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The Sea Fish (Marketing Standards) (England and Wales and Northern Ireland) Regulations 2018

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Citation, commencement and extent

1.—(1) These Regulations may be cited as the Sea Fish (Marketing Standards) (England and Wales and Northern Ireland) Regulations 2018.

(2) These Regulations come into force on 30th April 2018.

(3) These Regulations extend to England and Wales and Northern Ireland.

Interpretation

2.  In these Regulations—

“authorised officer” has the meaning given in regulation 4(1);

“compliance notice” has the meaning given in regulation 8(1);

“enforcement authority” means—

(a)

in England—

(i)

the Secretary of State;

(ii)

the Marine Management Organisation(1);

(iii)

for each county, district or London borough, the council of that county, district or borough;

(iv)

for the City of London (including the Temples), the Common Council; and

(v)

for the Isles of Scilly, the Council of the Isles of Scilly;

(b)

in Wales—

(i)

the Welsh Ministers; and

(ii)

for each county or county borough, the council of that county or county borough; and

(c)

in Northern Ireland—

(i)

the Department of Agriculture, Environment and Rural Affairs; and

(ii)

for each district, the council of that district;

“premises” means any land, building, container, vehicle or vessel of any description;

“Regulation 2406/96” means Council Regulation (EC) No. 2406/96 laying down common marketing standards for certain fishery products(2), as last amended by Commission Regulation (EC) No. 790/2005(3);

“Regulation 1379/2013” means Regulation (EU) No. 1379/2013 of the European Parliament and of the Council on the common organisation of the markets in fishery and aquaculture products(4), as last amended by Regulation (EU) 2015/812 of the European Parliament and of the Council(5);

“relevant provision” means one of the provisions specified in regulation 3.

Application

3.  These Regulations apply for the purposes of enforcing—

(a)Article 2(1) of Regulation 2406/96 (fishery products may be marketed only if they meet the requirements of the Regulation), read subject to Article 2(2) of that Regulation;

(b)Article 34(1) of Regulation 1379/2013 (products intended for human consumption may be made available on the market only in accordance with common marketing standards laid down for those products).

Authorised officers

4.—(1) The enforcement authority may in writing appoint an officer (an “authorised officer”) to act for the purposes of these Regulations.

(2) The enforcement authority may provide for an appointment made under paragraph (1) to have effect for limited purposes.

Power to enter premises

5.—(1) Where an authorised officer has reasonable suspicion of a contravention of a relevant provision in, or in connection with, any premises, the officer may, at a reasonable hour, enter those premises for the purpose of enforcing that provision.

(2) But an authorised officer must not enter any premises under paragraph (1) unless notice of the officer’s intention to do so has been served on the occupier a reasonable period in advance.

(3) The requirement to serve notice does not apply—

(a)where the requirement has been waived;

(b)where reasonable efforts to agree an appointment have failed;

(c)where an inspector reasonably believes that serving notice would defeat the object of the entry; or

(d)in an emergency where entry is required urgently.

(4) Paragraph (1) does not apply in relation to any premises which are used wholly or mainly as a private dwelling house unless a right of entry is conferred by a warrant granted under regulation 6.

(5) An authorised officer must, if requested to do so, produce a duly authenticated document showing the authority of that officer.

(6) An authorised officer who enters any premises which are unoccupied, or from which the occupier is temporarily absent, or who enters any premises by force, must leave them as effectively secured against unauthorised entry as they were before entry.

(7) An authorised officer may—

(a)be accompanied by such other persons as the authorised officer considers necessary; and

(b)bring onto the premises such equipment as the authorised officer considers necessary.

(8) A person who is brought by an authorised officer to provide assistance may exercise any powers conferred on the officer by these Regulations, but only under the supervision or direction of the officer.

Warrants

6.—(1) A justice of the peace may, by signed warrant, permit an authorised officer to enter premises if the justice, on sworn information in writing or, in Northern Ireland, on a sworn complaint in writing, is satisfied—

(a)that there are reasonable grounds to enter those premises for the purpose of enforcing a relevant provision; and

(b)that any of the conditions in paragraph (2) are met.

