Investigatory Powers Act 2016

Section 7

SCHEDULE 1 Monetary penalty notices

Part 1 Monetary penalty notices

Payment of monetary penalties

1 (1) A monetary penalty imposed by a monetary penalty notice must be paid to the Commissioner within the period specified in the notice.

(2) The period specified under sub-paragraph (1) must not be less than 28 days beginning with the day after the day on which the notice is served.

(3) Any sum received by the Commissioner by virtue of a monetary penalty notice must be paid into the Consolidated Fund.

Contents of monetary penalty notices

2 A monetary penalty notice must, in particular—

(a) state the name and address of the person on whom it is to be served,

(b) provide details of the notice of intent served on that person (see paragraph 4),

(c) state whether the Commissioner has received written representations in accordance with that notice of intent,

(d) state the grounds on which the Commissioner serves the monetary penalty notice,

(e) state the grounds on which the Commissioner decided the amount of the monetary penalty imposed by the monetary penalty notice,

(f) state the details of how the monetary penalty is to be paid,

(g) provide details of the person’s rights of appeal under paragraph 8 in respect of the monetary penalty notice,

(h) provide details of the Commissioner’s rights of enforcement under paragraph 9 in respect of the monetary penalty notice.

Enforcement obligations

3 (1) The Commissioner may include an enforcement obligation, or enforcement obligations, in a monetary penalty notice if the Commissioner considers that the interception to which the notice relates is continuing.

(2) Each of the following is an enforcement obligation—

(a) a requirement on the person on whom the notice is served to cease the interception on a specified day or within a specified period;

(b) (where appropriate for achieving such a cessation) a requirement on the person to take specified steps within a specified period, or to refrain from taking specified steps after the end of a specified period.

(3) An enforcement obligation may not have effect before the end of the period of 7 days beginning with the day after the day on which the notice is served.

(4) Where an enforcement obligation is included in a monetary penalty notice under this paragraph, the notice must state what the obligation is and the grounds for including it.

Consultation requirements before service of monetary penalty notices

4 (1) The Commissioner must proceed in accordance with sub-paragraphs (2) to (7) before serving a monetary penalty notice on a person.

(2) The Commissioner must serve a notice of intent on the person.

(3) A notice of intent is a notice that the Commissioner proposes to serve a monetary penalty notice on the person.

(4) A notice of intent served on a person must, in particular—

(a) state the name and address of the person,

(b) state the grounds on which the Commissioner proposes to serve the monetary penalty notice,

(c) provide an indication of the amount of the monetary penalty that the Commissioner proposes to impose and the Commissioner’s grounds for deciding that amount,

(d) state whether the monetary penalty notice is to include any enforcement obligation and, if so, what the obligation is and the grounds for including it,

(e) state the date on which the Commissioner proposes to serve the monetary penalty notice,

(f) inform the person that the person may make written representations in relation to the Commissioner’s proposal within a period specified in the notice, and

(g) inform the person that the person may, within a period specified in the notice, request an oral hearing before the Commissioner in order to make representations of the kind mentioned in sub-paragraph (6)(b).

(5) No period specified as mentioned in sub-paragraph (4)(f) or (g) may be less than 21 days beginning with the day after the day on which the notice is served.

(6) Where the person has requested an oral hearing within the period specified for the purpose in the notice—

(a) the Commissioner must arrange such a hearing, and

(b) the person may make representations at the hearing about—

(i) any matter falling within section 7(3)(c), or

(ii) any other matter relating to the Commissioner’s proposal which, by virtue of section 56, the person would be unable to raise on an appeal under paragraph 8.

(7) The Commissioner must consider any representations which have been made by the person in accordance with the notice or sub-paragraph (6).

(8) If the Commissioner decides not to serve a monetary penalty notice on a person as a result of any representations which have been made by the person in accordance with a notice of intent or sub-paragraph (6), the Commissioner must inform the person of that fact.

5 (1) The Commissioner may not vary a notice of intent except as set out in sub-paragraph (2).

(2) The Commissioner may vary a notice of intent by extending the period mentioned in paragraph 4(4)(f) or (g).

(3) Sub-paragraph (1) does not prevent the Commissioner from serving a new notice of intent instead of varying such a notice.

