PART 8Enforcement
Penalties for offencesI1I1548
1
A person who commits an offence under any provision of Part 3 (Finance) F2, F7regulation 29D(A1) to (3) (aircraft offences), 29F (prohibition on port entry), 29G(4) (directions prohibiting port entry), 29H(3) (movement of ships) or or regulation 35 (finance: licensing offences), is liable—
a
on summary conviction in England and Wales, to imprisonment for a term not exceeding F14the general limit in a magistrates’ court or a fine (or both);
b
on summary conviction in Scotland, to imprisonment for a term not exceeding 12 months or a fine not exceeding the statutory maximum (or both);
c
on summary conviction in Northern Ireland, to imprisonment for a term not exceeding 6 months or a fine not exceeding the statutory maximum (or both);
d
on conviction on indictment, to imprisonment for a term not exceeding 7 years or a fine (or both).
2
A person who commits an offence under any provision of Part 5 (Trade) is liable—
a
on summary conviction in England and Wales, to imprisonment for a term not exceeding F15the general limit in a magistrates’ court or a fine (or both);
b
on summary conviction in Scotland, to imprisonment for a term not exceeding 12 months or a fine not exceeding the statutory maximum (or both);
c
on summary conviction in Northern Ireland, to imprisonment for a term not exceeding 6 months or a fine not exceeding the statutory maximum (or both);
d
on conviction on indictment, to imprisonment for a term not exceeding 10 years or a fine (or both).
3
A person who commits an offence under regulation 9(6) (confidentiality), F836 (trade: licensing offences) and 36A (aircraft: licensing offences), 44(6) or 45(5) (offences in connection with trade licences) is liable—
a
on summary conviction in England and Wales, to imprisonment for a term not exceeding F16the general limit in a magistrates’ court or a fine (or both);
b
on summary conviction in Scotland, to imprisonment for a term not exceeding 12 months or a fine not exceeding the statutory maximum (or both);
c
on summary conviction in Northern Ireland, to imprisonment for a term not exceeding 6 months or a fine not exceeding the statutory maximum (or both);
d
on conviction on indictment, to imprisonment for a term not exceeding 2 years or a fine (or both).
4
A person who commits an offence under regulation F329D(4) (confidentiality),F929G(6) (directions prohibiting port entry: confidentiality), 29H(5) (movement of ships: confidentiality), 38(6) F22, 42 (information offences in connection with Part 3) F23, or 45B (internet services: information offences) is liable—
a
on summary conviction in England and Wales, to imprisonment for a term not exceeding 6 months or a fine (or both);
b
on summary conviction in Scotland, to imprisonment for a term not exceeding 6 months or a fine not exceeding level 5 on the standard scale (or both);
c
on summary conviction in Northern Ireland, to imprisonment for a term not exceeding 6 months or a fine not exceeding level 5 on the standard scale (or both).
Liability of officers of bodies corporate etcI2I949
1
Where an offence under these Regulations , committed by a body corporate—
a
is committed with the consent or connivance of any director, manager, secretary or other similar officer of the body corporate, or any person who was purporting to act in any such capacity, or
b
is attributable to any neglect on the part of any such person,
that person as well as the body corporate is guilty of the offence and is liable to be proceeded against and punished accordingly.
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
Paragraph (1) also applies in relation to a body that is not a body corporate, with the substitution for the reference to a director of the body of a reference—
a
in the case of a partnership, to a partner;
b
in the case of an unincorporated body other than a partnership—
i
where the body's affairs are managed by its members, to a member of the body;
ii
in any other case, to a member of the governing body.
4
Section 171(4) of CEMA (which is a provision similar to this regulation) does not apply to any offence under these Regulations to which that provision would, in the absence of this paragraph, apply.
Jurisdiction to try offencesI3I1650
1
Where an offence under regulation 9(6) (confidentiality), Part 3 (Finance), F4Part 5A (Aircraft),F10Part 5B (Ships), regulation 35 (finance: licensing offences) F20, regulation 38(6) or 42 (information offences in connection with Part 3) F21, or 45B (internet services: information offences) is committed in the United Kingdom—
a
proceedings for the offence may be taken at any place in the United Kingdom, and
b
the offence may for all incidental purposes be treated as having been committed at any such place.
2
Where an offence under these Regulations is committed outside the United Kingdom—
a
proceedings for the offence may be taken at any place in the United Kingdom, and
b
the offence may for all incidental purposes be treated as having been committed at any such place.
