The Market Surveillance (Northern Ireland) Regulations 2021

Regulation 5(2)(a)

SCHEDULE 1 N.I. Investigatory powers

Interpretation of terms used in this Schedule N.I.

1.  In this Schedule—

“premises” includes any trading stall, vehicle, vessel or aircraft;

“proceedings” may include an application for forfeiture.

[F1 “Regulation (EU) 2017/745 on medical devices” means Regulation (EU) 2017/745 of the European Parliament and of the Council of 5 April 2017 on medical devices, amending Directive 2001/83/EC, Regulation (EC) No 178/2002 and Regulation (EC) No 1223/2009 and repealing Council Directives 90/385/EEC and 93/42/EEC.]

Textual Amendments

F1 Words in Sch. 1 para. 1 inserted (27.7.2021) by The Medical Devices (Northern Ireland Protocol) Regulations 2021 (S.I. 2021/905), regs. 1(2), 43(3)(a)

Commencement Information

I1 Sch. 1 para. 1 in force at 16.7.2021, see reg. 1(1)

Power to require the production of information N.I.

2.—(1) An enforcer or an officer of an enforcer may give notice to a person requiring the person to provide the enforcer with the information specified in the notice.

(2) The information may include information of the kinds specified in Article 14(4)(a) to (c) of the MSC Regulation.

(3) An enforcer may exercise the powers in this paragraph for the purpose of ascertaining whether there is, or has been, any non-compliance.

Commencement Information

I2 Sch. 1 para. 2 in force at 16.7.2021, see reg. 1(1)

Procedure for notice under paragraph 2 N.I.

3.—(1) A notice under paragraph 2 must be in writing and specify the purpose for which the information is required.

(2) If the purpose is to enable a person to exercise or to consider whether to exercise a function, the notice must specify the function concerned.

(3) The notice may specify—

(a) the time within which and the manner in which the person to whom it is given must comply with it;

(b) the form in which information must be provided.

(4) The notice may require—

(a) the creation of documents, or documents of a description, specified in the notice, and

(b) the provision of those documents to the enforcer or an officer of the enforcer.

(5) A requirement to provide information or create a document is a requirement to do so in a legible form.

(6) A notice under paragraph 2 does not require a person to provide any information or create any documents which the person would be entitled to refuse to provide or produce in proceedings in the High Court on the grounds of legal professional privilege.

Commencement Information

I3 Sch. 1 para. 3 in force at 16.7.2021, see reg. 1(1)

Enforcement of notice under paragraph 2 N.I.

4.—(1) If a person fails to comply with a notice under paragraph 2, the enforcer or an officer of the enforcer may make an application under this paragraph to the court.

(2) If it appears to the court that the person has failed to comply with the notice, it may make an order under this paragraph.

(3) An order under this paragraph is an order requiring the person to do anything that the court thinks it is reasonable for the person to do, for any of the purposes for which the notice was given, to ensure that the notice is complied with.

(4) An order under this paragraph may require the person to meet the costs or expenses of the application.

(5) If the person is a company, partnership or unincorporated association, the court in acting under sub-paragraph (4) may require an official who is responsible for the failure to meet the costs or expenses.

(6) In this paragraph, “the court” means—

(a) the High Court; or

(b) a county court;

“official” means—

(a)

in the case of a company, a director, manager, secretary or other similar officer;

(b)

in the case of a limited liability partnership, a member;

(c)

in the case of a partnership other than a limited liability partnership, a partner; and

(d)

in the case of an unincorporated association, a person who is concerned in the management or control of its affairs.

Commencement Information

I4 Sch. 1 para. 4 in force at 16.7.2021, see reg. 1(1)

Limitations on use of information provided in response to a notice under paragraph 2 N.I.

5.—(1) This paragraph applies if a person provides information in response to a notice under paragraph 2.

(2) This includes information contained in a document created by a person in response to such a notice.

