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The REACH Enforcement Regulations 2008

Status:

This is the original version (as it was originally made).

Regulation 9(1)

SCHEDULE 6Powers of enforcement

This schedule has no associated Explanatory Memorandum

PART 1The Environment Agency, the Scottish Environment Protection Agency and the Department of the Environment

SECTION 1Powers of entry and warrants

1.  The powers of any authorised person are—

(a)to enter at any reasonable time (or, in an emergency, at any time and, if need be, by force) any premises which that person has reason to believe it is necessary to enter;

(b)on entering any premises by virtue of sub-paragraph (a), to—

(i)be accompanied by any other person duly authorised by the enforcing authority and, if the authorised person has reasonable cause to apprehend any serious obstruction in the execution of the authorised person’s duty, a constable;

(ii)take any equipment or materials required for any purpose for which the power of entry is being exercised;

(c)to make such examination and investigation as may in any circumstances be necessary;

(d)as regards any premises which the authorised person has power to enter, to direct that those premises or any part of them, or anything in them, shall be left undisturbed (whether generally or in particular respects) for so long as is reasonably necessary for the purpose of any examination or investigation under sub-paragraph (c);

(e)to take such measurements and photographs and make such recordings as the authorised person considers necessary for the purpose of any examination or investigation under sub-paragraph (c);

(f)to take samples, or cause samples to be taken, of any thing found in or on any premises which the authorised person has power to enter, and of the air, water or land in, on, or in the vicinity of, the premises;

(g)in the case of any thing found in or on any premises which the authorised person has power to enter and which appears to that person to be in contravention of a listed REACH provision, to cause it to be dismantled or subjected to any process or test (but not so as to destroy or damage it, unless that is necessary);

(h)in the case of any thing mentioned in sub-paragraph (g), to take possession of it and detain it for so long as is necessary for all or any of the following purposes—

(i)to examine it, or cause it to be examined, and to do, or cause to be done, to it anything which the authorised person has power to do under that sub-paragraph;

(ii)to ensure that it is not tampered with before examination of it is completed; and

(iii)to ensure that it is available for use in any proceedings for an offence under regulation 11 or 13;

(i)to require any person whom the authorised person has reasonable cause to believe to be able to give any information relevant to any examination or investigation under sub-paragraph (c) to answer (in the absence of persons other than a person nominated by that person to be present and any persons whom the authorised person may allow to be present) such questions as the authorised person thinks fit to ask and to sign a declaration of the truth of that person’s answers;

(j)to require the production of, or where the information is recorded in computerised form, the furnishing of extracts from, any records which it is necessary for the authorised person to see for the purposes of an examination or investigation under sub-paragraph (c) and to inspect, and take copies of, or of any entry in, the records; and

(k)to require any person to afford the authorised person such facilities and assistance with respect to any matters or things within the other person’s control or in relation to which that person has responsibilities as are necessary to enable the authorised person to exercise any of the powers conferred on the authorised person by Part 1 of this Schedule.

2.  Except in an emergency, in any case where it is proposed to enter any premises used for residential purposes, or to take heavy equipment on to any premises which are to be entered, any entry by virtue of paragraph 1 must only be effected—

(a)after the expiration of at least seven days’ notice of the proposed entry given to a person who appears to the authorised person in question to be in occupation of the premises in question; and

(b)either—

(i)with the consent of the person who is in occupation of those premises; or

(ii)under the authority of a warrant by virtue of section 2 of Part 1 of this Schedule.

3.  Except in an emergency, where an authorised person proposes to enter any premises and—

(a)entry has been refused and the authorised person apprehends on reasonable grounds that the use of force may be necessary to effect entry; or

(b)the authorised person apprehends on reasonable grounds that entry is likely to be refused and that the use of force may be necessary to effect entry,

any entry on to those premises by virtue of paragraph 1 must only be effected under the authority of a warrant by virtue of section 2 of Part 1 of this Schedule.

4.  In relation to any premises belonging to or used for the purposes of the United Kingdom Atomic Energy Authority, the powers under paragraph 1 have effect subject to section 6(3) of the Atomic Energy Authority Act 1954(1) (which restricts entry to such premises where they have been declared to be prohibited places for the purposes of the Official Secrets Act 1911(2)).

5.  Where an authorised person proposes to exercise the power conferred by paragraph 1(g), that person must, if so requested by a person who at the time is present on and has responsibilities in relation to those premises, cause anything which is to be done by virtue of that power to be done in the presence of that other person.

