Regulation 19

SCHEDULE 5ENFORCEMENT

Enforcement in Great Britian in relation to vessels for use at work

1.  In Great Britain, in relation to vessels and relevant assemblies for use at work–

(a)it shall be the duty of the Executive to make adequate arrangements for the enforcement of these Regulations, and accordingly a reference in the provisions applied to these Regulations by sub-paragraph (b) below to an “enforcing authority” shall be construed as a reference to the Executive;

(b)sections 19 to 21, 23, 24(1), 25A to 28(2), 33 to 35(3), 38, 39 and 41 of the 1974 Act shall apply for the purposes of providing for the enforcement of these Regulations and in respect of proceedings for contravention thereof as if–

(i)references to relevant statutory provisions were references to those sections as applied by this paragraph and to these Regulations;

(ii)references to articles, substances, articles or substances, or plant, were references to vessels or relevant assemblies;

(iii)references to the field of responsibility of an enforcing authority, however expressed, were omitted;

(iv)in section 20, subsection (3) were omitted;

(v)in sections 23 and 24, the references to prohibition notices were omitted;

(vi)in section 23, subsections (3), (4) and (6) were omitted;

(vii)in section 24, paragraph (b) of subsection (3) were omitted;

(viii)in section 33–

(aa)in subsection (1)–

(A)the whole of paragraphs (a) to (d) were omitted;

(B)in paragraph (e) the words “or 25” were omitted;

(C)in paragraph (g) the words “or prohibition” and “or a prohibition notice” were omitted; and

(D)paragraph (o) applied only to failure to comply with a court order under section 42(1) to (3) as applied to these Regulations by subparagraph (c) of this paragraph;

(bb)in subsection (2), the reference to paragraph (d) of subsection (1) were omitted; and

(cc)for subsection (3) there were substituted the following:–

“(3) A person guilty of an offence under any paragraph of subsection (1) not mentioned in the preceding subsection shall be liable–

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

(b)on conviction on indictment–

(i)in the case of an offence under subsection (1)(j), to imprisonment for a term not exceeding two years, or a fine, or both; or

(ii)in all other cases, to a fine.”; and

(dd)subsection (4) were omitted; and

(ix)in section 34, paragraphs (a) and (b) were omitted from subsection (1); and

(c)sections 36(1) and (2), 37 and 42(1) to (3) shall apply in relation to offences under section 33 as applied to these Regulations and as modified by sub-paragraph (b)(viii) above.

Enforcement in Northern Ireland in relation to vessels for use at work

2.  In Northern Ireland, in relation to vessels and relevant assemblies as articles for use at work–

(a)it shall be the duty of the Department of Economic Development to make adequate arrangements for the enforcement of these Regulations, and accordingly a reference to the provisions applied to these Regulations by sub-paragraph (b) below to an “enforcing authority” or to “the Department concerned” shall be construed as a reference to that Department;

(b)articles 21 to 23, 25, 26(4), 27A to 33(5), 35, 36, and 38 of the Order shall apply for the purposes of providing for the enforcement of these Regulations and in respect of proceedings for contravention thereof as if–

(i)references to relevant statutory provisions where references to those articles as applied by this paragraph and to these Regulations;

(ii)references to articles, substances, articles or substances, or plant, were references to vessels and relevant assemblies;

(iii)references to the field of responsibility of an enforcing authority, however expressed, were omitted;

(iv)in article 22, paragraph (3) were omitted;

(v)in articles 25 and 26, the references to prohibition notices were omitted;

(vi)in article 25, paragraphs (3), (4) and (5) were omitted;

(vii)in article 26, sub-paragraph (b) of paragraph (2) were omitted;

(viii)in article 31–

(aa)in paragraph (1)–

(A)the whole of sub-paragraphs (a) to (d) were omitted;

(B)in sub-paragraph (e) the words “or 27” were omitted;

(C)in sub-paragraph (g) the words “or prohibition” and “or a prohibition notice” were omitted; and