(2) The conditions are—

(a)entry to the premises has been, or is likely to be refused, and notice of the intention to apply for a warrant has been served on the occupier a reasonable period in advance of the application;

(b)asking for admission to the premises, or serving such notice, would defeat the object of the entry;

(c)entry is required urgently; or

(d)the premises are unoccupied or the occupier is temporarily absent.

(3) A warrant may permit an authorised officer to enter by reasonable force if necessary, except in the case of any premises used wholly or mainly as a private dwelling house.

(4) A warrant is valid for three months.

(5) In this regulation, “justice of the peace” in Northern Ireland means a lay magistrate.

Power to inspect and seize etc.

7.—(1) An authorised officer who has entered premises for the purposes of enforcing a relevant provision may for that purpose—

(a)inspect and search the premises;

(b)carry out such investigations or tests as may reasonably be necessary;

(c)examine any fish, containers for fish and labels found on the premises;

(d)seize and detain any fish in respect of which the officer has reasonable grounds to suspect that there has been a contravention of the relevant provision;

(e)seize and detain any containers for fish and labels which the officer has reasonable grounds to suspect are relevant to the commission of an offence under these Regulations;

(f)take samples from any fish (and send them for laboratory testing);

(g)require any person not to remove or cause to be removed any fish from the premises for such period as may be necessary for the purpose of examination of it by the authorised officer;

(h)require any person at the premises to produce any documents which are in the possession or custody of that person relating to the catching, landing, grading or marketing of any fish on the premises;

(i)inspect and take copies of any documents;

(j)have access to, inspect and check the data on any computer and any associated equipment;

(k)require a person to render a document or record held on a computer into a visible or legible form;

(l)take copies of any data held on any computer or associated equipment; and

(m)require any person to provide any such assistance, information, facilities or equipment as is reasonable.

(2) An authorised officer must—

(a)as soon as reasonably practicable, provide to the person appearing to be responsible for any item that the authorised officer seizes under paragraph (1) a written receipt for that item; and

(b)as soon as is reasonably practicable after deciding that the item is no longer required, return it to that person, apart from—

(i)any item to be used as evidence in court proceedings; and

(ii)any fish.

(3) Where an authorised officer has seized items under paragraph (1) for use in evidence in court proceedings and—

(a)it is subsequently decided—

(i)that no court proceedings are to be brought, or

(ii)that those items are no longer needed as evidence in court proceedings, or

(b)the court proceedings are completed and no order in relation to those items has been made by the court,

an authorised officer must return the items to the person appearing to be responsible for them as soon as is reasonably practicable.

(4) In this regulation, “fish” means any fishery or aquaculture product that an authorised officer reasonably believes is a product listed in Article 3 of Regulation 2406/96 or Annex 1 of Regulation 1379/2013.

Compliance notices

8.—(1) An authorised officer who has reasonable grounds for believing that a person has contravened, or is likely to contravene, a relevant provision may serve a notice (a “compliance notice”) on that person.

(2) The authorised officer must in the compliance notice—

(a)state the reason for the service of the notice;

(b)state the date of service of the notice;

(c)identify the recipient of the notice;

(d)specify the steps which the recipient of the notice must take, being such steps as the authorised officer believes are necessary to ensure compliance with the relevant provision;

(e)state the reason that those steps must be taken;

(f)specify by when each of the steps must be taken;

(g)state that failure to comply with the notice is an offence; and

(h)give details of the right of appeal against the notice, including an explanation of how such an appeal can be made and the period within which such an appeal may be brought.

(3) An authorised officer may serve a notice on a person withdrawing, varying or suspending a compliance notice served under paragraph (1).

(4) A person on whom a compliance notice is served must comply with it at that person’s own expense.

(5) If a compliance notice is not complied with, an authorised officer may arrange for it to be complied with at the expense of the person on whom it was served.

(6) An authorised officer must serve a completion notice on a person if, after service of a compliance notice on that person, the authorised officer is satisfied that that person has taken the steps specified in the notice to remedy the contravention.

(7) In the event of an authorised officer not being satisfied as mentioned in paragraph (6) by the end of the period specified in paragraph (2)(f), or such other period as may be specified in any variation of the compliance notice under paragraph (3), the authorised officer may not serve a completion notice, and must serve a notice, which must—

(a)give reasons for the decision not to serve a completion notice; and

(b)give details about the right of appeal against the decision.