6.  Before exercising the power conferred by paragraph 1(g), an authorised person must consult—

(a)such persons having duties on the premises where the thing is to be dismantled or subject to the process or test; and

(b)such other persons,

as appear to the authorised person to be appropriate for the purpose of ascertaining what dangers, if any, there may be in doing anything which it is proposed to do or cause to be done under the power.

7.  No answer given by a person in pursuance of a requirement imposed under paragraph 1(i) is admissible in evidence in England and Wales or Northern Ireland against that person in any proceedings, or in Scotland against that person in any criminal proceedings.

8.  Nothing in paragraph 1 compels the production by any person of a document which—

(a)except in relation to Scotland, that person would on grounds of legal professional privilege be entitled to withhold production on an order for discovery in an action in the County Court or High Court; or

(b)in relation to Scotland, contains confidential information made by or to an advocate or solicitor in that capacity and which that person would be entitled to withhold production on an order for the production of documents in an action in the Court of Session.

9.  Section 2 of Part 1 of this Schedule has effect with respect to the powers of entry and related powers conferred by paragraph 1.

10.  In this section—

“emergency” means a case in which it appears to the authorised person in question—

(a)

that there is an immediate risk of serious pollution of the environment or serious harm to human health; or

(b)

that circumstances exist which are likely to endanger life or health,

and that immediate entry to any premises is necessary to verify the existence of that risk or those circumstances or to ascertain the cause of that risk or those circumstances or to effect a remedy;

“premises” means any land, vehicle, vessel or plant which is designed to move or be moved whether on roads or otherwise.

SECTION 2Warrants, evidence and compensation

11.  If it is shown to the satisfaction, in England and Wales of a justice of the peace, in Scotland of the sheriff or a justice of the peace, or in Northern Ireland of a lay magistrate, on sworn information in writing—

(a)that there are relevant grounds for the exercise in relation to any premises of the powers under paragraph 1; and

(b)that one or more of the conditions specified in paragraph 12 is fulfilled in relation to those premises,

the justice, sheriff or lay magistrate may by warrant authorise an enforcing authority to designate a person who is authorised to exercise the power in relation to those premises, in accordance with the warrant and, if need be, by force.

12.  The conditions mentioned in paragraph 11 are—

(a)that the exercise of the power in relation to the premises has been refused;

(b)that such a refusal is reasonably apprehended;

(c)that the premises are unoccupied;

(d)that the occupier is temporarily absent from the premises and the case is one of urgency; or

(e)that an application for admission to the premises would defeat the object of the proposed entry.

13.  In a case where paragraph 12 applies, a justice of the peace, sheriff or lay magistrate must not issue a warrant under paragraph 11 by virtue only of being satisfied that the exercise of the power in relation to any premises has been refused, or that a refusal is reasonably apprehended, unless the justice of the peace, sheriff or lay magistrate is also satisfied that the notice required by that paragraph has been given and that the period of that notice has expired.

14.  Every warrant under paragraph 11 continues in force until the purposes for which the warrant was issued have been fulfilled.

15.  An authorised person must produce evidence of that person’s authorisation or designation and other authority before exercising the power.

16.  Information obtained in consequence of the exercise of the powers in paragraph 1, with or without the consent of any person is admissible in evidence against that or any other person.

17.  Without prejudice to the generality of paragraph 16, information obtained by means of monitoring or other apparatus installed on any premises in the exercise of the powers in paragraph 1, with or without the consent of any person in occupation of the premises, is admissible in evidence in any proceedings against that or any other person.

18.  A person who, in exercise of the powers in paragraph 1, enters on any premises which are unoccupied or whose occupier is temporarily absent must leave the premises as effectively secured against trespassers as that person found them.

19.  Where any person exercises any power conferred by paragraph 1(a) or (b), it is the duty of the enforcing authority under whose authorisation that person acts to make full compensation to any person who has sustained loss or damage by reason of—

(a)the exercise of a power under paragraph 1 by the authorised person; or

(b)the performance of, or failure of the authorised person to perform, the duty imposed under paragraph 18.

20.  Compensation is not payable by virtue of paragraph 19 in respect of any loss or damage if—

(a)it is attributable to the default of the person who sustained it; or

(b)it is loss or damage in respect of which compensation is payable by virtue of any other enactment.

21.  Any dispute as to a person’s entitlement to compensation under paragraph 19, or as to the amount of any such compensation—

(a)in England and Wales, must be referred to the arbitration of a single arbitrator appointed by agreement between the enforcing authority in question and the person who claims to have sustained the loss or damage or, in default of agreement, appointed by the Secretary of State;

(b)in Scotland, must be referred to the arbitration of an arbiter, appointed by agreement between the enforcing authority in question and the person who claims to have sustained the loss or damage or, in default of agreement, appointed by the Scottish Ministers; or

(c)in Northern Ireland, must be referred to and determined by the Lands Tribunal for Northern Ireland.