(4) The Commissioner may cancel a notice of intent.

(5) A variation or cancellation of a notice of intent is effected by serving on the person on whom the notice was served a notice setting out the variation or cancellation.

6 (1) The Commissioner must not serve a monetary penalty notice on a person in respect of an interception if any notice of intent in respect of that interception was served on the person more than 3 months earlier.

(2) But the Commissioner may serve a monetary penalty notice on a person where the service of the notice would otherwise be prevented by sub-paragraph (1) if the Commissioner—

(a) considers it reasonable to do so, and

(b) includes the reasons for doing so in the monetary penalty notice.

Variation or cancellation of monetary penalty notices

7 (1) The Commissioner may vary or cancel a monetary penalty notice.

(2) But the Commissioner may not vary a monetary penalty notice in a way that is detrimental to the person on whom it was served (whether by increasing the amount of the monetary penalty, by reducing the period specified in the notice as the period within which the penalty must be paid, by imposing a new enforcement obligation or making an existing enforcement obligation effective earlier or otherwise more onerous, or otherwise).

(3) The Commissioner must—

(a) in the case of a variation which reduces the amount of a monetary penalty, repay any excess already paid in accordance with the notice, and

(b) in the case of a cancellation, repay any amount already paid in accordance with the notice.

(4) A variation or cancellation of a monetary penalty notice is effected by serving on the person on whom the monetary penalty notice was served a notice setting out the variation or cancellation.

(5) The Commissioner may not serve another monetary penalty notice on a person in respect of an interception if the Commissioner has cancelled a previous notice served on the person in respect of the same interception.

(6) If the Commissioner refuses a request by a person to vary or cancel a monetary penalty notice which has been served on the person, the Commissioner must inform the person of that fact.

Appeals in relation to monetary penalty notices

8 (1) A person on whom a monetary penalty notice is served may appeal to the First-tier Tribunal against—

(a) the monetary penalty notice or any provision of it, or

(b) any refusal of a request by the person to serve a notice of variation or cancellation in relation to the monetary penalty notice.

(2) Where there is an appeal under sub-paragraph (1)(a) in relation to a monetary penalty notice or any provision of it, any requirement in the notice or (as the case may be) provision which does not relate to the imposition of an enforcement obligation need not be complied with until the appeal is withdrawn or finally determined.

(3) Sub-paragraphs (4) to (6) apply in relation to an appeal under sub-paragraph (1)(a).

(4) The First-tier Tribunal must allow the appeal or substitute such other monetary penalty notice as could have been served by the Commissioner if the Tribunal considers—

(a) that the notice to which the appeal relates is not in accordance with the law, or

(b) to the extent that the notice involved an exercise of discretion by the Commissioner, that the Commissioner ought to have exercised the discretion differently.

(5) In any other case, the First-tier Tribunal must dismiss the appeal.

(6) The First-tier Tribunal may review any determination of fact on which the notice was based.

(7) Sub-paragraphs (8) to (10) apply in relation to an appeal under sub-paragraph (1)(b).

(8) The First-tier Tribunal must direct the Commissioner to serve, on such terms as the Tribunal considers appropriate, a notice of variation or cancellation in relation to the monetary penalty notice if the Tribunal considers that the monetary penalty notice ought to be varied or cancelled on those terms.

(9) In any other case, the First-tier Tribunal must dismiss the appeal.

(10) The First-tier Tribunal may review any determination of fact on which the refusal to serve the notice of variation or cancellation was based.

Enforcement of monetary penalty notices

9 (1) This paragraph applies in relation to any penalty payable to the Commissioner by virtue of a monetary penalty notice.

(2) In England and Wales or Northern Ireland, the penalty is recoverable—

(a) if the county court in England and Wales or a county court in Northern Ireland so orders, as if it were payable under an order of that court, and

(b) if the High Court so orders, as if it were payable under an order of that court.

(3) In Scotland, the penalty is recoverable as if it were payable under an extract registered decree arbitral bearing a warrant for execution issued by the sheriff for any sheriffdom in Scotland.

10 (1) A person on whom a monetary penalty notice containing an enforcement obligation is served must comply with the obligation.

