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| Enforcement: information powers |
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| Enforcement authorities and officers |
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| 18 (1) | In this Schedule “enforcement authority” means— |
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| (a) | the Financial Services Authority (“the FSA”), |
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| (b) | the Commissioners for Her Majesty’s Revenue and Customs |
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| (c) | the Office of Fair Trading (“the OFT”), or |
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| (d) | in relation to credit unions in Northern Ireland, the Department |
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| of Enterprise, Trade and Investment in Northern Ireland |
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| (2) | In this Part of this Schedule “enforcement officer” means— |
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| (a) | an officer of the FSA, including a member of the staff or an agent |
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| (b) | an officer of Revenue and Customs, |
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| (c) | an officer of the OFT, |
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| (d) | an officer of DETINI acting for the purposes of its functions |
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| under this Schedule in relation to credit unions in Northern |
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| (e) | a local enforcement officer. |
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| (3) | A “local enforcement officer” means— |
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| (a) | in Great Britain, an officer of a local weights and measures |
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| (b) | in Northern Ireland, an officer of DETINI acting pursuant to |
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| arrangements made with the OFT for the purposes of this |
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| Power to require information or documents |
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| 19 (1) | An enforcement officer may by notice to a relevant person require the |
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| (a) | to provide such information as may be specified in the notice, or |
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| (b) | to produce such documents as may be so specified. |
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| (2) | An officer may exercise powers under this paragraph only if the |
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| information or documents sought to be obtained as a result are |
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| reasonably required in connection with the exercise by the enforcement |
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| authority for whom the officer acts of its functions under this Schedule. |
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| (3) | Where an officer requires information to be provided or documents |
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| produced under this paragraph— |
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| (a) | the notice must set out the reasons why the officer requires the |
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| information to be provided or the documents produced, and |
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| (b) | the information must be provided or the documents produced— |
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| (i) | before the end of such reasonable period as may be |
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| specified in the notice; and |
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| (ii) | at such place as may be so specified. |
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| (4) | In relation to a document in electronic form the power to require |
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| production of it includes a power to require the production of a copy of |
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| it in legible form or in a form from which it can readily be produced in |
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| visible and legible form. |
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| (5) | An enforcement officer may take copies of, or make extracts from, any |
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| document produced under this paragraph. |
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| (6) | The production of a document does not affect any lien which a person |
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| Entry, inspection without a warrant etc |
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| 20 (1) | Where an enforcement officer has reasonable cause to believe that any |
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| premises are being used by a relevant person in connection with the |
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| person’s business activities, the officer may on producing evidence of |
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| authority at any reasonable time— |
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| (b) | inspect the premises; |
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| (c) | observe the carrying on of business activities by the relevant |
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| (d) | inspect any document found on the premises; |
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| (e) | require any person on the premises to provide an explanation of |
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| any document or to state where it may be found. |
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| (2) | An enforcement officer may take copies of, or make extracts from, any |
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| document found under sub-paragraph (1). |
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| (3) | An officer may exercise powers under this paragraph only if the |
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| information or document sought to be obtained as a result is reasonably |
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| required in connection with the exercise by the enforcement authority |
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| for whom the officer acts of its functions under this Schedule. |
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| (4) | In this paragraph “premises” means any premises other than premises |
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| Entry to premises under warrant |
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| 21 (1) | A justice may issue a warrant under this paragraph if satisfied on |
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| information on oath given by an enforcement officer that there are |
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| reasonable grounds for believing that the first, second or third set of |
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| (2) | The first set of conditions is— |
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| (a) | that there is on the premises specified in the warrant a document |
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| in relation to which a requirement could be imposed under |
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| (b) | that if such a requirement were to be imposed— |
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| (i) | it would not be complied with, or |
