The Motor Cycles Etc. (Replacement of Catalytic Converters) Regulations 2009

Regulation 6(2)

SCHEDULE OFFENCES, ENFORCEMENT AND OTHER MATTERS

PART 1 PROVISIONS AS TO OFFENCES

Offences and penalties

1.—(1) If a person contravenes a regulation or paragraph specified in sub-paragraph (2), that person commits an offence.

(2) The regulations and paragraphs are—

(a) regulation 4(1) (supplying a catalytic converter or an assembly of catalytic converters);

(b) regulation 5(1) (installing a catalytic converter or an assembly of catalytic converters);

(c) paragraph 4 of this Schedule (obstructing etc. an officer); and

(d) paragraph 5(10) of this Schedule (purporting to act as an officer).

(3) But a contravention of a regulation referred to in sub-paragraph (2)(a) and (b) is only an offence if the person contravenes the regulation in the course of that person’s business.

(4) A person guilty of an offence shall be liable on summary conviction to a fine not exceeding level 5 on the standard scale.

Defence

2.—(1) In proceedings against any person for any offence under these Regulations it shall be a defence for that person (P) to show that all reasonable steps were taken and all due diligence exercised by P to avoid committing the offence.

(2) Where in any proceedings for such an offence the defence provided by sub-paragraph (1) involves an allegation that the commission of the offence was due to—

(a) the act or default of another, or

(b) reliance on information given by another,

P shall not, without the leave of the court, be entitled to rely on the defence unless, not less than seven clear days before the hearing of the proceedings (or, in Scotland the trial diet), a notice has been served by P under sub-paragraph (3) on the person bringing the proceedings.

(3) A notice under this sub-paragraph shall give such information identifying or assisting in the identification of the person who committed the act or default or gave the information as is in the possession of P.

(4) P shall not be entitled to rely on the defence provided by sub-paragraph (1) by reason of reliance on information supplied by another, unless P shows that it was reasonable in all the circumstances to have relied on the information, having regard in particular to—

(a) the steps which P took, and those which might reasonably have been taken, for the purpose of verifying the information; and

(b) whether P had any reason to disbelieve the information.

Liability of persons other than principal offender

3.—(1) Where the commission by any person of an offence under these Regulations is due to an act or default committed by some other person in the course of that other person’s business, the other person shall be guilty of the offence and may be proceeded against and punished by virtue of this sub-paragraph whether or not proceedings are taken against the first-mentioned person.

(2) Where a body corporate is guilty of an offence under these Regulations (including where it is so guilty by virtue of sub-paragraph (1)) in respect of any act or default which is shown to have been committed with the consent or connivance of, or to be attributable to any neglect on the part of—

(a) a director, manager, secretary or other similar officer of the body corporate, or

(b) a person who was purporting to act in any such capacity,

that person, as well as the body corporate, shall be guilty of that offence and shall be liable to be proceeded against and punished accordingly.

(3) Where the affairs of a body corporate are managed by its members, sub-paragraph (2) shall apply in relation to the acts and defaults of a member in connection with that member’s functions of management as if that member was a director of the body corporate.

(4) Where a Scottish partnership is guilty of an offence under these Regulations (including where it is so guilty by virtue of sub-paragraph (1)) in respect of any act or default which is shown to have been committed with the consent or connivance of, or to be attributable to any neglect on the part of, a partner in the partnership, both the partner and the partnership shall be guilty of that offence and shall be liable to be proceeded against and punished accordingly.

PART 2 PROVISIONS AS TO ENFORCEMENT

Obstruction of officers and false statements

4.—(1) No person shall—

(a) intentionally obstruct an officer when acting in pursuance of any provision of these Regulations;

(b) intentionally fail to comply with any requirement properly made by an officer under any provision of these Regulations; or

(c) without reasonable cause, fail to give an officer any other assistance or information which the officer may reasonably require of that person for the purposes of the exercise of the officer’s functions under any provision of these Regulations.

(2) No person shall, in giving any information which is required of that person by virtue of sub-paragraph (1)(c)—

(a) make any statement which the person knows is false in a material particular; or

(b) recklessly make a statement which is false in a material particular.