22.  An authorised person is not to be liable in any civil proceedings for anything done in the purported exercise of the powers under paragraph 1 if the court is satisfied that the act was done in good faith and that there were reasonable grounds for doing it.

SECTION 3Seizure in cases of imminent danger of serious pollution

23.  If an authorised person has entered any premises and has reasonable cause to believe that any thing there is a cause of imminent danger of serious pollution of the environment, the authorised person may seize it and cause it to be rendered harmless (whether by destruction or otherwise).

24.  An authorised person who exercises the power in paragraph 23 must as soon as possible prepare and sign a written report giving particulars of the circumstances in which the thing was seized and so dealt with and must—

(a)give a signed copy of the report to a responsible person at the premises where the thing was found; and

(b)unless the person is the owner of the thing, also serve a signed copy of the report on the owner.

25.  If the authorised person cannot after reasonable inquiry ascertain the name or address of the owner, the copy may be served on the owner by giving it to the person to whom a copy was given under paragraph 24(a).

26.  Where the powers under paragraph 23 are exercised, the enforcing authority is entitled to recover the costs it reasonably incurs from the person who knowingly caused or permitted the thing to become a cause of imminent danger of serious pollution of the environment.

SECTION 4Notices

27.  An authorised person may, by a notice served on any person, require that person to furnish such information as is specified in the notice, in such form and within such period following service of the notice or at such time as is so specified.

28.  If an authorised person is of the opinion that a person has contravened, is contravening or is likely to contravene a listed REACH provision, the authorised person may serve on that person an enforcement notice.

29.  An enforcement notice must—

(a)state that the authorised person is of the opinion referred to in the preceding paragraph;

(b)specify the matters constituting the contravention or the matters making it likely that the contravention will arise, as the case may be;

(c)specify the steps that must be taken to remedy the contravention or to remedy the matters making it likely that the contravention will arise, as the case may be; and

(d)specify the period within which those steps must be taken.

30.  An enforcement notice may be withdrawn at any time.

31.  If an authorised person is of the opinion that the activities of a person, in relation to a contravention or likely contravention of a listed REACH provision, are such that they involve an imminent danger of serious pollution of the environment, the authorised person may serve on that person a prohibition notice.

32.  A prohibition notice must—

(a)state that the authorised person is of the opinion referred to in the preceding paragraph;

(b)specify the danger involved in the activity; and

(c)specify the steps that must be taken to remove it and the period within which they must be taken.

33.  A prohibition notice may be withdrawn at any time.

34.  If a person fails to comply with an enforcement notice or prohibition notice, the enforcing authority may do what that person was required to do and may recover from that person any expenses reasonably incurred in doing so.

35.  References in this Part to an “enforcement notice” or a “prohibition notice” have effect only for the purposes of this Part.

Part 2The Health and Safety Executive, the Health and Safety Executive for Northern Ireland and local (health and safety) authorities

SECTION 1Powers of entry

1.  The powers of an authorised person are—

(a)at any reasonable time (or, in a situation which the authorised person believes is or may be dangerous, at any time) to enter any premises which that person has reason to believe it is necessary to enter;

(b)to be accompanied by a constable if the authorised person has reasonable cause to apprehend any serious obstruction in the execution of that person’s duty;

(c)without prejudice to the preceding sub-paragraph, on entering any premises by virtue of sub-paragraph (a) to—

(i)be accompanied by any other person duly authorised by the authorised person’s enforcing authority; and

(ii)take any equipment or materials required for any purpose for which the power of entry is being exercised.

(d)to make such examination and investigation as may in any circumstances be necessary for the purpose for which the power is being exercised;

(e)as regards any premises which the authorised person has power to enter, to direct that those premises or any part of them, or anything therein, must be left undisturbed (whether generally or in particular respects) for so long as is reasonably necessary for the purpose of any examination or investigation under sub-paragraph (d);

(f)to take such measurements and photographs and make such recordings as the authorised person considers necessary for the purpose of any examination or investigation under sub-paragraph (d);

(g)to take samples of any thing found in any premises which the authorised person has power to enter and of the atmosphere in or in the vicinity of any such premises;

(h)in the case of any thing found in any premises which the authorised person has power to enter and which appears to be in contravention of a listed REACH provision, to cause it to be dismantled or subjected to any process or test (but not so as to damage or destroy it unless this is in the circumstances necessary);

(i)in the case of any such thing as is mentioned in sub-paragraph (h), to take possession of it and detain it for so long as is necessary for all or any of the following purposes, namely—

(i)to examine it and do to it anything which the authorised person has power to do under that sub-paragraph;

(ii)to ensure that it is not tampered with before the authorised person’s examination of it is completed;

(iii)to ensure that it is available for use as evidence in any proceedings for an offence under regulation 11 or 13.