(2) The duty imposed by sub-paragraph (1) is enforceable by civil proceedings by the Commissioner for an injunction, or for specific performance of a statutory duty under section 45 of the Court of Session Act 1988, or for any other appropriate relief.

Guidance

11 (1) The Commissioner must prepare and issue guidance on how the Commissioner proposes to exercise the Commissioner’s functions under section 7 and this Schedule.

(2) The guidance must, in particular, deal with—

(a) the manner in which the Commissioner is to deal with claims of a description specified in the guidance which may give rise to grounds for serving a monetary penalty notice,

(b) the circumstances in which the Commissioner would consider it appropriate to serve a monetary penalty notice,

(c) how the Commissioner will determine the amount of the penalty, and

(d) the circumstances in which the Commissioner would consider it appropriate to impose an enforcement obligation.

(3) The Commissioner may alter or replace the guidance.

(4) If the guidance is altered or replaced, the Commissioner must issue the altered or replacement guidance.

(5) The Commissioner must arrange for the publication, in such form and manner as the Commissioner considers appropriate, of any guidance issued under this paragraph.

Interpretation of Part 1

12 In this Part of this Schedule—

• “address” means—

  (a)

  in the case of a registered company, the address of its registered office,

  (b)

  in the case of a person (other than a registered company) carrying on a business, the address of the person’s principal place of business in the United Kingdom, and

  (c)

  in any other case, the person’s last known address;

• “the Commissioner” means the Investigatory Powers Commissioner;

• “enforcement obligation” has the meaning given by paragraph 3(2);

• “monetary penalty notice” means a monetary penalty notice under section 7;

• “notice” means notice in writing;

• “notice of intent” has the meaning given by paragraph 4(3);

• “registered company” means a company registered under the enactments relating to companies for the time being in force in the United Kingdom.

Part 2 Information provisions

Information notices

13 (1) The Commissioner may by notice (an “information notice”) request any person on whom the Commissioner is considering whether to serve a Part 1 notice of intent or a Part 1 monetary penalty notice to provide such information as the Commissioner reasonably requires for the purpose of deciding whether to serve it.

(2) Where the Commissioner requests that documents be produced, the Commissioner may take copies of, or extracts from, any document so produced.

(3) An information notice must—

(a) specify or describe the information to be provided,

(b) specify the manner in which, and the period within which, the information is to be provided,

(c) state that the Commissioner considers that the information is information which the Commissioner reasonably requires for the purpose of deciding whether to serve a Part 1 notice of intent or (as the case may be) a Part 1 monetary penalty notice,

(d) state the Commissioner’s grounds for this view, and

(e) provide details of the rights of appeal under paragraph 15 in respect of the information notice.

(4) For the purposes of sub-paragraph (3)(b)—

(a) specifying the manner in which the information is to be provided may include specifying the form in which it is to be provided, and

(b) the specified period within which the information is to be provided must not be less than 28 days beginning with the day after the day on which the information notice is served.

14 (1) The Commissioner may not vary an information notice except as set out in sub-paragraph (2).

(2) The Commissioner may vary an information notice by extending the period within which the information is to be provided if the person on whom the notice is served appeals under paragraph 15 in relation to the notice.

(3) Sub-paragraph (1) does not prevent the Commissioner from serving a new information notice instead of varying such a notice.

(4) The Commissioner may cancel an information notice.

(5) A variation or cancellation of an information notice is effected by serving on the person on whom the notice was served a notice setting out the variation or cancellation.

Appeals in relation to information notices

15 (1) A person on whom an information notice is served may appeal to the First-tier Tribunal against—

(a) the information notice or any provision of it, or

(b) any refusal of a request by the person to serve a notice of variation or cancellation in relation to the information notice.

(2) Subject to paragraph 14(2), an appeal under this paragraph does not affect the need to comply with the information notice while the appeal has not been withdrawn or finally determined.

(3) Sub-paragraphs (4) to (6) apply in relation to an appeal under sub-paragraph (1)(a).

(4) The First-tier Tribunal must allow the appeal or substitute such other information notice as could have been served by the Commissioner if the Tribunal considers—

(a) that the notice to which the appeal relates is not in accordance with the law, or

(b) to the extent that the notice involved an exercise of discretion by the Commissioner, that the Commissioner ought to have exercised the discretion differently.

