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Enterprise Act 2002

Miscellaneous

Section 228: Evidence

570.Subsection (1) provides that convictions in any related criminal proceedings in the UK may be used as evidence in proceedings under this Part.

571.Subsection (2) enables findings in civil proceedings to be admitted in evidence under this Part of acts or omissions which constitute Community infringements or certain kinds of domestic infringements, except where the findings have been overturned on appeal (subsection (3)).

572.This will allow judgements in the criminal courts and findings in the civil courts to be admitted in evidence for the purpose of proving a breach of the relevant legislation or common law obligations. But it will still be necessary to prove that the conduct harms the collective interests of consumers.

Section 229: Advice and information

573.The OFT is required (as soon as is reasonably practicable) to prepare and publish advice and information explaining the provisions of this Part and indicating how it expects them to operate in practice. The advice and information may include advice and information about the factors the OFT may take into account in considering how to exercise its functions under this Part, such as adherence to the principles of best practice in enforcement as set out in the Enforcement Concordat or any document which replaces it. This will promote consistent enforcement across the country. In preparing any advice and information, the OFT must consult such persons as it considers representative of those affected. This advice and information may be published in such form and in such manner as the OFT considers appropriate. The OFT may at any time publish revised or new advice and information to reflect experience gained in the operation of this Part.

Section 230: Notice to OFT of intended prosecution

574.This section will apply if a local weights and measures authority (ie trading standards department) in England and Wales intends to start proceedings for an offence under an enactment or subordinate legislation which the Secretary of State has specified for the purposes of this section (subsection (1)).

575.The authority must give the OFT notice of its intention to start proceedings, together with a summary of the facts on which the charges are to be founded (subsection (2)). The authority must not start proceedings until the earlier of the end of 14 days from giving the notice or the day the OFT notifies the authority that it has received the notice and the summary of the facts (subsection (3)). The authority must also notify the OFT of the outcome of the proceedings (subsection (4)).

576.This section reflects the existing requirements about notices of intended prosecution in section 130 of the FTA 1973 which relates to offences under the Trade Descriptions Act 1968, Part III of the Consumer Protection Act 1987, the Property Misdescriptions Act 1991 and the Timeshare Act 1992. The Department’s intention is to list in the order under section 230 all the legislation providing for criminal offences which will be included in the legislation specified in orders made under sections 211 and 212 in relation to domestic and Community infringements. The purpose is to reinforce the OFT’s co‑ordination role in respect of the legislation to which this Part applies. For example, the OFT could inform one authority that another is prosecuting or that an enforcement order has been granted. This may lead the authority to decide it is not necessary to prosecute. Proceedings will not however be invalid simply by virtue of the fact that the prosecuting authority has not given the OFT the required notice of intended prosecution.

577.This section does not apply in relation to Scotland, where all criminal prosecutions are brought by the Procurator Fiscal, or to Northern Ireland where public law enforcement of consumer protection legislation rests with the Department of Enterprise, Trade and Investment.

Section 231: Notice of convictions and judgments to OFT

578.This section will give the courts in the UK the power to notify the OFT of convictions and judgments that might not otherwise be brought to its attention, for the purpose of the OFT considering whether to exercise its functions under this Part or under the Estate Agents Act 1979 (‘EAA’). It is immaterial that proceedings have been finally been disposed of by the courts. Under the EAA, the DGFT has the power to issue a warning notice or a banning order preventing a person from acting as an estate agent. This section will replace section 131 of the FTA 1973.

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