(1) A Minister of the Crown may by order in accordance with this Part make—
(a) the provision specified in section 39 (fixed monetary penalties);
(b) the provision specified in section 42 (discretionary requirements);
(c) the provision specified in section 46 (stop notices);
(d) the provision specified in section 50 (enforcement undertakings).
(2) The Welsh Ministers may by order in accordance with this Part make any such provision, where the provision relates to a Welsh ministerial matter.
(3) An order under this Part is to be made by statutory instrument.
(1) In this Part, “regulator” means—
(a) a person specified in Schedule 5 (in this Part called a “designated regulator”), or
(b) a person, other than a designated regulator, who has an enforcement function in relation to an offence to which subsection (2) applies.
(2) This subsection applies to an offence contained, immediately before the day on which this Act is passed, in an enactment specified in Schedule 6.
(3) Subsection (1)(b) does not include—
(a) the Crown Prosecution Service,
(b) a member of a police force in England or Wales,
(c) a Procurator Fiscal,
(d) a constable of a police force in Scotland,
(e) the Public Prosecution Service for Northern Ireland, or
(f) a member of the Police Service of Northern Ireland.
(1) In this Part, “relevant offence”, in relation to a designated regulator, means an offence—
(a) in relation to which the designated regulator has an enforcement function, and
(b) which is contained in an Act immediately before the day on which this Act is passed.
(2) In this Part “relevant offence”, in relation to a regulator other than a designated regulator, means an offence—
(a) which is contained, immediately before the day on which this Act is passed, in an enactment specified in Schedule 6, and
(b) in relation to which that regulator has an enforcement function.
(1) The provision which may be made under this section is provision to confer on a regulator the power by notice to impose a fixed monetary penalty on a person in relation to a relevant offence.
(2) Provision under this section may only confer such a power in relation to a case where the regulator is satisfied beyond reasonable doubt that the person has committed the relevant offence.
(3) For the purposes of this Part a “fixed monetary penalty” is a requirement to pay to a regulator a penalty of a prescribed amount.
(4) Where the relevant offence is—
(a) triable summarily (whether or not it is also triable on indictment), and
(b) punishable on summary conviction by a fine (whether or not it is also punishable by a term of imprisonment),
the amount of the fixed monetary penalty may not exceed the maximum amount of that fine.
(1) Provision under section 39 must secure the results in subsection (2).
(2) Those results are that—
(a) where a regulator proposes to impose a fixed monetary penalty on a person, the regulator must serve on that person a notice of what is proposed (a “notice of intent”) which complies with subsection (3),
(b) the notice of intent also offers the person the opportunity to discharge the person’s liability for the fixed monetary penalty by payment of a prescribed sum (which must be less than or equal to the amount of the penalty),
(c) if the person does not so discharge liability—
(i) the person may make written representations and objections to the regulator in relation to the proposed imposition of the fixed monetary penalty, and
(ii) the regulator must at the end of the period for making representations and objections decide whether to impose the fixed monetary penalty,
(d) where the regulator decides to impose the fixed monetary penalty, the notice imposing it (“the final notice”) complies with subsection (5), and
(e) the person on whom a fixed monetary penalty is imposed may appeal against the decision to impose it.
(3) To comply with this subsection the notice of intent must include information as to—
(a) the grounds for the proposal to impose the fixed monetary penalty,
(b) the effect of payment of the sum referred to in subsection (2)(b),
(c) the right to make representations and objections,
(d) the circumstances in which the regulator may not impose the fixed monetary penalty,
(e) the period within which liability to the fixed monetary penalty may be discharged, which shall not exceed the period of 28 days beginning with the day on which the notice of intent was received, and
(f) the period within which representations and objections may be made, which shall not exceed the period of 28 days beginning with the day on which the notice of intent was received.
(4) Provision pursuant to subsection (2)(c)(ii)—
(a) must secure that the regulator may not decide to impose a fixed monetary penalty on a person where the regulator is satisfied that the person would not, by reason of any defence, be liable to be convicted of the relevant offence, and
(b) may include provision for other circumstances in which the regulator may not decide to impose a fixed monetary penalty.
(5) To comply with this subsection the final notice referred to in subsection (2)(d) must include information as to—
(a) the grounds for imposing the penalty,
(b) how payment may be made,
(c) the period within which payment must be made,
(d) any early payment discounts or late payment penalties,
(e) rights of appeal, and
(f) the consequences of non-payment.
(6) Provision pursuant to subsection (2)(e) must secure that the grounds on which a person may appeal against a decision of the regulator include the following—
(a) that the decision was based on an error of fact;
(b) that the decision was wrong in law;
(c) that the decision was unreasonable.
