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Scottish Independence Referendum Act 2013

Part 2: Discretionary requirements

255.Paragraph 6 allows the Electoral Commission to impose a discretionary requirement on a person where they are satisfied, beyond reasonable doubt, that the person has committed a campaign offence listed in Part 7 of schedule 6. A discretionary requirement as a sanction can take the form of a monetary penalty (up to a maximum of £10,000) or alternatively an instruction to take certain actions designed to either prevent the recurrence of the offence or restore the position to what it would have been had the offence not occurred. The penalties can be imposed either on a person or on a permitted participant where the responsible person for that permitted participant has committed the offence, or where the requirements imposed by paragraphs 23(2), (3) or (4) of schedule 4 have been contravened. Sub-paragraph (4) limits the use of discretionary requirements by preventing the Commission from imposing a discretionary requirement on a person more than once for the same act or omission. Sub-paragraph (6) sets the financial limit of a variable monetary penalty for offences which are triable summarily—where such offences are punishable by a fine, the variable monetary penalty must not be greater than the maximum fine.

256.Paragraph 7(1) requires that, where the Commission intend to impose a discretionary requirement on a person for a campaign offence, they must first notify the person of their intention. Sub-paragraph (2) allows the person to make written representations and objections to the Commission against the proposed penalty. If anything is raised which leads the Commission to no longer be satisfied that the offence took place, the Commission may not impose the penalty (sub-paragraph (4)). In all other cases, the Commission may proceed to serve on the person a notice formally imposing the discretionary requirement, which will specify what the requirement is (sub-paragraph (5)). The person may appeal to a sheriff against the decision to impose the discretionary requirement on the grounds specified in sub-paragraph (6). Such an appeal must be made within 28 days of a decision notice being received, and the discretionary requirement is suspended until the appeal is determined or withdrawn.

257.Paragraph 8 explains what information the Commission must include when giving the initial notice of an intention to impose a discretionary requirement on a person. This includes the grounds for imposing the requirement and the period within which representations and objections may be made (no less than 28 days from the day on which the notice is received). Sub-paragraph (3) sets out the information that must be provided by the Commission when they are imposing a discretionary requirement, such as the grounds for the proposed discretionary requirement, details of any monetary penalty, rights of appeal and the consequences of non-compliance.

258.Paragraph 9 limits the use of other sanctions against a person who has had a discretionary requirement imposed upon them. If a discretionary requirement is imposed on a person, that person cannot be convicted of a criminal offence arising from the same act or omission. However, this protection from future prosecution does not apply in cases where the discretionary requirement imposed was non-monetary, no variable monetary penalty was imposed, and the person failed to comply with the non-monetary discretionary requirement.

259.Paragraph 10 provides that where the Commission are satisfied that a discretionary requirement has been complied with, they must issue a certificate confirming that this is the case. This causes the original requirement notice to cease to have effect. A person who has been served with a discretionary requirement notice may apply to the Commission for a compliance certificate and the Commission must decide whether to issue one within 28 days. If the Commission decides not to issue a certificate, the applicant may appeal to a sheriff within 28 days of receiving the Commission’s decision.

260.Paragraph 11 allows the Commission to impose by notice a “non-compliance penalty”, up to a maximum of £10,000, on a person who fails to comply with a non-monetary discretionary requirement. It also sets out the information which must be included in the notice and provides that where a person has complied with the related non-monetary discretionary requirement, the Commission may waive or reduce the penalty. It sets out the grounds of appeal to the sheriff against a non-compliance penalty (sub-paragraphs (3) and (4)).

261.Paragraph 12 requires that a variable monetary penalty must be paid within 28 days of the relevant notice being received, or the amount of the penalty will increase by 25%. If the penalty is not paid within 56 days of the notice being received, it will increase by 50%. Where a penalty is upheld on appeal, or such an appeal withdrawn, similar increases apply from the determination or withdrawal of the appeal.

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