(3) In any criminal proceedings against the person—

(a) no evidence relating to the information may be adduced by or on behalf of the prosecution, and

(b) no question relating to the information may be asked by or on behalf of the prosecution.

(4) Sub-paragraph (3) does not apply if, in the proceedings—

(a) evidence relating to the information is adduced by or on behalf of the person providing it, or

(b) a question relating to the information is asked by or on behalf of that person.

(5) Sub-paragraph (3) does not apply if the proceedings are for—

(a) an offence under paragraph 21 (obstruction),

(b) an offence under Article 10 of the Perjury (Northern Ireland) Order 1979 M1 (false statutory declarations and other false unsworn statements).

Commencement Information

I5 Sch. 1 para. 5 in force at 16.7.2021, see reg. 1(1)

Marginal Citations

M1 S.I. 1979/1714 (N.I. 19), to which there are amendments not relevant to these Regulations.

Power to purchase products N.I.

6.—(1) An officer of an enforcer may—

(a) make a purchase of a product, or

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

(2) For the purposes of exercising the power in sub-paragraph (1), an officer may—

(a) at any reasonable time, enter premises to which the public has access (whether or not the public has access at that time), and

(b) inspect any product on the premises which the public may inspect.

(3) The power of entry in sub-paragraph (2) may be exercised without first giving notice or obtaining a warrant.

(4) An enforcer may exercise any power in this paragraph for the purpose of ascertaining whether there has been any non-compliance.

(5) The powers in this paragraph may be exercised by an officer acting under a cover identity.

Commencement Information

I6 Sch. 1 para. 6 in force at 16.7.2021, see reg. 1(1)

Power to observe carrying on of a business etc N.I.

7.—(1) An officer of an enforcer may enter premises to which the public has access in order to observe the carrying on of a business on those premises.

(2) The power in sub-paragraph (1) may be exercised at any reasonable time (whether or not the public has access at that time).

(3) The power of entry in sub-paragraph (1) may be exercised without first giving notice or obtaining a warrant.

(4) An enforcer may exercise the power in this paragraph for the purpose of ascertaining whether there has been any non-compliance.

Commencement Information

I7 Sch. 1 para. 7 in force at 16.7.2021, see reg. 1(1)

Power to enter premises without a warrant N.I.

8.—(1) An officer of an enforcer may enter premises at any reasonable time.

(2) Sub-paragraph (1) does not authorise the entry into premises used wholly or mainly as a dwelling.

(3) If an officer of an enforcer enters premises under sub-paragraph (1) and finds one or more occupiers on the premises, the officer must produce evidence of the officer's identity and authority to that occupier or (if there is more than one) to at least one of them.

(4) An officer need not comply with sub-paragraph (3) if it is not reasonably practicable to do so.

(5) Proceedings resulting from the exercise of the power under sub-paragraph (1) are not invalid merely because of a failure to comply with sub-paragraph (3).

(6) An officer entering premises under sub-paragraph (1) may be accompanied by such persons, and may take onto the premises such equipment, as the officer thinks necessary.

(7) An enforcer may exercise the power in this paragraph for the purpose of ascertaining whether there has been any non-compliance.

Commencement Information

I8 Sch. 1 para. 8 in force at 16.7.2021, see reg. 1(1)

Application of paragraphs 10 to 17 N.I.

9.  Paragraphs 10 to 17 apply if an officer of an enforcer has entered any premises under the power in paragraph 8(1) or under a warrant under paragraph 18.

Commencement Information

I9 Sch. 1 para. 9 in force at 16.7.2021, see reg. 1(1)

Power to inspect products etc N.I.

10.—(1) The officer may inspect any product on the premises.

(2) The officer may examine any procedure (including any arrangements for carrying out a test) connected with the production of a product.

(3) The officer may inspect and take copies of, or of anything purporting to be—

(a) a record of a kind mentioned in regulation 5(2) or 9(1) of the 2011 Regulations, or

(b) evidence of a kind mentioned in regulation 9(3) of the 2011 Regulations.

