Ivory Bill (HC Bill 215)

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An order under this subsection is referred to below as a “forfeiture order”.

(4) Before making a forfeiture order under subsection (3)(b) in relation to any item,
the court must give an opportunity to make representations to any person (in
addition to the convicted person) who claims to be the owner of the item or
5otherwise to have an interest in it.

(5) A forfeiture order may not be made so as to come into force before the time
when there is no further possibility (ignoring any power to appeal out of time)
of the order being varied or set aside on appeal.

(6) Where the court makes a forfeiture order, it may also make any other provision
10that it considers to be necessary for giving effect to the forfeiture.

(7) That provision may, in particular, include provision relating to the retention,
handling, destruction or other disposal of the item.

(8) Provision made by virtue of this section may be varied at any time by the court
that made it.

15General

33 Application of Customs and Excise Management Act 1979

(1) An item that is—

(a) imported or exported in breach of the prohibition, or

(b) declared for, or brought to a place in the United Kingdom for,
20exportation in breach of the prohibition,

is liable to forfeiture under the Customs and Excise Management Act 1979.

(2) Section 5 of that Act (time of importation, exportation, etc) applies for the
purposes of this section as it applies for the purposes of that Act.

34 Liability of corporate officers for offences by bodies corporate etc

(1) 25If an offence under this Act by a body corporate or a Scottish partnership is
proved to have been committed with the consent or connivance of an officer,
the officer (as well as the body corporate or partnership) is guilty of the offence
and liable to be proceeded against and punished accordingly.

(2) In relation to a body corporate “officer” means—

(a) 30a director, manager, secretary or other similar officer of the body, or

(b) a person purporting to act in any such capacity.

(3) In relation to a Scottish partnership “officer” means—

(a) a partner, or

(b) a person purporting to act as a partner.

(4) 35If the affairs of a body corporate are managed by its members, subsection (1)
applies in relation to the acts and omissions of a member in connection with
functions of management as if the member were an officer of the body.

35 Meaning of “ivory”

(1) In this Act (apart from this section) “ivory” means ivory from the tusk or tooth
40of an elephant.

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(2) Regulations made by the Secretary of State may amend subsection (1).

(3) The regulations may amend subsection (1) so as to include ivory from an
animal or species not for the time being covered by that subsection only if the
animal or species is currently listed in an Appendix to the Convention on
5International Trade in Endangered Species of Wild Fauna and Flora.

(4) A statutory instrument containing regulations under subsection (2) (whether
alone or with other provision) may not be made unless a draft of the
instrument has been laid before each House of Parliament and approved by a
resolution of each House.

(5) 10In any proceedings under this Act, any material that is proved to be ivory from
an animal is presumed to be ivory from an elephant unless the material is
proved to be not from an elephant.

(6) In this section “elephant” means an animal of a species that is—

(a) within the family Elephantidae, and

(b) 15extant on the day on which this Act is passed.

36 Meaning of other expressions

(1) In this Act—

  • “accredited civilian officer” has the meaning given by section 17(7);

  • “the appropriate court” has the meaning given by section 29(8);

  • 20“dealing” has the meaning given by section 1(2) to (4);

  • “designated customs official” means a person—

    (a)

    designated as a general customs official under section 3(1) of the
    Borders, Citizenship and Immigration Act 2009, or

    (b)

    designated as a customs revenue official under section 11(1) of
    25that Act;

  • “designated NCA officer” means a National Crime Agency officer
    designated under section 10 of the Crime and Courts Act 2013 as a
    person having either or both of the following—

    (a)

    the powers and privileges of a constable;

    (b)

    30the powers of an officer of Revenue and Customs;

  • “exemption certificate” has the meaning given by section 2(1);

  • “justice” means—

    (a)

    in England and Wales, a justice of the peace;

    (b)

    in Scotland, a sheriff or summary sheriff or a justice of the peace;

    (c)

    35in Northern Ireland, a lay magistrate;

  • “police officer” has the meaning given by section 29(8);

  • “police or customs officer” has the meaning given by section 14(4);

  • “pre-1918”, “pre-1947” and “pre-1975” are to be read in accordance with
    subsections (2) and (3);

  • 40“premises” has the meaning given by section 17(7);

  • “prescribed institution” has the meaning given by section 2(5);

  • “the prohibition” means the prohibition in section 1;

  • “relevant evidence” has the meaning given by 14(4);

  • “relevant offence” has the meaning given by 14(4);

  • 45“search warrant” means a warrant under section 18;

  • “vessel” is to be read in accordance with subsection (4).

