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Guidance on Ban on Sale of Spray Paint to Under 16s

Antisocial Behaviour etc. (Scotland) Act 2004

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CONTENTS

Introduction
The Terms of The Ban
Requirement to Display Warning Notice
Enforcement
Monitoring and Evaluation
Annex A - ASB Act 2004: Provisions Relevant to This Guidance
Annex B - Information on Reverse of Warning Notice
Annex C - Text From Covering Letter to Retailers

Introduction

1. Preventing vandalism and graffiti is a key part of the Executive's strategy to promote safe, secure and attractive communities and tackle antisocial behaviour. Graffiti involving use of spray paint is particularly difficult and expensive to remove.
2. Section 122 of the Antisocial Behaviour etc (Scotland) Act 2004 introduces a ban on the sale of spray paint to under 16s in Scotland. The ban on the sale of spray paint to under 16s will not prevent graffiti on its own, but Ministers believe it is a useful step to control the misuse of spray paints by children in acts of vandalism. Education and crime prevention initiatives will continue to have a major role in preventing graffiti. The ban should complement other approaches.
3. This guidance note is intended to assist persons involved in the implementation of the ban. Trading standards officers will primarily be responsible for enforcing the ban and retailers have a responsibility to fulfil requirements in the legislation.
4. The Antisocial Behaviour etc. (Scotland) Act 2004 received Royal Assent on 26 July 2004. The sections relating to the ban on sales of spray paint to under 16s come into effect on 5 November 2004.
5. This guidance was prepared in consultation with COSLA, the Society of Chief Officers of Trading Standards in Scotland (SCOTSS) and the Scottish Retail Consortium.

6. T he terms of the ban

7. The legislative provisions in the 2004 Act relating to the ban on the sale of spray paint to under 16s are set out at Annex A. The main provisions are summarised below. The full Act is available at www.hmso.gov.uk
8. Section 122(1) provides that a person who sells to a person under the age of 16 a spray paint device shall be guilty of an offence.
9. The interpretation of "spray paint device" is a device which -

10. (a) contains paint stored under pressure; and
    (b) is designed to permit the release of the paint as a spray.

11. A person guilty of an offence under section 122(1) shall be liable on summary conviction to a fine not exceeding level 3 on the standard scale. Level 3 is currently 1,000.
12. Section 122(4) provides that it shall be a defence for a person charged with an offence under subsection (1) to show that the person took all reasonable precautions and exercised all due diligence to avoid the commission of the offence.

13. Requirement to display warning notice

14. Section 123 of the Act contains a requirement to display a notice setting out that it is illegal to sell spray paint to under 16s at every retail outlet in which spray paint is sold in Scotland. Non-compliance with this requirement will be a criminal offence. A person guilty of an offence under section 123(4) shall be liable on summary conviction to a fine not exceeding level 2 on the standard scale. Level 2 is currently 500.
15. The notice required under section 123 shall state:

    "It is illegal to sell a spray paint device to anyone under the age of 16."

16. Section 123(3) provides that the dimensions of the notice to be exhibited and the size of the statement to be displayed on it shall be such as may be prescribed in regulations made by the Scottish Ministers.
17. The dimensions of the notice to be exhibited in accordance with section 123(1) shall be not less than 297 millimetres by 210 millimetres and the size of the statement to be displayed on the notice shall be such that no character is less than 13 millimetres high. The notice is A4 size.
18. The warning statement will include information for retailers on the reverse of the notice. Annex B sets out the notes which will be included on the reverse of each notice. A covering letter to retailers will be issued with the warning notice. The text of the covering letter is provided at Annex C.

19. Enforcement

20. Section 124 places a duty on local authorities to enforce sections 122 and 123 (the ban and the requirement to display warning notice) within the authority's area. Section 125(2) provides that an "authorised officer", in relation to a local authority, means an officer of the authority authorised in writing by it for the purposes of that section. In practice, enforcement of the ban will mainly be a matter for trading standards officers. The police can also enforce the ban using common law powers.
21. While a duty is being placed on the local authority to enforce the ban in its area, the authority will not be authorised to institute proceedings for the offence of selling spray paint to a child (see section 124(2)). This is a matter within the discretion of Procurators Fiscal.
22. Section 125 sets out powers of entry, inspection and seizure to assist authorised officers in enforcing sections 122 and 123. There is no statutory provision in respect of test purchasing. This will remain a matter for the Lord Advocate. Local authorities should have regard to guidance from the Lord Advocate on use of test purchasing to enforce age related bans.
23. It is recommended that trading standards officers have reference to the new powers added to their warrant cards.

24. Monitoring and evaluation

25. Enforcement of the ban on the sale of spray paint to under 16s should be in line with annual, routine inspection plans of local authority trading standards teams. Monitoring and evaluation should be carried out in the context of these plans. Local authorities and chief constables, should also consider the impact of the ban on the sale of spray paint to under 16s in the context of local Antisocial Behaviour Strategies, which are required by Part 1 of the 2004 Act. Trading standards officers can feed in information on the enforcement of the ban as appropriate.

Scottish Executive
Justice Department
October 2004

ANNEX A
ANTISOCIAL BEHAVIOUR ETC (SCOTLAND) ACT 2004 - PROVISIONS RELATING TO THE BAN ON SALES OF SPRAY PAINT TO UNDER 16S

122 Offence of selling spray paint to child

(1) A person who sells to a person under the age of 16 a spray paint device shall be guilty of an offence.

(2) In subsection (1), "spray paint device" means a device which-

(a) contains paint stored under pressure; and

(b) is designed to permit the release of the paint as a spray.

