Office of Public Sector Information

PART 4 RECOVERY OF EXPENSES

Expenses arising from additional official controls

41.  Expenses charged by a competent authority to an operator pursuant to Article 28 of Regulation 882/2004 shall be payable by the operator to that authority on demand.

Expenses arising in respect of co-ordinated assistance and follow-up by the Commission

42.  Expenses charged by a competent authority to a feed or food business pursuant to Article 40(4) of Regulation 882/2004 shall be payable by that business to that authority on demand.

PART 5 ENFORCEMENT AND SUPPLEMENTARY PROVISIONS

Offences due to fault of another person

43.  Where the commission by any person of an offence under these Regulations is due to the act or default of some other person, that other person shall be guilty of the offence; and a person may be convicted of the offence by virtue of this regulation whether or not proceedings are taken against the first-mentioned person.

Defence of due diligence

44.—(1) In any proceedings for an offence under these Regulations, it shall, subject to paragraph (2), be a defence to prove that the accused took all reasonable precautions and exercised all due diligence to avoid the commission of the offence by the accused or by a person under the accused’s control.

(2) If in any case the defence provided by paragraph (1) involves the allegation that the commission of the offence was due to an act or default of another person, or to reliance on information supplied by another person, the accused shall not, without leave of the court, be entitled to rely on that defence unless at the earlier of–

(a) a date 7 days before the trial diet (not being a notional trial diet); or

(b) a date 28 days after the first appearance of the accused, before a court in connection with the alleged offence,

the accused has served on the prosecutor a notice in writing giving such information identifying or assisting in the identification of that other person as was in the accused’s possession.

Offences by bodies corporate

45.—(1) Where an offence under these Regulations which has been committed by a body corporate is proved to have been committed with the consent or connivance of, or to be attributable to any neglect on the part of–

(a) any director, manager, secretary or other similar officer of the body corporate; or

(b) any person who was purporting to act in any such capacity,

that person as well as the body corporate is to be deemed to be guilty of that offence and shall be liable to be proceeded against and punished accordingly.

(2) In paragraph (1)(a) “director”, in relation to any body corporate established by or under any enactment for the purpose of carrying on under national ownership any industry or part of an industry or undertaking, being a body corporate whose affairs are managed by its members, means a member of that body corporate.

Offences by Scottish partnerships

46.  Where an offence under these Regulations which has been committed by a Scottish partnership is proved to have been committed with the consent or connivance of, or to be attributable to any neglect on the part of, a partner, that partner, as well as the partnership is to be deemed to be guilty of that offence and liable to be proceeded against and punished accordingly.

Protection of officers acting in good faith

47.—(1) An officer of a competent authority, a relevant enforcement authority or an enforcement authority within the meaning of regulation 23, is not personally liable in respect of any act done by that officer–

(a) in the execution or purported execution of the Official Control Regulations; and

(b) within the scope of the officer’s duties,

if the officer did that act in the honest belief that the officer’s duties under the Official Control Regulations required or entitled it to be done.

(2) Nothing in paragraph (1) shall be construed as relieving any such authority of any liability in respect of the acts of its officers.

(3) Where an action has been brought against an officer in respect of an act done by that officer outside the scope of the officer’s duties referred to in paragraph (1)(a) above, the authority concerned may indemnify the officer against the whole or a part of any damages which the officer has been ordered to pay or any costs which the officer may have incurred if it is satisfied that the officer honestly believed that the act complained of was within the scope of the officer’s duties.

Service of documents

48.—(1) Any document which is required or authorised under these Regulations to be served on a person may be served–

(a) by delivering it to that person;

(b) in the case of an incorporated company or body, by delivering it to its secretary at its registered or principal office, or by sending it in a prepaid letter addressed to that secretary at that office; or

(c) in the case of any other person, by leaving it or sending it in a prepaid letter addressed to that person at that person’s usual or last known residence.

(2) Where a document is to be served on the occupier of any premises under these Regulations and it is not reasonably practicable to ascertain the name and address of the person on whom it should be served, or the premises are unoccupied, the document may be served by addressing it to the person concerned in the capacity of “occupier” of the premises (naming them), and–

(a) by delivering it to some other person at the premises; or

(b) if there is no other person at the premises to whom it can be delivered, by affixing it or a copy of it to some conspicuous part of the premises.

Revocation and savings

49.—(1) The Official Feed and Food Controls (Scotland) Regulations 2005 (“the 2005 Regulations”)(14), except regulation 41 (amendment of the General Food Regulations 2004), are revoked.

(2) Any appointment of an authorised officer under the 2005 Regulations in force immediately before the coming into force of these Regulations shall have effect as if it was an appointment of that person as an authorised officer under these Regulations.

(3) Any notice served or sample procured under the 2005 Regulations is deemed to have been served or procured under these Regulations.

(4) Any code of recommended practice issued under regulation 7 of the 2005 Regulations or any declaration made under regulation 33 of the 2005 Regulations (or any modification or suspension of any such declaration) shall have effect as if it was issued, or made, under these Regulations.

(5) The following provisions of the Feeding Stuffs (Application to Zootechnical Additives etc.) (Scotland) Regulations 2005(15) are revoked–

(a) the definition of “the OFFC Regulations” where it appears in regulation 2;

(b) the words “and the OFFC Regulations” where they appear in regulations 5(2)(b) and 6(10)(b); and

(c) regulation 7.