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(2) An item that is made of ivory, or has ivory in it, is “pre-1918”, “pre-1947” or
“pre-1975” if the item was made before the relevant date (see subsection (3))
and either—

(a) no ivory was added to the item on or after the relevant date, or

(b) 5any ivory added to the item on or after the relevant date—

(i) was taken from its animal source before 1 January 1975, and

(ii) was added to the item for the purpose of restoring it.

(3) The “relevant date” is—

(a) 1 January 1918 for a pre-1918 item;

(b) 103 March 1947 for a pre-1947 item;

(c) 1 January 1975 for a pre-1975 item.

(4) A reference to a vessel includes a reference to—

(a) a ship or boat or any other description of vessel used in navigation, and

(b) a hovercraft, submersible craft or other floating craft,

15but does not include a reference to anything that permanently rests on, or is
permanently attached to, the sea bed.

37 Regulations and guidance

(1) Regulations under the preceding provisions of this Act—

(a) may make consequential, supplementary, incidental, transitional or
20saving provision;

(b) may make different provision for different purposes or for different
parts of the United Kingdom.

(2) Regulations under this Act are to be made by statutory instrument.

(3) A statutory instrument containing regulations under this Act, other than
25regulations under section 35(2) or 41, is subject to annulment in pursuance of a
resolution of either House of Parliament.

(4) The Secretary of State must publish any guidance issued under section 2, 3, 4,
10 or 11.

38 Financial provision

30Any expenditure incurred by the Secretary of State under or by virtue of this Act is to
be paid out of money provided by Parliament.

39 Crown application

(1) Subject to subsection (2), this Act binds the Crown.

(2) Sections 12 and 27 and paragraph 9 of Schedule 1 (offences) apply to persons
35in the service of the Crown but, apart from that, do not bind the Crown.

40 Extent

(1) This Act extends to England and Wales, Scotland and Northern Ireland.

(2) Subsection (1) does not apply to section 19(7) and (8) and Schedule 2, which
extend to England and Wales and Northern Ireland.

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41 Commencement

(1) This Act comes into force in accordance with provision made by the Secretary
of State by regulations.

(2) Regulations under this section—

(a) 5may make transitional or saving provision;

(b) may make different provision for different purposes or for different
parts of the United Kingdom.

42 Short title

This Act may be cited as the Ivory Act 2018.

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SCHEDULES

Section 13

SCHEDULE 1 Civil sanctions

Part 1 5Monetary penalties

Imposition of monetary penalties

1 (1) The Secretary of State may impose a monetary penalty on a person if
satisfied beyond reasonable doubt that the person has committed an offence
under section 12.

(2) 10In this Schedule “monetary penalty” means a requirement to pay to the
Secretary of State a penalty of an amount determined by the Secretary of
State.

(3) The amount of a monetary penalty may not be more than £250,000.

Representations and appeals etc

2 (1) 15Where the Secretary of State proposes to impose a monetary penalty on a
person, the Secretary of State must serve on the person a notice of what is
proposed.

(2) A notice under sub-paragraph (1) must offer the person the opportunity to
discharge the person’s liability for the monetary penalty by payment of a
20sum specified in the notice (which must be less than or equal to the amount
of the penalty).

(3) The person may make written representations and objections to the
Secretary of State in relation to the proposed imposition of the monetary
penalty.

(4) 25After the end of the period for making such representations and objections
(see paragraph 3(2)) the Secretary of State must decide whether to impose
the monetary penalty.

(5) The Secretary of State may not impose a monetary penalty on a person—

(a) if, taking into account (in particular) any matter raised by the person,
30the Secretary of State is no longer satisfied as mentioned in
paragraph 1(1), or

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(b) in prescribed circumstances.

(6) A person on whom a monetary penalty is imposed may appeal against the
decision to impose the penalty on the ground—

(a) that the decision was based on an error of fact,

(b) 5that the decision was wrong in law,

(c) that the amount of the penalty is unreasonable, or

(d) that the decision is unreasonable for any other reason,

or on any other grounds that are prescribed.

(7) An appeal under sub-paragraph (6) is to the First-tier Tribunal.