(j)to require any person whom the authorised person has reasonable cause to believe to be able to give any information relevant to any examination or investigation under sub-paragraph (d) to answer (in the absence of persons other than a person nominated by that person to be present and any persons whom the authorised person may allow to be present) such questions as the authorised person thinks fit to ask and to sign a declaration of the truth of that person’s answers;

(k)to require the production of, inspect, and take copies of or of any entry in—

(i)any books or documents which by virtue of any of the listed REACH provisions are required to be kept; and

(ii)any other books or documents which it is necessary for the authorised person to see for the purposes of any examination or investigation under sub-paragraph (d);

(l)to require any person to afford the authorised person such facilities and assistance with respect to any matters or things within that person’s control or in relation to which that person has responsibilities as are necessary to enable the authorised person to exercise any of the powers conferred upon the authorised person by this Part;

(m)to seize and cause to be rendered harmless (whether by destruction or otherwise) any thing which is found by the authorised person in any premises and which the authorised person has reasonable cause to believe that, in the circumstances in which it is found is a cause of imminent danger of serious personal injury.

(n)any other power which is necessary for the purpose of carrying out the enforcement duty.

2.  Where an authorised person proposes to exercise the power conferred by paragraph 1(h) and if requested by a person who at the time is present in and has responsibilities in relation to those premises, the authorised person must cause anything which is to be done by virtue of that power to be done in the presence of that other person unless the authorised person considers that would be prejudicial to the safety of any person.

3.  Before exercising the power conferred by paragraph 1(h), an authorised person must consult such persons as appear to be appropriate for the purpose of ascertaining what dangers, if any, there may be in doing anything which it is proposed to do under that power.

4.  Where under the power conferred by paragraph 1(i) an authorised person takes possession of any thing found in any premises, the authorised person must leave there, either with a responsible person or, if that is impracticable, fixed in a conspicuous position, a notice giving particulars of that thing sufficient to identify it and stating that the authorised person has taken possession of it under that power; and before taking possession of any such thing under that power an authorised person must, if it is practicable to do so, take a sample and give to a responsible person at the premises a portion of the sample marked in a manner sufficient to identify it.

5.  No answer given by a person in pursuance of a requirement imposed under paragraph 1(j) is admissible in evidence against that person or the spouse or civil partner of that person in any proceedings.

6.  Before the power in paragraph 1(m) to render harmless any thing is exercised, an authorised person must, if it is practicable to do so, take a sample of it and give it to a responsible person at the premises a portion of the sample marked in a manner sufficient to identify it.

7.  As soon as may be after any thing has been seized and rendered harmless under paragraph 1(m), the authorised person must prepare and sign a written report giving particulars of the circumstances in which it was seized and so dealt with by the authorised person, and must—

(a)give a signed copy of the report to a responsible person at the premises where the thing was found; and

(b)unless that person is the owner of it, also serve a signed copy of the report on the owner,

and if, where sub-paragraph (b) applies, the authorised person cannot after reasonable enquiry ascertain the name or address of the owner, the copy may be served on the owner by giving it to the person to whom a copy was given under paragraph 4.

8.  Nothing in this Part compels the production by any person of a document which—

(a)except in relation to Scotland, that person would on grounds of legal professional privilege be entitled to withhold production on an order for discovery in an action in the County Court or High Court; or

(b)in relation to Scotland, contains confidential information made by or to an advocate or solicitor in that capacity and which that person would be entitled to withhold production on an order for the production of documents in an action in the Court of Session.

9.  Where—

(a)an action has been brought against an authorised person in respect of an act done in the execution or purported enforcement of a listed REACH provision;

(b)the circumstances are such that the authorised person is not legally entitled to require an indemnity from the Executive; and

(c)the Executive is satisfied that the authorised person honestly believed that the act complained of was within that person’s powers and that the duty of an authorised person required or entitled that act,

the Executive may indemnify the authorised person against the whole or part of any damages and costs which that person may be ordered to pay or may have incurred.

10.  For the purposes of this section, the Executive means—

(a)in Great Britain, the Health and Safety Executive,

(b)in Northern Ireland, the Health and Safety Executive for Northern Ireland.

SECTION 2Notices

11.  If an authorised person is of the opinion that—

(a)activities are being carried on or are likely to be carried on by or under the control of a person; and

(b)the activity involves or as the case may be, will involve a risk of serious personal injury,

the authorised person may serve on that person a prohibition notice.

