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S C H E D U L E S |
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SCHEDULE 1
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FIXED PENALTIES AND ENFORCEMENT |
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Fixed penalty notices |
| | 1. - (1) Where a duly authorised officer of a local weights and measures authority ("the authority") has reason to believe that a person is committing or has committed an offence under section 3 or 4, he may serve on that person a notice (a "fixed penalty notice") offering him the opportunity of discharging any liability to conviction for that offence by payment of a penalty of such amount as the Secretary of State may by regulations prescribe.
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(2) Where a person is served with a fixed penalty notice in respect of such an offence-
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(a) proceedings for that offence shall not be commenced before the end of the period for paying the penalty; and |
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(b) he shall not be convicted of that offence if he pays the penalty before the end of that period or the authority accept payment after the end of that period. |
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(3) Where a person-
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(a) is served with a fixed penalty notice in respect of an offence under section 3 or 4; and |
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(b) is subsequently convicted of that offence, |
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that person is liable to a fine not exceeding level 2 on the standard scale.
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(4) In proceedings for an offence under section 3 or 4 a certificate which-
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(a) purports to be signed by or on behalf of the person having responsibility for the financial affairs of the authority; and |
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(b) states that payment of the fixed penalty was or was not received by a date specified in the certificate, |
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shall be evidence of the facts stated.
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| | 2. - (1) A fixed penalty notice shall give such particulars of the circumstances alleged to constitute the offence as are necessary for giving reasonable information of the offence and shall state-
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(a) the amount of the penalty; |
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(b) the person to whom and the address at which the penalty may be paid (and any representations relating to the notice may be addressed); |
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(c) the method or methods by which payment of the penalty may be made; |
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(d) the period for paying the penalty; and |
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(e) the consequences of the penalty not being paid within that period. |
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(2) The period for paying the penalty shall be not less than 28 days from the date on which the fixed penalty notice was served.
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(3) The Secretary of State may by regulations amend sub-paragraph (2) by substituting a different period for the period for the time being specified there.
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(4) The authority may extend the period for paying a fixed penalty in any particular case if it considers it appropriate to do so.
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(5) The Secretary of State may by regulations prescribe-
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(a) circumstances in which fixed penalty notices may not be served; |
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(b) the form of fixed penalty notices; and |
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(c) the method or methods by which penalties may be paid. |
| | 3. - (1) A fixed penalty notice may be served on a person by delivering it to him, by leaving it at his proper address or by sending it by post to him at that address.
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(2) Any such notice may be served-
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(a) in the case of a body corporate, on the secretary or clerk of that body; and |
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(b) in the case of a partnership, on any partner or a person having control or management of the partnership business. |
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(3) For the purposes of this paragraph and section 7 of the Interpretation Act 1978 in its application to this paragraph, the proper address of any person is-
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(a) in the case of a body corporate, the address of its registered or principal office; |
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(b) in the case of a partnership, the address of the principal office of the partnership; and |
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(c) in any other case, his usual or last known address (whether of his residence or of a place where he carries on business or is employed). |
| | 4. - (1) If, in any particular case, the authority considers that a fixed penalty notice which has been served ought not to have been served, it may give to the person on whom it was served a notice withdrawing the fixed penalty notice.
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(2) Where a notice under sub-paragraph (1) is given-
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(a) the authority shall repay any amount which has been paid by way of penalty in pursuance of the fixed penalty notice; and |
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(b) no proceedings shall be commenced or continued against that person for the offence in question. |
| | 5. The amount by which any penalties received by the authority exceed the sums repaid by it under paragraph 4(2)(a) shall be paid to the Secretary of State.
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Powers of officers of local weights and measures authority |
| | 6. - (1) A duly authorised officer of a local weights and measures authority may require a person who appears to him to be or to have been a person responsible for marketing a residential property to produce for inspection a copy of, or of any document forming part of, the seller's pack for that property.
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(2) Such an officer may require a person who appears to him-
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(a) to be or to have been acting as estate agent for the seller of a residential property; and |
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(b) to have taken any qualifying action (within the meaning of section 4(3)) in relation to that property, |
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to produce for inspection a copy of, or of any document forming part of, the seller's pack for that property.
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(3) The powers conferred by sub-paragraphs (1) and (2) include power-
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(a) to require the production in a visible and legible documentary form of any document comprised in the seller's pack which is held in electronic form; and |
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(b) to take copies of any document produced to him for inspection. |
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(4) If such an officer has reasonable grounds for believing that any documents produced for inspection may be required as evidence in proceedings for an offence under section 3 or 4, he may seize and detain them and shall, if he does so, inform the person from whom they are seized.
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(5) The powers of an officer under this paragraph may be exercised by him only at a reasonable hour and on production (if required) of his credentials.
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| | 7. - (1) A duly authorised officer of a local weights and measures authority may-
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(a) if he has reasonable grounds for suspecting that an offence under section 3 or 4 has been committed; and |
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(b) for the purpose of ascertaining whether such an offence has been committed, |
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require a person carrying on or employed in a business to produce for inspection any record or other document relating to the business.