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| (ii) | the document to which it relates would be removed, |
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| tampered with or destroyed. |
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| (3) | The second set of conditions is— |
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| (a) | that a person on whom a requirement has been imposed under |
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| paragraph 19(1)(b) has failed (wholly or in part) to comply with |
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| (b) | that there is on the premises specified in the warrant a document |
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| that has been required to be produced. |
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| (4) | The third set of conditions is— |
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| (a) | that an enforcement officer has been obstructed in the exercise of |
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| a power under paragraph 20, and |
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| (b) | that there is on the premises specified in the warrant a document |
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| that could be inspected under paragraph 20(1)(d). |
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| (5) | A justice may issue a warrant under this paragraph if satisfied on |
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| information on oath given by an officer that there are reasonable |
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| grounds for suspecting that— |
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| (a) | an offence under this Schedule has been, is being or is about to be |
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| committed by a relevant person, and |
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| (b) | there is on the premises specified in the warrant a document |
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| relevant to whether that offence has been, or is being or is about |
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| (6) | A warrant issued under this paragraph shall authorise an enforcement |
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| (a) | to enter the premises specified in the warrant; |
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| (b) | to search the premises and take possession of anything |
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| appearing to be a document specified in the warrant or to take, in |
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| relation to any such document, any other steps which may |
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| appear to be necessary for preserving it or preventing |
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| (c) | to take copies of, or extracts from, any document specified in the |
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| (d) | to require any person on the premises to provide an explanation |
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| of any document appearing to be of the kind specified in the |
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| warrant or to state where it may be found; |
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| (e) | to use such force as may reasonably be necessary. |
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| (7) | Where a warrant is issued by a justice under sub-paragraph (1) or (5) on |
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| the basis of information on oath given by an officer of the FSA, for “an |
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| enforcement officer” in sub-paragraph (6) substitute “a constable”. |
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| (8) | In sub-paragraphs (1), (5) and (7), “justice” means— |
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| (a) | in relation to England and Wales, a justice of the peace; |
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| (b) | in relation to Scotland, a justice within the meaning of section 307 |
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| of the Criminal Procedure (Scotland) Act 1995 (interpretation); |
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| (c) | in relation to Northern Ireland, a lay magistrate. |
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| (9) | In the application of this paragraph to Scotland, the references in sub- |
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| paragraphs (1), (5) and (7) to information on oath are to be read as |
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| references to evidence on oath. |
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| 22 (1) | This paragraph applies in relation to the powers conferred by— |
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| (a) | paragraph 19 (power to require information or documents), |
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| (b) | paragraph 20 (entry, inspection without warrant etc), or |
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| (c) | paragraph 21 (entry to premises under warrant). |
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| (2) | Those powers are not exercisable in relation to information or |
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| documents in respect of which a claim to legal professional privilege (in |
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| Scotland, to confidentiality of communications) could be maintained in |
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| (3) | The exercise of those powers and the provision of information or |
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| production of documents under them is not otherwise subject to any |
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| restriction on the disclosure of information, whether imposed by statute |
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| Failure to comply with information requirement |
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| 23 (1) | If on an application made by— |
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| (a) | an enforcement authority, or |
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| (b) | a local weights and measures authority or DETINI pursuant to |
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| arrangements made with the OFT— |
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| (i) | by or on behalf of the authority; or |
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| | it appears to the court that a person (the “information defaulter”) has |
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| failed to do something that they were required to do under paragraph |
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| 19(1), the court may make an order under this paragraph. |
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| (2) | An order under this paragraph may require the information defaulter— |
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| (a) | to do the thing that they failed to do within such period as may |
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| be specified in the order; |
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| (b) | otherwise to take such steps to remedy the consequences of the |
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| failure as may be so specified. |
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| (3) | If the information defaulter is a body corporate, a partnership or an |
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| unincorporated body of persons that is not a partnership, the order may |
