The Ivory Prohibition (Civil Sanctions) Regulations 2022

Made: 15th March 2022

Laid before Parliament: 16th March 2022

Coming into force: 6th June 2022

The Secretary of State, in accordance with the requirements of paragraph 15(1) of Schedule 1 to that Act, has consulted those persons it appeared appropriate to the Secretary of State to consult before making supplementary regulations.

PART 1 — Introductory

Citation and commencement

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These Regulations may be cited as the Ivory Prohibition (Civil Sanctions) Regulations 2022 and come into force on 6th June 2022.

Interpretation

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In these Regulations—

• “the Act” means the Ivory Act 2018[^f00003];

• “item” means an item made of ivory or an item which has ivory in it;

• “monetary penalty notice” means a notice imposing a monetary penalty under paragraph 2(4) of Schedule 1 to the Act;

• “P” means, as the case may be, a person— on whom a proposal notice or a monetary penalty notice has been served, on whom a stop notice[^f00004] has been served, or with whom the Secretary of State may agree, or has agreed, an enforcement undertaking[^f00005];

• “proposal notice” means a notice proposing the imposition of a monetary penalty served under paragraph 2(1) of Schedule 1 to the Act.

PART 2 — Monetary penalties

Calculation of period within which liability for a monetary penalty may be discharged

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• (1) This regulation applies where the Secretary of State—

• (a) has served a proposal notice on P,

• (b) has received, within the period specified in that notice, written representations and objections from P in relation to the proposed imposition of the monetary penalty, and

• (c) has served a notice on P stating that, having considered P’s representations and objections, the Secretary of State still proposes to impose the monetary penalty on P.

• (2) Where this regulation applies, the period for discharge of P’s liability for the monetary penalty by payment of the sum specified in the proposal notice must be calculated as if it began with the day on which the Secretary of State served on P the notice referred to in paragraph (1)(c).

Circumstances in which a monetary penalty may not be imposed

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• (1) The Secretary of State may not impose a monetary penalty on P if—

• (a) after the service on P of a proposal notice, the Secretary of State becomes aware of new matters relating to the amount of financial benefit accruing to any person as a result of the offence, and

• (b) having considered the new matters, the Secretary of State is of the opinion that the sum specified in the proposal notice does not properly reflect the amount of financial benefit likely to have accrued to P as a result of the offence.

• (2) Where paragraph (1) applies, the Secretary of State—

• (a) must withdraw the proposal notice, and

• (b) may, in respect of the same offence, serve a new proposal notice on P specifying a sum different to that specified in the original proposal notice (‘the original sum’), which may be higher or lower than the original sum.

Payment of a monetary penalty by instalments

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• (1) This regulation applies where—

• (a) a monetary penalty notice has been served on P, and

• (b) P is not reasonably able to pay the amount of the monetary penalty within the period for payment specified in the notice (‘the specified period’).

• (2) Where paragraph (1) applies, P may request the Secretary of State to—

• (a) extend the specified period;

• (b) allow payment of the monetary penalty by instalments.

• (3) A request made under paragraph (2) must be—

• (a) made in writing,

• (b) served on the Secretary of State before the end of the specified period, and

• (c) accompanied by evidence relating to P’s circumstances, including in particular information related to—

• (i) P’s assets, income and expenditure;

• (ii) where P is a business, annual turnover.

• (4) On receiving a request made under paragraph (2), the Secretary of State must consider the request and the evidence submitted by P and, if of the opinion that P is not reasonably able to pay the monetary penalty within the specified period, the Secretary of State may—

• (a) extend the specified period;

• (b) permit the monetary penalty to be paid by instalments of specified amounts, on or before specified dates.

Payment of sum to discharge liability and payment of a monetary penalty

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Where P has—

• (a) discharged liability for a monetary penalty by payment of the sum referred to in paragraph 2(2) of Schedule 1 to the Act specified in a proposal notice served on P, or

• (b) paid to the Secretary of State the full amount of the monetary penalty specified in a monetary penalty notice served on P,

the Secretary of State must confirm to P in writing that the sum specified in the proposal notice, or as the case may be, the monetary penalty notice, has been paid.

Power to recover a monetary penalty

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• (1) After the end of the period for payment of a monetary penalty specified in a monetary penalty notice served on P, the Secretary of State may recover from P the monetary penalty—

• (a) as a civil debt, or

• (b) on the order of a court, as if payable under a court order.

• (2) This regulation is subject to any arrangements made under regulation 5(4) (payment of a monetary penalty by instalments or over an extended period).

PART 3 — Enforcement undertakings

Actions which may be specified in an enforcement undertaking

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The actions prescribed under paragraph 10(1)(c)(ii) of Schedule 1 to the Act (enforcement undertakings) are those which have the aim of securing that—

• (a) the offence ceases at the earliest possible opportunity, and

• (b) matters in relation to the suspected offence referred to in paragraph 10(1)(a) of Schedule 1 are, so far as is possible, restored to the position that existed before the offence occurred.

