F1Power of customs officer to detain articles and substances

27A .F2F3—(1) A customs officer may, for the purpose of facilitating the exercise or performance by any enforcing authority or inspector of any of the powers or duties of the authority or inspector under any of the relevant statutory provisions, seize any imported article or imported substance and detain it for not more than two working days.

(2) Anything seized and detained under this Article shall be dealt with during the period of its detention in such manner as the Commissioners of Customs and Excise may direct.

(3) In paragraph (1) the reference to two working days is a reference to a period of forty-eight hours calculated from the time when the goods in question are seized but disregarding so much of any period as falls on a Saturday or Sunday or on Christmas Day, Good Friday or a day which is a bank holiday under the Banking and Financial Dealings Act 1971 in Northern Ireland.

Power of enforcing authorities to indemnify their inspectors

28 .F1F2  Where—

(a)an action has been brought against an inspector in respect of an act done in the execution or purported execution of any of the relevant statutory provisions; and

(b)the circumstances are such that he is not legally entitled to require the enforcing authority which appointed him to indemnify him,

that authority may, nevertheless, indemnify him against the whole or part of any damages and costs which he may have been ordered to pay or may have incurred, if the authority is satisfied that he honestly believed that the act complained of was within his powers and that his duty as an inspector required or entitled him to do it.

Obtaining and disclosure of information

Obtaining of information

29 .F2F3—(1) For the purpose of obtaining—

(b)any information which an enforcing authority needs for the discharge of the authority's functions,

the Department concerned, or the F1 Executive, may serve on any person a notice requiring that person to furnish to the F1 Executive or, as the case may be, to the enforcing authority in question such information about such matters as may be specified in the notice, and to do so in such form and manner and within such time as may be so specified.

Paras.(2)-(4) rep. by 1988 NI 3

F1F4Information communicated by Commissioners for Revenue and Customs

29A .F2F3—(1) If they think it appropriate to do so for the purpose of facilitating the exercise or performance by any person to whom paragraph (2) applies of any of that person's powers or duties under any of the relevant statutory provisions, F4 the Commissioners for Her Majesty's Revenue and Customs and Excise may authorise the disclosure to that person of any information obtainedF4 or held for the purposes of the exercise F4 by Her Majesty's Revenue and Customs of their functions in relation to imports.

(2) This paragraph applies to an enforcing authority and to an inspector.

(3) A disclosure of information made to any person under paragraph (1) shall be made in such manner as may be directed by F4 the Commissioners for Her Magesty's Revenue and Customs and may be made through such persons acting on behalf of that person as may be so directed.

(4) Information may be disclosed to a person under paragraph (1) whether or not the disclosure of the information has been requested by or on behalf of that person.

Restrictions on disclosure of information

30 .F3F4—(1) In this Article—

(a)“relevant information” means information obtained by a person under Article 29(1) or furnished to any person F2 under Article 29A or in pursuance of a requirement imposed by any of the relevant statutory provisions; and

(b)“the recipient”, in relation to any relevant information, means the person by whom that information was so obtained or to whom that information was so furnished, as the case may be.

(2) Subject to paragraph (3), no relevant information shall be disclosed without the consent of the person by whom it was furnished.

(3) Paragraph (2) shall not apply to—

(a)disclosure of information to the F1 Executive, a government department or any enforcing authority;

(b)without prejudice to sub-paragraph ( a), disclosure by the recipient of information to any person for the purpose of any function conferred on the recipient by or under any of the relevant statutory provisions;

(c)without prejudice to sub-paragraph ( a), disclosure by the recipient of information to—

(i)an officer of a district council who is authorised by that council to receive it,

(ii)a constable authorised by the Chief Constable to receive it;

(d)disclosure by the recipient of information in a form calculated to prevent it from being identified as relating to a particular person or case;

(e)disclosure of information for the purposes of any legal proceedings or any investigation or inquiry held by virtue of Article 16(2).

(4) In paragraph (3) any reference to the F1 Executive, a government department or an enforcing authority includes respectively a reference to an officer of that body or authority (including, in the case of an enforcing authority, any inspector appointed by it), and also, in the case of a reference to the F1 Executive, includes a reference to—

(a)a person performing any functions of the F1 Executive on its behalf by virtue of Article 15(1)( a);

(b)an officer of a body which is so performing any such functions; and

(c)an adviser appointed in pursuance of Article 15(1)( c).

(5) A person to whom information is disclosed in pursuance of paragraph (3) shall not use the information for a purpose other than—

(a)in a case falling within sub-paragraph ( a) of that paragraph, a purpose of the F1 Executive or of the government department in question, or the purposes of the enforcing authority in question in connection with the relevant statutory provisions, as the case may be;

(b)in the case of information given to an officer of a district council, the purposes of the council in connection with the relevant statutory provisions or any statutory provision relating to public health or public safety;

(c)in the case of information given to a constable, the purposes of the police in connection with the relevant statutory provisions or any statutory provision relating to public health, public safety or the safety of the State.