(D)sub-paragraph (o) applied only to failure to comply with a court order under article 39(1) to (3) as applied to these Regulations by subparagraph (c) of this paragraph;

(bb)in paragraph (2), the reference to sub-paragraph (d) of paragraph (1) were omitted; and

(cc)paragraph (3) were omitted;

(dd)for paragraph (4) there were substituted the following:–

“(4) A person guilty of an offence under any sub-paragraph of paragraph (1) not mentioned in paragraph (2) shall be liable–

(a)on summary conviction, to a fine not exceeding £2,000; or

(b)on conviction on indictment–

(i)in the case of an offence under paragraph (1)(j), to imprisonment for a term not exceeding two years, or a fine, or both; or

(ii)in all other cases, to a fine.”; and

(ee)paragraph (5) were omitted; and

(ix)in article 32, sub-paragraphs (a)

and (b) were omitted from paragraph (1); and

(c)articles 34(1) and (2) and 39(1) to (3) shall apply in relation to offences under article 31 as applied to these Regulations and as modified by sub-paragraph (b)(viii) above.

Enforcement in relation to vessels as consumer goods

3.  In relation to vessels and relevant assemblies as consumer goods (meaning goods ordinarily intended for private use or consumption)–

(a)it shall be the duty of–

(i)every weights and measures authority in Great Britain; and

(ii)every district council in Northern Ireland,

to enforce these Regulations within their area;

(b)a reference in the provisions applied to these Regulations by sub-paragraph (c) below to an “enforcement authority” shall be construed as a reference to each of the following authorities–

(i)the bodies mentioned in sub-paragraph (a) above; and

(ii)the Secretary of State;

(c)sections 14, 15, 28 to 35, 37, 38, 44 and 47 of the 1987 Act shall apply for the purposes of providing for the enforcement of these Regulations and in respect of proceedings for contravention thereof as if–

(i)references to safety provisions were references to these Regulations;

(ii)references to goods were references to vessels or relevant assemblies;

(iii)in section 14–

(aa)in subsection (1), there were added at the end the words “or taking them into service contrary to regulation 5 of the Simple Pressure Vessels (Safety) Regulations 1991.”; and

(bb)in subsection (6), for “six months” there were substituted “three months”;

(iv)in sections 28, 29, 30, 33, 34 and 35, the words “or any provision by or under Part III of this Act”, on each occasion that they occur, were omitted;

(v)in section 28, subsections (3), (4) and (5) were omitted;

(vi)in section 30, subsections (7) and (8) were omitted; and

(vii)in section 38(1), paragraphs (a) to (c) were omitted;

(d)sections 39 and 40 shall apply to offences under section 32 as it is applied to these Regulations by sub-paragraph (c) above; and

(e)in relation to proceedings for an offence under these Regulations–

(i)in Great Britain, section 34 of the 1974 Act shall apply as if–

(aa)paragraphs (a) and (b) of subsection (1) were omitted;

(bb)references to an “enforcing authority” were references to each of the authorities referred to in sub-paragraph (a)(i) and (b)(ii) of this paragraph, and “responsible enforcing authority” were construed accordingly; and

(cc)references to “relevant statutory provisions” were references to these Regula tions; and

(ii)in Northern Ireland, article 32 of the Order shall apply as if–

(aa)sub-paragraphs (a) and (b) of paragraph (1) were omitted;

(bb)references to an “enforcing authority” were references to each of the authorities referred to in sub-paragraph (a)(ii) and (b)(ii) of this paragraph, and “responsible enforcing authority” were construed accordingly; and

(cc)reference to “relevant statutory provisions” were references to these Regula tions.

Forfeiture: England and Wales and Northern Ireland

4.—(1) An enforcement authority in England and Wales or Northern Ireland may apply under this paragraph for an order for the forfeiture of any vessels or relevant assemblies on the grounds that there has been a contravention in relation thereto of any provision of these Regulations.

