|
| |
|
(i) | repayment of any amount paid by way of penalty under a |
| |
penalty notice which is withdrawn, and |
| |
(ii) | prohibition of the institution or continuation of proceedings for |
| |
the offence to which the withdrawn notice relates, |
| |
(f) | provision for a certificate— |
| 5 |
(i) | purporting to be signed by or on behalf of a prescribed person, |
| |
| |
(ii) | stating that payment of any amount paid by way of penalty was |
| |
or, as the case may be, was not received on or before a date |
| |
specified in the certificate, |
| 10 |
| to be received in evidence of the matters so stated, |
| |
(g) | provision as to the action to be taken if a penalty is not paid in |
| |
accordance with a penalty notice, and |
| |
(h) | such other provision in relation to penalties or penalty notices as the |
| |
Secretary of State thinks necessary or expedient. |
| 15 |
(2) | Regulations under subsection (1)(b)— |
| |
(a) | may make provision for penalties of different amounts to be payable in |
| |
different cases, including provision for the penalty payable under a |
| |
penalty notice to differ according to the time by which it is paid, but |
| |
(b) | must secure that the amount of any penalty payable in respect of any |
| 20 |
offence does not exceed one half of the maximum amount of the fine to |
| |
which a person committing the offence would be liable on summary |
| |
| |
| |
“penalty” means a penalty under a penalty notice; |
| 25 |
“penalty notice” has the meaning given by section 80(3). |
| |
82 | Guidance by the Commission in relation to enforcement action |
| |
(1) | The Commission must issue guidance about how it will exercise its functions |
| |
under any of the following provisions of this Part— |
| |
(a) | section 8(5), so far as relating to the variation of a condition or the |
| 30 |
imposition of additional conditions, |
| |
(b) | section 11(5), so far as relating to the variation of a condition or the |
| |
imposition of additional conditions, |
| |
(c) | sections 13 and 14 (cancellation or suspension of registration), |
| |
(d) | section 25 (warning notice), |
| 35 |
(e) | section 80 (penalty notices), and |
| |
(f) | section 83 (publication of information). |
| |
(2) | The guidance may also include guidance, in relation to any Part 1 offence, as to |
| |
the circumstances in which the Commission is likely to take criminal |
| |
proceedings for the offence. |
| 40 |
(3) | The Commission may from time to time revise guidance published by it under |
| |
this section and issue the revised guidance. |
| |
(4) | Before issuing any guidance or revised guidance under this section, the |
| |
| |
(a) | such persons as may be prescribed, and |
| 45 |
(b) | such other persons as the Commission considers appropriate. |
| |
|
| |
|
| |
|
83 | Publication of information relating to enforcement action etc. |
| |
(1) | Regulations may authorise or require the publication by the Commission of |
| |
prescribed information relating to— |
| |
(a) | the cancellation or suspension of a person’s registration under Chapter |
| |
| 5 |
(b) | the conviction of any person in respect of a Part 1 offence and the |
| |
| |
(c) | the variation or removal under section 8(5)(a) or 11(5)(a) of any |
| |
condition for the time being in force in relation to a person’s |
| |
| 10 |
(d) | the imposition under section 8(5)(b) or 11(5)(b) of any additional |
| |
| |
(e) | a warning notice under section 25; |
| |
(f) | the payment by any person of a penalty in accordance with a penalty |
| |
notice issued under section 80, and the offence to which the notice |
| 15 |
| |
(2) | Any regulations made by virtue of subsection (1)(e) must require the |
| |
Commission, before publishing information relating to a warning notice under |
| |
section 25, to provide the person to whom the notice was given with an |
| |
opportunity to make representations to the Commission relating to the matters |
| 20 |
dealt with in the notice. |
| |
(3) | The regulations may prescribe the time when, and manner in which, any |
| |
information is to be published. |
| |
84 | Proceedings for offences |
| |
(1) | Proceedings in respect of a Part 1 offence may not, without the written consent |
| 25 |
of the Attorney General, be taken by any person other than— |
| |
| |
(b) | in relation to any functions of the Commission which the Secretary of |
| |
State is for the time being discharging by virtue of section 76, the |
| |
| 30 |
(2) | Proceedings for a Part 1 offence may be brought within a period of 12 months |
| |
from the date on which evidence sufficient in the opinion of the prosecutor to |
| |
warrant the proceedings came to the prosecutor’s knowledge; but no such |
| |
proceedings are to be brought by virtue of this subsection more than 3 years |
| |
after the commission of the offence. |
| 35 |
85 | Offences by bodies corporate |
| |
(1) | This section applies where a Part 1 offence is committed by a body corporate. |
| |
(2) | If the offence is proved to have been committed by, or with the consent or |
| |
connivance of, or to be attributable to any neglect on the part of— |
| |
(a) | any director, manager or secretary of the body corporate, or |
| 40 |
(b) | any person who was purporting to act in any such capacity, |
| |