(4) The powers in sub-paragraph (5) are also available to an officer of an enforcer acting pursuant to the duty in regulation 52(1)(a)(ii) or (b)(ii) of the Electromagnetic Compatibility Regulations 2016.

(5) The officer may—

(a) inspect any apparatus or fixed installation (as defined in those Regulations), or

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

(6) An enforcer may exercise the power in this paragraph for the purpose of ascertaining whether there has been any non-compliance.

Commencement Information

I10 Sch. 1 para. 10 in force at 16.7.2021, see reg. 1(1)

Power to test equipment N.I.

11.—(1) An officer of an enforcer may test any weighing or measuring equipment—

(a) which is, or which the officer has reasonable cause to believe may be, used for trade or in the possession of any person or on any premises for such use, or

(b) which has been, or which the officer has reasonable cause to believe to have been, passed by an approved verifier, or by a person purporting to act as such a verifier, as fit for such use.

(2) Expressions used in sub-paragraph (1) have the same meaning as in the Weights and Measures (Northern Ireland) Order 1981.

(3) The powers in sub-paragraph (4) are available to an officer of an enforcer acting pursuant to the duty in regulation 10(1) of the 2011 Regulations.

(4) The officer may test any equipment which the officer has reasonable cause to believe is used in—

(a) making up packages (as defined in regulation 2 of the 2011 Regulations), or

(b) carrying out a check mentioned in paragraphs (1) and (3) of regulation 9 of the 2011 Regulations.

(5) An enforcer may exercise the power in this paragraph for the purpose of ascertaining whether there has been any non-compliance.

Commencement Information

I11 Sch. 1 para. 11 in force at 16.7.2021, see reg. 1(1)

Power to require the production of documents N.I.

12.—(1) The officer may, at any reasonable time—

(a) require a trader occupying the premises, or a person on the premises acting on behalf of such a trader, to produce any documents relating to the trader's business to which the trader has access, and

(b) take copies of, or of any entry in, any such document.

(2) The power in sub-paragraph (1) is available regardless of whether—

(a) the purpose for which the documents are required relates to the trader or some other person, or

(b) the proceedings referred to in sub-paragraph (6)(b) could be taken against the trader or some other person.

(3) That power includes power to require the person to give an explanation of the documents.

(4) Where a document required to be produced under sub-paragraph (1) contains information recorded electronically, the power in that sub-paragraph includes power to require the production of a copy of the document in a form in which it can easily be taken away and in which it is visible and legible.

(5) This paragraph does not permit an officer to require a person to create a document other than as described in sub-paragraph (4).

(6) An enforcer may exercise the power in this paragraph for the following purposes—

(a) to ascertain compliance by an economic operator with the MSC Regulation or the enforcer's legislation;

(b) to ascertain whether the documents may be required as evidence in proceedings for non-compliance.

(7) This paragraph does not permit an officer to require a person to produce any document which the person would be entitled to refuse to produce in proceedings in the High Court on the grounds of legal professional privilege.

(8) In this paragraph “trader” means a person acting for purposes relating to that person's trade, business, craft or profession, whether acting personally or through another person acting in the trader's name or on the trader's behalf.

Commencement Information

I12 Sch. 1 para. 12 in force at 16.7.2021, see reg. 1(1)

Power to seize and detain products N.I.

13.—(1) The officer may seize and detain products other than documents (for which see paragraph 14).

(2) An officer seizing products under this paragraph from premises which are occupied must produce evidence of the officer's identity and authority to an occupier of the premises before seizing them.

(3) The officer need not comply with sub-paragraph (2) if it is not reasonably practicable to do so.

(4) An officer seizing products under this paragraph must take reasonable steps to—

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

(b) provide that person with a written record of what has been seized.