(2) An application under this paragraph may be made–

(a)where proceedings have been brought in a magistrates' court for an offence in respect of a contravention in relation to some or all of the vessels or relevant assemblies of any provisions of these Regulations, to that court;

(b)where an application with respect to some or all of the vessels or relevant assemblies has been made to a magistrates' court under section 15 or 33 of the 1987 Act as applied for the purposes of the enforcement of these Regulations by paragraph 3(c) above, to that court; and

(c)where no application for the forfeiture of the vessels or relevant assemblies has been made under sub-paragraph (a) or (b) above, by way of complaint to a magistrates' court.

(3) On an application under this paragraph the court shall make an order for the forfeiture of the vessels or relevant assemblies only if it is satisfied that there has been a contravention in relation thereto of any provision of these Regulations.

(4) For the avoidance of doubt it is hereby declared that a court may infer for the purposes of this paragraph that there has been a contravention in relation to any vessels or relevant assemblies of any provision of these Regulations if it is satisfied that any such provision has been contravened in relation to a vessel or relevant assembly which is representative of those vessels or relevant assemblies as the case may be (whether by reason of being of the same design or part of the same consignment or batch or otherwise).

(5) Any person aggrieved by an order made under this paragraph by a magistrates' court, or by a decision of such court not to make such an order, may appeal against that order or decision–

(a)in England and Wales, to the Crown Court;

(b)in Northern Ireland, to the county court,

and an order so made may contain such provision as appears to the court to be appropriate for delaying the coming into force of an order pending the making and determination of any appeal (including any application under section 111 of the Magistrates' Courts Act 1980(6) or article 146 of the Magistrates' Courts (Northern Ireland) Order 1981(7) (statement of case)).

(6) Subject to sub-paragraph (7) below, where any vessel or relevant assembly is forfeited under this paragraph it shall be destroyed in accordance with such directions as the court may give.

(7) On making an order under this paragraph a magistrates' court may, if it considers it appropriate to do so, direct that the vessels or relevant assemblies to which the order relates shall (instead of being destroyed) be released, to such person as the court may specify, on condition that that person–

(a)does not supply the vessels or relevant assemblies as the case may be to any person otherwise than–

(i)to a person who carries on a business of buying vessels or relevant assemblies of the same description as the first mentioned vessels or relevant assemblies as the case may be and repairing or reconditioning them; or

(ii)as scrap (that is to say, for the value of materials included in the vessels or relevant assemblies rather than for the value of the vessels or relevant assemblies themselves); and

(b)complies with any order to pay costs or expenses (including any order under section 35 of the 1987 Act as applied for the purposes of the enforcement of these Regulations by paragraph 3(c) above) which has been made against that person in the proceedings for the order for forfeiture.

Forfeiture: Scotland

5.—(1) In Scotland a sheriff may make an order for forfeiture of any vessel or relevant assembly in relation to which there has been a contravention of any provision of these Regulations–

(a)on an application by the procurator-fiscal made in the manner specified in section 310 of the Criminal Procedure (Scotland) Act 1975(8); or

(b)where a person is convicted of any offence in respect of any such contravention, in addition to any other penalty which the sheriff may impose.

(2) The procurator-fiscal making an application under sub-paragraph (1)(a) above shall serve on any person appearing to him to be the owner of, or otherwise to have an interest in, the vessel or relevant assembly to which the application relates a copy of the application, together with a notice giving him the opportunity to appear at the hearing of the application to show cause why the vessel or relevant assembly as the case may be should not be forfeited.

(3) Service under sub-paragraph (2) above shall be carried out, and such service may be proved,in the manner specified for citation of an accused in summary proceedings under the Criminal Procedure (Scotland) Act 1975.

(4) Any person upon whom a notice is served under sub-paragraph (2) above and any other person claiming to be the owner of, or otherwise to have an interest in, the vessel or relevant assembly to which an application under this paragraph relates shall be entitled to appear at the hearing of the application to show cause why the vessel or relevant assembly as the case may be should not be forfeited.