12.  A prohibition notice must—

(a)state that the authorised person is of the opinion referred to in the preceding paragraph;

(b)specify the matters which in the authorised person’s opinion give or, as the case may be, will give rise to the said risk;

(c)where in the opinion of the authorised person any of those matters involves or, as the case may be, will involve a contravention of a listed REACH provision, the authorised person must—

(i)state that opinion;

(ii)specify the provision or provisions which relate to that opinion; and

(iii)give particulars of the reasons supporting that opinion;

(d)direct that the activities to which the notice relates must not be carried on by or under the control of the person on whom the notice is served unless the matters specified in the notice in pursuance of sub-paragraph (b) and any associated contraventions of provisions so specified in pursuance of sub-paragraph (c) above have been remedied.

13.  A direction contained in a prohibition notice in pursuance of paragraph 12(d) takes effect—

(a)at the end of the period specified in the notice; or

(b)if the notice so declares, immediately.

14.  If an authorised person is of the opinion that a person—

(a)is contravening one or more of the listed REACH provisions; or

(b)has contravened one or more of those provisions in circumstances that make it likely that the contravention will continue or be repeated,

the authorised person may serve on that person an improvement notice.

15.  An improvement notice must—

(a)state that the authorised person is of the opinion referred to in the preceding paragraph;

(b)specify the provision or provisions as to which the authorised person is of that opinion, giving particulars of the reasons supporting that opinion;

(c)require that the person to whom the improvement notice is addressed remedies the contravention or, as the case may be, the matters occasioning it within such period (ending not earlier than the period within which an appeal against the notice can be brought as provided by regulation 21) as may be specified in the notice.

16.  If an authorised person is of the opinion that a person has contravened, is contravening or is likely to contravene a listed REACH provision, the authorised person may serve on that person an enforcement notice.

17.  An enforcement notice must—

(a)state that the authorised person is of the opinion referred to in the preceding paragraph;

(b)specify the matters constituting the contravention or the matters making it likely that the contravention will arise, as the case may be;

(c)specify the steps that must be taken to remedy the contravention or to remedy the matters making it likely that the contravention will arise, as the case may be; and

(d)specify the period within which those steps must be taken.

18.  Where a prohibition notice, an improvement notice or an enforcement notice has been served but is not to take immediate effect—

(a)the notice may be withdrawn by an authorised person at any time before the end of the period specified therein;

(b)the period so specified may be extended or further extended by an authorised person at any time when an appeal against the notice is not pending.

19.  References in this Part to a “prohibition notice”, an “improvement notice” or an “enforcement notice” have effect only for the purposes of this Part and Part 2 of Schedule 8.

PART 3Local (consumer safety) authorities

SECTION 1Powers of entry

1.  An authorised person may at any reasonable hour and on production, if required, of that person’s credentials exercise any of the powers conferred by the following provisions of this section.

2.  An authorised person may, for the purposes of ascertaining whether there has been any contravention of a listed REACH provision, inspect any goods and enter any premises other than premises occupied only as a person’s residence.

3.  An authorised person may, for the purpose of ascertaining whether there has been any contravention of a listed REACH provision, examine any procedure (including any arrangements for carrying out a test) connected with the production of any goods.

4.  If an authorised person has reasonable grounds for suspecting that there has been a contravention of a listed REACH provisions, the authorised person may—

(a)require any person carrying on a business, or employed in connection with a business, to produce any records relating to the business;

(b)for the purpose of ascertaining (by testing or otherwise) whether there has been any such contravention, seize and detain the goods;

(c)take copies of, or of any entry in, any records produced by virtue of sub-paragraph (a).

5.  An authorised person may seize and detain any goods or records which the authorised person has reasonable grounds for believing may be required as evidence in proceedings for any offence in respect of a contravention of a listed REACH provision.

6.  If and to the extent that it is reasonably necessary to prevent a contravention of a listed REACH provision, the authorised person may—

(a)require any person having authority to do so to open any container or to open any vending machine; and

(b)open or break open any such container or machine where a requirement made under sub-paragraph (a) in relation to the container or machine has not been complied with.

7.  An authorised person seizing any goods or records under this Part must inform the following persons that the goods or records have been so seized, that is to say—

(a)the person from whom they are seized; and

(b)in the case of imported goods seized on any premises under the control of the Commissioners for Revenue and Customs, the importer of those goods (within the meaning of the Customs and Excise Management Act 1979(3)).