(5) If, under this paragraph, an officer seizes any products from a vending machine, the duty in sub-paragraph (4) also applies in relation to—

(a) the person whose name and address are on the vending machine as the owner of the machine, or

(b) if there is no such name and address on the machine, the occupier of the premises on which the machine stands or to which it is fixed.

(6) In determining the steps to be taken under sub-paragraph (4), an officer exercising a power under this paragraph must have regard to any relevant provision about the seizure of property made by a code of practice under Article 65 of the Police and Criminal Evidence (Northern Ireland) Order 1989 M2 .

(7) An enforcer may exercise the power in this paragraph in relation to—

(a) products which an officer of the enforcer reasonably suspects may disclose (by means of testing or otherwise) non-compliance;

(b) products which an officer of the enforcer reasonably suspects are liable to forfeiture under the enforcer's legislation; and

(c) products which an officer of the enforcer reasonably suspects may be required as evidence in proceedings for a breach of, or under, that legislation.

(8) Products seized under this paragraph (except products seized for a purpose mentioned in sub-paragraph (7)(b)) may not be detained—

(a) for a period of more than 3 months beginning with the day on which they were seized, or

(b) where the products are reasonably required to be detained for a longer period by the enforcer for a purpose for which they were seized, for longer than they are required for that purpose.

Commencement Information

I13 Sch. 1 para. 13 in force at 16.7.2021, see reg. 1(1)

Marginal Citations

M2 S.I. 1989/1341 (N.I. 12); relevant amending instruments are S.I. 2007/288 (N.I. 2), and paragraph 22 of Schedule 9 to the Protection of Freedoms Act 2012 (c. 9).

Power to seize documents required as evidence N.I.

14.—(1) The officer may seize and detain documents.

(2) An officer seizing documents under this paragraph from premises which are occupied must produce evidence of the officer's identity and authority to an occupier of the premises before seizing them.

(3) The officer need not comply with sub-paragraph (2) if it is not reasonably practicable to do so.

(4) An officer seizing documents under this paragraph must take reasonable steps to—

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

(b) provide that person with a written record of what has been seized.

(5) In determining the steps to be taken under sub-paragraph (4), an officer exercising a power under this paragraph must have regard to any relevant provision about the seizure of property made by a code of practice under Article 65 of the Police and Criminal Evidence (Northern Ireland) Order 1989.

(6) An enforcer may exercise the power in this paragraph in relation to documents which an officer of the enforcer reasonably suspects may be required as evidence—

(a) in proceedings for non-compliance; or

(b) in proceedings under these Regulations or the enforcer's legislation.

(7) This paragraph does not confer any power on an officer to seize from a person any document which the person would be entitled to refuse to produce in proceedings in the High Court on the grounds of legal professional privilege.

(8) Documents seized under this paragraph may not be detained—

(a) for a period of more than 3 months beginning with the day on which they were seized, or

(b) where the documents are reasonably required to be detained for a longer period by the enforcer for the purposes of the proceedings for which they were seized, for longer than they are required for those purposes.

Commencement Information

I14 Sch. 1 para. 14 in force at 16.7.2021, see reg. 1(1)

Power to decommission or switch off fixed installations N.I.

15.—(1) The power in sub-paragraph (2) is available to an officer of an enforcer acting pursuant to the duty in regulation 52(1)(b)(ii) of the Electromagnetic Compatibility Regulations 2016.

(2) The officer may decommission or switch off any fixed installation (as defined in those Regulations) or part of such an installation.

(3) An enforcer may exercise the power in this paragraph—

(a) if an officer of the enforcer reasonably suspects a contravention of an obligation on an economic operator under the MSC Regulation or the Electromagnetic Compatibility Regulations 2016; and

(b) for the purpose of ascertaining (by means of testing or otherwise) whether there has been such non-compliance.

Commencement Information

I15 Sch. 1 para. 15 in force at 16.7.2021, see reg. 1(1)

Power to decommission or switch off any medical device N.I.