(6) A person shall not disclose any information obtained by him as a result of the exercise of any power conferred by Article 16(4)( a) or 22 (including, in particular, any information with respect to any trade secret obtained by him in any premises entered by him by virtue of any such power) except—

(a)for the purposes of his functions; or

(b)for the purposes of any legal proceedings or any investigation or inquiry held by virtue of Article 16(2) or for the purposes of a report of any such proceedings or inquiry or of a special report made by virtue of Article 16(2); or

(c)with the relevant consent.

(7) In paragraph (6) “the relevant consent” means, in the case of information furnished in pursuance of a requirement imposed under Article 22, the consent of the person who furnished it, and, in any other case, the consent of a person having responsibilities in relation to the premises where the information was obtained.

(8) Notwithstanding anything in paragraph (6) an inspector shall, in circumstances in which it is necessary to do so for the purpose of assisting in keeping persons (or the representatives of persons) employed at any premises adequately informed about matters affecting their health, safety and welfare, give to such persons or their representatives the following descriptions of information, that is to say—

(a)factual information obtained by him as mentioned in that paragraph which relates to those premises or anything which was or is therein or was or is being done therein; and

(b)information with respect to any action which he has taken or proposes to take in or in connection with those premises in the performance of his functions;

and, where an inspector does as aforesaid, he shall give the like information to the employer of the first-mentioned persons.

(9) Notwithstanding anything in paragraph (6), a person who has obtained such information as is referred to in that paragraph may furnish to a person who appears to him to be likely to be a party to any civil proceedings arising out of any accident, occurrence, situation or other matter, a written statement of relevant facts observed by him in the course of exercising any of the powers referred to in that paragraph.

Provisions as to offences

Offences

31 .F2F3—(1) Any person who—

(a)fails to discharge a duty to which he is subject by virtue of Articles 4 to 8;

(b)contravenes Article 9 or 10;

(c)contravenes any health and safety regulations or any requirement or prohibition imposed under any such regulations (including any requirement or prohibition to which he is subject by virtue of the terms of or any condition or restriction attached to any licence, approval, exemption or other authority issued, given or granted under the regulations);

(d)contravenes any requirement imposed by or under regulations under Article 16 or intentionally obstructs any person in the exercise of his powers under that Article;

(e)contravenes any requirement imposed by an inspector under Article 22 or 27;

(f)prevents or attempts to prevent any other person from appearing before an inspector or from answering any question to which an inspector may by virtue of Article 22(2) require an answer;

(g)contravenes any requirement or prohibition imposed by an improvement notice or a prohibition notice (including any such notice as modified on appeal);

(h)intentionally obstructs an inspector in the exercise or performance of his powers or dutiesF1 or obstructs a customs officer in the exercise of his powers under Article 27A;

(i)contravenes any requirement imposed by a notice under Article 29(1);

(j)uses or discloses any information in contravention of Article 30;

(k)makes a statement which he knows to be false or recklessly makes a statement which is false where the statement is made—

(i)in purported compliance with a requirement to furnish any information imposed by or under any of the relevant statutory provisions; or

(ii)for the purpose of obtaining the issue of a document under any of the relevant statutory provisions to himself or another person;

(l)intentionally makes a false entry in any register, book, notice or other document required by or under any of the relevant statutory provisions to be kept, served or given or, with intent to deceive, makes use of any such entry which he knows to be false;

(m)with intent to deceive, uses a document issued or authorised to be issued under any of the relevant statutory provisions or required for any purpose thereunder or makes or has in his possession a document so closely resembling any such document as to be calculated to deceive;

(n)falsely pretends to be an inspector;

(o)fails to comply with an order made by a court under Article 39;

shall be guilty of an offence.

F4(1A) Subject to any provision made by virtue of Article 17(6)(d), a person guilty of an offence under paragraph (1)(a) consisting of failure to discharge a duty to which he is subject by virtue of Articles 4 to 7 shall be liable—

(a)on summary conviction, to a fine not exceeding £20,000;

(b)on conviction on indictment, to a fine.

(2) A person guilty of an offence under sub-paragraph ( d),( f), ( h) or ( n) of paragraph (1), or under sub-paragraph ( e) of that paragraph consisting of contravening a requirement imposed by an inspector under Article 22 shall be liable on summary conviction to a fine not exceeding F5 level 5 on the standard scale.