8.  If a justice of the peace—

(a)is satisfied by any written information on oath that there are reasonable grounds for believing either—

(i)that any goods or records which any authorised person has power to inspect under this Part are on any premises and that their inspection is likely to disclose evidence that there has been a contravention of a listed REACH provision; or

(ii)that such a contravention has taken place, is taking place or is about to take place on any premises; and

(b)is also satisfied by any such information either—

(i)that admission to the premises has been or is likely to be refused and that notice of intention to apply for a warrant under this section has been given to the occupier; or

(ii)that an application for admission, or the giving of such a notice, would defeat the object of the entry or that the premises are unoccupied or that the occupier is temporarily absent and it might defeat the object of the entry to await the occupier’s return,

the justice may by warrant, which shall continue in force for a period of one month, authorise any authorised person to enter the premises, if need be by force.

9.  An authorised person entering any premises by virtue of this section may be accompanied by such other persons and may take such equipment as may appear to the authorised person to be necessary.

10.  On leaving any premises which an authorised person is authorised to enter by a warrant under this section, that person must, if the premises are unoccupied or the occupier is temporarily absent, leave the premises as effectively secured against trespassers as the authorised person found them.

11.  Where any goods seized by an authorised person under this Part are submitted to a test, the authorised person must inform the persons mentioned in paragraph 7 of the result of the test and, if—

(a)proceedings are brought for an offence in respect of a contravention of a listed REACH provision; and

(b)the authorised person is requested to do so and it is practicable to comply with the request,

the authorised person must allow any person who is a party to the proceedings or, as the case may be, has an interest in the goods to which the notice relates, to have the goods tested.

12.  In the application of this section to Scotland, the reference in paragraph 8 to a justice of the peace includes a reference to a sheriff and the references to written information on oath include references to evidence on oath.

13.  In the application of this section to Northern Ireland, the reference in paragraph 8 to a justice of the peace includes a reference to a lay magistrate and references to any information on oath include references to any complaint on oath.

SECTION 2Notices

14.  Where an authorised person has reasonable grounds for suspecting that a listed REACH provision has been contravened in relation to any goods, the authorised person may serve a notice (“ a suspension notice”).

15.  A suspension notice may prohibit the person on whom it is served, for such period ending not more than six months after the date of the notice as is specified in the notice, from doing any of the following without the consent of an authorised person—

(a)supplying the goods;

(b)offering to supply them;

(c)agreeing to supply them or exposing them for supply.

16.  A suspension notice served by an authorised person in respect of any goods must—

(a)describe the goods in a manner sufficient to identify them;

(b)set out the grounds on which the authorised person suspects that a listed REACH provision has been contravened in relation to the goods; and

(c)state that, and the manner in which, the person on whom the notice is served may appeal against the notice.

17.  A suspension notice may require a person to keep the enforcing authority informed of the whereabouts throughout the period of the notice of any of those goods in which that person has an interest.

18.  Where a suspension notice has been served on any person in respect of any goods, no further such notice must be served on that person in respect of the same goods unless—

(a)proceedings against that person for an offence in respect of a contravention, in relation to the goods, of a listed REACH provision; or

(b)proceedings for the forfeiture of the goods,

are pending at the end of the period specified in the notice.

19.  A consent given by an authorised person for the purposes of paragraph 15 may impose such conditions on the doing of anything for which the consent is required as the authorised person considers appropriate.

20.  Where an authorised person serves a suspension notice in respect of any goods, the authorised person is liable to pay compensation to any person having an interest in the goods in respect of any loss or damage caused by reason of the service of the notice if—

(a)there has been no contravention in relation to the goods of a listed REACH provision; and

(b)the exercise of the power is not attributable to any neglect or default by that person having an interest in the goods.

21.  Any disputed question as to the right to or the amount of any compensation payable under this section must be determined by arbitration or, in Scotland, by a single arbiter appointed, failing agreement between the parties, by the sheriff.

SECTION 3Forfeiture

22.  An authorised person in England and Wales or Northern Ireland may apply under this section for an order for the forfeiture of any goods on the grounds that there has been a contravention in relation to the goods of a listed REACH provision.

23.  An application under this section may be made—

(a)where proceedings have been brought in a magistrates’ court for an offence in respect of a contravention of a listed REACH provision in relation to some or all of the goods, to that court;

(b)where no application for the forfeiture of the goods has been made under sub-paragraph (a) by way of complaint to a magistrates’ court.

24.  On an application under this section the court may make an order for the forfeiture of any goods only if it is satisfied that there has been a contravention of a listed REACH provision in relation to the goods.

25.  A court may infer for the purposes of this section that there has been a contravention of a listed REACH provision in relation to any goods if it is satisfied that any such provision has been contravened in relation to goods which are representative of those goods (whether by reason of being of the same design or part of the same consignment or batch or otherwise).