Powers of search etc.

5.—(1) An officer may at all reasonable hours and on—

(a) identifying himself or herself and producing authority in writing from the enforcement authority for the exercise by the officer of powers conferred on the authority by these Regulations, and

(b) stating the purpose of the officer’s actions and the grounds for undertaking them,

exercise any of the powers set out in sub-paragraph (2).

(2) The powers referred to in sub-paragraph (1) are as follows—

(a) an officer may for the purpose of ascertaining whether an offence under these Regulations has been committed—

(i) inspect any catalytic converter or assembly of catalytic converters; and

(ii) enter any premises other than premises used only as a dwelling;

(b) if an officer has reasonable cause to suspect that an offence under these Regulations has been committed, the officer may, for the purpose of ascertaining whether it has been committed, require any person carrying on, or employed in connection with, a business to produce any records relating to the catalytic converter or assembly of catalytic converters in question and the officer may take copies of those records or any part of them;

(c) if an officer has reasonable cause to suspect that an offence under these Regulations has been committed, the officer may seize and detain any catalytic converter or assembly of catalytic converters for the purpose of ascertaining whether the offence has been committed;

(d) an officer may seize and detain any catalytic converter, assembly of catalytic converters or records which the officer has reason to believe may be required as evidence in proceedings for an offence under these Regulations;

(e) an officer may, for the purpose of exercising the officer’s powers of seizure under this sub-paragraph, but only if and to the extent that it is reasonably necessary in order to secure that the provisions of these Regulations are duly observed, require any person having authority to do so to open any container and, if that person does not comply with the requirement or if there is no person present having authority to open it, the officer may break open the container.

(3) For the purposes of sub-paragraph (2), the officer may require information stored electronically to be made available in printed form.

(4) An officer may, for the purpose of ascertaining whether an offence has been committed under these Regulations, make a purchase of a catalytic converter or assembly of catalytic converters.

(5) If a justice of the peace is satisfied by any written information on oath—

(a) that there are reasonable grounds for believing either—

(i) that any catalytic converter, assembly of catalytic converters or records, which an officer has power under this paragraph to inspect, copy, seize or require to be produced, is or are on any premises and that the inspection, copying, seizure or production of that item is likely to disclose evidence of the commission of an offence under these Regulations; or

(ii) that any offence under these Regulations has been, is being, or is about to be committed on any premises; and

(b) either—

(i) that admission to the premises has been or is likely to be refused and that notice of intention to apply for a warrant under this sub-paragraph has been given to the occupier; or

(ii) that an application for admission, or the giving of such a notice, would defeat the object of the entry or that the premises are unoccupied or that the occupier is temporarily absent and it might defeat the object of the entry to await the occupier’s return,

the justice may by warrant under his or her hand, which shall continue in force for a period of one month, authorise an officer to enter the premises, if need be by force.

(6) On entering any premises by authority of a warrant granted under sub-paragraph (5), an officer shall, if the occupier is present, give to the occupier or, if the occupier is temporarily absent, leave in a prominent place on the premises, or an appropriate part of the premises, a notice in writing—

(a) summarising an officer’s powers of seizure and detention of any catalytic converter, assembly of catalytic converters or records under this paragraph;

(b) explaining that compensation may be payable for damage caused in entering premises and seizing and removing any catalytic converter, assembly of catalytic converters or records and giving the address to which an application for compensation should be directed; and

(c) indicating at which office of the enforcement authority and within which hours a copy of these Regulations is available to be consulted.

(7) An officer, when entering any premises by virtue of this paragraph, may be accompanied by such persons and take such equipment as appear necessary.

(8) An officer, when leaving any premises which the officer entered by virtue of a warrant, shall, if the premises are unoccupied or the occupier is temporarily absent, leave them in as secure a state as that in which they were found.

(9) When exercising any power of seizure and detention under this paragraph, an officer shall, as soon as practicable, give to the person against whom the power has been exercised, a written notice stating—

(a) precisely what has been so seized and detained;

(b) that an application for the release of a detained item may be made in accordance with paragraph 6 of this Schedule; and

(c) the procedure for making such an application.