Provision under section 39 must secure that—
(a) in a case where a notice of intent referred to in section 40(2)(a) is served on a person—
(i) no criminal proceedings for the relevant offence may be instituted against the person in respect of the act or omission to which the notice relates before the end of the period in which the person may discharge liability to the fixed monetary penalty pursuant to section 40(2)(b), and
(ii) if the person so discharges liability, the person may not at any time be convicted of the relevant offence in relation to that act or omission;
(b) in a case where a fixed monetary penalty is imposed on a person, that person may not at any time be convicted of the relevant offence in respect of the act or omission giving rise to the penalty.
(1) The provision which may be made under this section is provision to confer on a regulator the power by notice to impose one or more discretionary requirements on a person in relation to a relevant offence.
(2) Provision under this section may only confer such a power in relation to a case where the regulator is satisfied beyond reasonable doubt that the person has committed a relevant offence.
(3) For the purposes of this Part a “discretionary requirement” means—
(a) a requirement to pay a monetary penalty to a regulator of such amount as the regulator may determine,
(b) a requirement to take such steps as a regulator may specify, within such period as it may specify, to secure that the offence does not continue or recur, or
(c) a requirement to take such steps as a regulator may specify, within such period as it may specify, to secure that the position is, so far as possible, restored to what it would have been if the offence had not been committed.
(4) Provision under this section may not permit discretionary requirements to be imposed on a person on more than one occasion in relation to the same act or omission.
(5) In this Part—
“variable monetary penalty” means a requirement referred to in subsection (3)(a);
“non-monetary discretionary requirement” means a requirement referred to in subsection (3)(b) or (c).
(6) Where a variable monetary penalty is imposed in relation to a relevant offence which is—
(a) triable summarily only, and
(b) punishable on summary conviction by a fine (whether or not it is also punishable by a term of imprisonment),
the amount of the variable monetary penalty may not exceed the maximum amount of that fine.
(1) Provision under section 42 must secure the results in subsection (2).
(2) Those results are that—
(a) where a regulator proposes to impose a discretionary requirement on a person, the regulator must serve on that person a notice of what is proposed (a “notice of intent”) which complies with subsection (3),
(b) that person may make written representations and objections to the regulator in relation to the proposed imposition of the discretionary requirement,
(c) after the end of the period for making such representations and objections, the regulator must decide whether to—
(i) impose the discretionary requirement, with or without modifications, or
(ii) impose any other discretionary requirement which the regulator has power to impose under section 42,
(d) where the regulator decides to impose a discretionary requirement, the notice imposing it (the “final notice”) complies with subsection (6), and
(e) the person on whom a discretionary requirement is imposed may appeal against the decision to impose it.
(3) To comply with this subsection the notice of intent must include information as to—
(a) the grounds for the proposal to impose the discretionary requirement,
(b) the right to make representations and objections,
(c) the circumstances in which the regulator may not impose the discretionary requirement, and
(d) the period within which representations and objections may be made, which may not be less than the period of 28 days beginning with the day on which the notice of intent is received.
(4) Provision pursuant to subsection (2)(c)—
(a) must secure that the regulator may not decide to impose a discretionary requirement on a person where the regulator is satisfied that the person would not, by reason of any defence raised by that person, be liable to be convicted of the relevant offence, and
(b) may include provision for other circumstances in which the regulator may not decide to impose a discretionary requirement.
(5) Provision pursuant to subsection (2)(c) must also include provision for—
(a) the person on whom the notice of intent is served to be able to offer an undertaking as to action to be taken by that person (including the payment of a sum of money) to benefit any person affected by the offence,
(b) the regulator to be able to accept or reject such an undertaking, and
(c) the regulator to take any undertaking so accepted into account in its decision.
(6) To comply with this subsection the final notice referred to in subsection (2)(d) must include information as to—
(a) the grounds for imposing the discretionary requirement,
(b) where the discretionary requirement is a variable monetary penalty—
(i) how payment may be made,
(ii) the period within which payment must be made, and
(iii) any early payment discounts or late payment penalties,
(c) rights of appeal, and
(d) the consequences of non-compliance.
(7) Provision pursuant to subsection (2)(e) must secure that the grounds on which a person may appeal against a decision of the regulator include the following—
(a) that the decision was based on an error of fact;
(b) that the decision was wrong in law;
(c) in the case of a variable monetary penalty, that the amount of the penalty is unreasonable;
(d) in the case of a non-monetary discretionary requirement, that the nature of the requirement is unreasonable;
(e) that the decision was unreasonable for any other reason.
(1) Provision under section 42 must secure the result in subsection (2) in a case where—
(a) a discretionary requirement is imposed on a person, or
(b) an undertaking referred to in section 43(5) is accepted from a person.
(2) The result in this subsection is that the person may not at any time be convicted of the relevant offence in respect of the act or omission giving rise to the discretionary requirement or undertaking except in a case referred to in subsection (3).
