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DRAFT SCOTTISH STATUTORY INSTRUMENTS
2002 No. AGRICULTURE
The TSE (Scotland) Regulations 2002
Part VIII
Community controls, offences, penalties and enforcement
Community controls: powers of inspectors
94.-(1) An inspector shall, on producing, if required to do so, some duly authenticated document showing his authority, have the right at all reasonable times to enter any premises (excluding premises used only as a dwelling) for any purpose in relation to the checks and assistance referred to in Article 21 of the Community TSE Regulation.
(2) If a justice of the peace, on sworn information in writing, is satisfied that there is reasonable ground for an inspector to enter any premises (excluding premises used only as a dwelling) for any purpose mentioned in paragraph (1) above and either-
(a) admission to the premises has been refused, or a refusal is expected, and that notice of the intention to apply for a warrant has been given to the occupier; or
(b) an application for admission, or the giving of such a notice, would defeat the object of the entry, or that the case is one of urgency, or that the premises are unoccupied or the occupier is absent,
he may issue a warrant authorising an inspector to enter the premises for that purpose if need be by reasonable force.
(3) The occupier of premises entered by an inspector under this regulation or by virtue of a warrant issued it, and his employees and any person on the premises who is or has been in possession or charge of any mammalian meat and bone meal or processed animal protein, any animal or carcase which is or has been on the premises, or any specified risk material which is or has been on the premises, shall-
(a) provide such reasonable facilities to the inspector and comply with such reasonable requirements as the inspector considers necessary for any purpose in relation to the checks and assistance referred to in Article 21 of the Community TSE Regulation; and
(b) if required by an inspector, give such information as he possesses as to-
(i) any mammalian meat and bone meal or processed animal protein, any animal or carcase, or any specified risk material, which is or has been on the premises;
(ii) any animal or carcase with which any mammalian meat and bone meal or processed animal protein, any animal or carcase, or any specified risk material, which is or has been on the premises may have come into contact; and
(iii) the location, transport and movement of any mammalian meat and bone meal or processed animal protein, any animal or carcase, or any specified risk material, which is or has been in his possession or charge.
(4) An inspector entering any premises by virtue of this regulation, or of a warrant issued under it may take with him-
(a) such other persons as he considers necessary to give him such assistance as he considers necessary; and
(b) a representative of the European Commission acting for the purpose of the Community TSE Regulation or the Community Transitional Measures; and
(5) If an inspector enters any unoccupied premises he shall leave them as effectively secured against unauthorised entry as he found them.
(6) Any notice under this regulation shall be complied with at the expense of the person on whom the notice is served.
(7) If a notice under this regulation is not complied with, an inspector may arrange for it to be complied with at the expense of the person on whom the notice is served.
Obstruction
95.-(1) No person shall-
(a) intentionally obstruct any person acting in the execution of these Regulations;
(b) without reasonable cause, fail to give to any person acting in the execution of these Regulations any assistance or information which that person may reasonably require of him for the purpose of carrying out his functions under these Regulations; or
(c) furnish to any person acting in the execution of these Regulations any information which he knows to be false or misleading.
(2) Nothing in paragraph (1)(b) above shall be construed as requiring any person to answer any question or give any information if to do so might incriminate him.
Offences and penalties
96.-(1) If a person contravenes or fails to comply with any provision of these Regulations he shall be guilty of an offence and shall be liable-
(a) on summary conviction, to a fine not exceeding the statutory maximum or to imprisonment for a term not exceeding three months or to both; or
(b) on conviction on indictment, to a fine or to imprisonment for a term not exceeding two years or to both.
(2) Where a body corporate is guilty of an offence under these Regulations, and that offence is proved to have been committed with the consent or connivance of, or to have been attributable to any neglect on the part of-
(a) any director, manager, secretary or other similar person of the body corporate, or
(b) any person who was purporting to act in any such capacity,
he, as well as the body corporate, shall be guilty of the offence and shall be liable to be proceeded against and punished accordingly.
(3) For the purposes of paragraph (2) above, "director", in relation to a body corporate whose affairs are managed by its members, means a member of the body corporate.
Offences due to fault of another person and defence of due diligence
97.-(1) Where the commission by any person of an offence under any of the provisions of 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 charged with and convicted of the offence by virtue of this paragraph of this regulation whether or not proceedings are taken against the first-mentioned person.
(2) In any proceedings for an offence under any of the provisions of these Regulations, it shall, subject to paragraph (3) below, be a defence for the person charged to prove that he took all reasonable precautions and exercised all due diligence to avoid the commission of the offence by himself or by a person under his control.
(3) If in any case the defence provided by paragraph (2) above 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 person charged shall not, without leave of the court, be entitled to rely on that defence unless-
(a) at least seven clear days before the hearing; and
(b) where he has previously appeared before a court in connection with the alleged offence, within one month of his first such appearance,
he has served on the prosecutor a notice in writing giving such information identifying or assisting in the identification of that other person as was then in his possession.
(4) In paragraph (3) above any reference to appearing before a court shall be construed as including a reference to being brought before a court.
Enforcement
98.-(1) Part II and Part IV of these Regulations shall be enforced-
(a) in relation to premises licensed under-
(i) the Fresh Meat (Hygiene and Inspection) Regulations 1995( a);
[(ii) premises which are licensed under the Poultry Meat, Farmed Game Bird Meat and Rabbit Meat (Hygiene and Inspection) Regulations 1995( b);
(iii) premises which are licensed under the Wild Game Meat (Hygiene and Inspection) Regulations 1995( c);
(iv) combined premises as defined in the Meat Products (Hygiene) Regulations 1994( d); and
(iv) combined premises as defined in the Minced Meat and Meat Preparations (Hygiene) Regulations 1995( e),]
by the Agency or by the Scottish Ministers; and
(b) in relation to any other premises, by the local authority.
(2) The other Parts of these Regulations shall be enforced by the local authority.
(3) The Scottish Ministers may direct, in relation to cases of a particular description or any particular case, that an enforcement duty imposed on a local authority under this regulation shall be discharged by the Scottish Ministers and not by the local authority.
(a) S.I. 1995/539 as amended by S.I. 1995/731, S.I. 1995/1763, S.I. 1995/2200, S.I. 1995/2418, S.I. 1995/3124, S.I. 1995/3189, S.I. 1996/1148, S.I. 1996/2235, S.I. 1997/1729 and S.I. 1997/2074.
(b) S.I. 1995/540 as amended by S.I. 1995/1763, S.I. 1995/2200, S.I. 1995/3205 and S.I. 1997/1729.
(c) S. I. 1995/2148 as amended by S.I. 1995/3205.
(d) S. I. 1994/3082 as amended by S.I. 1995/1763, S.I. 1995/2200, S.I. 1995/3205 and S.I. 1996/1499.
(e) S. I. 1995/3205 as amended by S.I. 1996/3124.
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