(8) A compliance notice ceases to have effect when a completion notice is served.

Further provision about notices

9.—(1) A notice required or authorised to be served under these Regulations on any person must be in writing and may be served on a person by—

(a)personal delivery;

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

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

(2) In the case of a body corporate, a notice may be served on an officer of that body.

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

(4) In the case of an unincorporated association, a notice may be served on an officer of the association or a member of its governing body.

(5) For the purposes of this regulation and section 7 of the Interpretation Act 1978(6) (references to service by post) in its application to this regulation, “proper address” means—

(a)in the case of a body corporate or an officer of that body—

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

(ii)the email address of the officer;

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

(i)the address of the registered or principal office of the partnership; or

(ii)the email address of the partner or person who has control or management of the partnership business;

(c)in the case of an unincorporated association or an officer of the association or member of its governing body—

(i)the address of the principal office of the association; or

(ii)the email address of the officer or member;

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

(6) For the purposes of paragraph (5), the principal office of a body corporate registered outside the United Kingdom or of a partnership or unincorporated association carrying on a business outside the United Kingdom is its principal office in the United Kingdom.

(7) If a person to be served with a notice 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 notices, that address must instead be treated as that person’s proper address.

Appeals: England and Wales

10.—(1) This regulation applies in relation to England and Wales only.

(2) A person on whom a compliance notice has been served may appeal against—

(a)the decision of an authorised officer to serve that compliance notice; or

(b)a decision of an authorised officer not to serve a completion notice in relation to that compliance notice.

(3) The right of appeal is to the First-tier Tribunal.

(4) A compliance notice is not suspended pending the determination or withdrawal of an appeal unless the First-tier Tribunal directs otherwise.

(5) On appeal under this regulation, the First-tier Tribunal may—

(a)either cancel or confirm the compliance notice, and, if it confirms the notice, it may do so either in its original form or with such modifications as it thinks fit; or

(b)make such order as it thinks fit as regards a decision not to serve a completion notice.

Appeals: Northern Ireland

11.—(1) This regulation applies in relation to Northern Ireland only.

(2) A person on whom a compliance notice has been served may appeal against—

(a)the decision of an authorised officer to serve that compliance notice; or

(b)a decision of an authorised officer not to serve a completion notice in relation to that compliance notice.

(3) The appeal must be made within 28 days of notification of the decision to be appealed.

(4) The right of appeal is to a court of summary jurisdiction (within the meaning of the Magistrates’ Courts (Northern Ireland) Order 1981(7)) and the procedure on an appeal is by way of notice under Part 7 of that Order.

(5) A compliance notice is not suspended pending the determination or withdrawal of an appeal unless the court directs otherwise.

(6) On appeal under this regulation, the court may—

(a)either cancel or confirm the compliance notice, and, if it confirms the notice, it may do so either in its original form or with such modifications as it thinks fit; or

(b)make such order as it thinks fit as regards a decision not to serve a completion notice.

Offences: general

12.—(1) A person commits an offence if that person contravenes, or causes or permits a person to contravene, a relevant provision.

(2) A person commits an offence if that person fails to comply with a compliance notice served under regulation 8.

(3) But it is a defence for a person charged with an offence under paragraph (1) or (2) to prove that the person took all reasonable precautions and exercised all due diligence to avoid the commission of the offence.

Obstruction offences

13.  A person commits an offence if that person—

(a)intentionally obstructs an authorised officer exercising a power under these Regulations;

(b)fails, without reasonable excuse, to give any assistance or information that the authorised officer may reasonably require for the performance of that officer’s functions under these Regulations;

(c)knowingly or recklessly gives false or misleading information to an authorised officer; or

(d)fails to produce a label, document or record to an authorised officer when required to do so.

Offences by bodies corporate, partnerships and unincorporated associations

14.—(1) Where a body corporate is guilty of an offence under these Regulations and that offence is proven to have been committed with the consent or connivance of, or to have been attributed to any neglect on the part of—

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

(b)a person who was purporting to act in any such capacity,

that person, as well as the body corporate, is guilty of the offence.

