Schedule—Investigatory powers of a local weights and measures authority
General
125.Paragraph 1 of the schedule sets out some overarching limits governing the use of the investigatory powers conferred on Trading Standards(12) by virtue of the schedule. Trading Standards may use these powers for investigating if offences are being committed under sections 2 (offence of supplying of glue traps) or 3 (offence of possessing glue trap). However, to be able to use the more intrusive powers (such as seizing items or documents, requiring information to be produced or seeking a search warrant) a Trading Standards officer has to reasonably suspect that an offence is being committed.
126.In addition, where the powers relate to taking entry to premises, the provisions make clear that access to a private dwelling may only occur where a warrant has been obtained from a sheriff.
Power to purchase glue trap
127.Paragraph 4 of the schedule enables Trading Standards officers to carry out test purchases in order to ascertain if offences are being committed. To do so, Trading Standards officers can enter any premises which are generally open to the public, inspect products and make purchases. They may also direct another person to attempt to carry out a purchase in order to see if the seller commits an offence (and paragraph 2 of the schedule provides that a person doing so does not commit an offence).
Power to observe carrying on of business etc.
128.Paragraph 5 enables Trading Standards officers to enter premises to which the public has access and watch how business is conducted. This may be combined with other powers, such as the power to make test purchases (see paragraph 4 of the schedule).
Power to enter premises without warrant
129.Paragraph 6 of the schedule enables Trading Standards officers to visit any premises which aren’t used as a private dwelling for the purposes of checking whether an offence is being committed under section 2 or 3. This is broader than the powers of entry conferred in relation to test purchases or observing business as the premises in question don’t have to be open to members of the public.
130.Trading Standard officers are required to give notice, unless the occupier has waived the requirement to give notice or the officer reasonably believes that giving notice would defeat the purpose of entry. Where the premises are occupied, the officer must produce evidence of their identity and provide a document setting out why entry is necessary and indicating the nature of the offence under section 27 (offence of obstructing officer of local weights and measures authority) unless it is not reasonably practicable to do so.
Power to inspect and test glue trap
131.Paragraph 7 of the schedule confirms that a Trading Standards officer can inspect and test a glue trap (or arrange for this to be tested), or an item suspected to be a glue trap on premises to which entry has been taken under paragraph 6 or 11.
Power to seize and retain items
132.Paragraph 8 of the schedule, which must be read with paragraph 1, enables a Trading Standards officer to seize and retain an item (other than a document, to which different rules apply). Where items are to be seized, the officer must first produce evidence of their identity and authority to do so unless not reasonably practicable to do so.
133.Where an item is taken, the officer must take reasonable steps to tell the person from whom it has been taken that it has been seized and provide the person with a record of what item has been taken. The “reasonable steps” element covers the possibility that the person from whom items are taken may not be on the premises at the time and that the officer must therefore try to make them aware of the situation.
134.Sub-paragraph (5) places limits on how long any item seized may be held before it is to be returned. However, if the item is ultimately likely to be forfeited it may never be returned (see section 4).
Powers in relation to documents
135.Paragraph 9 of the schedule, which must be read with paragraph 1, details the powers that a Trading Standards officer has in relation to documents. The powers are detailed in paragraph 9(1), but paragraph 1(3) of the schedule limits the use of such powers to where the officer has reason to suspect that an offence is being committed. And an officer cannot require the production of a document which is legally privileged (such as a letter from a solicitor giving legal advice).
136.It is worth noting for these purposes that “document” takes its meaning from schedule 1 of the Interpretation and Legislative Reform (Scotland) Act 2010, namely: “
137.As with the power relating to the seizure of items other than documents, the officer must take reasonable steps to tell the person from whom the document is seized that it has been taken and provide a written record of what has been taken.
Power to break open container etc.
138.Paragraph 10 of the schedule enables a Trading Standards officer to break open containers in order to be able to inspect, copy or seize and retain items or documents where the officer reasonably suspects that an offence has been or is being committed. In this context, containers may be a variety of different things, ranging from a locked cupboard or safe to a computer hard drive or mobile phone.
Power of entry with warrant
139.Paragraph 11 of the schedule provides a means for a Trading Standards officer to obtain a search warrant from a sheriff or summary sheriff(13) in certain situations (detailed in paragraph 11(1)). But paragraph 1(3) of the schedule limits the use of the power of entry with warrant to circumstances in which the officer has reason to suspect that an offence under section 2 or 3 has been, or is being, committed.
140.A warrant granted under this paragraph lasts for 28 days. It may entitle an officer to enter the premises in question (and this can be a private dwelling), using force if necessary, and to exercise the powers in paragraphs 7 to 10 of the schedule. It also entitles an officer to be accompanied onto the premises by such other persons as the officer thinks necessary and also to take such equipment onto the premises as the officer thinks necessary. For example, it may be necessary for a locksmith to attend to open any locked containers.
141.If the premises are occupied, the officer must produce evidence of the warrant to an occupier of the premises. If the premises are unoccupied when the officer exercises the power of search under the warrant, the officer has to leave a notice for the occupier informing them that the premises have been entered under a search warrant and must also make sure that the premises are secured as effectively as they were when the officer entered the premises.
Power to require assistance from person on premises
142.Paragraph 12 of the schedule is a power available when a Trading Standards officer is visiting or inspecting premises under paragraph 6 or has taken entry under a warrant granted under paragraph 11. While there, the officer can require any person who is on premises to provide the officer with such assistance as the officer reasonably considers necessary. For example, this might involve providing access to locked areas or helping the officer locate and inspect items. A person who fails to help the officer in this way may be committing an offence under section 27.
Access to seized items and documents
143.Paragraph 13 of the schedule provides for a person who has had an item or a document seized as part of an investigation to have supervised access to the item or be able to take or request a copy of the document. However, access can be denied if there are reasonable grounds for believing that it might risk the investigation in some way to allow the person to see the item or have a copy.
144.Where a person requests access to an item or a copy of a document, Trading Standards can recover the costs involved in meeting the request.
Notice of testing of item
145.Paragraph 14 of the schedule provides for a person who is (or is to be) prosecuted as a result of a test of a glue trap or item to be told about the results of the test and given the opportunity (if possible) to arrange for the item to be tested by someone else if reasonably practicable to do so.
Application for release of item or document
146.Paragraph 15 of the schedule enables a person who has an interest in a glue trap, item or document which has been retained by Trading Standards to apply to a sheriff for the release of the item. A sheriff may do so only where either (i) no proceedings for an offence have been brought within the period of 12 months from the day on which the thing was taken, or (ii) proceedings have been brought and are finished and the thing has not been forfeited as part of those proceedings.
Compensation
147.Paragraph 16 of the schedule makes provision for the payment of compensation by Trading Standards in circumstances where an item has been seized in relation to a suspected offence, but no offence has been disclosed. Provided that the person from whom the item was taken was not negligent or in some way responsible for the item being taken (for example by not co-operating with the investigation) they are entitled to compensation for any or loss or damage suffered as a result of the item being taken and kept. Any disagreement as to the amount of compensation is to be resolved by arbitration.
See paragraph 112.
See paragraph 110 for explanation of the definition of “sheriff”.