10Information to be included in notices under paragraph 2

3 (1) A notice under paragraph 2(1) must include information as to—

(a) the grounds for the proposal to impose the monetary penalty;

(b) the effect of payment of the sum referred to in paragraph 2(2);

(c) the right to make representations and objections;

(d) 15the circumstances in which the Secretary of State may not impose the
monetary penalty.

(2) Such a notice must also specify—

(a) the period within which liability for the monetary penalty may be
discharged, and

(b) 20the period within which representations and objections may be
made.

Neither period may be more than 28 days starting with the day on which the
notice is received.

(3) A notice under paragraph 2(4) must include information as to—

(a) 25the grounds for imposing the monetary penalty;

(b) how payment may be made;

(c) the period within which payment is to be made;

(d) any early payment discounts or late payment penalties;

(e) rights of appeal;

(f) 30the consequences of non-payment.

The period referred to in paragraph (c) must be at least 28 days.

Monetary penalties: criminal proceedings and conviction

4 (1) Where a notice under paragraph 2(1) is served on a person—

(a) no criminal proceedings for an offence under section 12 may be
35instituted against the person in respect of the act or omission to
which the notice relates before the end of the period within which the
person’s liability may be discharged as mentioned in paragraph 2(2)
(see paragraph 3(2));

(b) if the liability is so discharged, the person may not at any time be
40convicted of an offence under section 12 in relation to that act or
omission.

(2) A person on whom a monetary penalty is imposed may not at any time be
convicted of an offence under section 12 in respect of the act or omission
giving rise to the penalty.

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Part 2 Stop notices

Imposition of stop notices

5 (1) Where sub-paragraph (2) or (3) applies, the Secretary of State may serve on
5a person a notice (a “stop notice”)—

(a) prohibiting the person from carrying on an activity specified in the
notice, or

(b) prohibiting the person from carrying on an activity specified in the
notice until the person has taken the steps specified in the notice.

(2) 10This sub-paragraph applies where—

(a) the person is carrying on the activity, and

(b) the Secretary of State reasonably believes that the activity as carried
on by the person involves or is likely to involve the person
committing an offence under section 12.

(3) 15This sub-paragraph applies where—

(a) the person is likely to carry on the activity, and

(b) the Secretary of State reasonably believes that the activity as carried
on by the person will involve or will be likely to involve the person
committing an offence under section 12.

(4) 20Steps referred to in sub-paragraph (1)(b) must be steps to secure that the
activity is carried on or (as the case may be) will be carried on in a way that
does not involve the person acting as mentioned in sub-paragraph (2)(b) or
(3)(b).

Information to be included in stop notices

6 25A stop notice must include information as to—

(a) the grounds for serving the notice;

(b) rights of appeal;

(c) the consequences of not complying with the notice.

Completion certificates

7 (1) 30This paragraph applies where a person is served with a stop notice
prohibiting the person from carrying on an activity specified in the notice
until the person has taken the steps specified in the notice.

(2) Where the Secretary of State is satisfied that the person has taken the
specified steps, the Secretary of State must issue a certificate to that effect (a
35“completion certificate”).

(3) The person served with the stop notice may at any time apply for a
completion certificate.

(4) Where a completion certificate is issued, the stop notice to which it relates
ceases to have effect.

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Appeals

8 (1) A person served with a stop notice may appeal against the decision to serve
it on the ground—

(a) that the decision was based on an error of fact,

(b) 5that the decision was wrong in law,

(c) that the decision was unreasonable,

(d) that any step specified under paragraph 5(1)(b) is unreasonable, or

(e) that the person has not acted as mentioned in paragraph 5(2)(b) or
(3)(b) and would not have done so even if the stop notice had not
10been served,

or on any other grounds that are prescribed.

(2) Where paragraph 7 applies and a decision is made not to issue a completion
certificate, the person served with the stop notice may appeal against the
decision on the ground that—

(a) 15it was based on an error of fact,

(b) it was wrong in law, or

(c) it was unfair or unreasonable,

or on any other grounds that are prescribed.

(3) An appeal under sub-paragraph (1) or (2) is to the First-tier Tribunal.

20Offence of failure to comply with stop notice

9 (1) A person served with a stop notice who does not comply with it commits an
offence.

