The Electromagnetic Compatibility Regulations 2006

PART VI ENFORCEMENT

Enforcement authorities and powers

Enforcement authorities

37.—(1) Except in relation to the descriptions of apparatus referred to in paragraph (3), it shall be the duty of the following authorities to enforce these Regulations—

(a) in Great Britain:

(i) OFCOM insofar as action taken to enforce a regulation relates to the protection and management of the radio spectrum; and

(ii) local weights and measures authorities within their area; and

(b) in Northern Ireland:

(i) OFCOM insofar as action taken to enforce a regulation relates to the protection and management of the radio spectrum; and

(ii) the Department of Enterprise, Trade and Investment.

(2) Except in relation to the descriptions of apparatus mentioned in paragraph (3), the Secretary of State may enforce these Regulations.

(3) These Regulations may be enforced in relation to electricity meters other than those which are wireless telegraphy apparatus—

(i) in Great Britain, by the Gas and Electricity Markets Authority;

(ii) in Northern Ireland, by the Northern Ireland Authority for Energy Regulation; and

(iii) by any person designated to act on behalf of the Gas and Electricity Markets Authority or the Northern Ireland Authority for Energy Regulation.

(4) Nothing in this regulation shall authorise an enforcement authority to bring proceedings in Scotland for an offence.

Test purchases

38.—(1) An enforcement authority may, for the purpose of ascertaining whether any apparatus complies with the requirements of regulation 15 make, or authorise an officer of the authority to make, any purchase of apparatus.

(2) Where—

(a) any apparatus purchased under this regulation by or on behalf of any enforcement authority is submitted to a test; and

(b) the test leads to—

(i) the bringing of proceedings for an offence under regulation 46, 47 or 49 in relation to the apparatus or the forfeiture of apparatus of the same description under regulation 58 or 59; or

(ii) the serving of a suspension notice in respect of any apparatus; and

(c) the authority is requested to do so and it is practicable for the authority to comply with the request,

the authority shall allow the person from whom the apparatus was purchased or any person who is a party to the proceedings or has an interest in any apparatus to which the notice relates to have the apparatus tested.

Powers of search

39.—(1) A duly authorised officer of an enforcement authority may at any reasonable hour and on production, if required, of his credentials exercise any of the powers conferred by the following provisions of this regulation.

(2) The officer may, for the purpose of ascertaining whether there has been a contravention of any of the requirements of these Regulations—

(a) inspect any apparatus or fixed installation and enter any premises other than premises occupied only as a person’s residence; or

(b) examine any procedure (including any arrangements for carrying out a test) connected with the production of any apparatus.

(3) If the officer has reasonable grounds for suspecting that there has been a contravention of any of the requirements of these Regulations, he may initiate an assessment and for the purpose of ascertaining (by testing or otherwise) whether there has been any such contravention, seize and detain any apparatus or equipment or decommission or switch off any fixed installation or part of a fixed installation.

(4) The officer may seize and detain—

(a) any apparatus, any document, record or information which the officer may require production of under regulation 45, or any other thing, which he has reasonable grounds for believing may be required—

(i) as evidence in proceedings for an offence under these Regulations;

(ii) by a competent authority of a member of the Community other than the United Kingdom for the purpose of the exercise of its functions; or

(b) any apparatus which he has reasonable grounds for suspecting may be liable to be forfeited under regulation 58 or 59.

(5) The officer may, for the purpose of the exercise of his powers under paragraphs (3) or (4) above to seize any apparatus, any document or record or any other thing—

(a) require any person having authority to do so to open any container; and

(b) himself open or break open any such container where a requirement made under paragraph (a) above in relation to the container has not been complied with.

Provisions supplemental to regulation 39

40.—(1) An officer seizing any apparatus, records, documents, information or other thing under regulation 39 shall inform the person from whom they are seized that such apparatus, records or other thing have been so seized.