3
In the application of paragraph (2) to Scotland, any such proceedings against a person may be taken—
a
in any sheriff court district in which the person is apprehended or is in custody, or
b
in such sheriff court district as the Lord Advocate may determine.
4
In paragraph (3) “sheriff court district” is to be read in accordance with the Criminal Procedure (Scotland) Act 1995 (see section 307(1) of that Act) M1.
Procedure for offences by unincorporated bodiesI4I1251
1
Paragraphs (2) and (3) apply if it is alleged that an offence under these Regulations has been committed by an unincorporated body (as opposed to by a member of the body).
2
Proceedings in England and Wales or Northern Ireland for such an offence must be brought against the body in its own name.
3
For the purposes of proceedings, for such an offence brought against an unincorporated body—
a
rules of court relating to the service of documents have effect as if the body were a body corporate;
b
the following provisions apply as they apply in relation to a body corporate
i
4
A fine imposed on an unincorporated body on its conviction of an offence under these Regulations is to be paid out of the funds of the body.
Time limit for proceedings for summary offencesI5I1352
1
Proceedings for an offence under these Regulations which is triable only summarily may be brought within the period of 12 months beginning with the date on which evidence sufficient in the opinion of the prosecutor to justify the proceedings comes to the prosecutor's knowledge.
2
But such proceedings may not be brought by virtue of paragraph (1) more than 3 years after the commission of the offence.
3
A certificate signed by the prosecutor as to the date on which the evidence in question came to the prosecutor's knowledge is conclusive evidence of the date on which it did so; and a certificate to that effect and purporting to be so signed is to be treated as being so signed unless the contrary is proved.
4
In relation to proceedings in Scotland—
a
section 136(3) of the Criminal Procedure (Scotland) Act 1995 (date of commencement of summary proceedings) applies for the purposes of this regulation as it applies for the purposes of that section, and
b
references in this regulation to the prosecutor are to be treated as references to the Lord Advocate.
Trade enforcement: application of CEMAI6I1053
1
Where the Commissioners investigate or propose to investigate any matter with a view to determining—
a
whether there are grounds for believing that a relevant offence has been committed, or
b
whether a person should be prosecuted for such an offence,
the matter is to be treated as an assigned matter.
2
In paragraph (1) “assigned matter” has the meaning given by section 1(1) of CEMA M6.
3
In this regulation a “relevant offence” means an offence under—
a
Part 5 (Trade),
b
regulation 36 (trade: licensing offences),
c
regulation 44(6) (general trade licences: records), or
d
regulation 45(5) (general trade licences: inspection of records).
F193A
The Commissioners may not investigate the suspected commission of an offence listed in paragraph (3B) (a “suspected offence”), unless the suspected offence has been the subject of—
a
a referral to the Commissioners by—
i
the Secretary of State,
ii
the Treasury, or
iii
OFCOM, where such referral relates to a suspected offence under regulation 27P(4); or
b
a decision by the Commissioners to treat the suspected offence as if it had been referred to them under sub-paragraph (a).
3B
Paragraph (3A) applies to the suspected commission of an offence under any of the following provisions—
a
regulation 22(3),
b
regulation 24A(3),
c
regulation 27(3),
d
regulation 27K(5),
e
regulation 27L(3) insofar as it applies to the prohibitions at regulation 27L(1)(c) and (d),
f
regulation 27M(4) insofar as it applies to the prohibitions at regulation 27M(1)(c) and (d),
g
regulation 27M(5) insofar as it applies to any activity prohibited under regulation 27M(2) which relates to arrangements described in sub-paragraphs 27M(1)(c) and (d),
h
regulation 27P(4).
3C
Regulation 53(3A) also applies to the suspected commission of a relevant offence under any of regulations 36(1), 36(2), 44(6) and 45(5) insofar as—
a
the suspected offence relates to a licence issued under regulation 33, and
b
the prohibited activity authorised by that licence would, if no licence had been issued, amount to an offence specified in paragraph (3B)(a) to (h).
4
Section 138 of CEMA M7 (arrest of persons) applies to a person who has committed, or whom there are reasonable grounds to suspect of having committed, a relevant offence as it applies to a person who has committed, or whom there are reasonable grounds to suspect of having committed, an offence for which the person is liable to be arrested under the customs and excise Acts M8, but as if—
a
any reference to an offence under, or for which a person is liable to be arrested under, the customs and excise Acts were to a relevant offence;
b
in subsection (2), the reference to any person so liable were to a person who has committed, or whom there are reasonable grounds to suspect of having committed, a relevant offence.
