The Mercury Export and Data (Enforcement) Regulations 2010

PART 3 Offences and penalties

Offences in respect of the EU Regulation

5.—(1) It is an offence to contravene or fail to comply with any requirement of the following Articles of the EU Regulation—

(a) Article 1(1) (prohibition on export of mercury from the EU not excepted by Article 1(2) (exports of mercury compounds for research and development, medical or analysis purposes));

(b) Article 1(3) (prohibition on mixing of mercury with other substances for the sole purpose of export);

(c) Article 5(3) (obligation on importers, exporters and operators to provide data); or

(d) Article 6 (obligation on chlor-alkali industry and operators to provide data), in respect of the obligation to provide data by 31st May in any year.

(2) An offence will not be committed under —

(a) paragraph (1)(b) if, in respect of the prohibition on mixing in Article 1(3), an offence is committed in respect of a relevant hazardous waste offence; or

(b) paragraph (1)(c) or (d) if, in respect of the obligation in Article 5(3) or 6, a relevant permitting or licence offence is committed.

(3) In paragraph (2)(a), “relevant hazardous waste offence” means—

(a) in England, an offence under regulation 65(a) of the Hazardous Waste (England and Wales) Regulations 2005(1) in respect of a breach of regulation 19 of those Regulations;

(b) in Wales, an offence under regulation 65(a) of the Hazardous Waste (Wales) Regulations 2005(2) in respect of a breach of regulation 19 of those Regulations;

(c) in Scotland, an offence under regulation 18 of the Special Waste Regulations 1996(3) in respect of a breach of regulation 17 of those Regulations;

(d) in Northern Ireland, an offence under regulation 43(1) of the Hazardous Waste Regulations (Northern Ireland) 2005(4) in respect of a breach of regulation 19 of those Regulations.

(4) In paragraph (2)(b), “relevant permitting or licence offence” means—

(a) in England and Wales, an offence under any of the following paragraphs of regulation 38 of the Environmental Permitting (England and Wales) Regulations 2007(5)—

(i) paragraph (1)(b);

(ii) paragraph (1)(e);

(iii) paragraph (1)(f);

(iv) paragraph (1)(g);

(b) in Scotland, an offence under—

(i) any of the following provisions of the Environmental Protection Act 1990(6)—

(aa) section 33(6)(7);

(bb) section 35(7B)(8);

(cc) section 44(1)(9);

(dd) section 44(2)(10);

(ii) any of the following paragraphs of regulation 30 of the Pollution Prevention and Control (Scotland) Regulations 2000(11)—

(aa) paragraph (1)(b);

(bb) paragraph (1)(f);

(cc) paragraph (1)(g);

(dd) paragraph (1)(h);

(c) in Northern Ireland, an offence under—

(i) any of the following provisions of the Waste and Contaminated Land (Northern Ireland) Order 1997(12)—

(aa) article 4(6);

(bb) article 6(7)(a) or (b);

(cc) article 18(1);

(dd) article 18(2);

(ii) any of the following paragraphs of regulation 33 of the Pollution Prevention and Control Regulations (Northern Ireland) 2003(13)—

(aa) paragraph (1)(b);

(bb) paragraph (1)(h);

(cc) paragraph (1)(i);

(dd) paragraph (1)(j).

Offence of obstruction

6.  A person is guilty of an offence if that person, in relation to an authorised person acting under these Regulations—

(a) intentionally obstructs an authorised person;

(b) without reasonable cause, fails to give to an authorised person any information or assistance or to provide any facilities that such person may reasonably require;

(c) knowingly or recklessly gives false or misleading information to an authorised person; or

(d) fails to produce a record when required to do so by an authorised person.

Corporate, partnership and unincorporated association offences

7.—(1) If an offence under these Regulations committed by a body corporate is shown—

(a) to have been committed with the consent or connivance of an officer; or

(b) to be attributable to any neglect on the officer’s part,

the officer as well as the body corporate is guilty of the offence and is liable to be proceeded against and punished accordingly.

(2) If the affairs of a body corporate are managed by its members, paragraph (1) applies in relation to the acts or defaults of a member in connection with that member’s functions of management as if the member were an officer of the body corporate.

(3) If an offence committed by a partnership or Scottish partnership is shown—

(a) to have been committed with the consent or connivance of a partner; or

(b) to be attributable to any neglect on a partner’s part,

the partner as well as the partnership is guilty of the offence and is liable to be proceeded against and punished accordingly.

(4) Where an offence committed by an unincorporated association, other than a partnership, is shown—

(a) to have been committed with the consent or connivance of an officer of the association or a member of its governing body; or

(b) to be attributable to any neglect on the part of such an officer or member,

the officer or member as well as the association is guilty of the offence and is liable to be proceeded against and punished accordingly.

(5) In this regulation—

(a) “officer”, in relation to a body corporate, means a director, manager, secretary or other similar officer of the body, or a person purporting to act in such capacity and in relation to an unincorporated association means a manager; and

(b) “partner” includes a person purporting to act as a partner.

(6) Proceedings for an offence under these Regulations alleged to have been committed by a partnership or an unincorporated association may be brought against the partnership or association in the name of the partnership or association.