(3) The case referred to in subsection (2) is a case where—
(a) a non-monetary discretionary requirement is imposed on the person or an undertaking referred to in section 43(5) is accepted from a person,
(b) no variable monetary penalty is imposed on the person, and
(c) the person fails to comply with the non-monetary discretionary requirement or undertaking.
(4) Provision under section 42 may for the purposes of the case referred to in subsection (3) extend any period within which criminal proceedings may be instituted against the person.
(1) Provision under section 42 may include provision for a person to pay a monetary penalty (a “non-compliance penalty”) to a regulator if the person fails to comply with—
(a) a non-monetary discretionary requirement imposed on the person, or
(b) an undertaking referred to in section 43(5) which is accepted from the person.
(2) Provision under subsection (1) may—
(a) specify the amount of the non-compliance penalty,
(b) provide for the amount to be calculated by reference to prescribed criteria,
(c) provide for the amount to be determined by the regulator, or
(d) provide for the amount to be determined in any other way.
(3) Provision under subsection (1) must secure that—
(a) the non-compliance penalty is imposed by notice served by the regulator, and
(b) the person on whom it is imposed may appeal against that notice.
(4) Provision pursuant to paragraph (b) of subsection (3) must secure that the grounds on which a person may appeal against a notice referred to in that subsection include the following—
(a) that the decision to serve the notice was based on an error of fact;
(b) that the decision was wrong in law;
(c) that the decision was unfair or unreasonable for any reason (including, in a case where the amount of the non-compliance penalty was determined by the regulator, that the amount is unreasonable).
(1) The provision which may be made under this section is provision conferring on a regulator the power to serve a stop notice on a person.
(2) For the purposes of this Part a “stop notice” is a notice prohibiting a person from carrying on an activity specified in the notice until the person has taken the steps specified in the notice.
(3) Provision under this section may only confer such a power in relation to a case falling within subsection (4) or (5).
(4) A case falling within this subsection is a case where—
(a) the person is carrying on the activity,
(b) the regulator reasonably believes that the activity as carried on by that person is causing, or presents a significant risk of causing, serious harm to any of the matters referred to in subsection (6), and
(c) the regulator reasonably believes that the activity as carried on by that person involves or is likely to involve the commission of a relevant offence by that person.
(5) A case falling within this subsection is a case where the regulator reasonably believes that—
(a) the person is likely to carry on the activity,
(b) the activity as likely to be carried on by that person will cause, or will present a significant risk of causing, serious harm to any of the matters referred to in subsection (6), and
(c) the activity as likely to be carried on by that person will involve or will be likely to involve the commission of a relevant offence by that person.
(6) The matters referred to in subsections (4)(b) and (5)(b) are—
(a) human health,
(b) the environment (including the health of animals and plants), and
(c) the financial interests of consumers.
(7) The steps referred to in subsection (2) must be steps to remove or reduce the harm or risk of harm referred to in subsection (4)(b) or (5)(b).
(1) Provision under section 46 must secure the results in subsection (2) in a case where a stop notice is served.
(2) Those results are that—
(a) the stop notice must comply with subsection (3),
(b) the person on whom it is served may appeal against the decision to serve it,
(c) where, after service of the notice, the regulator is satisfied that the person has taken the steps specified in the notice, the regulator must issue a certificate to that effect (a “completion certificate”),
(d) the notice ceases to have effect on the issue of a completion certificate,
(e) the person on whom the notice is served may at any time apply for a completion certificate,
(f) the regulator must make a decision as to whether to issue a completion certificate within 14 days of such an application, and
(g) the person on whom the notice is served may appeal against a decision not to issue a completion certificate.
(3) To comply with this subsection a stop notice must include information as to—
(a) the grounds for serving the notice,
(b) rights of appeal, and
(c) the consequences of non-compliance.
(4) Provision pursuant to subsection (2)(b) must secure that the grounds on which a person may appeal against a decision of the regulator to serve a stop notice include the following—
(a) that the decision was based on an error of fact;
(b) that the decision was wrong in law;
(c) that the decision was unreasonable;
(d) that any step specified in the notice is unreasonable;
(e) that the person has not committed the relevant offence and would not have committed it had the stop notice not been served;
(f) that the person would not, by reason of any defence, have been liable to be convicted of the relevant offence had the stop notice not been served.
(5) Provision pursuant to subsection (2)(g) must secure that the grounds on which a person may appeal against a decision of the regulator not to issue a completion certificate include the following—
(a) that the decision was based on an error of fact;
(b) that the decision was wrong in law;
(c) that the decision was unfair or unreasonable.
(1) Provision under section 46 conferring power on a regulator to serve a stop notice on a person must include provision for the regulator to compensate the person for loss suffered as the result of the service of the notice.
(2) Provision under subsection (1) may provide for compensation—
(a) only in prescribed cases;
(b) only in relation to prescribed descriptions of loss.