F4(2A) A person guilty of an offence under sub-paragraph (g) or (o) of paragraph (1) shall be liable—

(a)on summary conviction, to imprisionment for a term not exceeding six months, or a fine not exceeding £20,000, or both;

(b)on conviction on indictment, to imprisonment for a term not exceeding two years, or a fine, or both.

Para.(3) rep. by 1998 NI 18

(4) F4Subject to any provision made under Article 17(6)( d) or ( e), a person guilty of an offence under paragraph (1) not falling within paragraph (1A), (2) or (2A); or of an offence under any of the existing statutory provisions, being an offence for which no other penalty is specified, shall be liable—

(a)on summary conviction, to a fine not exceeding F5 level 5 on the standard scale;

(b)on conviction on indictment—

(i)if the offence is one to which this head applies, to imprisonment for a term not exceeding two years, or a fine, or both;

(ii)if the offence is not one to which head ( i) applies, to a fine.

(5) Paragraph (4)( b)(i) applies to the following offences—

(a)an offence consisting of contravening any of the relevant statutory provisions by doing otherwise than under the authority of a licence issued by the Department concerned something for the doing of which such a licence is necessary under the relevant statutory provisions;

(b)an offence consisting of contravening a term of or a condition or restriction attached to any such licence as is mentioned in sub-paragraph ( a);

(c)an offence consisting of acquiring or attempting to acquire, possessing or using an explosive article or substance (within the meaning of any of the relevant statutory provisions) in contravention of any of the relevant statutory provisions;

Sub-para.(d) rep. by 1992 NI 17

(e)an offence under paragraph (1)( j).

Para.(6) rep. by 1992 NI 17

Para.(7) rep. by 1981 c. 45

Extension of time for bringing summary proceedings

32 .F1F2—(1) Where—

(a)a special report on any matter to which Article 16 applies is made under paragraph (2)( a) of that Article; or

(b)a report is made by the person holding an inquiry into any such matter under paragraph (2)( b) of that Article; or

(c)a coroner's inquest is held touching the death of any person whose death may have been caused by an accident which happened while he was at work or by a disease which he contracted or probably contracted at work or by any accident, act or omission which occurred in connection with the work of any person whatsoever;

and it appears from the report or, in a case falling within sub-paragraph ( c), from the proceedings at the inquest, that any of the relevant statutory provisions was contravened at a time which is material in relation to the subject-matter of the report or inquest, summary proceedings against any person liable to be proceeded against in respect of the contravention may be commenced at any time within three months of the making of the report or, in a case falling within sub-paragraph ( c), within three months of the conclusion of the inquest.

(2) Where an offence under any of the relevant statutory provisions is committed by reason of a failure to do something at or within a time fixed by or under any of those provisions, the offence shall be deemed to continue until that thing is done.

(3) Summary proceedings for an offence to which this paragraph applies may be commenced at any time within F3 six months from the date on which there comes to the knowledge of a responsible enforcing authority evidence sufficient in the opinion of that authority to justify a prosecution for that offence; and for the purposes of this paragraph—

(a)a certificate of an enforcing authority stating that such evidence came to its knowledge on a specified date shall be conclusive evidence of that fact; and

(b)a document purporting to be such a certificate and to be signed by or on behalf of the enforcing authority in question shall be presumed to be such a certificate unless the contrary is proved.

(4) Paragraph (3) applies to any offence under any of the relevant statutory provisions which a person commits under any provision or requirement to which he is subject as the designer, manufacturer, importer or supplier of any thing; and in that paragraph “responsible enforcing authority” means an enforcing authority within whose field of responsibility the offence in question lies, whether under Article 33 or otherwise.

Venue

33 .F1F2  An offence under any of the relevant statutory provisions committed in connection with any plant or substance may, if necessary for the purpose of bringing the offence within the field of responsibility of any enforcing authority or conferring jurisdiction on any court to entertain proceedings for the offence, be treated as having been committed at the place where that plant or substance is for the time being.

Offences due to fault of other person

34 .F1F2—(1) Where the commission by any person of an offence under any of the relevant statutory provisions is due to the act or default of some other person, that other person shall be guilty of an offence, and a person may be charged with and convicted of the offence under this paragraph whether or not proceedings are taken against the first-mentioned person.

(2) Where there would be or have been the commission of an offence under Article 31 by the Crown but for the circumstance that that Article does not bind the Crown, and that fact is due to the act or default of a person other than the Crown, that person shall be guilty of the offence which, but for that circumstance, the Crown would be committing or would have committed, and may be charged with and convicted of that offence accordingly.

(3) The provisions of this Article are subject to any provision made under Article 17(6).