(2) In paragraph (1), “director”, in relation to a body corporate whose affairs are managed by its members, means a member of the body corporate.

(3) Where a partnership is guilty of an offence under these Regulations and that offence is proved to have been committed with the consent or connivance of, or to have been attributable to any neglect on the part of, a partner, the partner, as well as the partnership, is guilty of the offence.

(4) In paragraph (3), “partner”, includes a person purporting to act as a partner.

(5) Where an unincorporated association is guilty of an offence under these Regulations and that offence is proved to have been committed with the consent or connivance of, or to have been attributable to any neglect on the part of, an officer of the association, that officer, as well as the association, is guilty of the offence.

(6) In paragraph (5), “officer”, in relation to an unincorporated association, means—

(a)an officer of the association or a member of its governing body; or

(b)a person purporting to act in that capacity.

Penalties

15.  A person guilty of an offence under regulation 12 or 13 is liable on summary conviction—

(a)in England and Wales, to a fine; or

(b)in Northern Ireland, to a fine not exceeding level 5 on the standard scale.

Protection of authorised officers acting in good faith

16.—(1) An authorised officer or person accompanying that officer by virtue of regulation 5(7)(a) is not to be liable in any civil or criminal proceedings for anything done or omitted to be done in, or in connection with, the exercise or the purported exercise of the powers in these Regulations.

(2) Paragraph (1) does not apply—

(a)if the act or omission is shown to have been in bad faith;

(b)if there were no reasonable grounds for the act or omission; or

(c)so as to prevent an award of damages in respect of the act or omission on the ground that it was unlawful as a result of section 6(1) of the Human Rights Act 1998(8) (acts of public authorities incompatible with Convention rights).

Time limit for bringing prosecution

17.—(1) Proceedings for an offence under these Regulations may be commenced within the period of 16 months beginning with the date on which the prosecutor first knows of evidence sufficient, in the prosecutor’s opinion, to justify proceedings.

(2) But no such proceedings may be commenced after the period of two years beginning with the date of the commission of the offence.

(3) For the purposes of this regulation—

(a)a certificate signed by or on behalf of the prosecutor and stating the date on which the prosecutor first knew of evidence sufficient to justify the proceedings is conclusive evidence of that fact; and

(b)a certificate stating that matter and purporting to be signed is deemed to be so signed unless the contrary is proved.

Proceedings against partnerships and unincorporated associations

18.—(1) Proceedings for an offence under these Regulations alleged to have been committed by a partnership or an unincorporated association may be brought against the partnership or association in the name of the partnership or association.

(2) For the purposes of such proceedings the following apply as if the partnership or unincorporated association were a body corporate—

(a)rules of court relating to the service of documents;

(b)in relation to England and Wales, section 33 of the Criminal Justice Act 1925(9) and Schedule 3 to the Magistrates’ Courts Act 1980(10); and

(c)in relation to Northern Ireland, Schedule 4 to the Magistrates’ Courts (Northern Ireland) Order 1981(11) (corporations) and section 18 of the Criminal Justice Act (Northern Ireland) 1945 (procedure on charge)(12).

(3) A fine imposed on a partnership or unincorporated association on its conviction of an offence under these Regulations is to be paid out of the funds of the partnership or association.

Enforcement

19.—(1) The relevant provisions are enforced by the enforcement authority in accordance with these Regulations, subject to paragraph (3).

(2) The enforcement authority may institute proceedings under these Regulations.

(3) The Secretary of State may delegate to the Director of Public Prosecutions functions in relation to the prosecution of an offence under these Regulations.

Revocations

20.  The following instruments are revoked—

(a)The Sea Fish (Marketing Standards) Regulations 1986(13);

(b)The Sea Fish (Marketing Standards) (Amendment) Regulations 1989(14);

(c)The Sea Fish (Marketing Standards) (Amendment) Regulations 1994(15).

George Eustice

Minister of State

Department for Environment, Food and Rural Affairs

26th March 2018

Lesley Griffiths

Cabinet Secretary for Energy, Planning and Rural Affairs

One of the Welsh Ministers

26th March 2018

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