(10) A person who is not an officer of the enforcement authority shall not purport to act as such under this paragraph.

(11) In the application of this paragraph to Scotland, the reference in sub-paragraph (5) to a justice of the peace shall include a reference to a sheriff and the references to written information on oath shall be construed as references to evidence on oath.

(12) In the application of this paragraph to Northern Ireland, the references in sub-paragraph (5) to any information on oath shall be construed as references to any complaint on oath.

Applications for the release of detained items

6.—(1) Any person having an interest in any catalytic converter, assembly of catalytic converters or records detained for the time being under paragraph 5 (powers of search etc.) may apply for an order requiring any item so detained to be released to the applicant or another person.

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

(a) to any magistrates’ court in which proceedings have been brought in England and Wales or Northern Ireland for an offence in respect of a contravention of any provision of these Regulations in connection with the detained item;

(b) where no such proceedings have been so brought, by way of complaint to a magistrates’ court; or

(c) in Scotland, by summary application to the sheriff.

(3) A magistrates’ court or the sheriff shall not make an order under sub-paragraph (1) unless the court or sheriff is satisfied that—

(a) proceedings have not been brought for an offence in respect of a contravention of any provision of these Regulations in connection with the detained item or, having been brought, have been concluded; and

(b) where no such proceedings have been brought, more than six months have elapsed since the seizure was carried out.

(4) Any person aggrieved by an order made under this paragraph by a magistrates’ court or sheriff, or by a decision of such a court or sheriff not to make such an order, may appeal against that order or decision—

(a) in England and Wales, to the Crown Court;

(b) in Scotland, to the sheriff principal; or

(c) in Northern Ireland, to the county court.

(5) In England and Wales or in Northern Ireland, an order so made may contain such provision as appears to the court to be appropriate for delaying the coming into force of the order pending the making and determination of any appeal (including any application under section 111 of the Magistrates’ Courts Act 1980(1) or article 146 of the Magistrates’ Courts (Northern Ireland) Order 1981 (statement of case)(2)).

Compensation for seizure and detention

7.—(1) Where an officer exercises any power under paragraph 5 (powers of search etc.) to seize and detain any catalytic converter, assembly of catalytic converters or records, the enforcement authority shall be liable to pay compensation to any person having an interest in the item seized and detained in respect of any loss or damage caused by the exercise of the power if—

(a) there has been no contravention of any provision of these Regulations; and

(b) the exercise of the power is not attributable to any neglect or default by that person.

(2) Any disputed question as to the right to, or the amount of, any compensation payable under this paragraph shall be determined—

(a) in England and Wales or Northern Ireland, by arbitration; or

(b) in Scotland, by a single arbiter appointed by the parties, or in the event that the parties fail to agree, by the sheriff.

Recovery of the expenses of enforcement

8.—(1) This paragraph shall apply where a court convicts a person of an offence in respect of a contravention of any provision of these Regulations in relation to any catalytic converter, assembly of catalytic converters or records.

(2) The court may (in addition to any other order it may make as to costs and expenses) order the person convicted to reimburse the enforcement authority for any expenditure which has been or may be incurred by that authority in connection with any seizure or detention by or on behalf of the authority of the catalytic converter, assembly of catalytic converters or records.

Savings for certain privileges

9.  Nothing in these Regulations shall be taken as requiring any person—

(a) to produce any records if that person would be entitled to refuse to produce those records in any proceedings in any court on the grounds that they are the subject of legal professional privilege or, in Scotland, a claim of confidential communications, or as authorising any person to take possession of any records which are in the possession of a person who would be so entitled; or

(b) to answer any question or give any information if to do so would incriminate that person or that person’s spouse or civil partner.

Savings for civil rights

10.  A contract for the supply of a catalytic converter or assembly of catalytic converters shall not be void or unenforceable by reason only of a contravention of any provision of these Regulations.

(1)

1980 c. 43.

(2)

S.I. 1981/1675 (N.I. 26).