(7) For the purpose of proceedings in paragraph (6)—

(a) rules of court relating to the service of documents have effect as if the partnership or unincorporated association were a body corporate; and

(b) the following provisions apply as they apply in relation to a body corporate—

(i) section 33 of the Criminal Justice Act 1925(14) and Schedule 3 to the Magistrates’ Courts Act 1980(15);

(ii) section 70 of the Criminal Procedure (Scotland) Act 1995(16); or

(iii) section 18 of the Criminal Justice Act (Northern Ireland) 1945(17) and Schedule 4 to the Magistrates’ Courts (Northern Ireland) Order 1981(18).

(8) A fine imposed on a partnership or unincorporated association on its conviction of an offence under these Regulations is to be paid out of the funds of the partnership or association.

Amendment of Transfrontier Shipment of Waste Regulations

8.  After regulation 25 (miscellaneous prohibitions on export of waste) of the Transfrontier Shipment of Waste Regulations 2007(19) insert—

“Disapplication of offences

25A.   Where an offence is committed under—

(a) regulation 5(1)(a) of the Mercury Export and Data Regulations 2010, an offence will not be committed under regulations 21 to 23, 24 or 25; or

(b) regulation 5(1)(b) of those Regulations, an offence will not be committed under regulation 25.”.

Penalties

9.  A person guilty of an offence under these Regulations is liable —

(a) on summary conviction, to a fine not exceeding the statutory maximum or to imprisonment not exceeding three months, or both; or

(b) on conviction on indictment, to a fine or to imprisonment for a term not exceeding two years, or both.

(1)

S.I. 2005/894, amended by S.I. 2007/3476; there are other amending instruments but none is relevant.

(2)

S.I. 2005/1806 (W. 138), to which there are amendments not relevant to these Regulations.

(3)

S.I. 1996/972, amended by S.I. 2005/894 in relation to England and S.I. 2005/1806 in relation to Wales; there are other amending instruments but none is relevant.

(4)

S.R. (NI) 2005 No 300, amended by S.R. (NI) 2005 No 461; there are other amending instruments but none is relevant.

(5)

S.I. 2007/3538, to which there are amendments not relevant to these Regulations.

(6)

1990 c. 43.

(7)

Section 33(6) of the 1990 Act was repealed in respect of the offence of contravention of a waste management licence as regards England and Wales by regulations 73 and 74(2) of, and Schedule 21, Part 1, paragraphs 2, 4(1) and (5), and Schedule 23 to, S.I. 2007/3538.

(8)

Section 35(7B) of the 1990 Act was inserted by the Environment Act 1995, section 120, Schedule 22, paragraph 66. Section 35 of the 1990 Act was repealed in relation to England and Wales by regulations 73 and 74(2) of, and Schedule 21, Part 1, paragraphs 2, 10 and Schedule 23 to, S.I. 2007/3538.

(9)

Section 44 of the 1990 Act was substituted by the Environment Act 1995, section 112, Schedule 19, paragraph 4(1). Section 44(1) was partially repealed as regards England and Wales by regulations 73 and 74(2) of, and Schedule 21, Part 1, paragraphs 2, 11, and Schedule 23 to, S.I. 2007/3538.

(10)

Section 44 of the 1990 Act was substituted by the Environment Act 1995, section 112, Schedule 19, paragraph 4(1). Section 44((2) was partially repealed as regards England and Wales by regulations 73 and 74(2) of, and Schedule 21, Part 1, paragraphs 2, 11, and Schedule 23 to, S.I. 2007/3538.

(11)

S.S.I. 2000/323, amended by S.S.I. 2003/235; there are other amending instruments but none is relevant.

(12)

S.I. 1997/2778 (N.I.19) to which there are amendments not relevant to these Regulations.

(13)

S.R. (NI) 2003 No 46, amended by S.R. (NI) 2003 No 496; there are other amending instruments but none is relevant .

(14)

1925 c. 86. Subsections (1), (2) and (5) of section 33 were repealed by the Magistrates’ Courts Act 1952 (c. 55), section 132 and Schedule 6; subsection (3) was amended by the Courts Act 1971 (c. 23), section 56(1) and Schedule 8, Part 2, paragraph 19; subsection (4) was partially repealed by the Courts Act 2003 (c. 39), section 109(1) and (3), Schedule 8, paragraph 71 and Schedule 10.

(15)

1980 c. 43. Paragraph 2(a) was amended by the Criminal Procedure and Investigations Act 1996 (c. 25), section 47, Schedule 1, paragraph 13; paragraph 5 was repealed by the Criminal Justice Act 1991 (c. 53), sections 25(2) and 101(2) and Schedule 13.

(16)

1995 c.46. Section 70 was last amended by section 28 of the Criminal Proceedings etc. (Reform) (Scotland) Act 2007 (2007 asp 6).

(17)

1945 c.15 (N.I.). Section 18 has been repealed in part by the Magistrates’ Courts (Northern Ireland) Act (c. 21), section 172 and Schedule 7 and amended by S.I. 1972/538 (N.I.1), article 10, and the Justice (Northern Ireland) Act 2002 (c. 26), Schedule 12, paragraph 1.

(18)

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

(19)

S.I. 2007/1711, amended by S.I. 2008/9; there are other amending instruments but none is relevant.