that director, manager, secretary or person purporting to act as such (as well as |
| |
the body corporate) is guilty of the offence and liable to be proceeded against |
| |
and punished accordingly. |
| |
|
| |
|
| |
|
(3) | The reference in subsection (2) to a director, manager or secretary of a body |
| |
corporate includes a reference— |
| |
(a) | to any other similar officer of the body, and |
| |
(b) | where the body is an English NHS body or English local authority, to |
| |
any officer or member of the NHS body or local authority. |
| 5 |
86 | Unincorporated associations |
| |
(1) | Proceedings for a Part 1 offence alleged to have been committed by an |
| |
unincorporated association are to be brought in the name of the association |
| |
(and not in that of any of the members). |
| |
(2) | Rules of court relating to the service of documents have effect as if the |
| 10 |
unincorporated association were a body corporate. |
| |
(3) | In proceedings for a Part 1 offence brought against an unincorporated |
| |
association, section 33 of the Criminal Justice Act 1925 (c. 86) and Schedule 3 to |
| |
the Magistrates’ Courts Act 1980 (c. 43) apply as they apply in relation to a |
| |
| 15 |
(4) | A fine imposed on an unincorporated association on its conviction for a Part 1 |
| |
offence is to be paid out of the funds of the association. |
| |
(5) | If a Part 1 offence committed by an unincorporated association is proved— |
| |
(a) | to have been committed with the consent or connivance of an officer of |
| |
the association or a member of its governing body, or |
| 20 |
(b) | to be attributable to any neglect on the part of such an officer or |
| |
| |
| the officer or member (as well as the association) is guilty of the offence and |
| |
liable to be proceeded against and punished accordingly. |
| |
| 25 |
| |
(1) | Any notice required under this Part to be given to a person (“R”) may be given |
| |
| |
(a) | by being delivered personally to R, |
| |
| 30 |
(i) | by a registered post service, as defined by section 125(1) of the |
| |
Postal Services Act 2000 (c. 26), or |
| |
(ii) | by a postal service which provides for the delivery of the |
| |
document to be recorded, or |
| |
(c) | subject to section 88, by being sent to R by an electronic communication. |
| 35 |
(2) | Where a notice is given as mentioned in subsection (1)(b), it is, unless the |
| |
contrary is proved, to be taken to have been received on the third day after the |
| |
| |
(3) | Any notice required under this Part to be given to a body corporate or firm is |
| |
duly given if it is given to the secretary or clerk of that body or a partner of that |
| 40 |
| |
(4) | For the purposes of section 7 of the Interpretation Act 1978 (c. 30) in its |
| |
application to this section, the proper address of a person is— |
| |
|
| |
|
| |
|
(a) | in the case of a person registered under Chapter 2 who has notified the |
| |
Commission under regulations under section 12 (regulations about |
| |
registration) of an address for service, that address, and |
| |
(b) | in any other case, the address determined in accordance with |
| |
| 5 |
| |
(a) | in the case of a secretary or clerk of a body corporate, the address of the |
| |
registered or principal office of the body, |
| |
(b) | in the case of a partner of a firm, the address of the principal office of |
| |
| 10 |
(c) | in any other case, the last known address of the person. |
| |
(6) | In this section and in section 88— |
| |
(a) | “electronic communication” has the same meaning as in the Electronic |
| |
Communications Act 2000 (c. 7), |
| |
(b) | “notice” includes any other document, and |
| 15 |
(c) | a reference to a notice being given by or to a person includes a reference |
| |
to a notice being served by or on a person. |
| |
88 | Electronic communications |
| |
(1) | If a notice required or authorised under this Part to be given by or to a person |
| |
is sent by an electronic communication, it is to be treated as given only if the |
| 20 |
requirements of subsection (2) or (3) are met. |
| |
(2) | If the person required or authorised to give the notice is the Commission— |
| |
(a) | the person to whom the notice is required or authorised to be given |
| |
must have indicated to the Commission the person’s willingness to |
| |
receive notices by an electronic communication and provided an |
| 25 |
address suitable for that purpose, and |
| |
(b) | the notice must be sent to the address provided by that person. |
| |
(3) | If the person required or authorised to give the notice is not the Commission, |
| |
the notice must be sent in such manner as the Commission may require. |
| |
(4) | An indication given for the purposes of subsection (2) may be given generally |
| 30 |
for the purposes of notices required or authorised to be given by the |
| |
Commission under this Part or may be limited to notices of a particular |
| |
| |
(5) | A requirement imposed by the Commission under subsection (3) must be |
| |
published in such manner as the Commission thinks appropriate for the |
| 35 |
purpose of bringing it to the attention of persons who are likely to be affected |
| |
| |
| |
89 | Further amendments relating to Part 1 |
| |
Schedule 5 (which contains further amendments relating to the provisions of |
| 40 |
| |
|
| |
|