(2) If a justice of the peace—

(a) is satisfied by any written information on oath that there are reasonable grounds for believing either—

(i) that any apparatus, documents, records, information or other thing which any officer has power to inspect under regulation 39 are on any premises (which may be premises occupied only as a person’s residence) and that, if their inspection reveals that the documents, records, information or any other thing relates to apparatus, such inspection is likely to disclose evidence that there has been a contravention of any provision of these Regulations; or

(ii) that such a contravention has taken place, is taking place or is about to take place on any premises; and

(b) is also satisfied by any such information either—

(i) that admission to the premises has been or is likely to be refused and that notice of intention to apply for a warrant under this paragraph has been given to the occupier; or

(ii) that an application for admission, or the giving of such a notice, would defeat the object of the entry or that the premises are unoccupied or that the occupier is temporarily absent and it might defeat the object of the entry to await his return,

the justice may by warrant under his hand, which shall continue in force for one month, authorise any officer of an enforcement authority to enter the premises, if need be by force.

(3) An officer entering any premises by virtue of regulation 39 or a warrant under paragraph (2) of this regulation may take with him such other persons and such equipment as may appear to him necessary.

(4) On leaving any premises which a person is authorised to enter by a warrant under paragraph (2) of this regulation, that person shall, if the premises are unoccupied or the occupier is temporarily absent, leave the premises as effectively secured against trespassers as he found them.

(5) Where any apparatus seized by an officer under regulation 39 is submitted to a test, the officer shall inform the persons mentioned in paragraph (1) of this regulation of the result of the test and, if—

(a) proceedings are brought for an offence in respect of a contravention in relation to apparatus of any provision of these Regulations or for the forfeiture of apparatus under regulation 58 or 59, or a suspension notice is served in respect of apparatus; and

(b) the officer is requested to do so and it is practicable to comply with the request,

the officer shall allow any person who is a party to the proceedings or, as the case may be, has an interest in the apparatus to which the notice relates, to have the apparatus tested.

(6) In the application of this regulation to Scotland, the reference in paragraph (2) to a justice of the peace shall include a reference to a sheriff and the references to written information on oath shall be construed as references to evidence on oath.

(7) In the application of this regulation to Northern Ireland, the references in paragraph (2) to any information on oath shall be construed as references to any complaint on oath.

Appeals against detention of apparatus

41.—(1) Any person having an interest in any apparatus, document, record, information or other thing which is for the time being detained under any provision of this Part by an enforcement authority or by an officer of such an authority, may apply for an order requiring the apparatus or other thing to be released to him or to another person.

(2) An application under this regulation may be made—

(a) to any magistrates’ court in which proceedings have been brought in England and Wales and Northern Ireland—

(i) for an offence under regulation 46, 47 or 49; or

(ii) for the forfeiture of the apparatus under regulation 58;

(b) where no such proceedings have been so brought, by way of complaint to a magistrates’ court; or

(c) in Scotland, by summary application to the sheriff.

(3) On an application under this regulation to a magistrates’ court or to the sheriff, an order requiring apparatus or other thing to be released shall be made only if the court or sheriff is satisfied—

(a) that proceedings—

(i) for an offence under regulation 46, 47 or 49 in respect of the apparatus or other thing; or

(ii) for the forfeiture of the apparatus or other thing under regulation 59,

have not been brought or, having been brought, have been concluded without the apparatus or other thing being forfeited; and

(b) where no such proceedings have been brought, that more than six months have elapsed since the apparatus or other thing was seized.

(4) Any person aggrieved by an order made under this regulation by a magistrates’ court in England and Wales or Northern Ireland, or by a decision of such a court not to make such an order, may appeal against that order or decision—

(a) in England and Wales, to the Crown Court;

(b) in Northern Ireland, to the county court,

and an order so made may contain such provision as appears to the court appropriate for delaying the coming into force of the order pending the making and determination of any appeal (including any application under section 111 of the Magistrates’ Courts Act 1980 (1) or article 146 of the Magistrates’ Courts (Northern Ireland) Order 1981(2) (statement of case)).