16.—(1) The power in sub-paragraph (2) is available to an officer of an enforcer acting [F2 pursuant to—

(a) the duty in regulation 61(1A) or (1B) of the Medical Devices Regulations 2002,

(b) a duty in regulations made under section 15(1) of the Medicines and Medical Devices Act 2021, or

(c) the duty in regulation 26(1) or (2) of the Medical Devices (Northern Ireland Protocol) Regulations 2021.]

(2) The officer may decommission or switch off any medical device to which the Medical Devices Regulations 2002 [F3 or Regulation (EU) 2017/745 on medical devices] apply which is installed at a given location.

(3) An enforcer may exercise the power in this paragraph—

(a) if an officer of the enforcer reasonably suspects a contravention of an obligation on an economic operator under any of—

(i) the Medical Devices Regulations 2002;

(ii) regulations made under section 15(1) of the Medicines and Medical Devices Act 2021; F4 ...

[F5 (iii) the Medical Devices (Northern Ireland Protocol) Regulations 2021;

(iv) Regulation (EU) 2017/745 on medical devices; and]

(b) for the purpose of ascertaining (by means of testing or otherwise) whether there has been such non-compliance.

Textual Amendments

F2 Words in Sch. 1 para. 16(1) substituted (27.7.2021) by The Medical Devices (Northern Ireland Protocol) Regulations 2021 (S.I. 2021/905), regs. 1(2), 43(3)(b)(i)

F3 Words in Sch. 1 para. 16(2) inserted (27.7.2021) by The Medical Devices (Northern Ireland Protocol) Regulations 2021 (S.I. 2021/905), regs. 1(2), 43(3)(b)(ii)

F4 Word in Sch. 1 para. 16(3)(a)(ii) omitted (27.7.2021) by virtue of The Medical Devices (Northern Ireland Protocol) Regulations 2021 (S.I. 2021/905), regs. 1(2), 43(3)(b)(iii)

F5 Sch. 1 para. 16(3)(a)(iii)(iv) inserted (27.7.2021) by The Medical Devices (Northern Ireland Protocol) Regulations 2021 (S.I. 2021/905), regs. 1(2), 43(3)(b)(iv)

Commencement Information

I16 Sch. 1 para. 16 in force at 16.7.2021, see reg. 1(1)

Power to break open container etc N.I.

17.—(1) The officer may, for the purpose of exercising any of the powers in paragraphs 13 to 16, require a person with authority to do so to—

(a) break open any container,

(b) open any vending machine, or

(c) access any electronic device in which information may be stored or from which it may be accessed.

(2) Where a requirement under sub-paragraph (1) has not been complied with, the officer may, for the purpose of exercising any of the powers in paragraphs 13 to 16—

(a) break open the container,

(b) open the vending machine, or

(c) access the electronic device.

(3) Sub-paragraph (1) or (2) applies if and to the extent that the exercise of the power in that sub-paragraph is reasonably necessary for the purposes for which that power may be exercised.

(4) An enforcer may exercise any power in this paragraph for the purpose of ascertaining whether there has been any non-compliance.

(5) In this paragraph “container” means anything in which products may be stored.

Commencement Information

I17 Sch. 1 para. 17 in force at 16.7.2021, see reg. 1(1)

Power to enter premises with warrant N.I.

18.—(1) A lay magistrate may issue a warrant authorising an officer of an enforcer to enter premises if satisfied, on a written complaint on oath given by such an officer, that there are reasonable grounds for believing that—

(a) condition A or B is met, and

(b) condition C, D or E is met.

(2) Condition A is that on the premises there are—

(a) products which an officer of the enforcer has power to inspect under paragraph 10, or

(b) documents which an officer of the enforcer could require a person to produce under paragraph 12.

(3) Condition B is that, on the premises, in the case of an enforcer, there has been or is about to be a breach of the enforcer's legislation or the MSC Regulation.