(3) Provision under subsection (1) must secure that the person on whom the stop notice is served is able to appeal against—
(a) a decision by the regulator not to award compensation, or
(b) a decision of the regulator as to the amount of the compensation.
(1) Provision under section 46 conferring power on a regulator to serve a stop notice must provide that, where a person on whom a notice is served does not comply with it, the person is guilty of an offence and liable—
(a) on summary conviction, to a fine not exceeding £20,000, or imprisonment for term not exceeding twelve months, or both, or
(b) on conviction on indictment, to imprisonment for a term not exceeding two years, or a fine, or both.
(2) In the application of this section—
(a) in England and Wales, in relation to an offence committed before the commencement of section 154(1) of the Criminal Justice Act 2003 (c. 44), or
(b) in Northern Ireland,
the reference in subsection (1)(a) to twelve months is to be read as a reference to six months.
(1) The provision which may be made under this section is provision—
(a) to enable a regulator to accept an enforcement undertaking from a person in a case where the regulator has reasonable grounds to suspect that the person has committed a relevant offence, and
(b) for the acceptance of the undertaking to have the consequences in subsection (4).
(2) For the purposes of this Part, an “enforcement undertaking” is an undertaking to take such action as may be specified in the undertaking within such period as may be so specified.
(3) The action specified in an enforcement undertaking must be—
(a) action to secure that the offence does not continue or recur,
(b) action to secure that the position is, so far as possible, restored to what it would have been if the offence had not been committed,
(c) action (including the payment of a sum of money) to benefit any person affected by the offence, or
(d) action of a prescribed description.
(4) The consequences in this subsection are that, unless the person from whom the undertaking is accepted has failed to comply with the undertaking or any part of it—
(a) that person may not at any time be convicted of the relevant offence in respect of the act or omission to which the undertaking relates,
(b) the regulator may not impose on that person any fixed monetary penalty which it would otherwise have power to impose by virtue of section 39 in respect of that act or omission, and
(c) the regulator may not impose on that person any discretionary requirement which it would otherwise have power to impose by virtue of section 42 in respect of that act or omission.
(5) Provision under this section may in particular include provision—
(a) as to the procedure for entering into an undertaking;
(b) as to the terms of an undertaking;
(c) as to publication of an undertaking by a regulator;
(d) as to variation of an undertaking;
(e) as to circumstances in which a person may be regarded as having complied with an undertaking;
(f) as to monitoring by a regulator of compliance with an undertaking;
(g) as to certification by a regulator that an undertaking has been complied with;
(h) for appeals against refusal to give such certification;
(i) in a case where a person has given inaccurate, misleading or incomplete information in relation to the undertaking, for that person to be regarded as not having complied with it;
(j) in a case where a person has complied partly but not fully with an undertaking, for that part-compliance to be taken into account in the imposition of any criminal or other sanction on the person;
(k) for the purpose of enabling criminal proceedings to be instituted against a person in respect of the relevant offence in the event of breach of an undertaking or any part of it, to extend any period within which those proceedings may be instituted.
(1) Provision may not be made under section 39 and section 42 conferring powers on a regulator in relation to the same offence unless it secures that—
(a) the regulator may not serve a notice of intent referred to in section 40(2)(a) on a person in relation to any act or omission where a discretionary requirement has been imposed on that person in relation to that act or omission, and
(b) the regulator may not serve a notice of intent referred to in section 43(2)(a) on a person in relation to any act or omission where—
(i) a fixed monetary penalty has been imposed on that person in relation to that act or omission, or
(ii) the person has discharged liability to a fixed monetary penalty in relation to that act or omission pursuant to section 40(2)(b).
(2) Provision may not be made under section 39 and section 46 conferring powers on a regulator in relation to the same offence unless it secures that—
(a) the regulator may not serve a notice of intent referred to in section 40(2)(a) on a person in relation to any act or omission where a stop notice has been served on that person in relation to that act or omission, and
(b) the regulator may not serve a stop notice on a person in relation to any act or omission where—
(i) a fixed monetary penalty has been imposed on that person in relation to that act or omission, or
(ii) the person has discharged liability to a fixed monetary penalty in relation to that act or omission pursuant to section 40(2)(b).
(1) An order under this Part which confers power on a regulator to require a person to pay a fixed monetary penalty, a variable monetary penalty or a non-compliance penalty under section 45(1) may include provision—
(a) for early payment discounts;
(b) for the payment of interest or other financial penalties for late payment of the penalty, such interest or other financial penalties not in total to exceed the amount of that penalty;
(c) for enforcement of the penalty.
(2) Provision under subsection (1)(c) may include—
(a) provision for the regulator to recover the penalty, and any interest or other financial penalty for late payment, as a civil debt;
(b) provision for the penalty, and any interest or other financial penalty for late payment to be recoverable, on the order of a court, as if payable under a court order.