Part 3

Civil sanctions

Discretionary requirements

Discretionary requirements: procedure
43
1
Provision under section 42 must secure the results in subsection (2).
2
Those results are that—
a
where a regulator proposes to impose a discretionary requirement on a person, the regulator must serve on that person a notice of what is proposed (a “notice of intent”) which complies with subsection (3),
b
that person may make written representations and objections to the regulator in relation to the proposed imposition of the discretionary requirement,
c
after the end of the period for making such representations and objections, the regulator must decide whether to—
i
impose the discretionary requirement, with or without modifications, or
ii
impose any other discretionary requirement which the regulator has power to impose under section 42,
d
where the regulator decides to impose a discretionary requirement, the notice imposing it (the “final notice”) complies with subsection (6), and
e
the person on whom a discretionary requirement is imposed may appeal against the decision to impose it.
3
To comply with this subsection the notice of intent must include information as to—
a
the grounds for the proposal to impose the discretionary requirement,
b
the right to make representations and objections,
c
the circumstances in which the regulator may not impose the discretionary requirement, and
d
the period within which representations and objections may be made, which may not be less than the period of 28 days beginning with the day on which the notice of intent is received.
4
Provision pursuant to subsection (2)(c)—
a
must secure that the regulator may not decide to impose a discretionary requirement on a person where the regulator is satisfied that the person would not, by reason of any defence raised by that person, be liable to be convicted of the relevant offence, and
b
may include provision for other circumstances in which the regulator may not decide to impose a discretionary requirement.
5
Provision pursuant to subsection (2)(c) must also include provision for—
a
the person on whom the notice of intent is served to be able to offer an undertaking as to action to be taken by that person (including the payment of a sum of money) to benefit any person affected by the offence,
b
the regulator to be able to accept or reject such an undertaking, and
c
the regulator to take any undertaking so accepted into account in its decision.
6
To comply with this subsection the final notice referred to in subsection (2)(d) must include information as to—
a
the grounds for imposing the discretionary requirement,
b
where the discretionary requirement is a variable monetary penalty—
i
how payment may be made,
ii
the period within which payment must be made, and
iii
any early payment discounts or late payment penalties,
c
rights of appeal, and
d
the consequences of non-compliance.
7
Provision pursuant to subsection (2)(e) must secure that the grounds on which a person may appeal against a decision of the regulator include the following—
a
that the decision was based on an error of fact;
b
that the decision was wrong in law;
c
in the case of a variable monetary penalty, that the amount of the penalty is unreasonable;
d
in the case of a non-monetary discretionary requirement, that the nature of the requirement is unreasonable;
e
that the decision was unreasonable for any other reason.
Pt. 3 modified (21.1.2010) by Video Recordings Act 2010 (c. 1), s. 2(2), Sch. para. 5 (with Sch. para. 2(2)6)
Pt. 3 modified (18.10.2023) by Environment (Wales) Act 2016 (anaw 3), ss. 68(1), 88(3)(b); S.I. 2023/1096, art. 2(c)