Compliance notices

42.—(1) In the relevant circumstances, a notice may be served pursuant to regulation 43, and proceedings may be commenced pursuant to regulation 46, 47, 58 or 59, if the requirements of this regulation are satisfied.

(2) The relevant circumstances are that it is established that the CE marking has been affixed unduly to apparatus.

(3) The requirements of this regulation are that—

(a) A notice in writing has been served upon the responsible person obliging him to make the apparatus conform as regards the provisions concerning the CE marking and its due affixation and to end the infringement under conditions imposed in, or in relation to, the said notice; and

(b) the non-conformity continues after the period specified in, or in relation to, the said notice during which the infringement must be ended has expired.

(4) A notice served pursuant to paragraph (3)(a) shall include—

(a) a description of the apparatus in respect of which the notice is served in a manner sufficient to identify it;

(b) a statement that the CE marking affixed to either the apparatus or the apparatus’ packaging, instructions for use or guarantee certificate is unduly affixed, or that the CE marking is unduly affixed to some other item accompanying the apparatus;

(c) a statement of the grounds upon which it is established that the CE marking has been or is being unduly affixed in relation to the apparatus; and

(d) an indication as to which of the following procedures may be commenced if the requirements of this regulation are satisfied—

(i) a notice pursuant to regulation 43; or

(ii) proceedings pursuant to regulation 46, 47, 58 or 59,

and may include such other information as may be considered expedient to enable the person to whom the notice is addressed to decide what action should be taken to end the particular infringement.

(5) This regulation does not apply where it is found that apparatus bearing the CE mark or CE marking does not comply with the essential requirements.

Suspension notices

43.—(1) Subject to paragraph (6), where an enforcement authority has reasonable grounds for suspecting that regulation 15, 16, 34 or 35 has been, is being or is likely to be contravened, the authority may serve a notice (“ a suspension notice”) in relation to apparatus or fixed installation or part of a fixed installation on the user or responsible person, prohibiting such person, for a period ending not more than six months after the date of the notice as is specified therein, from manufacturing, placing on the market, taking into service or using the apparatus or fixed installation without the consent of that authority.

(2) A suspension notice served by an enforcement authority in respect of any apparatus shall—

(a) describe the apparatus or fixed installation or part of the fixed installation to which it relates in a manner sufficient to identify it;

(b) set out the grounds on which the authority suspects that regulation 15, 16, 34 or 35 has been, is being or is likely to be contravened, as the case may be; and

(c) state that, and the manner in which, the person on whom the notice is served may appeal against the notice under regulation 44.

(3) A consent given by an enforcement authority for the purposes of a suspension notice may impose such conditions on the doing of anything for which the consent is required as that authority considers appropriate.

(4) A suspension notice may require the person on whom it is served to keep the enforcement authority which served the notice informed of the whereabouts throughout the period during which the notice has effect of any of the apparatus in which that person has an interest.

(5) Where a suspension notice has been served on any person in respect of any apparatus or fixed installation or part of a fixed installation, no further such notice shall be served on that person in respect of the same apparatus, fixed installation or part of the fixed installation unless—

(a) proceedings against that person for an offence under regulation 46, 47 or 49 ; or

(b) proceedings for the forfeiture of the apparatus under regulation 58 or 59,

are pending at the end of the period specified in the first-mentioned notice.

(6) An enforcement authority shall, where action has been taken by it under this regulation, immediately inform the Secretary of State of the action taken, and the reasons for it.

Appeals against suspension notices

44.—(1) Any person having an interest in any apparatus, fixed installation or part of a fixed installation in respect of which a suspension notice is for the time being in force, may apply for an order setting aside the notice.