(4) Condition C is that—

(a) access to the premises has been or is likely to be refused, and

(b) notice of the enforcer's intention to apply for a warrant under this paragraph has been given to the occupier of the premises.

(5) Condition D is that it is likely that products or documents on the premises would be concealed or interfered with if notice of entry on the premises were given to the occupier of the premises.

(6) Condition E is that—

(a) the premises are unoccupied, or

(b) the occupier of the premises is absent, and it might defeat the purpose of the entry to wait for the occupier's return.

(7) A warrant may be issued under sub-paragraph (1) for the purpose of ascertaining whether there has been any non-compliance.

Commencement Information

I18 Sch. 1 para. 18 in force at 16.7.2021, see reg. 1(1)

Entry to premises under warrant N.I.

19.—(1) A warrant under paragraph 18 authorises an officer of the enforcer to enter the premises at any reasonable time, using reasonable force if necessary.

(2) A warrant under that paragraph ceases to have effect at the end of the period of one month beginning with the day it is issued.

(3) An officer entering premises under a warrant under paragraph 18 may be accompanied by such persons, and may take onto the premises such equipment, as the officer thinks necessary.

(4) If the premises are occupied when the officer enters them, the officer must produce the warrant for inspection to an occupier of the premises.

(5) Sub-paragraph (6) applies if the premises are unoccupied or the occupier is temporarily absent.

(6) On leaving the premises the officer must—

(a) leave a notice on the premises stating that the premises have been entered under a warrant under paragraph 18, and

(b) leave the premises as effectively secured against trespassers as the officer found them.

(7) An enforcer may exercise the power in this paragraph for the purpose of ascertaining whether there has been any non-compliance.

Commencement Information

I19 Sch. 1 para. 19 in force at 16.7.2021, see reg. 1(1)

Power to require assistance from person on premises N.I.

20.—(1) If an officer of an enforcer has entered premises under the power in paragraph 8(1) or under a warrant under paragraph 18, the officer may require any person on the premises to provide such assistance or information as the officer reasonably considers necessary.

(2) Sub-paragraph (3) applies if an officer of an enforcer has entered premises under the power in paragraph 8(1) or under a warrant under paragraph 18 for the purposes of the enforcement of the 2011 Regulations.

(3) The officer may, in particular, require any person on the premises to provide such information as the person possesses about the name and address of the packer and of any importer of a package which the officer finds on the premises.

(4) An enforcer may exercise any power in this paragraph for the purpose of ascertaining whether there has been any non-compliance.

(5) In sub-paragraph (3) “importer”, “package” and “packer” have the same meaning as in the 2011 Regulations.

Commencement Information

I20 Sch. 1 para. 20 in force at 16.7.2021, see reg. 1(1)

Offence of obstruction N.I.

21.—(1) A person commits an offence if the person—

(a) intentionally obstructs an enforcer or an officer of an enforcer who is exercising or seeking to exercise a power under this Schedule,

(b) intentionally fails to comply with a requirement properly imposed by an enforcer or an officer of an enforcer under this Schedule, or

(c) without reasonable cause fails to give an enforcer or an officer of an enforcer any other assistance or information which the enforcer or officer reasonably requires of the person for a purpose for which the enforcer or officer may exercise a power under this Schedule.

(2) A person commits an offence if, in giving information of a kind referred to in sub-paragraph (1)(c), the person—

(a) makes a statement which the person knows is false or misleading in a material respect, or

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

(3) A person who is guilty of an offence under sub-paragraph (1) or (2) is liable on summary conviction to a fine not exceeding level 3 on the standard scale.

(4) Nothing in this paragraph requires a person to answer any question or give any information if to do so might incriminate that person.

Commencement Information

I21 Sch. 1 para. 21 in force at 16.7.2021, see reg. 1(1)

Offence of purporting to act as an officer N.I.