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| require any officer of the body corporate, partnership or body, who is |
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| (wholly or partly) responsible for the failure to meet such costs of the |
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| application as are specified in the order. |
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| (4) | In this paragraph “the court” means— |
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| (a) | in England and Wales and Northern Ireland, the High Court or |
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| (b) | in Scotland, the Court of Session or the sheriff court. |
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| Powers of local enforcement officers |
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| 24 (1) | A local enforcement officer may only exercise powers under this Part of |
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| this Schedule pursuant to arrangements made with the OFT— |
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| (a) | by or on behalf of the relevant local weights and measures |
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| (2) | Anything done or omitted to be done by, or in relation to, a local |
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| enforcement officer in the exercise or purported exercise of a power in |
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| this Part of this Schedule is treated for all purposes as if done or omitted |
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| to be done by, or in relation to, an officer of the OFT. |
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| (3) | Sub-paragraph (2) does not apply for the purposes of criminal |
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| proceedings brought against the local enforcement officer, the relevant |
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| local weights and measures authority, DETINI or the OFT, in respect of |
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| anything done or omitted to be done by the officer. |
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| (4) | A local enforcement officer must not disclose to any person other than |
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| the OFT and the relevant local weights and measures authority or, as the |
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| case may be, DETINI information obtained by the officer in the exercise |
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| of powers under this Part of this Schedule unless— |
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| (a) | the officer has the approval of the OFT to do so, or |
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| (b) | the officer is under a duty to make the disclosure. |
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| (5) | In this paragraph “the relevant local weights and measures authority”, |
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| in relation to a local enforcement officer, means the authority of which |
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| the officer is an officer. |
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| Enforcement: civil penalties |
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| Power to impose civil penalties |
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| 25 (1) | An enforcement authority may impose a penalty of such amount as it |
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| considers appropriate on a person who fails to comply with a |
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| (a) | by a direction under this Schedule, or |
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| (b) | by a condition of a licence under paragraph 17. |
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| | For this purpose “appropriate” means effective, proportionate and |
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| (2) | No such penalty is to be imposed if the authority is satisfied that the |
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| person took all reasonable steps and exercised all due diligence to ensure |
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| that the requirement would be complied with. |
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| (3) | In deciding whether to impose a penalty for failure to comply with a |
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| requirement, an enforcement authority must consider whether the |
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| person followed any relevant guidance which was at the time— |
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| (a) | issued by a supervisory authority or any other appropriate body, |
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| (b) | approved by the Treasury, and |
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| (c) | published in a manner approved by the Treasury as suitable in |
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| their opinion to bring the guidance to the attention of persons |
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| likely to be affected by it. |
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| (4) | In sub-paragraph (3) “appropriate body” means a body which regulates |
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| or is representative of any trade, profession, business or employment |
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| carried on by the person. |
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| (5) | A person on whom a penalty is imposed under this paragraph is not |
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| liable to be proceeded against for an offence under paragraph 30 in |
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| respect of the same failure. |
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| Imposition of penalty by HMRC: procedure and reviews |
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| 26 (1) | This paragraph applies where HMRC decide to impose a penalty under |
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| paragraph 25 on a person. |
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| (2) | HMRC must give the person notice of— |
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| (a) | their decision to impose the penalty and its amount, |
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| (b) | the reasons for imposing the penalty, |
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| (c) | the right to a review under this paragraph, and |
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| (d) | the right to appeal under paragraph 28. |
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| (3) | The person may by notice to HMRC require them to review their |
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| (4) | A notice requiring a review may not be given after the end of the period |
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| of 45 days beginning with the day on which HMRC first gave the person |
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| notice under sub-paragraph (2). |
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| (5) | On a review under this paragraph, HMRC must either— |
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| (a) | confirm the decision, or |
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| (b) | withdraw or vary the decision and take such further steps (if any) |
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| in consequence of the withdrawal or variation as they consider |
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| (6) | Where HMRC do not, within the period of 45 days beginning with the |
