House of Lords portcullis
House of Lords
Session 2002 - 03
Internet Publications
Other Bills before Parliament

Communications Bill


Communications Bill
Schedule 6 — Fixed penalties for wireless telegraphy offences

    375

 

          (2)      The suspended enforcement period for the purposes of this Schedule is—

              (a)             the period of one month beginning with the day after that on which

the fixed penalty notice was issued; or

              (b)             such longer period as may be specified in the notice.

Withdrawal of fixed penalty notice

5

  5        If it appears to a person who has issued a fixed penalty notice that it was

wrongly issued—

              (a)             he may withdraw the notice by a further notice to the person to

whom it was issued; and

              (b)             if he does so, the relevant officer must repay any amount paid in

10

respect of the penalty.

Notification to person to whom payment is to be made

  6        A person who issues or withdraws a fixed penalty notice shall send a copy

of the notice or (as the case may be) of the notice of withdrawal to the

relevant officer specified in the notice being issued or withdrawn.

15

Effect of fixed penalty notice

  7       (1)      This paragraph applies if a fixed penalty notice is issued to a person (“the

alleged offender”).

          (2)      Proceedings for the offence to which the notice relates cannot be brought

against the alleged offender until the person who issued the notice has been

20

notified by the relevant officer specified in the notice that payment of the

fixed penalty has not been made within the suspended enforcement period.

          (3)      If the alleged offender asks to be tried for the alleged offence—

              (a)             sub-paragraph (2) does not apply; and

              (b)             proceedings may be brought against him.

25

          (4)      Such a request must be made by a notice given by the alleged offender—

              (a)             in the manner specified in the fixed penalty notice; and

              (b)             before the end of the suspended enforcement period.

          (5)      A request which is made in accordance with sub-paragraph (3) is referred to

in this Schedule as a “request to be tried”.

30

Payment of fixed penalty

  8       (1)      If the alleged offender decides to pay the fixed penalty, he must pay it to the

relevant officer specified in the notice.

          (2)      Payment of the penalty may be made by properly addressing, pre-paying

and posting a letter containing the amount of the penalty (in cash or

35

otherwise).

          (3)      Sub-paragraph (4) applies if a person—

              (a)             claims to have made payment by that method; and

              (b)             shows that his letter was posted.

          (4)      Unless the contrary is proved, payment is to be regarded as made at the time

40

at which the letter would be delivered in the ordinary course of post.

 

 

Communications Bill
Schedule 6 — Fixed penalties for wireless telegraphy offences

    376

 

          (5)      Sub-paragraph (2) is not to be read as preventing the payment of a penalty

by other means.

          (6)      A letter is properly addressed for the purposes of sub-paragraph (2) if it is

addressed in accordance with the requirements specified in the fixed

penalty notice.

5

Effect of payment

  9        If the fixed penalty specified in a fixed penalty notice is paid within the

period specified in that notice, no proceedings for the offence to which that

notice relates may be brought against the alleged offender.

Service of statement and proof of service

10

  10      (1)      This paragraph applies to proceedings for a relevant offence.

          (2)      A certificate by OFCOM—

              (a)             that a copy of a statement by a person authorised by OFCOM was

included in, or given with, a fixed penalty notice,

              (b)             that the notice was a notice with respect to the relevant offence, and

15

              (c)             that that notice was issued to the accused on a date specified in the

certificate,

                   is evidence that a copy of the statement was served on the alleged offender

by delivery to him on that date.

          (3)      The statement is to be treated as properly served for the purposes of—

20

              (a)             section 9 of the Criminal Justice Act 1967 (c. 80) (proof by written

statement), and

              (b)             section 1 of the Criminal Justice (Miscellaneous Provisions) Act

(Northern Ireland) 1968 (c. 28 (N.I.)) (which contains corresponding

provision for Northern Ireland),

25

                   even though the manner of service is not authorised by subsection (8) of

either of those sections.

          (4)      Sub-paragraphs (5) and (6) apply to any proceedings in which service of a

statement is proved by a certificate under this paragraph.