(2) An application under this regulation may be made—

(a) in England and Wales or Northern Ireland—

(i) to any magistrates’ court in which proceedings have been brought—

(aa) for an offence under regulation 46, 47 or 49; or

(bb) for the forfeiture of the apparatus under regulation 58; or

(ii) where no such proceedings have been so brought, by way of complaint to a magistrates’ court; or

(b) in Scotland, by summary application to the sheriff.

(3) On an application under this regulation to a magistrates’ court in England and Wales or Northern Ireland the court shall make an order setting aside the suspension notice only if the court is satisfied that there has been no contravention in relation to the apparatus or fixed installation, or part of the fixed installation, or any item of apparatus or system included in the fixed installation, of regulation 15, 16, 34 or 35 respectively.

(4) On an application under this regulation to the sheriff he shall make an order setting aside the suspension notice only if he is satisfied that at the date of making the order—

(a) proceedings for an offence under regulation 46, 47 or 49; or

(b) proceedings for the forfeiture of the apparatus under regulation 59,

have not been brought or, having been brought, have been concluded.

(5) Any person aggrieved by an order made under this regulation by a magistrates’ court in England and Wales or Northern Ireland, or by a decision of such a court not to make such an order, may appeal against that order or decision—

(a) in England and Wales, to the Crown Court;

(b) in Northern Ireland, to the county court,

and an order so made may contain such provision as appears to the court appropriate for delaying the coming into force of the order pending the making and determination of any appeal (including any application under section 111 of the Magistrates’ Courts Act 1980 or article 146 of the Magistrates’ Courts (Northern Ireland) Order 1981 (statement of case))

Power to require production of documents and information

45.  An officer of an enforcement authority may, for the purposes of exercising his functions under this Part, require—

(a) any person who is required by regulation 23 to retain an EC declaration of conformity, or technical documentation or evidence of compliance with the essential requirements during the period in which that person is required to retain that document, to produce such documentation;

(b) any person who is required by regulation 36 to retain documentation demonstrating the compliance with the essential requirements during the period in which that person is required to retain such documentation, to produce it;

(c) any person who is in possession of an EC declaration of conformity or technical documentation, or evidence of compliance with the essential requirements or of a copy of such document, at any time to produce it;

(d) a responsible person to produce such documents or records relating to such apparatus or fixed installation as are in his possession or under his control; or

(e) a responsible person to give him such information as he may reasonably require

and such officer may inspect any thing which he may require to be produced under this regulation, and take a copy of such document or of any part of such document.

Offences

Placing on the market or putting into service of equipment in contravention of regulation 15, 16, 34 or 35

46.  Any person who places on the market or puts into service equipment in contravention of regulation 15, 16, 34 or 35 shall be guilty of an offence.

Contravention of suspension notice

47.  Any person who contravenes a suspension notice shall be guilty of an offence.

False or misleading information

48.  A person shall be guilty of an offence if, in giving any information which he is required to give under regulation 45(d) or (e), he—

(a) makes any statement which he knows is false or misleading in a material particular; or

(b) recklessly makes any statement which is false or misleading in a material particular.

Misuse of the CE marking

49.—(1) Any person who, in relation to apparatus, affixes the CE marking or any other marking in contravention of regulation 21(2), (5), (6) or (7), shall be guilty of an offence.

(2) Any person who issues an EC declaration of conformity in relation to apparatus in contravention of regulation 22 shall be guilty of an offence.

Obstruction of officers of enforcement authorities

50.—(1) Any person who—

(a) intentionally obstructs any officer of an enforcement authority who is acting in pursuance of any provision of this Part;

(b) intentionally fails or refuses to comply with any requirement made of him by any officer of an enforcement authority under any provision of this Part;

(c) without reasonable cause fails or refuses to give any officer of an enforcement authority who is so acting any other assistance which the officer may reasonably require of him for the purposes of the exercise of the officer’s functions under any provision of this Part; or

(d) fails to comply with a court order under regulation 57,

shall be guilty of an offence.

(2) Any person who falsely pretends to be an officer of an enforcement authority shall be guilty of an offence.