Procedure for entering into an enforcement undertaking

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• (1) An offer of an enforcement undertaking to the Secretary of State under paragraph 10(1) of Schedule 1 to the Act must—

• (a) be made in writing;

• (b) where the Secretary of State has informed P by a notice in writing that an offer of an enforcement undertaking may be considered, be made within the period of 28 days beginning with the day on which the Secretary of State served the notice on P.

• (2) If, having considered the circumstances of the suspected offence to which an offer of an enforcement undertaking relates and the terms of the undertaking offered by P, the Secretary of State decides—

• (a) that it is appropriate to accept P’s offer, or

• (b) that it may be appropriate to accept P’s offer if made in revised terms,

the Secretary of State must, within the period of 28 days beginning with the day on which P’s offer was received, serve a notice informing P of the Secretary of State’s decision.

• (3) Where the Secretary of State informs P that an offer of an enforcement undertaking may be accepted if made in revised terms, P must, within the period of 28 days beginning with the day on which the Secretary of State served the notice referred to in paragraph (2) on P—

• (a) offer an enforcement undertaking in revised terms to the Secretary of State, or

• (b) inform the Secretary of State in writing that no further offer of an enforcement undertaking will be made.

• (4) Where—

• (a) P has failed, within the period specified in paragraph (1)(b), to offer an enforcement undertaking in response to a notice served by the Secretary of State inviting P to make such an offer,

• (b) the Secretary of State has decided to refuse P’s offer or revised offer of an enforcement undertaking,

• (c) P has informed the Secretary of State in accordance with paragraph (3)(b) that no further offer will be made, or

• (d) P has failed to offer an enforcement undertaking in revised terms within the period specified in paragraph (3),

the Secretary of State must serve a notice informing P that the suspected offence will not be dealt with by agreeing an enforcement undertaking and indicating any action which the Secretary of State proposes to take in relation to the suspected offence.

• (5) The notice referred to in paragraph (4) must be served on P—

• (a) where the Secretary of State has decided to refuse P’s offer or revised offer of an enforcement undertaking, within the period of 28 days beginning with the day on which the Secretary of State received the relevant offer;

• (b) where P has notified the Secretary of State that no offer of an enforcement undertaking in revised terms will be made, within the period of 28 days beginning with the day on which the Secretary of State received P’s written notification;

• (c) where P has failed to offer an enforcement undertaking in response to an invitation to offer an enforcement undertaking or to offer an enforcement undertaking in revised terms, within the period of 30 days beginning with the day on which the Secretary of State served the relevant invitation on P.

Terms of an enforcement undertaking

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An enforcement undertaking must—

• (a) specify the date on which the suspected offence referred to in paragraph 10(1)(a) of Schedule 1 to the Act ceased, or where that suspected offence is continuing, specify the date by which it must cease, which must be the earliest possible date,

• (b) include details of each of the actions which P intends to take as part of the enforcement undertaking, and

• (c) specify the date by which P intends to complete each action.

Publication of enforcement undertaking

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The Secretary of State may publish details of enforcement undertakings agreed, including, but not limited to—

• (a) the name of any relevant business of P;

• (b) the terms of the undertaking;

• (c) the period within which the undertaking must be completed;

• (d) information about any certificate of compliance issued in relation to an undertaking.

Variation of an enforcement undertaking

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• (1) Where an enforcement undertaking has been agreed, P may at any time before a certificate of compliance is issued, request that the Secretary of State vary the terms of the undertaking.

• (2) The request referred to in paragraph (1) must—

• (a) be made in writing, and

• (b) include details of the reason for the request to vary the enforcement undertaking.

• (3) The Secretary of State may—

• (a) if satisfied that it is appropriate to do so, vary the terms of the undertaking, including by extending the period specified for compliance;

• (b) if not satisfied that it is appropriate to vary the terms of the undertaking, refuse P’s request.

• (4) The Secretary of State must inform P of the result of the request for variation within the period of 28 days beginning with the day on which the Secretary of State receives P’s request.

Circumstances in which a person may be regarded as having complied with an enforcement undertaking

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• (1) Where, for reasons beyond P’s control, it becomes impossible for P to comply with or to comply fully with the terms of an enforcement undertaking, P may request that the Secretary of State regard P as having complied with the undertaking.

• (2) The request referred to in paragraph (1) must—

• (a) be made in writing,

• (b) include details of the terms of the undertaking which have not been complied with,

• (c) give the reasons why, in P’s opinion, it is impossible to comply with or to comply fully with the terms of the undertaking, and

• (d) be served before the end of the period specified for compliance with the undertaking.