          (5)      For the purposes of—

30

              (a)             section 9(2)(c) of the Criminal Justice Act 1967 (copy of statement to

be tendered in evidence to be served before hearing on other parties

to the proceedings by or on behalf of the party proposing to tender

it), and

              (b)             section 1(2)(c) of the Criminal Justice (Miscellaneous Provisions) Act

35

(Northern Ireland) 1968 (which contains corresponding provision

for Northern Ireland),

                   service of the statement is to be taken to have been effected by or on behalf

of the prosecutor.

          (6)      If the alleged offender makes a request to be tried—

40

              (a)             section 9(2)(d) of the Criminal Justice Act 1967 (time for objection),

and

              (b)             section 1(2)(d) of the Criminal Justice (Miscellaneous Provisions) Act

(Northern Ireland) 1968 (which contains corresponding provision

for Northern Ireland),

45

 

 

Communications Bill
Schedule 7 — Seizure and forfeiture of apparatus

    377

 

                   are to apply with the substitution, for the reference to seven days from the

service of the copy of the statement, of a reference to seven days beginning

with the day after the one on which the request to be tried was made.

          (7)      This paragraph does not extend to Scotland.

Certificate about payment

5

  11       In any proceedings, a certificate—

              (a)             that payment of a fixed penalty was, or was not, received by the

relevant officer specified in the fixed penalty notice by a date

specified in the certificate, or

              (b)             that a letter containing an amount sent by post in payment of a fixed

10

penalty was marked as posted on a date specified in the certificate,

           shall, if the certificate purports to be signed by that officer, be evidence (and

in Scotland sufficient evidence) of the facts stated.

Regulations

  12       The Secretary of State may by regulations make provision as to any matter

15

incidental to the operation of this Schedule, and in particular—

              (a)             for prescribing any information or further information to be

provided in a notice, notification, certificate or receipt;

              (b)             for prescribing the duties of relevant officers and the information to

be supplied to and by them.

20

Interpretation

  13       In this Schedule “relevant officer” means—

              (a)             in relation to England and Wales, the justices’ chief executive;

              (b)             in relation to Scotland, the clerk of court; and

              (c)             in relation to Northern Ireland, the clerk of petty sessions.

25

Schedule 7

Section 179

 

Seizure and forfeiture of apparatus

Application of Schedule

  1       (1)      This Schedule applies to restricted apparatus seized, after the coming into

force of this Schedule—

30

              (a)             in pursuance of a warrant granted under section 15(1) of the Wireless

Telegraphy Act 1949 (c. 54); or

              (b)             in the exercise of the power conferred by section 79(3) of the

Telecommunications Act 1984 (c. 12).

          (2)      Apparatus is restricted apparatus for the purposes of this Schedule if

35

custody or control of apparatus of any class or description to which it

belongs is for the time being restricted by an order under section 7 of the

Wireless Telegraphy Act 1967 (c. 72).

 

 

Communications Bill
Schedule 7 — Seizure and forfeiture of apparatus

    378

 

Notice of seizure

  2       (1)      OFCOM must give notice of the seizure of the restricted apparatus to every

person who, to their knowledge, was at the time of the seizure the owner or

one of the owners of the apparatus.

          (2)      The notice must set out the grounds of the seizure.

5

          (3)      Where there is no proper address for the purposes of the service of a notice

under sub-paragraph (1) in a manner authorised by section 387, the

requirements of that sub-paragraph shall be satisfied by the publication of a

notice of the seizure (according to the part of the United Kingdom where the

seizure took place) in the London, Edinburgh or Belfast Gazette.

10

          (4)      Apparatus may be condemned or taken to have been condemned under this

Schedule only if the requirements of this paragraph have been complied

with in the case of that apparatus.

Notice of claim

  3        A person claiming that the restricted apparatus is not liable to forfeiture

15

must give written notice of his claim to OFCOM.

  4       (1)      A notice of claim must be given within one month after the day of the giving

of the notice of seizure.

