|
| |
|
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 |
| |
11 | A stop notice must include information as to— |
| |
(a) | the grounds for serving the notice; |
| 5 |
| |
(c) | the consequences of not complying with the notice. |
| |
| |
12 (1) | Where, after the service of a stop notice on a person, the |
| |
Commission are satisfied that the person has taken the steps |
| 10 |
specified in the notice, they shall issue a certificate to that effect (a |
| |
“completion certificate”). |
| |
(2) | A stop notice ceases to have effect on the issue of a completion |
| |
certificate relating to that notice. |
| |
(3) | A person on whom a stop notice is served may at any time apply |
| 15 |
for a completion certificate. |
| |
| The Commission shall make a decision whether to issue a |
| |
completion certificate within 14 days of the day on which they |
| |
receive such an application. |
| |
| 20 |
13 (1) | A person served with a stop notice may appeal against the |
| |
decision to serve it on the ground that— |
| |
(a) | the decision was based on an error of fact, |
| |
(b) | the decision was wrong in law, |
| |
(c) | the decision was unreasonable, |
| 25 |
(d) | any step specified in the notice is unreasonable, or |
| |
(e) | the person has not acted as mentioned in paragraph |
| |
10(2)(b) or (3)(b) and would not have done so even if the |
| |
stop notice had not been served, |
| |
| or on such other grounds as may be prescribed. |
| 30 |
(2) | A person served with a stop notice may appeal against a decision |
| |
not to issue a completion certificate on the ground that the |
| |
| |
(a) | was based on an error of fact, |
| |
| 35 |
(c) | was unfair or unreasonable, |
| |
| or an such other grounds as may be prescribed. |
| |
(3) | An appeal under sub-paragraph (1) or (2) is to a county court or (in |
| |
| |
Failure to comply with stop notice |
| 40 |
14 | A person served with a stop notice who does not comply with it is |
| |
| |
|
| |
|
| |
|
| |
| |
15 (1) | This paragraph applies where— |
| |
(a) | the Commission have reasonable grounds to suspect that a |
| |
| 5 |
(i) | has committed a prescribed offence under this Act, |
| |
| |
(ii) | has (otherwise than by committing an offence |
| |
under this Act) contravened a prescribed |
| |
restriction or requirement imposed by or by virtue |
| 10 |
| |
(b) | the person offers an undertaking (an “enforcement |
| |
undertaking”) to take such action, within such period, as is |
| |
specified in the undertaking, |
| |
(c) | the action so specified is— |
| 15 |
(i) | action to secure that the offence or contravention |
| |
does not continue or recur, |
| |
(ii) | action to secure that the position is, so far as |
| |
possible, restored to what it would have been if the |
| |
offence or contravention had not happened, or |
| 20 |
(iii) | action of a prescribed description, |
| |
| |
(d) | the Commission accept the undertaking. |
| |
(2) | Unless the person has failed to comply with the undertaking or |
| |
| 25 |
(a) | the person may not at any time be convicted of an offence |
| |
under this Act in respect of the act or omission to which the |
| |
| |
(b) | the Commission may not impose on the person any fixed |
| |
monetary penalty that they would otherwise have power |
| 30 |
to impose by virtue of paragraph 1 in respect of that act or |
| |
| |
(c) | the Commission may not impose on the person any |
| |
discretionary requirement that they would otherwise have |
| |
power to impose by virtue of paragraph 5 in respect of that |
| 35 |
| |
| |
Power to make supplementary provision etc by order |
| |
Supplementary orders: general |
| |
16 (1) | The Secretary of State may by order (a “supplementary order”)— |
| 40 |
(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 this Schedule. |
| |
|
| |
|
| |
|
(2) | The following provisions of this Part are not to be read as limiting |
| |
the power conferred by sub-paragraph (1). |
| |
(3) | A supplementary order may make provision amending, repealing |
| |
or revoking an enactment (whenever passed or made). |
| |
| 5 |
17 (1) | Before making a supplementary order the Secretary of State shall |
| |
consult the Commission and such other persons (if any) as 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 |
| 10 |
to change the whole or any part of the proposals, the Secretary of |
| |
State shall undertake such further consultation with respect to the |
| |
changes as the Secretary of State considers appropriate. |
| |
(3) | If, before the day on which this Schedule comes into effect, any |
| |
consultation was undertaken which, had it been undertaken after |
| 15 |
that day, would to any extent have satisfied the requirements of |
| |
this paragraph, those requirements may to that extent be taken to |
| |
| |
| |
18 (1) | A supplementary order may make any of the following provision |
| 20 |
in relation to the power of the Commission to require a person to |
| |
pay a fixed monetary penalty, a variable monetary penalty or a |
| |
| |
(a) | provision for early payment discounts; |
| |