5
The provisions of CEMA mentioned in paragraph (6) apply in relation to proceedings for a relevant offence as they apply in relation to proceedings for an offence under the customs and excise Acts, but as if—
a
any reference to the customs and excise Acts were to any of the provisions mentioned in paragraph (3)(a) to (d);
b
in section 145(6), the reference to an offence for which a person is liable to be arrested under the customs and excise Acts were to a relevant offence;
c
in section 151, the reference to any penalty imposed under the customs and excise Acts were to any penalty imposed under these Regulations in relation to a relevant offence;
d
in section 154(2)—
i
the reference to proceedings relating to customs or excise were to proceedings under any of the provisions mentioned in paragraph (3)(a) to (d), and
ii
the reference to the place from which any goods have been brought included a reference to the place to which goods have been exported, supplied or delivered or the place to or from which technology has been transferred.
6
The provisions of CEMA are sections 145, 146, 147, 148(1), 150, 151, 152, 154 and 155 M9 (legal proceedings).
Trade offences in CEMA: modification of penaltyI7I1154
1
Paragraph (2) applies where a person is guilty of an offence under section 68(2) of CEMA in connection with a prohibition mentioned in F11regulation 21 (export of goods to, or for use in, Belarus).
2
Where this paragraph applies, the reference to 7 years in section 68(3)(b) of CEMA M10 is to be read as a reference to 10 years.
3
Paragraph (4) applies where a person is guilty of an offence under section 170(2) of CEMA in connection with a prohibition mentioned in F12regulation 21 (export of goods to, or for use in, Belarus) or 27I(1) or (2) (import of goods originating in, or consigned from, Belarus).
4
Where this paragraph applies, the reference to 7 years in section 170(3)(b) of CEMA M11 is to be read as a reference to 10 years.
F15
Paragraph (6) applies where a person is guilty of an offence under section 50(2) or (3) of CEMA in connection with a prohibition mentioned in F13regulation 27I(1) or (2) (import of goods originating in, or consigned from, Belarus).
6
Where this paragraph applies, the reference to 7 years in section 50(4)(b) of CEMA is to be read as a reference to 10 years.
Application of Chapter 1 of Part 2 of Serious Organised Crime and Police Act 2005I8I1455
Chapter 1 of Part 2 of the Serious Organised Crime and Police Act 2005 (investigatory powers) M12 applies to any offence under Part 3 (Finance) or regulation 35 (finance: licensing offences).
Monetary penaltiesF556
Each provision in Part 5 (Trade) which contains a prohibition imposed for a purpose mentioned in section 3(1) or (2) of the Act is to be regarded as not being financial sanctions legislation for the purposes of Part 8 of the Policing and Crime Act 2017.
F18OFCOM: power to impose monetary penalties56A
1
OFCOM may impose a monetary penalty on a person if they are satisfied, on the balance of probabilities, that—
a
the person has failed to comply with a requirement that is imposed under regulation 27P (internet services), or
b
the person has failed to comply with an obligation that is imposed by or under regulation 45A (internet services: power to request information and produce documents).
2
The amount of the penalty is to be such amount as OFCOM may determine, not exceeding £1,000,000.
3
Any monetary penalty payable under this regulation is recoverable by OFCOM as a civil debt.
4
Any monetary penalty received by OFCOM by virtue of this regulation must be paid into the Consolidated Fund.
OFCOM: monetary penalties: procedural rights56B
1
Before imposing a monetary penalty on a person under regulation 56A, OFCOM must inform the person of their intention to do so.
2
OFCOM must also—
a
explain the grounds for imposing the penalty,
b
specify the amount of the penalty,
c
explain that the person is entitled to make representations, and
d
specify the period within which any such representations must be made.
3
If (having considered any representations), OFCOM decides to impose the penalty, OFCOM must inform the person of their decision.
4
A person to which the decision relates may appeal to the Upper Tribunal against the decision.
5
On an appeal under paragraph (4), the Upper Tribunal may—
a
dismiss the appeal,
b
quash OFCOM’s decision to impose the penalty, or
c
uphold that decision but substitute a different amount for the amount determined by OFCOM.