Failure to retain documentation

51.  Any person who contravenes regulation 23 or 36 shall be guilty of an offence.

Defence of due diligence

52.—(1) Subject to the following provisions of this regulation, in proceedings against any person for an offence under regulation 46 or 49 of these Regulations it shall be a defence for that person to show that he took all reasonable steps and exercised all due diligence to avoid committing the offence.

(2) Where in any proceedings against any person for such an offence the defence provided by paragraph (1) above involves an allegation that the commission of the offence was due—

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

(b) to reliance on information given by another,

that person shall not, without the leave of the court, be entitled to rely on the defence unless, not less than seven clear days before the hearing of the proceedings (or, in Scotland the trial diet), he has served a notice under paragraph (3) on the person bringing the proceedings.

(3) A notice under this paragraph shall give such information identifying or assisting in the identification of the person who committed the act or default or gave the information as is in the possession of the person serving the notice at the time he serves it.

(4) A person shall not be entitled to rely on the defence provided by paragraph (1) by reason of his reliance on information supplied by another, unless he shows that it was reasonable in all the circumstances for him to have relied on the information, having regard in particular to—

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

(b) whether he had any reason to disbelieve the information.

Liability of persons other than the principal offender

53.—(1) Where the commission by any person of an offence under any of regulation 46 to 51 is due to the act or default committed by some other person in the course of any business of his, the other person shall be guilty of the offence and may be proceeded against and punished whether or not proceedings are taken against the first person.

(2) Where a body corporate is guilty of an offence under these Regulations and it is proved that the offence was committed—

(a) with the consent or connivance of an officer of the body corporate; or

(b) as a result of the negligence of an officer of the body corporate,

the officer, as well as the body corporate, shall be guilty of that offence.

(3) In paragraph (2), a reference to an officer of a body corporate includes a reference to

(a) a director, manager, secretary or other similar officer of the body corporate;

(b) a person purporting to act as a director, manager, secretary or other similar officer; and

(c) if the affairs of the body corporate are arranged by its members, a member.

(4) In this regulation, references to a “body corporate” include references to a partnership in Scotland and, in relation to such partnership, any reference to a director, manager, secretary or other similar officer of a body corporate is a reference to a partner.

Extension of time for bringing summary proceedings

54.  Notwithstanding section 127 of the Magistrates’ Courts Act 1980 and section 136 of the Criminal Procedure (Scotland) Act 1995(3), proceedings for an offence under regulations 46 to 51 may be commenced at any time within three years from the date of the offence, or one year from the date on which there comes to the knowledge of the prosecutor evidence sufficient to justify a prosecution for that offence, whichever is the earlier; and for the purposes of this regulation—

(a) a certificate of the prosecutor stating that such evidence came to his knowledge on a specified date shall be conclusive evidence of that fact; and

(b) a document purporting to be such a certificate and to be signed by or on behalf of the prosecutor in question shall be presumed to be such a certificate unless the contrary is proved.

Inference of condition of equipment at time of placing on the market or putting into service

55.  In any proceedings in which it is in issue whether any equipment complied with the essential requirements or the requirements of regulation 15, 16, 34 or 35 at the time when it was placed on the market or put into service as the case may be, a court may infer that such equipment did not so comply at that time if—

(a) it is proved that it does not so comply or did not so comply at a time subsequent to its having been placed on the market or put into service; and

(b) having regard to all the circumstances of the case, it appears to the court that the failure of the equipment to comply at the time referred to in paragraph (a) above is not attributable to any cause arising subsequent to its having been supplied or put into service.

Powers of the court

Penalties

56.—(1) A person guilty of an offence under regulation 47, 48, or 50(2) shall be liable on summary conviction—

(i) to imprisonment for a term not exceeding three months; or

(ii) to a fine not exceeding level 5 on the standard scale,

• or to both.

(2) A person guilty of an offence under regulation 46, 49, 50(1) or 51 shall be liable on summary conviction to a fine not exceeding level 5 on the standard scale.