22.—(1) A person who is not an officer of an enforcer commits an offence if the person purports to act as such under this Schedule.

(2) A person who is guilty of an offence under sub-paragraph (1) is liable on summary conviction to a fine not exceeding level 5 on the standard scale.

Commencement Information

I22 Sch. 1 para. 22 in force at 16.7.2021, see reg. 1(1)

Access to seized products and documents N.I.

23.—(1) This paragraph applies where anything seized by an officer of an enforcer under this Schedule is detained by the enforcer.

(2) If a request for permission to be granted access to that thing is made to the enforcer by a person who had custody or control of it immediately before it was seized, the enforcer must allow that person access to it under the supervision of an officer of the enforcer.

(3) If a request for a photograph or copy of that thing is made to the enforcer by a person who had custody or control of it immediately before it was seized, the enforcer must—

(a) allow that person access to it under the supervision of an officer of the enforcer for the purpose of photographing or copying it, or

(b) photograph or copy it, or cause it to be photographed or copied.

(4) Where anything is photographed or copied under sub-paragraph (3)(b), the photograph or copy must be supplied to the person who made the request within a reasonable time from the making of the request.

(5) This paragraph does not require access to be granted to, or a photograph or copy to be supplied of, anything if the enforcer has reasonable grounds for believing that to do so would prejudice the investigation for the purposes of which it was seized.

(6) An enforcer may recover the reasonable costs of complying with a request under this paragraph from the person by whom or on whose behalf it was made.

(7) References in this paragraph to a person who had custody or control of a thing immediately before it was seized include a representative of such a person.

Commencement Information

I23 Sch. 1 para. 23 in force at 16.7.2021, see reg. 1(1)

Notice of testing of products N.I.

24.—(1) Sub-paragraphs (3) and (4) apply where products purchased by an officer of an enforcer under paragraph 6 are submitted to a test and as a result—

(a) proceedings are brought for a breach of, or under, the enforcer's legislation or for the forfeiture of the products by the enforcer, or

(b) a notice is served by the enforcer preventing a person from doing any thing.

(2) Sub-paragraphs (3) and (4) also apply where products seized by an officer of an enforcer under paragraph 13 are submitted to a test.

(3) The enforcer must inform the relevant person of the results of the test.

(4) The enforcer must allow a relevant person to have the products tested if it is reasonably practicable to do so.

(5) In sub-paragraph (3) “relevant person” means the person from whom the products were purchased or seized or, where the products were purchased or seized from a vending machine—

(a) the person whose name and address are on the vending machine as the owner of the machine, or

(b) if there is no such name and address on the machine, the occupier of the premises on which the machine stood or to which it was fixed.

(6) In sub-paragraph (4) “relevant person” means—

(a) a person within sub-paragraph (5),

(b) in a case within sub-paragraph (1)(a), a person who is a party to the proceedings, and

(c) in a case within sub-paragraph (1)(b), a person with an interest in the products.

Commencement Information

I24 Sch. 1 para. 24 in force at 16.7.2021, see reg. 1(1)

Appeals against detention of products and documents N.I.

25.—(1) This paragraph applies where products or documents are being detained as the result of the exercise of a power in this Schedule.

(2) A person with an interest in the products or documents may apply for an order requiring them to be released to that or another person.

(3) An application under this paragraph may be made—

(a) to any magistrates' court in which proceedings have been brought for an offence as the result of the investigation in the course of which the products or documents were seized,

(b) to any magistrates' court in which proceedings have been brought for the forfeiture of the products or documents or (in the case of seized documents) any products to which the documents relate, or

(c) if no proceedings within paragraph (a) or (b) have been brought, by way of complaint to a magistrates' court.

(4) On an application under this paragraph, the court may make an order requiring products to be released only if satisfied that condition A or B is met.