(3) A person guilty of an offence under subsection (1) shall be liable on summary conviction to a fine not exceeding level 3 on the standard scale.

(4) It shall be a defence for a person charged with an offence under subsection (1) to show that the person took all reasonable precautions and exercised all due diligence to avoid the commission of the offence.

123 Requirement to display warning statement

(1) A notice displaying the statement-

"It is illegal to sell a spray paint device to anyone under the age of 16" shall be exhibited at an appropriate place at every premises at which spray paint devices are sold by retail.

(2) In subsection (1) "appropriate place" means a prominent position where the statement is readily visible to persons at the point of sale of spray paint devices.

(3) The dimensions of the notice to be exhibited in accordance with subsection (1), and the size of the statement to be displayed on it, shall be such as may be prescribed by regulations made by the Scottish Ministers.

(4) Where-

(a) a person carries on a business involving the retail of spray paint devices at any premises; and

(b) no notice is exhibited in accordance with subsection (1) at those premises, that person shall be guilty of an offence.

(5) A person guilty of an offence under subsection (4) shall be liable on summary conviction to a fine not exceeding level 2 on the standard scale.

(6) It shall be a defence for a person charged with an offence under subsection (4) to show that the person took all reasonable precautions and exercised all due diligence to avoid the commission of the offence.

(7) Where an offence under subsection (4) is committed by a body corporate and is proved to have been committed with the consent or connivance of, or to be attributable to, any neglect on the part of, any director, manager, secretary or other similar officer of the body corporate or any person who was purporting to act in any such capacity, that person as well as the body corporate shall be guilty of that offence.

(8) In subsection (7) "director", in relation to a body corporate whose affairs are managed by its members, means a member of the body corporate.

(9) Where an offence under subsection (4) is committed by a Scottish partnership and 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 shall be guilty of that offence.

(10) In this section-

"premises" includes-

(a) any place; and

(b) any vehicle, vessel, aircraft, hovercraft, stall or moveable structure; and "spray paint device" has (except where it appears in the statement set out in subsection (1)) the same meaning as in section 122(1).

124 Offences under sections 122 and 123: enforcement

(1) A local authority shall, within its area, enforce sections 122 and 123.

(2) Subsection (1) does not authorise a local authority to institute proceedings for an offence under section 122(1) or 123(4).

125 Offences under section 122 and 123: powers of entry, inspection and seizure

(1) Subject to subsection (3), an authorised officer of a local authority may at any reasonable hour exercise any of the powers conferred by subsections (4) to (7).

(2) In subsection (1), "authorised officer", in relation to a local authority, means an officer of the authority authorised in writing by it for the purposes of this section.

(3) An officer seeking to exercise a power mentioned in subsection (1) shall, if requested, produce evidence of identity and authorisation.

(4) The officer may, for the purpose of ascertaining whether a relevant offence has been committed-

(a) inspect any goods; and

(b) enter any premises (other than premises used only as a dwelling).

(5) If the officer has reasonable cause to suspect that a relevant offence has been committed, the officer may, for the purpose of ascertaining whether it has been committed-

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

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

(6) If the officer has reasonable cause to believe that a relevant offence has been committed, the officer may, for the purpose of ascertaining, by testing or otherwise, whether it has been committed, seize and detain any goods.

(7) The officer may seize and detain any goods or records which the officer has reason to believe may be required as evidence in proceedings for a relevant offence.

(8) In this section, "relevant offence" means an offence under section 122(1) or 123(4).

ANNEX B
INFORMATION ON REVERSE OF WARNING NOTICE

PLEASE MAKE SURE ALL YOUR STAFF HAVE READ AND UNDERSTOOD THESE POINTS

• it is illegal to sell a spray paint device to anyone under 16
• if you are not sure that the customer is over the age of 16, ask for proof of age
• IF YOU ARE NOT SURE, REFUSE THE SALE
• remember too, that the law forbids all spray paint sales to children. if a child says "it's for my dad " that makes no difference - even if it is true

REMEMBER

If you break the law and sell a spray paint device to a child under 16, you can be fined 1,000.

If you do not display the notice so that it can easily be seen, you can be fined 500.

YOU MAY FIND IT HELPFUL

• to keep a logbook recording any sales you have refused
• to copy the points in this notice and display them as a reminder

If you want any further advice on the sale of spray paints then contact your local trading standards office.

ANNEX C
TEXT FROM COVERING LETTER TO RETAILERS

"Preventing vandalism and graffiti is a key part of the Executive's strategy to promote safe, secure and attractive communities and tackle antisocial behaviour. Graffiti involving use of spray paint is particularly difficult and expensive to remove.

To help prevent graffiti, we have introduced a ban on the sale of spray paint to persons under the age of 16 in the Antisocial Behaviour etc. (Scotland) Act 2004. The ban will come into effect on 5 November 2004. Selling a spray paint device to a person aged under 16 will be criminal offence. If found guilty of selling a spray paint a retailer may be fined up to level 3 on the standard scale (which is currently 1,000).

As well as ensuring that spray paint devices are not sold to persons aged under 16, retailers will be required to display a warning notice. The notice must be in a prominent position where the statement is easily visibly to persons at the point of sale. Spray paint retailers who do not display the notice can be fined 500.

A copy of the notice is enclosed. Information is provided on the reverse of the notice, which persons selling spray paint devices should be aware of. If possible, you should include spray paint on a cash register age-restricted product system, so the operator is warned to ask the customer for proof-of-age if there is any doubt.

Thank you for your cooperation in implementing the ban on the sale of spray paint. If you want any further advice on the sale of spray paints, please contact your local trading standards office."