• (3) The Secretary of State may—

• (a) if satisfied that for reasons beyond P’s control it is impossible for P to comply with or to comply fully with the terms of the undertaking—

• (i) vary the terms of the undertaking, including by extending the period specified for compliance;

• (ii) determine that P should be regarded as having complied with the undertaking;

• (b) if not satisfied that for reasons beyond P’s control it is impossible to comply with or to comply fully with the terms of the undertaking, refuse P’s request.

• (4) The Secretary of State must, within the period of 28 days beginning with the day on which the Secretary of State receives P’s request, inform P of the result of the request.

Monitoring of compliance with an enforcement undertaking

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• (1) The Secretary of State may monitor P’s compliance with the terms of an enforcement undertaking—

• (a) by requiring P to allow an accredited civilian officer to enter, on reasonable notice and at a reasonable time, premises owned, occupied or controlled by P, for the purpose of ascertaining whether P is complying or has complied with the terms of the undertaking;

• (b) where an accredited civilian officer has entered premises in accordance with sub-paragraph (a), requiring P to facilitate examination, measurement or photography of any item on the premises that the accredited civilian officer reasonably believes is or may be relevant to the question of whether P is complying or has complied with the terms of the undertaking;

• (c) by requiring P to produce any document or record which the Secretary of State or an accredited civilian officer reasonably believes is or may be relevant to the question of whether P is complying or has complied with the terms of the undertaking;

• (d) by requiring P to assist an accredited civilian officer in taking copies of any document or record on premises entered in accordance with paragraph (a), or produced in accordance with sub-paragraph (c), which the accredited civilian officer reasonably believes is or may be relevant to the question of whether P is complying or has complied with the terms of the undertaking;

• (e) by monitoring advertising of any item which is or may be relevant to the question of whether P is complying or has complied with the terms of the undertaking.

• (2) A notice given under paragraph (1)(a) must—

• (a) be in writing,

• (b) be served on P and, if P is not the occupier of the premises, on the occupier, and

• (c) set out the purpose of the proposed entry.

• (3) A notice given under paragraph (1)(a) may only be given to a person by delivering or leaving it at the person’s address or by sending it there by post.

• (4) In paragraph (1)(a), “premises” does not include any premises used wholly or mainly as a dwelling.

Certification of compliance with an enforcement undertaking

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• (1) This regulation applies where—

• (a) P has complied with all the terms of an enforcement undertaking agreed with the Secretary of State, or

• (b) the Secretary of State has determined in accordance with paragraph (3)(a)(ii) of regulation 13 (circumstances in which a person may be regarded as having complied with an enforcement undertaking) that, for reasons beyond P’s control, it is impossible for P to comply with or to comply fully with the terms of the undertaking and that P should be regarded as having complied with the undertaking.

• (2) Where this regulation applies, P may apply to the Secretary of State for a certificate of compliance with the terms of the enforcement undertaking.

• (3) Where paragraph (1)(a) applies, P’s application for a certificate of compliance must be accompanied by evidence sufficient to demonstrate P’s compliance with each of the steps specified in the enforcement undertaking.

• (4) Where—

• (a) the Secretary of State is satisfied that P has complied fully with all the terms of the enforcement undertaking, or

• (b) paragraph (1)(b) applies,

the Secretary of State must, within the period of 28 days beginning with the day on which the Secretary of State receives P’s application for a certificate of compliance, issue a certificate of compliance to P.

• (5) Where the Secretary of State is not satisfied that P has complied fully with all the steps specified in the enforcement undertaking, the Secretary of State must, within the period of 28 days beginning with the day on which P’s application was received, notify P of the steps which, in the opinion of the Secretary of State, have not been fully complied with.

• (6) Where paragraph (5) applies, P may, within the period of 28 days beginning with the day on which the Secretary of State served the notification referred to in that paragraph, submit to the Secretary of State further evidence to demonstrate compliance with the terms of the enforcement undertaking.

• (7) Paragraphs (8) and (9) apply where the Secretary of State has considered any further evidence submitted by P in accordance with paragraph (6).

• (8) If the Secretary of State is satisfied that P has complied fully with the terms of the enforcement undertaking, the Secretary of State must, within the period of 28 days beginning with the day on which the further evidence is received, issue to P a certificate of compliance.

• (9) If the Secretary of State is not satisfied that P has complied fully with the terms of the enforcement undertaking, the Secretary of State must, within the period of 28 days beginning with the day on which the further evidence is received—

• (a) inform P that the Secretary of State is not satisfied that P has complied fully with the terms of the enforcement undertaking, and

• (b) indicate to P any action which the Secretary of State proposes to take in relation to the suspected offence to which the enforcement undertaking relates.

Circumstances where a person is to be regarded as not having complied with an enforcement undertaking

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• (1) Where P has given inaccurate, misleading or incomplete information to the Secretary of State in relation to an enforcement undertaking, the undertaking must be regarded as not having been complied with.