Power of the court to require matter to be remedied

57.—(1) Where a person is convicted of an offence under regulation 46 or 49 in respect of any matters which appear to the court to be matters which it is in his power to remedy, the court may, in addition to or instead of imposing any punishment, order him, within such time as may be fixed by the order, to take such steps as may be specified in the order for remedying the said matters.

(2) The time fixed by an order under paragraph (1) may be extended or further extended by order of the court on an application made before the end of that time as originally fixed or as extended under this paragraph, as the case may be.

(3) Where a person is ordered under paragraph (1) to remedy any matters, that person shall not be guilty of an offence under regulation 46 or 49 respectively in respect of those matters in so far as they continue during the time fixed by the order or any further time allowed under paragraph (2).

Forfeiture: England and Wales and Northern Ireland

58.—(1) An enforcement authority in England and Wales or Northern Ireland may apply under this regulation for an order for the forfeiture of any apparatus—

(a) on the grounds that there has been a contravention in relation to such apparatus of regulation 15 or 16; or

(b) on the grounds that the CE marking, or any other marking liable to be confused with it, is affixed in relation to it in contravention of regulation 21(6).

(2) An application under this regulation may be made—

(a) where proceedings have been brought in a magistrates’ court in respect of an offence in relation to some or all of the apparatus under regulation 46, 47 or 49, to that court;

(b) where an application with respect to some or all of the apparatus has been made to a magistrates’ court under regulation 41 or 44, to that court; and

(c) where no application for the forfeiture of the apparatus has been made by way of complaint to a magistrates’ court.

(3) On an application under this regulation the court shall make an order for the forfeiture of the apparatus only if it is satisfied that there has been a contravention in relation to such apparatus of regulation 15, 16 or 21(6).

(4) A court may infer for the purposes of this regulation that there has been a contravention in relation to any apparatus of regulation 15, 16 or 21(6) if it is satisfied that that provision has been contravened in relation to apparatus which is representative of that apparatus (whether by reason of being of the same design or part of the same consignment or batch or otherwise).

(5) Any person aggrieved by an order made under this regulation by a magistrates’ court, or by a decision of such court not to make such an order, may appeal against that order or decision—

(a) in England and Wales, to the Crown Court;

(b) in Northern Ireland, to the county court,

and an order so made may contain such provision as appears to the court to be appropriate for delaying the coming into force of an order pending the making and determination of any appeal (including any application under section 111 of the Magistrates’ Courts Act 1980 or article 146 of the Magistrates’ Courts (Northern Ireland) Order 1981 (statement of case)).

(6) Subject to paragraph (7), where any apparatus is forfeited under this regulation it shall be destroyed in accordance with such directions as the court may give.

(7) On making an order under this regulation a magistrates’ court may, if it considers it appropriate to do so, direct that the apparatus to which the order relates shall (instead of being destroyed) be released, to such person as the court may specify, on condition that that person—

(a) does not supply the equipment to any person otherwise than—

(i) to a person who carries on a business of buying apparatus of the same description as the first mentioned apparatus and repairing or reconditioning it; or

(ii) as scrap (that is to say, for the value of materials included in the apparatus rather than for the value of the apparatus itself); and

(b) complies with any order to pay costs or expenses (including any order under regulation 60) which has been made against that person in the proceedings for the order for forfeiture.

Forfeiture: Scotland

59.—(1) In Scotland an order for forfeiture of any—

(a) apparatus in relation to which there has been a contravention of regulation 15 or 16; or

(b) apparatus, on the grounds that the CE marking, or marking liable to be confused with it, is affixed in relation to it in contravention of regulation 21(6),

may be made by the sheriff—

(i) on an application by the procurator-fiscal made in the manner specified in section 134 of the Criminal Procedure (Scotland) Act 1995; or

(ii) where a person is convicted of any offence in respect of any such contravention, in addition to any other penalty which the sheriff may impose.

