The Consumer Protection from Unfair Trading Regulations 2008

PART 4 ENFORCEMENT

Duty to enforce

19.—(1) It shall be the duty of every enforcement authority to enforce these Regulations.

(2) Where the enforcement authority is a local weights and measures authority the duty referred to in paragraph (1) shall apply to the enforcement of these Regulations within the authority’s area.

(3) Where the enforcement authority is the Department of Enterprise, Trade and Investment in Northern Ireland the duty referred to in paragraph (1) shall apply to the enforcement of these Regulations within Northern Ireland.

(4) In determining how to comply with its duty of enforcement every enforcement authority shall have regard to the desirability of encouraging control of unfair commercial practices by such established means as it considers appropriate having regard to all the circumstances of the particular case.

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

Power to make test purchases

20.  An enforcement authority may or may authorise any of its officers on its behalf to—

(a) make a purchase of a product, or

(b) enter into an agreement to secure the provision of a product,

for the purposes of determining whether these Regulations are being complied with.

Power of entry and investigation, etc.

21.—(1) A duly authorised officer of an enforcement authority may at all reasonable hours exercise the following powers—

(a) he may, for the purposes of ascertaining whether a breach of these Regulations has been committed, inspect any goods and enter any premises other than premises used only as a dwelling;

(b) if he has reasonable cause to suspect that a breach of these Regulations has been committed, he may, for the purpose of ascertaining whether it has been committed, require any trader to produce any documents relating to his business and may take copies of, or of any entry in, any such document;

(c) if he has reasonable cause to believe that a breach of these Regulations has been committed, he may seize and detain any goods for the purpose of ascertaining, by testing or otherwise, whether the breach has been committed; and

(d) he may seize and detain goods or documents which he has reason to believe may be required as evidence in proceedings for a breach of these Regulations.

(2) If and to the extent that it is reasonably necessary to secure that the provisions of these Regulations are observed, the officer may for the purpose of exercising his powers under paragraphs (1)(c) and (d) to seize goods or documents—

(a) require any person having authority to do so to break open any container or open any vending machine; and

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

(3) An officer seizing any goods or documents in exercise of his powers under this regulation shall—

(a) inform the person from whom they are seized, and,

(b) where goods are seized from a vending machine, inform—

(i) the person whose name and address are stated on the machine as being the proprietor’s; or

(ii) if there is no such name or address stated on the machine the occupier of the premises on which the machine stands or to which it is affixed,

that the goods or documents have been so seized.

(4) In this regulation “document” includes information recorded in any form.

(5) The reference in paragraph (1)(b) to the production of documents is, in the case of a document which contains information recorded otherwise than in legible form, a reference to the production of a copy of the information in legible form.

(6) An officer seeking to exercise a power under this regulation must produce evidence of his identity and authority to a person (if there is one) who appears to the officer to be the occupier of the premises.

(7) Where an officer seizes goods or documents in exercise of a power under this regulation they may not be detained—

(a) for a period of more than 3 months; or

(b) where the goods or documents are reasonably required by the enforcement authority in connection with the enforcement of these Regulations, for longer than they are so required.

(8) An officer entering any premises under this regulation may take with him such other persons and such equipment as may appear to him to be necessary.

(9) Nothing in this regulation or in regulation 22 gives any power to an officer of an enforcement authority—

(a) to require any person to produce, or

(b) to seize from another person,

any document which the other person would be entitled to refuse to produce in proceedings in the High Court on the grounds of legal professional privilege or (in Scotland) in proceedings in the Court of Session on the grounds of confidentiality of communications.

(10) In paragraph (9) “communications” means—

(a) communications between a professional legal adviser and his client; or

(b) communications made in connection with or in contemplation of legal proceedings and for the purposes of those proceedings.

(11) If any person who is not an officer of an enforcement authority purports to act as such under this regulation or under regulation 22 he shall be guilty of an offence and liable on summary conviction to a fine not exceeding level 5 on the standard scale.

Power to enter premises with a warrant

22.—(1) If a justice of the peace by any written information on oath is satisfied—

(a) that there are reasonable grounds for believing that Condition A or B is met, and

(b) that Condition C, D or E is met,

the justice may by warrant under his hand authorise an officer of an enforcement authority to enter the premises at all reasonable times, if necessary by force.

(2) Condition A is that there are on any premises goods or documents which a duly authorised officer of the enforcement authority has power under regulation 21(1) to inspect and that their inspection is likely to disclose evidence of a breach of these Regulations.

(3) Condition B is that a breach of these Regulations has been, is being or is about to be committed on any premises.

(4) Condition C is that the admission to the premises has been or is likely to be refused and that notice of intention to apply for a warrant under this regulation has been given to the occupier.