26.  Any person aggrieved by an order made under this section by a magistrates’ court, or by a decision of such a 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 the order pending the making and determination of any appeal (including any application under section 111 of the Magistrates’ Courts Act 1980(4) or Article 146 of the Magistrates’ Courts (Northern Ireland) Order 1981(5)(statement of case).

27.  Subject to paragraph 28, where any goods are forfeited under this section they must be destroyed in accordance with such directions as the court may give.

28.  On making an order under this section a magistrates’ court may, if it considers it appropriate to do so, direct that the goods to which the order relates may (instead of being destroyed) be released, to such person as the court may specify, on condition that that person—

(a)does not supply those goods to any person otherwise than as specified;

(b)complies with any order to pay costs or expenses which has been made against that person in the proceedings for the order for forfeiture.

29.  In Scotland a sheriff may make an order for forfeiture of any goods in relation to which there has been a contravention of a listed REACH provision—

(a)on an application by the procurator-fiscal; 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.

30.  The procurator-fiscal making an application under paragraph 29 must serve on any person appearing to be the owner of, or otherwise to have an interest in, the goods to which the application relates a copy of the application, together with a notice giving the opportunity to appear at the hearing of the application to show cause why the goods should not be forfeited.

31.  Service under paragraph 30 must be carried out, and such service may be proved, in the manner specified for citation of an accused in summary proceedings.

32.  Any person upon whom notice is served under paragraph 30 and any other person claiming to be the owner of, or otherwise to have an interest in, goods to which an application under this section relates is entitled to appear at the hearing of the application to show cause why the goods should not be forfeited.

33.  The sheriff must not make an order following an application under paragraph 29—

(a)if any person on whom notice is served under paragraph 30 does not appear, unless service of the notice on that person is proved; or

(b)if no notice under paragraph 30 has been served, unless the court is satisfied that in the circumstances it was reasonable not to serve notice on any person.

34.  An order under this section may be made only if the sheriff is satisfied that there has been a contravention in relation to those goods of a listed REACH provision.

35.  The sheriff may infer for the purposes of this section that there has been a contravention of a listed REACH provision in relation to any goods if the sheriff is satisfied that any such provision has been contravened in relation to any goods which are representative of those goods (whether by reason of being of the same design or part of the same consignment or batch or otherwise).

36.  Where an order for the forfeiture of any goods is made following an application by the procurator-fiscal under paragraph 29, any person who appeared, or was entitled to appear, to show cause why goods 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 182(5)(a) to (e) of the Criminal Procedure (Scotland) Act 1995(6) applies to an appeal under this section as it applies to a stated case under Part X of that Act.

37.  An order following an application under paragraph 29 does 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 paragraph 36 within that period, until the appeal is determined or abandoned.

38.  An order under paragraph 29 does 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 1995; or

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

39.  Subject to paragraph 40, goods forfeited under this section must be destroyed in accordance with such directions as the sheriff may give.

40.  The sheriff may direct that the goods be released, to such person as may be specified, on condition that that person does not supply those goods to any other person otherwise than as mentioned in section 46(7)(a) or (b) of the Consumer Protection Act 1987(7).

PART 4The Secretary of State

SECTION 1Powers of entry

1.  An authorised person may on producing evidence of that person’s appointment—

(a)at any reasonable time (or, in a situation which in that person’s opinion may give rise to a risk of significant pollution to the environment as a result of the use or discharge from an offshore installation of an article or substance, at any time) board any offshore installation;

(b)on boarding an offshore installation be accompanied by any other person authorised for those purposes by the Secretary of State and take any equipment or materials that the authorised person thinks may be required;

(c)make such examination or investigation as the authorised person considers necessary (including any examination or investigation of an offshore installation, for which purpose the authorised person may install or maintain monitoring or other apparatus on the offshore installation);

(d)give a direction requiring that any part of the offshore installation be left undisturbed (whether generally or in particular respects) for so long as reasonably necessary for the purposes of any examination or investigation under sub-paragraph (c);

(e)take such measurements and photographs and make such recordings as the authorised person considers necessary for the purpose of any examination or investigation under sub-paragraph (c);

(f)take samples of any thing found on the offshore installation or in the atmosphere or any land, seabed (including the subsoil thereof) or water in the vicinity of the offshore installation;

(g)in the case of any thing which the authorised person finds on the offshore installation, cause it to be dismantled or subjected to any process or test (but not so as to damage or destroy it unless that in the circumstances of the case is necessary);

(h)in the case of any such thing mentioned in sub-paragraph (g), take possession of it and detain it for so long as is necessary for all or any of the following purposes, namely—