(2) The procurator-fiscal making an application under paragraph (1)(i) shall serve on any person appearing to him to be the owner of, or otherwise to have an interest in, the apparatus to which the application relates a copy of the application, together with a notice giving him the opportunity to appear at the hearing of the application to show cause why the apparatus should not be forfeited.

(3) Service under paragraph (2) shall be carried out, and such service may be proved, in the manner specified for citation of an accused in summary proceedings under the Criminal Procedure (Scotland) Act 1995.

(4) Any person upon whom a notice is served under paragraph (2) and any other person claiming to be the owner of, or otherwise to have an interest in, the apparatus to which an application under this regulation relates shall be entitled to appear at the hearing of the application to show cause why the apparatus should not be forfeited.

(5) The sheriff shall not make an order following an application under paragraph (1)(i)—

(a) if any person on whom notice is served under paragraph (2) does not appear, unless service of the notice on that person is proved; or

(b) if no notice under paragraph (2) has been served, unless the court is satisfied that in the circumstances it was reasonable not to serve notice on any person.

(6) The sheriff shall make an order under this regulation only if he is satisfied that there has been a contravention in relation to the apparatus of regulation 15, 16 or 21(6).

(7) The sheriff may infer for the purposes of this regulation that there has been a contravention in relation to any apparatus of regulation 15, 16 or 21(6) if he is satisfied that that provision has been contravened in relation to apparatus which is representative of that apparatus (whether by reason of being of the same design or part of the same consignment or batch or otherwise).

(8) Where an order for the forfeiture of any apparatus is made following an application by the procurator-fiscal under paragraph (1)(i), any person who appeared, or was entitled to appear, to show cause why it should not be forfeited may, within twenty-one days of the making of the order, appeal to the High Court by Bill of Suspension on the ground of an alleged miscarriage of justice; and section 182(5)(a) to (e) of the Criminal Procedure (Scotland) Act 1995 shall apply to an appeal under this paragraph as it applies to a stated case under Part X of that Act.

(9) An order following an application under paragraph (1)(i) above shall not take effect—

(a) until the end of the period of twenty-one days beginning with the day after the day on which the order is made; or

(b) if an appeal is made under paragraph (8) above within that period, until the appeal is determined or abandoned.

(10) An order under paragraph (1)(ii) shall not take effect—

(a) until the end of the period within which an appeal against the order could be brought under the Criminal Procedure (Scotland) Act 1995; or

(b) if an appeal is made within that period, until the appeal is determined or abandoned.

(11) Subject to paragraph (12), apparatus forfeited under this regulation shall be destroyed in accordance with such directions as the sheriff may give.

(12) If he thinks fit, the sheriff may direct the apparatus to be (instead of being destroyed) released to such person as he may specify, on condition that that person does not supply it to any person otherwise than—

(a) to a person who carries on a business of buying apparatus of the same description as the first-mentioned apparatus and repairing or reconditioning it; or

(b) as scrap (that is to say, for the value of materials included in the apparatus rather than for the value of the apparatus itself).

Recovery of expenses of enforcement

60.—(1) This regulation applies where a court—

(a) convicts a person of an offence under regulation 46, 47 or 49; or

(b) makes an order under regulation 58 or 59 for the forfeiture of any apparatus.

(2) The court may (in addition to any other order it may make as to costs or expenses) order the person convicted or, as the case may be, any person having an interest in the apparatus the subject of the order for forfeiture, to reimburse an enforcement authority for any expenditure which has been or may be incurred by that authority—

(a) in investigating the offence, and, without prejudice to the generality of the foregoing, in having the apparatus tested;

(b) in connection with any seizure or detention of the apparatus by or on behalf of the authority; or

(c) in connection with any compliance by that authority with directions given by the court for the purposes of any order for the forfeiture of the apparatus.

(1)

1980 c.43.

(2)

S.I. 1981/1675 (N.I.26).

(3)

1995 c.46.