(5) Condition A is that—

(a) no proceedings have been brought—

(i) for an offence as the result of the investigation in the course of which the products or documents were seized, or

(ii) for the forfeiture of the products or documents or (in the case of seized documents) any products to which the documents relate, and

(b) the period of 6 months beginning with the date the products or documents were seized has expired.

(6) Condition B is that—

(a) proceedings of a kind mentioned in sub-paragraph (5)(a) have been brought, and

(b) those proceedings have been concluded without the products or documents being forfeited.

(7) A person aggrieved by an order made under this paragraph by a magistrates' court, or by the decision of a magistrates' court not to make such an order, may appeal against the order or decision to a county court.

(8) An order made under this paragraph by a magistrates' court may contain such provision as the court thinks appropriate for delaying its coming into force pending the making and determination of any appeal.

(9) In sub-paragraph (8) “appeal” includes an application under Article 146 of the Magistrates' Courts (Northern Ireland) Order 1981 M3 (cases stated by magistrates' courts).

Commencement Information

I25 Sch. 1 para. 25 in force at 16.7.2021, see reg. 1(1)

Marginal Citations

M3 S.I. 1981/1675 (N.I. 26), to which there are amendments not relevant to these Regulations.

Compensation N.I.

26.—(1) This paragraph applies where an officer of an enforcer has seized and detained products under this Schedule for a purpose within paragraph 13(7)(a).

(2) The enforcer must pay compensation to any person with an interest in the products in respect of any loss or damage caused by the seizure and detention, if the condition in sub-paragraph (3) that is relevant to the enforcer is met.

(3) The condition that is relevant to an enforcer is that—

(a) the products have not disclosed a breach of the enforcer's legislation, and

(b) the power to seize and detain the products was not exercised as a result of any neglect or default of the person seeking the compensation.

(4) Any dispute about the right to or amount of any compensation payable under this paragraph is to be determined by arbitration.

Commencement Information

I26 Sch. 1 para. 26 in force at 16.7.2021, see reg. 1(1)

Powers of a district council N.I.

27.—(1) Sub-paragraph (2) applies in relation to the exercise by an enforcer, who is a district council in Northern Ireland—

(a) in accordance with this Schedule, of a power in this Schedule; or

(b) of an investigatory power under the enforcer's legislation or for the purpose of ascertaining whether there has been a breach of that legislation or of any notice issued by the enforcer under that legislation.

(2) The district council may exercise the power in a part of Northern Ireland which is outside that council's district.

Commencement Information

I27 Sch. 1 para. 27 in force at 16.7.2021, see reg. 1(1)

Civil proceedings N.I.

28.—(1) Sub-paragraph (4) applies in relation to civil proceedings which may be brought by an enforcer under—

(a) these Regulations, or

(b) the enforcer's legislation.

(2) Sub-paragraph (4) also applies in relation to an application for forfeiture which may be made by an enforcer, in circumstances where there are no related criminal proceedings, under the enforcer's legislation.

(3) In sub-paragraph (4), the reference to civil proceedings includes a reference to an application mentioned in sub-paragraph (2).

(4) A district council in Northern Ireland may bring civil proceedings in respect of conduct in a part of Northern Ireland which is outside that council's district.

Commencement Information

I28 Sch. 1 para. 28 in force at 16.7.2021, see reg. 1(1)

Criminal proceedings N.I.

29.—(1) A district council in Northern Ireland may bring proceedings for a consumer offence allegedly committed in a part of Northern Ireland which is outside that council's district.

(2) In sub-paragraph (1) “a consumer offence” means—

(a) an offence under the enforcer's legislation which a district council in Northern Ireland has a duty or power to enforce,

(b) an offence under legislation under which legislation within paragraph (a) is made,

(c) an offence originating from an investigation into a breach of legislation mentioned in paragraph (a) or (b), or

(d) an offence described in paragraph 21 or 22 of this Schedule.

Commencement Information

I29 Sch. 1 para. 29 in force at 16.7.2021, see reg. 1(1)