(i)to examine it and do to it anything which the authorised person has power to do under that sub-paragraph;

(ii)to ensure that it is not tampered with before an examination of it is completed; and

(iii)to ensure that it is available for use as evidence in any proceedings for an offence under regulation 11 or 13;

(i)require any person who the authorised person has reasonable cause to believe is able to give any information relevant to any examination or investigation under sub-paragraph (c)—

(i)to attend at a place and time specified by the authorised person;

(ii)to answer (in the absence of any person other than persons whom the authorised person may allow to be present and a person nominated to be present by the person on whom the requirement is imposed) such questions as the authorised person thinks fit to ask; and

(iii)to sign a declaration of truth of that person’s answers;

(j)require the production of, and inspect and take copies of or of any entry in—

(i)any records which by virtue of any provision of any permit granted under the Offshore Chemicals Regulations 2002(8) are required to be kept;

(ii)any records which the authorised person considers it necessary to see for the purposes of any examination or investigation under sub-paragraph (c);

(k)require any person to afford the authorised person such facilities and assistance with respect to any matters or things within that person’s control or in relation to which that person has responsibilities as the authorised person considers are necessary to enable the authorised person to exercise any of the powers conferred on the authorised person by this Part.

SECTION 2Notices

2.  An authorised person may serve on a person a notice in writing (“an enforcement notice”) if the authorised person is of the opinion that the person has contravened, is contravening or is likely to contravene a listed REACH provision.

3.  An enforcement notice must—

(a)state that the authorised person is of the opinion referred to in the preceding paragraph;

(b)specify the matters that constitute, constituted or, as the case may be, are likely to constitute the contravention;

(c)specify the steps that must be taken to remedy or, as the case may be, prevent the contravention; and

(d)specify the period within which those steps must be taken.

4.  The steps mentioned in paragraph 3(c) include steps that must be taken to remedy any pollution caused by the contravention.

5.  Where a person to whom an enforcement notice is addressed has failed to take the action required by it within such time as may be specified by it and such a notice has not been revoked, the Secretary of State may undertake any action so required and the reasonable costs and expenses of the Secretary of State’s so doing are recoverable as a debt from that person.

6.  A person to whom an enforcement notice is addressed must afford such assistance as the Secretary of State may reasonably require for the purpose of facilitating the exercise of any powers conferred on the Secretary of State by paragraph 5.

7.  An authorised person may revoke an enforcement notice.

8.  An authorised person may serve on a person a notice in writing (“a prohibition notice”) if the authorised person is of the opinion that where the person has contravened, is contravening or is likely to contravene a listed REACH provision, that contravention involves an imminent risk of pollution.

9.  A prohibition notice must—

(a)state that the authorised person is of the opinion referred to in the preceding paragraph;

(b)specify the risk involved;

(c)specify the steps that must be taken to remove it and the period within which they must be taken.

10.  An authorised person may by notice withdraw a prohibition notice wholly or in part at any time and must withdraw a notice when the authorised person is satisfied that the steps required by the notice have been taken.

11.  It is the duty of the person to whom the prohibition notice is addressed to comply with its terms save to the extent that it is withdrawn wholly or in part.

SECTION 3Miscellaneous

12.  An answer given by a person in compliance with a requirement imposed under paragraph 1(i) is admissible in evidence in England and Wales or Northern Ireland against that person in any proceedings or, in Scotland, against that person in criminal proceedings.

13.  In criminal proceedings in which such person as is mentioned in paragraph 12 is charged with an offence to which this paragraph applies, no evidence relating to that person’s answer may be adduced and no question relating to it may be asked by or on behalf of the prosecution unless evidence relating to it is adduced by or on behalf of that person.

14.  Paragraph 13 applies to any offence other than one under—

(a)regulation 18(1)(e)(ii) of the Offshore Chemicals Regulations 2002(9)(offences);

(b)section 5 of the Perjury Act 1911(10)(false statements made otherwise than on oath);

(c)section 44(2) of the Criminal Law (Consolidation) (Scotland) Act 1995(11)(false statements made otherwise than on oath); or

(d)article 10 of the Perjury (Northern Ireland) Order 1979(12)(false statutory declarations and other false unsworn statements).

15.  Nothing in this Part compels the production by any person of a document which—

(a)except in relation to Scotland, that person would on grounds of legal professional privilege be entitled to withhold production on an order for discovery in an action in the County Court or High Court; or

(b)in relation to Scotland, contains confidential information made by or to an advocate or solicitor in that capacity and which that person would be entitled to withhold production on an order for the production of documents in an action in the Court of Session.

16.  References in this Part to an “information notice” or a “prohibition notice” have effect only for the purposes of this Part.

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