F1Offences by bodies corporate

34A .F2F3  For the purposes of this Part section 20(2) of the Interpretation Act (Northern Ireland) 1954 applies with the omission of the words “the liability of whose members is limited” and where the affairs of a body corporate are managed by its members, applies in relation to the acts or defaults of a member in connection with his functions of management as if he were a director of the body corporate.

Restriction on institution of proceedings

35 .F1F2  Proceedings for an offence under any of the relevant statutory provisions shall not be instituted except by an inspector or by or with the consent of the Director of Public Prosecutions for Northern Ireland.

Prosecutions by inspectors

36 .F1F2  An inspector, if authorised in that behalf by the enforcing authority which appointed him, may, although not of counsel or a solicitor, prosecute before a court of summary jurisdiction proceedings for an offence under any of the relevant statutory provisions.

Onus of proving limits of what is practicable etc

37 .F1F2  In any proceedings for an offence under any of the relevant statutory provisions consisting of a failure to comply with a duty or requirement to do something so far as is practicable or so far as is reasonably practicable, it shall be for the accused to prove (as the case may be) that it was not practicable or not reasonably practicable to do more than was in fact done to satisfy the duty or requirement.

Evidence

38 .F1F2—(1) Where an entry is required by any of the relevant statutory provisions to be made in any register or other record, the entry, if made, shall, as against the person by or on whose behalf it was made, be admissible as evidence.

(2) Where an entry which is so required to be so made with respect to the observance of any of the relevant statutory provisions has not been made, that fact shall be admissible as evidence.

Power of court to order cause of offence to be remedied and, in certain cases, forfeiture

39 .F1F2—(1) Where a person is convicted of an offence under any of the relevant statutory provisions in respect of any matters which appear to the court to be matters which it is in his power to remedy, the court may, in addition to or instead of imposing any punishment, order him, within such time as may be fixed by the order, to take such steps as may be specified in the order for remedying the said matters.

(2) The time fixed by an order under paragraph (1) may be extended or further extended by order of the court on an application made before the end of that time as originally fixed or as extended under this paragraph, as the case may be.

(3) Where a person is ordered under paragraph (1) to remedy any matters, that person shall not be liable under any of the relevant statutory provisions in respect of those matters in so far as they continue during the time fixed by the order or any further time allowed under paragraph (2).

(4) Subject to paragraph (5), the court by or before which a person is convicted of an offence such as is mentioned in Article 31(5)( c) in respect of any such explosive article or substance as is there mentioned may order the article or substance in question to be forfeited and either destroyed or dealt with in such other manner as the court may order.

(5) The court shall not order anything to be forfeited under paragraph (4) where a person claiming to be the owner of or otherwise interested in it applies to be heard by the court, unless an opportunity has been given to him to show cause why the order should not be made.

Financial provisions

Financial provisions

40 .F2F3—(1) The Department shall pay to the F1 Executive such sums as the Department, with the approval of the Department of Finance may determine are appropriate for the purpose of enabling the F1 Executive to perform its functions.

(2) Regulations may provide for such fees as may be fixed by or determined under the regulations to be payable for or in connection with the performance by or on behalf of any authority to which this paragraph applies of any function conferred on that authority by or under any of the relevant statutory provisions.

(3) Paragraph (2) applies to the following authorities, namely the F1 Executive, the Department concerned, every enforcing authority, and any other person on whom any function is conferred by or under any of the relevant statutory provisions.

(4) Regulations under this Article may specify the person by whom any fee payable under the regulations is to be paid; but no such fee shall be made payable by a person in any of the following capacities, namely an employee, a person seeking employment, a person training for employment, and a person seeking training for employment.

(5) In paragraph (4) the references to a person training for employment and a person seeking training for employment shall include respectively a person attending an industrial rehabilitation course provided under the Disabled Persons (Employment) Act (Northern Ireland) 1945 M1 and a person seeking to attend such a course.

(6) For the purposes of this Article the performance by an inspector of his functions shall be treated as the performance by the enforcing authority which appointed him of functions conferred on that authority by or under any of the relevant statutory provisions.

Miscellaneous and supplementary

Representations in connection with licensing provisions in the relevant statutory provisions

41 .F2F3—(1) Any person who is aggrieved by a decision of an authority having power to issue licences (other than nuclear site licences) under any of the relevant statutory provisions—

(a)refusing to issue him a licence, to renew a licence held by him, or to transfer to him a licence held by another;

(b)issuing him a licence on or subject to any term, condition or restriction whereby he is aggrieved;

(c)varying or refusing to vary any term, condition or restriction on or subject to which a licence is held by him; or

(d)revoking a licence held by him,

may make representations to the Department concerned in accordance with the provisions F1 prescribed by order under Article 10 of the Deregulation and Contracting Out (Northern Ireland) Order 1996 (model provisions with respect to appeals).