(b) | provision for the payment of interest or other financial |
| 25 |
penalties for late payment; |
| |
(c) | provision for enforcement. |
| |
(2) | Provision made by virtue of sub-paragraph (1)(b) must secure that |
| |
the interest or other financial penalties for late payment do not in |
| |
total exceed the amount of the penalty itself. |
| 30 |
(3) | Provision made by virtue of sub-paragraph (1)(c) may include— |
| |
(a) | provision for the Commission to recover the penalty, and |
| |
any interest or other financial penalty for late payment, as |
| |
| |
(b) | provision for the penalty, and any interest or other |
| 35 |
financial penalty for late payment, to be recoverable, on |
| |
the order of a court, as if payable under a court order. |
| |
(4) | In relation to the power of the Commission to require a person to |
| |
pay a fixed monetary penalty, a variable monetary penalty or a |
| |
non-compliance penalty for failing to comply with a requirement |
| 40 |
or undertaking by the end of a particular period, a supplementary |
| |
| |
(a) | make provision under which the amount of the penalty is |
| |
determined by reference to the length of time between the |
| |
end of that period and the time of compliance; |
| 45 |
|
| |
|
| |
|
(b) | make provision for successive penalties to be payable in a |
| |
case of continued failure to comply. |
| |
| |
19 | A supplementary order may make any of the following provision |
| |
in relation to an enforcement undertaking— |
| 5 |
(a) | provision as to the procedure for entering into an |
| |
| |
(b) | provision as to the terms of an undertaking; |
| |
(c) | provision as to publication of an undertaking by the |
| |
| 10 |
(d) | provision as to variation of an undertaking; |
| |
(e) | provision as to circumstances in which a person may be |
| |
regarded as having complied with an undertaking; |
| |
(f) | provision as to monitoring by the Commission of |
| |
compliance with an undertaking; |
| 15 |
(g) | provision as to certification by the Commission that an |
| |
undertaking has been complied with; |
| |
(h) | provision for appeals against refusal to give such |
| |
| |
(i) | in a case where a person has given inaccurate, misleading |
| 20 |
or incomplete information in relation to an undertaking, |
| |
provision for the person to be regarded as not having |
| |
| |
(j) | in a case where a person has complied partly but not fully |
| |
with an undertaking, provision for that part-compliance to |
| 25 |
be taken into account in the imposition of any criminal or |
| |
other sanction on the person. |
| |
Extension of time for taking criminal proceedings |
| |
20 | For the purposes of enabling criminal proceedings to be instituted |
| |
against a person in respect of an offence under this Act— |
| 30 |
(a) | in the case referred to in paragraph 8(2), or |
| |
(b) | in a case where there has been a breach of an enforcement |
| |
undertaking or any part of an enforcement undertaking, |
| |
| a supplementary order may make provision extending any period |
| |
within which such proceedings may be instituted. |
| 35 |
| |
21 (1) | A supplementary order may make any of the following provision |
| |
in relation to an appeal in respect of the imposition of a |
| |
requirement, or the service of a notice, under this Schedule— |
| |
(a) | provision suspending the requirement or notice pending |
| 40 |
determination of the appeal; |
| |
(b) | provision as to the powers of the court to which the appeal |
| |
| |
(c) | provision as to how a sum payable in pursuance of a |
| |
decision of that court is to be recoverable. |
| 45 |
|
| |
|
| |
|
(2) | Provision made by virtue of sub-paragraph (1)(b) may in |
| |
particular include provision conferring on the court to which the |
| |
| |
(a) | power to withdraw the requirement or notice; |
| |
(b) | power to confirm the requirement or notice; |
| 5 |
(c) | power to take such steps as the Commission could take in |
| |
relation to the act or omission giving rise to the |
| |
| |
(d) | power to remit the decision whether to confirm the |
| |
requirement or notice, or any matter relating to that |
| 10 |
decision, to the Commission; |
| |
(e) | power to award costs or (in the case of a court in Scotland) |
| |
| |
| |
| 15 |
| |
22 (1) | The Commission may not serve on a person a notice under |
| |
paragraph 2(1) (notice of proposed fixed monetary penalty) in |
| |
relation to any act or omission in relation to which— |
| |
(a) | a discretionary requirement has been imposed on that |
| 20 |
| |
(b) | a stop notice has been served on that person. |
| |
(2) | The Commission may not serve on a person a notice under |
| |
paragraph 6(1) (notice of proposed discretionary requirement), or |
| |
serve a stop notice on a person, in relation to any act or omission |
| 25 |
| |
(a) | a fixed monetary penalty has been imposed on that person, |
| |
| |
(b) | the person’s liability for a fixed monetary penalty has been |
| |
discharged as mentioned in paragraph 2(2). |
| 30 |
Use of statements made compulsorily |
| |