(5) The sheriff shall not make an order following an application under sub-paragraph (1)(a) above–

(a)if any person on whom notice is served under sub-paragraph (2) above does not appear, unless service of the notice on that person is proved; or

(b)if no notice under sub-paragraph (2) above has been served, unless the court is satisfied that in the circumstances it was reasonable not to serve notice on any person.

(6) The sheriff shall make an order under this paragraph only if he is satisfied that there has been a contravention in relation to the vessel or relevant assembly of a provision of these Regulations.

(7) For the avoidance of doubt it is declared that the sheriff may infer for the purposes of this paragraph that there has been a contravention in relation to any vessels or relevant assemblies of any provision of these Regulations if he is satisfied that any such provision has been contravened in relation to a vessel or relevant assembly which is representative of those vessels or relevant assemblies as the case may be (whether by reason of being of the same design or part of the same consignment or batch or otherwise).

(8) Where an order for the forfeiture of any vessel or relevant assembly is made following an application by the procurator-fiscal under sub-paragraph (1)(a) above, any person who appeared, or was entitled to appear, to show cause why it should not be forfeited may, within twenty-one days of the making of the order, appeal to the High Court by Bill of Suspension on the ground of an alleged miscarriage of justice; and section 452(4)(a) to (e) of the Criminal Procedure (Scotland) Act 1975(9) shall apply to an appeal under this sub-paragraph as it applies to a stated case under Part II of that Act.

(9) An order following an application under sub-paragraph (1)(a) above shall not take effect–

(a)until the end of the period of twenty-one days beginning with the day after the day on which the order is made; or

(b)if an appeal is made under sub-paragraph (8) above within that period, until the appeal is determined or abandoned.

(10) An order under sub-paragraph (1)(b) shall not take effect–

(a)until the end of the period within which an appeal against the order could be brought under the Criminal Procedure (Scotland) Act 1975; or

(b)if an appeal is made within that period, until the appeal is determined or abandoned.

(11) Subject to sub-paragraph (12) below, a vessel or relevant assembly forfeited under this paragraph shall be destroyed in accordance with such directions as the sheriff may give.

(12) If he thinks fit, the sheriff may direct the vessel or relevant assembly to be released to such person as he may specify, on condition that that person does not supply it to any person otherwise than–

(a)to a person who carries on a business of buying vessels or relevant assemblies of the same description as it and repairing or reconditioning them; or

(b)as scrap (that is to say, for the value of materials included in the vessel or relevant assembly rather than for the value of the vessel or relevant assembly itself).

Duty of enforcement authority to inform Secretary of State of action taken

6.  An enforcement authority shall, where action has been taken by it to prohibit or restrict the supply or taking into service (whether under these Regulations or otherwise) of any vessel to which these Regulations apply and which bears the EC mark (or a relevant assembly incorporating such vessel), forthwith inform the Secretary of State of the action taken, and the reasons for it, with a view to this information being passed by him to the Commission.

Savings

7.  Nothing in these Regulations shall be construed as preventing the taking of any action inrespect of a vessel or relevant assembly to which these Regulations apply under the provisions of the 1974 Act, the Order or the 1987 Act.

8.  Nothing in these Regulations shall authorise an enforcement authority to bring proceedings in Scotland for an offence.

Interpretation

9.  In this Schedule–

“the 1974 Act” means the Health and Safety at Work etc. Act 1974;

“the 1987 Act” means the Consumer Protection Act 1987;

“enforcement authority”, save in paragraph 3(b) of this Schedule, means the Executive, the Department of Economic Development, and each of the authorities referred to in the said paragraph 3(b);

“the Executive” means the Health and Safety Executive established under section 10 of the 1974 Act;

“the Order” means the Health and Safety at Work (Northern Ireland) Order 1978; and

“vessels for use at work” means vessels–

and a reference to relevant assemblies for use at work shall be construed accordingly.