under or by virtue of Parts 1 or 2 of this Schedule where the conditions for serving such a notice are met and either—

(a)the Department has been unable to identify any economic operator on whom to serve such a notice; or

(b)the economic operator on whom such a notice has been served has failed to comply with it.

(2) If the Department has taken action as a result of the condition in sub-paragraph (1)(b) being met, the Department may recover from the economic operator, as a civil debt, any costs or expenses reasonably incurred by the Department in taking the action.

(3) A civil debt recoverable under sub-paragraph (2) may be recovered summarily by way of a complaint pursuant to Article 62 of the Magistrates’ Court (Northern Ireland) Order 1981(1).

Appeals against notices

23.—(1) An application for an order to vary or set aside the terms of a notice served under Part 2 of this Schedule may be made to the appropriate court—

(a)by the economic operator on whom the notice has been served; and

(b)in the case of a notice other than a recall notice, by a person having an interest in the civil explosive in respect of which the notice has been served.

(2) An application must be made before the end of the period of 21 days beginning with the day on which the notice was served.

(3) The appropriate court may only make an order setting aside a notice served under Part 2 of this Schedule if satisfied—

(a)that the civil explosive to which that notice relates is in conformity with Part 3 and does not present a risk; or

(b)that the enforcing authority failed to comply with paragraph 4 when serving the notice.

(4) On an application to vary the terms of a notice referred to in Part 2 of this Schedule, the appropriate court may vary the terms of the notice as it considers appropriate.

(5) In this paragraph, the “appropriate court” is to be determined in accordance with paragraph 24 (appropriate court for appeals against notices).

Appropriate court for appeals against notices

24.—(1) The appropriate court for the purposes of paragraph 23 is—

(a)the court in which proceedings have been brought for an offence in relation to the civil explosive under Article 31 (Offences) of the 1978 Order;

(b)an industrial tribunal seized of appeal proceedings against a notice which relates to the civil explosive and which had been served under or by virtue of Part 1 of this Schedule; or

(c)in any other case, a magistrates’ court.

(2) A person aggrieved by an order made by a magistrates’ court pursuant to an application under paragraph 23, or by a decision of such a court not to make such an order, may appeal against that order or decision to the Crown Court.

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