23 (1) | The Commission must not take into account a statement made by |
| |
a person in compliance with a requirement imposed under |
| |
Schedule 19A in deciding whether— |
| |
(a) | to impose a fixed monetary penalty on the person; |
| 35 |
(b) | to impose a discretionary requirement on the person; |
| |
(c) | to serve a stop notice on the person. |
| |
(2) | Sub-paragraph (1)(a) or (b) does not apply to a penalty or |
| |
requirement imposed in respect of an offence under paragraph |
| |
12(3) of Schedule 19A (providing false information in purported |
| 40 |
compliance with a requirement under that Schedule). |
| |
|
| |
|
| |
|
Unincorporated associations |
| |
24 | Any amount that is payable under this Schedule by an |
| |
unincorporated association shall be paid out of the funds of the |
| |
| |
Guidance as to enforcement |
| 5 |
25 (1) | The Commission shall prepare and publish guidance as to— |
| |
(a) | the sanctions (including criminal sanctions) that may be |
| |
| |
(i) | commits an offence under this Act, or |
| |
(ii) | contravenes a restriction or requirement that is |
| 10 |
prescribed for the purposes of paragraph 1, 5, 10 or |
| |
| |
(b) | the action that the Commission may take in relation to such |
| |
a person (whether by virtue of this Schedule or otherwise); |
| |
(c) | the circumstances in which the Commission are likely to |
| 15 |
| |
(2) | The guidance must include guidance about the Commissioners’ |
| |
use of the power to impose a fixed monetary penalty, with |
| |
| |
(a) | the circumstances in which such a penalty may not be |
| 20 |
| |
(b) | the amount of such a penalty; |
| |
(c) | how liability for such a penalty may be discharged and the |
| |
| |
(d) | rights to make representations and objections and rights of |
| 25 |
appeal in relation to such a penalty. |
| |
(3) | The guidance must include guidance about the Commissioners’ |
| |
use of the power to impose a discretionary requirement, with |
| |
| |
(a) | the circumstances in which such a requirement may not be |
| 30 |
| |
(b) | rights to make representations and objections and rights of |
| |
appeal in relation to such a requirement; |
| |
(c) | in the case of a variable monetary penalty, the matters |
| |
likely to be taken into account by the Commission in |
| 35 |
determining the amount of the penalty (including, where |
| |
relevant, any discounts for voluntary reporting of non- |
| |
| |
(4) | The guidance must include guidance about the Commissioners’ |
| |
use of the power to serve a stop notice, with information as to— |
| 40 |
(a) | the circumstances in which such a notice may not be |
| |
| |
(b) | rights of appeal in relation to such a notice. |
| |
(5) | The guidance must include guidance about the Commission’s use |
| |
of the power to accept an enforcement undertaking. |
| 45 |
|
| |
|
| |
|
(6) | Where appropriate, the Commission shall revise guidance |
| |
published under this paragraph and publish the revised guidance. |
| |
(7) | The Commission shall consult such persons as they consider |
| |
appropriate before publishing guidance or revised guidance |
| |
| 5 |
(8) | The Commission shall have regard to the guidance or revised |
| |
guidance published under this paragraph in exercising their |
| |
| |
Payment of penalties etc into Consolidated Fund |
| |
26 | Where, in pursuance of any provision contained in or made under |
| 10 |
this Schedule, the Commission receive— |
| |
(a) | a fixed monetary penalty, a variable monetary penalty or a |
| |
| |
(b) | any interest or other financial penalty for late payment of |
| |
| 15 |
(c) | a sum paid as mentioned in paragraph 2(2) (in discharge of |
| |
liability for a fixed monetary penalty), |
| |
| they shall pay it into the Consolidated Fund. |
| |
Reports on use of civil sanctions |
| |
27 (1) | The Commission shall from time to time publish reports |
| 20 |
| |
(a) | the cases in which a fixed monetary penalty or |
| |
discretionary requirement has been imposed or a stop |
| |
notice served (other than cases in which the penalty, |
| |
requirement or notice has been overturned on appeal); |
| 25 |
(b) | the cases in which liability for a fixed monetary penalty has |
| |
been discharged as mentioned in paragraph 2(2); |
| |
(c) | the cases in which an enforcement undertaking has been |
| |
| |
(2) | The Commission need not include in a report under this |
| 30 |
paragraph any information that, in their opinion, it would be |
| |
inappropriate to include on the ground that to do so would or |
| |
| |
Disclosure of information |
| |
28 (1) | Information held by or on behalf of— |
| 35 |
(a) | the Crown Prosecution Service, |
| |
(b) | a member of a police force in England and Wales, |
| |
| |
(d) | a constable of a police force in Scotland, |
| |
(e) | the Public Prosecution Service for Northern Ireland, or |
| 40 |
(f) | a member of the Police Service of Northern Ireland, |
| |
| may be disclosed to the Commission for the purpose of the |
| |
exercise by the Commission of any powers conferred on them |
| |
under or by virtue of this Schedule. |
| |
|
| |
|