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CLAUSE 29:  INFORMATION AND EVIDENCE

SUMMARY

This clause gives effect to Schedule 7 to the Act, which provides for the supply of information to the Commissioners, the powers under which the Commissioners may collect information for enforcement purposes and about evidence.

SCHEDULE 7

AGGREGATES LEVY: INFORMATION AND EVIDENCE

Paragraph 1.   Provision of information

This paragraph requires those involved in any capacity with subjecting any aggregate to exploitation in the United Kingdom or in any connected activities, to provide the Commissioners with any relevant information as may reasonably be required.  The information must be provided in such form and within such a time as may reasonably be required by the Commissioners.

Failure to provide the required information in time, shall result in a penalty of £250 and a further daily penalty of £20 until the information is provided.  The paragraph also allows for these penalties not to apply in certain circumstances, such as in cases where there is a reasonable excuse for failing to provide the required information, or where a person is convicted of any relevant offence or is assessed for a penalty for evasion under paragraph 7 of Schedule 6 for failing to provide the required information.

Paragraph 2.  Records

This paragraph empowers the Commissioners to make regulations requiring registered persons (and those liable to be registered but for an exemption from registration) to make and keep for up to six years such records as they may specify .The Commissioners may also make directions relating to time limits and may approve specific methods subject to such conditions in the form of requirements as they think fit.

If a person fails to preserve any record in compliance with any regulations or directions, notices or requirements, he shall be liable to a penalty of £250.  The paragraph also allows for this penalty not to apply in cases where that person has a reasonable excuse for failing to preserve a record or where a person is convicted of any relevant offence or is assessed for a penalty for evasion under paragraph 7 or Schedule 6 for failing to preserve any record he is required to preserve.

Paragraph 3.  Evidence of records that are required to be preserved.

This paragraph supplements paragraph 2 and contains provisions relating to evidence in civil and criminal proceedings, including the circumstances in which computer documents are admissible as evidence.

Paragraph 4.  Production of documents

This paragraph establishes the conditions under which the Commissioners may demand relevant documents to be produced to them.  It provides that the documents should be produced at any reasonable time or place required by an authorised person.

If a person fails to produce the documents as required, he shall be liable to a penalty of £250 and a further daily penalty of £20 until he produces the documents.  The paragraph also allows for these penalties not to apply in certain circumstances, such as where there is a reasonable excuse for failure to produce a document, or where a person is convicted of any relevant offence or is assessed for a penalty for evasion under paragraph 7 of Schedule 6 for failing to provide the information required.

Paragraph 5.  Powers in relation to documents produced

This paragraph provides that an authorised person may take copies of, or extracts from, any document produced under paragraph 4.  It also provides that an authorised person may, at a reasonable time and for a reasonable period, remove any document produced under paragraph 4 and in this event, the authorised person must, if asked, provide a receipt for that document.  It also allows that where such a document is removed, a free copy of the document shall be provided to the person who produced it if he reasonably requires it.  The Commissioners are also required to provide certain compensation for any documents that may be lost or damaged after being removed. 

This paragraph provides a right of entry to, and inspection of, business premises by an authorised person in exercise of his or her powers in relation to the levy.

Paragraph 7.  Entry and search

This paragraph provides for obtaining a warrant for entry and search of premises by an authorised person investigating suspected serious fraud offences.  It sets out the powers of a person acting under the authority of the warrant, including the limitations on those powers, and provides that a search of any person may not be carried out by a member of the opposite sex.  It also provides for a copy of the warrant either to be given to the occupier (or the person in charge of the premises) or to be left in any premises entered or searched if no such person is present.

Paragraph 8.  Order for access to recorded information, etc.

This paragraph empowers a justice of the peace (or a justice in Scotland) to make an order where there are reasonable grounds for believing that an offence in connection with aggregates levy is being or is about to be committed,  permitting an authorised person to have access to, copy and remove any recorded information which may be required as evidence in relation to such an offence.   The order may also provide that  information stored on a computer is to be produced in a visible and legible form and, if required, in a form which can be removed.

Paragraph 9.  Removal of documents, etc.

This paragraph lays down certain provisions for investigation into fraud when documents are removed from premises under paragraphs 7 or 8.  It states that an authorised person who removes any documents shall on request provide a record of what has been removed.  Also, subject to certain restrictions, it allows the person from whom the documents were taken to have access to them and the right to make copies.

Paragraph 10.  Enforcement of paragraph 9

This paragraph lays down procedures which allow specified people from whom recorded information has been removed by an authorised person to enforce their rights in relation to the removal of  those items by means of an application to the court.

Paragraph 11.  Power to take samples

This paragraph empowers an authorised person in certain circumstances to take samples from any material which he reasonably believes is intended to be, is being, or has been subjected to exploitation in the United Kingdom.  This is so that he may determine the correct liability of the material for the purposes of the levy.

Paragraph 12.  Evidence by certificate

This paragraph allows the Commissioners to provide evidence of certain facts by certificate.  It covers matters such as whether a person was registered for the levy and whether or not a return has been made or levy due has been paid.  It also provides that a photograph of a document certified by the Commissioners may be admissible in any proceedings to the same extent as the document itself.

Paragraph 13.  Inducements to provide information 

This paragraph provides that statements or documents are not rendered inadmissible as evidence in criminal or recovery proceedings only because the person making or producing them was or may have been induced to do so by virtue of the Commissioners drawing attention to their power to impose a civil penalty rather than initiate criminal proceeding, their power to reduce a penalty and their practice to be influenced by co-operation and a confession of dishonesty.  This provision is necessary to protect the admissibility of key evidence.

Paragraph 14.  Disclosure of information

This paragraph facilitates the disclosure of information between the Commissioners and other Government Departments and certain authorities for the purpose of assisting them in their relevant duties but also sets out the restrictions on the further disclosure of such information.

Paragraph 15.  Interpretation of Schedule

This paragraph provides an interpretation of some of the terms used in Schedule 7.