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(2) The power conferred by sub-paragraph (1) includes power-
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(a) to require the production in a visible and legible documentary form of any information relating to the business which is held in electronic form; and |
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(b) to take copies of any document produced to him for inspection. |
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(3) If such an officer has reasonable grounds for believing that any documents may be required as evidence in proceedings for an offence under section 3 or 4, he may seize and detain them and shall, if he does so, inform the person from whom they are seized.
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(4) The powers of an officer under this paragraph may be exercised by him only at a reasonable hour and on production (if required) of his credentials.
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(5) Nothing in this paragraph requires a person to produce, or authorises the taking from a person of, a document which he could not be compelled to produce in civil proceedings before the High Court.
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| | 8. - (1) A duly authorised officer of a local weights and measures authority may enter any non-residential premises for the purpose of ascertaining whether an offence under section 3 or 4 has been committed.
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(2) An officer entering premises by virtue of this paragraph may take with him such other persons as may appear to him necessary.
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(3) The powers of an officer under this paragraph may be exercised by him only at a reasonable hour and on production (if required) of his credentials.
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(4) In this paragraph and paragraph 9 "premises" includes any place and premises are non-residential if they are not used only as a dwelling.
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| | 9. - (1) If a justice of the peace is satisfied by written information on oath that-
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(a) any relevant records or other documents are on, or any relevant information held in electronic form is accessible from, any non-residential premises; |
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(b) production or inspection of the documents or information is likely to disclose the commission of an offence under section 3 or 4; and |
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(c) any of the conditions specified in sub-paragraph (2) is met, |
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he may by warrant under his hand authorise an officer of a local weights and measures authority to enter the premises, if need be by force, and search them.
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(2) The conditions are-
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(a) 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 paragraph has been given to the occupier; |
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(b) that an application for admission, or the giving of such a notice, would defeat the object of the entry; |
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(c) that the premises are unoccupied; and |
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(d) that the occupier is temporarily absent and it might defeat the object of the entry to await his return. |
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(3) For the purposes of this paragraph a document or information is relevant if it relates to the marketing of a residential property.
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(4) A warrant under this paragraph shall continue in force for a period of one month.
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(5) An officer entering premises by virtue of this paragraph may take with him such other persons as may appear to him necessary.
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(6) On leaving premises which he has entered by virtue of this paragraph, an officer shall, if the premises are unoccupied or the occupier is temporarily absent, leave the premises as effectively secured against trespassers as he found them.
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(7) Nothing in this paragraph requires a person to produce, or authorises the taking from a person of, a document which he could not be compelled to produce in civil proceedings before the High Court.
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Obstruction and impersonation of officers |
| | 10. - (1) A person who-
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(a) intentionally obstructs an officer acting in pursuance of paragraphs 6 to 9; |
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(b) without reasonable excuse fails to comply with a requirement made of him by an officer under paragraph 6 or 7; or |
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(c) without reasonable excuse fails to give an officer acting in pursuance of paragraphs 6 to 9 any other assistance or information which the officer may reasonably require of him for the purpose of the performance of the officer's functions under those paragraphs, |
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is guilty of an offence and liable, on summary conviction, to a fine not exceeding level 5 on the standard scale.
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(2) A person who, in giving any information as is mentioned in sub-paragraph (1)(c)-
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(a) makes a statement which he knows is false in a material particular; or |
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(b) recklessly makes a statement which is false in a material particular, |
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is guilty of an offence.
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(3) A person who, not being a duly authorised officer of a local weights and measures authority, purports to act as such in pursuance of paragraphs 6 to 9 is guilty of an offence.
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(4) A person guilty of an offence under sub-paragraph (2) or (3) is liable-
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(a) on summary conviction, to a fine not exceeding the statutory maximum; and |
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(b) on conviction on indictment, to a fine. |
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Disclosure of information |
| | 11. - (1) A person who discloses to another any information obtained by him by virtue of paragraphs 6 to 9 is guilty of an offence unless the disclosure was made-
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(a) in or for the purpose of the performance by him or any other person of any function under this Act; or |
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(b) for a purpose specified in section 38(2)(a), (b) or (c) of the Consumer Protection Act 1987. |
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(2) A person guilty of an offence under this paragraph is liable-
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(a) on summary conviction, to a fine not exceeding the statutory maximum; and |
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(b) on conviction on indictment, to a fine. |
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Privilege against self-incrimination |
| | 12. Nothing in paragraphs 7 to 10 requires a person to answer any question or give any information if to do so might incriminate him.
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Notice to DGFT of intended prosecution |
| | 13. In section 130 of the Fair Trading Act 1973 (notice by local weights and measures authority of intended prosecution) after "Timeshare Act 1992" there is inserted "or for an offence under section 3 or 4 of the Homes Act 2001 committed in the course of a business".
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