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| day the notice under sub-paragraph (3) was given, give notice to the |
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| person of their determination of the review, they are to be taken to have |
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| confirmed their decision. |
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| Imposition of penalty by other enforcement authority: procedure |
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| 27 (1) | This paragraph applies if the FSA, the OFT or DETINI (“the authority”) |
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| proposes to impose a penalty under paragraph 25 on a person. |
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| (2) | The authority must give the person notice of— |
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| (a) | the proposal to impose the penalty and the proposed amount, |
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| (b) | the reasons for imposing the penalty, and |
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| (c) | the right to make representations to the authority within a |
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| specified period (which may not be less than 28 days). |
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| (3) | The authority must then decide, within a reasonable period, whether to |
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| impose a penalty under paragraph 25 and must give the person notice— |
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| (a) | if it decides not to impose a penalty, of that decision; |
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| (b) | if it decides to impose a penalty, of the following matters— |
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| (i) | the decision to impose a penalty and the amount, |
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| (ii) | the reasons for the decision, and |
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| (iii) | the right to appeal under paragraph 28. |
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| Appeal against imposition of civil penalty |
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| 28 (1) | A person may appeal to the tribunal against— |
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| (a) | a decision of HMRC on a review under paragraph 26; |
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| (b) | a decision of the FSA or the OFT under paragraph 27. |
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| (2) | A person may appeal to the High Court in Northern Ireland against a |
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| decision of DETINI under paragraph 27. |
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| (3) | On the appeal the tribunal or court may— |
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| (a) | set aside the decision appealed against, and |
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| (b) | impose any penalty that could have been imposed by the body |
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| whose decision is appealed or remit the matter to that body. |
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| (4) | An appeal against a decision of HMRC may not be made after the end of |
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| the period of 30 days beginning with— |
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| (a) | the date of the document notifying the person of the decision, or |
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| (b) | if paragraph 26(6) (deemed confirmation of decision) applies, the |
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| day after the end of the period mentioned there. |
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| (5) | In this paragraph “the tribunal” means the First-tier Tribunal or, where |
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| so provided by or determined under Tribunal Procedure Rules, the |
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| (6) | The Treasury may by order provide that, until a time specified in the |
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| order, appeals under sub-paragraph (1) are to be made— |
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| (a) | in the case of a decision of HMRC, to a VAT and duties tribunal; |
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| (b) | in the case of a decision of the FSA, to the Financial Services and |
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| (c) | in the case of a decision of the OFT, to the Consumer Credit |
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| | (rather than to the tribunal). |
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| (7) | An order under sub-paragraph (6) may provide that any enactment |
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| applies (with or without modifications) in relation to an appeal to a |
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| tribunal mentioned in paragraph (a), (b) or (c) of that sub-paragraph. |
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| (8) | Such an order is subject to negative resolution procedure. |
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| Payment and recovery of civil penalties |
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| 29 (1) | A penalty imposed under paragraph 25 is payable to the enforcement |
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| authority that imposed it. |
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| (2) | Any such penalty is a debt due to the authority and is recoverable |
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| Offences: failure to comply with requirement imposed by direction |
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| 30 (1) | A person who fails to comply with a requirement imposed by a direction |
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| under this Schedule commits an offence, subject to the following |
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| (2) | No offence is committed if the person took all reasonable steps and |
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| exercised all due diligence to ensure that the requirement would be |
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| (3) | In deciding whether a person has committed an offence under this |
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| paragraph the court must consider whether the person followed any |
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| relevant guidance that was at the time— |
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| (a) | issued by a supervisory authority or any other appropriate body, |
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| (b) | approved by the Treasury, and |
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| (c) | published in a manner approved by the Treasury as suitable in |
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| their opinion to bring the guidance to the attention of persons |
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| likely to be affected by it. |
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| (4) | In sub-paragraph (3) “appropriate body” means a body that regulates or |
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| is representative of any trade, profession, business or employment |
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| carried on by the alleged offender. |
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| (5) | 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 |
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