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Transport (Scotland) Act 2005

Schedule 5Schedule 6B to the New Roads and Street Works Act 1991

156.The chart below provides the detail, for illustrative purposes, of the provisions within schedule 5 (as well as schedule 7) in respect of the process associated with the payment of fixed penalties for certain offences.

157.Schedule 5 paragraph 1(1) provides power for an authorised officer to issue a fixed penalty notice.

158.Paragraph 2 provides the Scottish Ministers with the power to set via regulation a time limit between an offence being committed and an authorised officer being able to give a fixed penalty notice.

159.Paragraph 4 provides for the level of the financial limits of the fixed penalty notice and the period within which payment of the notice should be made. The road works authority has a power to extend the period of payment.

160.Paragraph 5 enables offenders to pay a lesser amount in respect of the fixed penalty notice if they make an earlier payment.

161.Paragraph 7 enables a person in receipt of a fixed penalty notice to request a hearing in respect of the offence for which they have been given notice provided that that request is made within 29 days of receipt of the notice. The request must be made in writing to the designated person at the address shown on the fixed penalty notice. The road works authority will hold the meeting and the procurator fiscal will be notified that a hearing is to be held. The period between a person requesting a hearing and being notified of the hearing’s decision will not count towards the 29 days for the payment of the penalty.

162.Paragraph 8 provides for a power of the road works authority to withdraw notices, in cases where they have been erroneously issued or consider there are extenuating circumstances. Sub-paragraph (3) provides that a road works authority is bound to consider any representations made by or on behalf of a person given a notice, and that they must decide in all circumstances whether to withdraw the notice.

163.Paragraph 9 ensures that where proceedings have commenced for an offence, in respect of which a fixed penalty notice has been given, that the fixed penalty notice is to be treated as withdrawn. This means that a person may be prosecuted for an offence but in such a circumstance cannot also be punished for non-payment of the fixed penalty notice associated with that offence.

164.Paragraph 10 provides for the recovery of unpaid fixed penalty fines. After the expiry of 29 days the road works authority is able to enforce the unpaid penalty as if it were an extract registered decree arbitral. In practice this means that the unpaid penalty can be recovered in the same way as a sum of money due under a civil court decree.

165.Paragraph 11 provides a mechanism under which disputes as to whether or not a fixed penalty has been paid or a hearing sought within the period for paying can be resolved by the courts. Sub-paragraph (1) enables a person who is in dispute with a road works authority to apply to the sheriff by summary application for a declaration that the fixed penalty cannot be enforced under paragraph 10 either because the fixed penalty has been paid or a request for a hearing has been made within the period for paying.

166.Paragraph 11(2) provides that the sheriff may declare that the person has or has not paid the penalty or requested a hearing within the period for paying and that the fixed penalty is or is not enforceable under paragraph 10.

167.Paragraph 12 permits the road works authorities to retain a proportion of the monies raised from the application of fixed penalty notices raised to cover their costs in administering the fixed penalty notice process. All surplus monies will revert to the Scottish Ministers.

168.Paragraph 13 provides the Scottish Ministers with powers to make regulations prescribing the circumstances in which a fixed penalty notice may not be given and the methods for the payment of penalties.

169.Paragraph 14 allows the Scottish Ministers to issue or approve a code of practice giving guidance to road works authorities and their authorised officers as to the performance of their functions in relation to fixed penalty notices.

170.The schematic above provides the detail, for illustrative purposes, of the provisions within schedule 5 in respect of the process associated with payment of fixed penalties for certain offences.

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