(5) In any other case, the First-tier Tribunal must dismiss the appeal.

(6) The First-tier Tribunal may review any determination of fact on which the notice was based.

(7) Sub-paragraphs (8) to (10) apply in relation to an appeal under sub-paragraph (1)(b).

(8) The First-tier Tribunal must direct the Commissioner to issue, on such terms as the Tribunal considers appropriate, a notice of variation or cancellation in relation to the information notice if the Tribunal considers that the information notice ought to be varied or cancelled on those terms.

(9) In any other case, the First-tier Tribunal must dismiss the appeal.

(10) The First-tier Tribunal may review any determination of fact on which the refusal to serve the notice of variation or cancellation was based.

Enforcement of information notices

16 (1) The Commissioner may serve a Part 2 monetary penalty notice on a person if the person—

(a) without reasonable excuse fails to comply with an information notice, or

(b) knowingly or recklessly gives any information which is false in a material particular in response to an information notice.

(2) A Part 2 monetary penalty notice is a notice requiring the person on whom it is served to pay to the Commissioner a monetary penalty of an amount determined by the Commissioner and specified in the notice.

(3) The amount of a monetary penalty determined by the Commissioner under this paragraph may be—

(a) a fixed amount,

(b) an amount calculated by reference to a daily rate, or

(c) a fixed amount and an amount calculated by reference to a daily rate.

(4) But the total amount payable must not exceed £10,000.

(5) In the case of an amount calculated by reference to a daily rate—

(a) no account is to be taken of the day on which the Part 2 monetary penalty notice is served or any day before that day, and

(b) the Part 2 monetary penalty notice must specify—

(i) the day on which the amount first starts to accumulate and the circumstances in which it is to cease to accumulate, and

(ii) the period or periods within which the amount, or any part or parts so far accumulated, must be paid to the Commissioner.

Any period falling within paragraph (b)(ii) must not be less than 28 days beginning with the day after the day on which the notice is served.

17 (1) Part 1 of this Schedule applies in relation to a Part 2 monetary penalty notice and the penalty that relates to that notice as it applies in relation to a Part 1 monetary penalty notice and the penalty that relates to that notice.

(2) The provisions in Part 1 of this Schedule so far as relating to enforcement obligations do not apply in relation to a Part 2 monetary penalty notice.

(3) Paragraph 4 has effect in relation to a Part 2 monetary penalty notice as if in sub-paragraph (6)(b) the reference to making representations about matters falling within sub-paragraph (6)(b)(i) or (ii) were a reference to making representations about matters falling within sub-paragraph (6)(b)(ii) only.

(4) Paragraph 6 has effect in relation to a Part 2 monetary penalty notice as if the references in sub-paragraph (1) to an interception were references to conduct falling within paragraph 16(1)(a) or (b).

(5) Paragraph 7(5) has effect in relation to a Part 2 monetary penalty notice as if the references to an interception were references to conduct falling within paragraph 16(1)(a) or (b).

Technical assistance for the Commissioner

18 (1) OFCOM must comply with any reasonable request made by the Commissioner, in connection with the Commissioner’s functions under section 7 and this Schedule, for advice on technical and similar matters relating to electronic communications.

(2) For this purpose, the Commissioner may disclose to OFCOM any information obtained by the Commissioner under this Schedule.

(3) In this paragraph “OFCOM” means the Office of Communications established by section 1 of the Office of Communications Act 2002.

Interpretation of Part 2

19 In this Part of this Schedule—

• “the Commissioner” means the Investigatory Powers Commissioner;

• “enforcement obligation” has the meaning given by paragraph 3(2);

• “information” includes documents; and any reference to providing or giving information includes a reference to producing a document;

• “information notice” has the meaning given by paragraph 13(1);

• “notice” means notice in writing;

• “Part 1 monetary penalty notice” means a monetary penalty notice under section 7;

• “Part 1 notice of intent” means a notice of intent (within the meaning of paragraph 4(3)) relating to a Part 1 monetary penalty notice;

• “Part 2 monetary penalty notice” means a monetary penalty notice under paragraph 16.