          (2)      A notice of claim must specify—

              (a)             the name and address of the claimant; and

20

              (b)             in the case of a claimant who is outside the United Kingdom, the

name and address of a solicitor in the United Kingdom who is

authorised to accept service of process and to act on behalf of the

claimant.

          (3)      Service of process upon a solicitor so specified is to be taken to be proper

25

service upon the claimant.

Condemnation

  5        The restricted apparatus is to be taken to have been duly condemned as

forfeited if—

              (a)             by the end of the period for the giving of a notice of claim in respect

30

of the apparatus, no such notice has been given to OFCOM; or

              (b)             a notice of claim is given which does not comply with the

requirements of paragraphs 3 and 4.

  6       (1)      Where a notice of claim in respect of the restricted apparatus is duly given

in accordance with paragraphs 3 and 4, OFCOM may take proceedings for

35

the condemnation of that apparatus by the court.

          (2)      In any such proceedings—

              (a)             if the court finds that the apparatus was liable to forfeiture at the time

of seizure, it must condemn the apparatus as forfeited unless cause

is shown why it should not; and

40

              (b)             if the court finds that the apparatus was not liable to forfeiture at that

time, or cause is shown why it should not be forfeited, the court must

order the return of the apparatus to the person appearing to the court

to be entitled to it.

 

 

Communications Bill
Schedule 7 — Seizure and forfeiture of apparatus

    379

 

          (3)      If OFCOM decide not to take proceedings for condemnation in a case in

which a notice of claim has been so given, they must return the apparatus to

the person appearing to them to be the owner of the apparatus, or to one of

the persons appearing to them to be the owners of it.

          (4)      Apparatus required to be returned in accordance with sub-paragraph (3)

5

must be returned as soon as reasonably practicable after the decision not to

take proceedings for condemnation.

          (5)      OFCOM’s decision whether to take such proceedings must be taken as soon

as reasonably practicable after the receipt of the notice of claim.

  7        Where the restricted apparatus is condemned or taken to have been

10

condemned as forfeited, the forfeiture is to have effect as from the time of the

seizure.

Proceedings for condemnation by court

  8        Proceedings for condemnation are civil proceedings and may be

instituted—

15

              (a)             in England or Wales, either in the High Court or in a magistrates’

court;

              (b)             in Scotland, either in the Court of Session or in the sheriff court;

              (c)             in Northern Ireland, either in the High Court or in a court of

summary jurisdiction.

20

  9        Proceedings for the condemnation of restricted apparatus instituted in a

magistrates’ court in England or Wales, in the sheriff court in Scotland or in

a court of summary jurisdiction in Northern Ireland may be so instituted—

              (a)             in any such court having jurisdiction in a place where an offence

under section 7 of the Wireless Telegraphy Act 1967 (c. 72) involving

25

that apparatus was committed;

              (b)             in any such court having jurisdiction in proceedings for such an

offence;

              (c)             in any such court having jurisdiction in the place where the claimant

resides or, if the claimant has specified a solicitor under paragraph 4,

30

in the place where that solicitor has his office; or

              (d)             in any such court having jurisdiction in the place where that

apparatus was seized or to which it was first brought after being

seized.

  10      (1)      In proceedings for condemnation that are instituted in England and Wales

35

or Northern Ireland, the claimant or his solicitor must make his oath that the

seized apparatus was, or was to the best of his knowledge and belief, the

property of the claimant at the time of the seizure.

          (2)      In proceedings for condemnation instituted in the High Court—

              (a)             the court may require the claimant to give such security for the costs

40

of the proceedings as may be determined by the court; and

              (b)             the claimant must comply with any such requirement.

          (3)      If a requirement of this paragraph is not complied with, the court shall give

judgment for OFCOM.

  11      (1)      In the case of proceedings for condemnation instituted in a magistrates’

45

court in England or Wales, either party may appeal against the decision of

that court to the Crown Court.

 

 

Communications Bill
Schedule 7 — Seizure and forfeiture of apparatus

    380

 

          (2)      In the case of proceedings for condemnation instituted in a court of

summary jurisdiction in Northern Ireland, either party may appeal against

the decision of that court to the county court.