(5) Condition D is that an application for admission, or the giving of a notice of intention to apply for a warrant, would defeat the object of the entry.

(6) Condition E is that the premises are unoccupied or that the occupier is absent and it might defeat the object of the entry to await his return.

(7) A warrant under paragraph (1)—

(a) ceases to have effect at the end of the period of one month beginning with the day it is issued;

(b) must be produced for inspection to the person (if there is one) who appears to the officer to be the occupier of the premises.

(8) An officer entering any premises under this regulation may take with him such other persons and such equipment as may appear to him to be necessary.

(9) On leaving any premises which an officer is authorised to enter by warrant under this regulation the officer shall, if the premises are unoccupied or the occupier is temporarily absent, leave the premises as effectively secured against trespassers as he found them.

(10) In its application to Scotland, this regulation has effect as if—

(a) the references in paragraph (1) to a justice of the peace included references to a sheriff; and

(b) the reference in paragraph (1) to information on oath were a reference to evidence on oath.

(11) In its application to Northern Ireland, this regulation has effect as if the references in paragraph (1) to a justice of the peace were references to a lay magistrate.

Obstruction of authorised officers

23.—(1) Any person who—

(a) intentionally obstructs an officer of an enforcement authority acting in pursuance of these Regulations,

(b) intentionally fails to comply with any requirement properly made of him by such an officer under regulation 21, or

(c) without reasonable cause fails to give such an officer any other assistance or information which he may reasonably require of him for the purpose of the performance of his functions under these Regulations,

is guilty of an offence and liable, on summary conviction, to a fine not exceeding level 5 on the standard scale.

(2) Any person who, in giving any information which is required of him under paragraph (1)(c), makes any statement which he knows to be false in a material particular is guilty of an offence and liable—

(a) on summary conviction, to a fine not exceeding the statutory maximum; or

(b) on conviction on indictment, to a fine or imprisonment for a term not exceeding two years or both.

(3) Nothing in this regulation shall be construed as requiring a person to answer any question or give any information if to do so might incriminate him.

Notice of test and intended proceedings

24.—(1) Where goods purchased by an officer pursuant to regulation 20 are submitted to a test and the test leads to the institution of any proceedings for a breach of these Regulations the officer shall inform—

(a) the person from whom the goods were purchased, or

(b) where the goods were sold through a vending machine, the person mentioned in regulation 21(3)(b),

of the result of the test.

(2) Where goods seized by an officer pursuant to regulation 21 are submitted to a test then the officer shall inform the person mentioned in regulation 21(3) of the result of the test.

(3) Where, as a result of the test, any proceedings in respect of a breach of these Regulations are taken against any person, the officer shall allow him to have the goods tested on his behalf if it is reasonably practicable to do so.

Compensation

25.—(1) Where an officer of an enforcement authority seizes and detains goods in exercise of the powers under regulation 21 the enforcement authority shall be liable to pay compensation to any person having an interest in the goods in respect of any loss or damage caused by reason of the exercise of the power if—

(a) there has been no breach of these Regulations in relation to the goods, and

(b) the exercise of that power is not attributable to any neglect or default by that person.

(2) Any disputed question as to the right to or the amount of any compensation payable under this provision shall be determined by arbitration or, in Scotland, by a single arbiter appointed, failing agreement between the parties, by the sheriff.

Application of Part 8 of Enterprise Act 2002

26.  In Schedule 13 to the Enterprise Act 2002(1)(listed Directives and Regulations), after paragraph 9B insert—

“9C   Directive 2005/29/EC of the European Parliament and of the Council of 11 May 2005 concerning unfair business-to-consumer commercial practices in the internal market.”.

Evidence as to factual claims

27.  After section 218 of the Enterprise Act 2002 insert—

“218A    Unfair commercial practices: substantiation of claims

(1) This section applies where an application for an enforcement order or for an interim enforcement order is made in respect of a Community infringement involving a contravention of Directive 2005/29/EC of the European Parliament and of the Council of 11 May 2005 concerning unfair business-to-consumer commercial practices in the internal market.

(2) For the purposes of considering the application the court may require the person named in the application to provide evidence as to the accuracy of any factual claim made as part of a commercial practice of that person if, taking into account the legitimate interests of that person and any other party to the proceedings, it appears appropriate in the circumstances.

(3) If, having been required under subsection (2) to provide evidence as to the accuracy of a factual claim, a person—

(a) fails to provide such evidence, or

(b) provides evidence as to the accuracy of the factual claim that the court considers inadequate,

the court may consider that the factual claim is inaccurate.

(4) In this section “commercial practice” has the meaning given by regulation 2 of the Consumer Protection from Unfair Trading Regulations 2008.”.

(1)

2002 c.40; paragraph 9B of Schedule 13 was inserted by S.I. 2006/3363.