(2) A person who commits an offence under this paragraph is liable—

(a) on summary conviction in England and Wales, to imprisonment for
25a term not exceeding six months or a fine (or both);

(b) on summary conviction in Scotland or Northern Ireland, to
imprisonment for a term not exceeding six months or a fine not
exceeding level 5 on the standard scale (or both).

Part 3 30Enforcement undertakings

10 (1) This paragraph applies where—

(a) the Secretary of State has reasonable grounds to suspect that a person
has committed an offence under section 12,

(b) the person offers an undertaking (an “enforcement undertaking”) to
35take specified action, within a specified period,

(c) the action specified is—

(i) action to secure that the offence does not continue or recur, or

(ii) action of a prescribed description,

and

(d) 40the Secretary of State accepts the undertaking.

(2) Unless the person has failed to comply with the undertaking or any part of
it—

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(a) the person may not at any time be convicted of an offence under
section 12 in respect of the act or omission to which the undertaking
relates;

(b) the Secretary of State may not impose on the person any monetary
5penalty that he or she would otherwise have power to impose by
virtue of paragraph 1 in respect of that act or omission.

Part 4 Enforcement cost recovery notices

Imposition of enforcement cost recovery notices

11 (1) 10The Secretary of State may serve an enforcement cost recovery notice on a
person on whom—

(a) a monetary penalty has been imposed, or

(b) a stop notice has been served.

(2) For the purposes of this Schedule an “enforcement cost recovery notice” is a
15notice requiring the person to pay to the Secretary of State the costs incurred
by the Secretary of State in relation to the monetary penalty or stop notice up
to the time when it was imposed or served.

(3) In sub-paragraph (2) “costs” includes (in particular)—

(a) investigation costs;

(b) 20administration costs;

(c) costs of obtaining expert advice (including legal advice).

Information to be included in enforcement cost recovery notices

12 (1) An enforcement cost recovery notice must specify the amount to be paid and
must include information as to—

(a) 25the grounds for serving the notice;

(b) how payment may be made;

(c) the period within which payment is to be made;

(d) any early payment discounts or late payment penalties;

(e) rights of appeal;

(f) 30the consequences of non-payment.

The period referred to in paragraph (c) must be at least 28 days.

(2) A person required by an enforcement cost recovery notice to pay an amount
to the Secretary of State may require the Secretary of State to provide a
detailed breakdown of that amount.

35Appeals

13 (1) A person served with an enforcement cost recovery notice may appeal
against the decision to serve it on the ground—

(a) that the decision was based on an error of fact,

(b) that the decision was wrong in law,

(c) 40that the decision was unreasonable, or

(d) that any of the costs to which the notice relates were unreasonably
incurred or unreasonable in amount,

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or on any other grounds that are prescribed.

(2) An appeal under sub-paragraph (1) is to the First-tier Tribunal.

Part 5 Power to make supplementary provision etc by regulations

5Supplementary regulations: general

14 (1) The Secretary of State may by regulations (“supplementary regulations”)—

(a) make provision (including transitional provision) supplementing
that made by this Schedule;

(b) make provision that is consequential on or incidental to that made by
10this Schedule.

(2) The following provisions of this Part are not to be read as limiting the power
conferred by sub-paragraph (1).

Consultation

15 (1) Before making supplementary regulations the Secretary of State must
15consult any persons that the Secretary of State considers appropriate.

(2) If, as a result of any consultation required by sub-paragraph (1), it appears
to the Secretary of State that it is appropriate substantially to change the
whole or any part of the proposals, the Secretary of State must undertake
whatever further consultation he or she considers appropriate with respect
20to the changes.

Monetary penalties and costs

16 (1) Supplementary regulations may make any of the following provision in
relation to the power of the Secretary of State to require a person to pay a
monetary penalty (under paragraph 1) or costs (under paragraph 11)—

(a) 25provision for early payment discounts;

(b) provision for the payment of interest or other financial penalties for
late payment;

(c) provision for enforcement.

(2) Provision made by virtue of sub-paragraph (1)(b) must secure that the
30interest or other financial penalties for late payment do not in total exceed
the amount of the penalty or costs to which the interest or other financial
penalties relate.

(3) Provision made by virtue of sub-paragraph (1)(c) may include—

(a) provision for the Secretary of State to recover the penalty or costs,
35and any interest or other financial penalty for late payment, as a civil
debt;

(b) provision for the penalty or costs, and any interest or other financial
penalty for late payment, to be recoverable, on the order of a court,
as if payable under a court order.