          (3)      This paragraph does not affect any right to require the statement of a case for

the opinion of the High Court.

5

  12       Where an appeal has been made (whether by case stated or otherwise)

against the decision of the court in proceedings for the condemnation of

restricted apparatus, that apparatus is to be left with OFCOM pending the

final determination of the matter.

Disposal of unclaimed property

10

  13      (1)      This paragraph applies where a requirement is imposed by or under this

Schedule for apparatus to be returned to a person.

          (2)      If the apparatus is still in OFCOM’s possession after the end of the period of

twelve months beginning with the day after the requirement to return it

arose, OFCOM may dispose of it in any manner they think fit.

15

          (3)      OFCOM may exercise their power under this paragraph to dispose of

apparatus only if it is not practicable at the time when the power is exercised

to dispose of the apparatus by returning it immediately to the person to

whom it is required to be returned.

Provisions as to proof

20

  14       In proceedings arising out of the seizure of restricted apparatus, the fact,

form and manner of the seizure is to be taken, without further evidence and

unless the contrary is shown, to have been as set forth in the process.

  15       In any proceedings, the condemnation by a court of restricted apparatus as

forfeited may be proved by the production of either—

25

              (a)             the order or certificate of condemnation; or

              (b)             a certified copy of the order purporting to be signed by an officer of

the court by which the order or certificate was made or granted.

Special provisions as to certain claimants

  16      (1)      This paragraph applies for the purposes of a claim to the restricted

30

apparatus, and of proceedings for its condemnation.

          (2)      Where, at the time of the seizure, the apparatus is—

              (a)             the property of a body corporate,

              (b)             the property of two or more partners, or

              (c)             the property of more than five persons,

35

                   the oath required by paragraph 10 to be taken by the claimant, and any other

thing required by this Schedule or by rules of court to be done by the owner

of the apparatus, may be done by a person falling within sub-paragraph (3)

or by a person authorised to act on his behalf.

          (3)      The persons falling within this sub-paragraph are—

40

              (a)             where the owner is a body corporate, the secretary or some duly

authorised officer of that body;

              (b)             where the owners are in partnership, any one or more of the owners;

 

 

Communications Bill
Schedule 8 — Decisions not subject to appeal

    381

 

              (c)             where there are more than five owners and they are not in

partnership, any two or more of the owners acting on behalf of

themselves and any of their co-owners who are not acting on their

own behalf.

Saving for owner’s rights

5

  17       Neither the imposition of a requirement by or under this Schedule to return

apparatus to a person nor the return of apparatus to a person in accordance

with such a requirement affects—

              (a)             the rights in relation to that apparatus of any other person; or

              (b)             the right of any other person to enforce his rights against the person

10

to whom it is returned.

Schedule 8

Section 189

 

Decisions not subject to appeal

Prosecutions and civil proceedings

  1        A decision to institute, bring or carry on any criminal or civil proceedings.

15

  2        A decision (other than one under section 116) to take preliminary steps for

the purpose of enabling any such proceedings to be instituted.

This Act

  3        A decision relating to the making or revision of a statement under section 35.

  4                          A decision required to be published in a notification under section 41(4).

20

  5        A decision given effect to by an order under section 52.

  6        A decision given effect to by regulations under section 63.

  7        A decision given effect to by regulations under section 68.

  8        A decision required to be published in a notification under section 105(4).

  9        A decision given effect to by an order under section 119.

25

  10                A decision relating to the making or revision of a statement under section

128.

  11                A decision given effect to by an order under section 131(6).

  12       A decision relating to the making or revision of a statement under section

142.

30

  13       A decision relating to the publication of the United Kingdom Plan for

Frequency Authorisation.

  14       A decision in exercise of the functions conferred on OFCOM by section 149

as to—

              (a)             the services, records and advice to be provided, maintained or given

35

by them;

 

 

 
previous section contents continue
 
House of Lords home page Houses of Parliament home page House of Commons home page search page enquiries

© Parliamentary copyright 2003
Revised 7 March 2003