Commentary on Provisions Enforcement powers in respect of certain environmental offences Section 19: Powers to search and seize vehicles, etc.
104.Section 19 of the Act introduces four new sections to the Environment Act 1995, sections 110A to 110D, which give to persons authorised by SEPA and to constables various powers in respect of the search and seizure of vehicles believed to be used in the commission of certain environmental offences.
105.Section 110A(1) sets out the two circumstances which must both be present for the official to exercise the powers. First, that the official reasonably believes that a vehicle has been, is being or is about to be used in the commission of a relevant offence (section 110A(1)(a)). Second, that criminal proceedings have not already been brought against any person in respect of the offence (section 110A(1)(b)).
106.Section 110A(2) sets out the powers in respect of the search and seizure of vehicles which are available at paragraphs (a) to (e).
107.Section 110A(3) provides that information a person gives in response to a requirement imposed under the power in section 110A(2)(b), to require any occupant of the vehicle to give the name and address of the occupant and keeper of the vehicle, is inadmissible in evidence against that person in criminal proceedings save for in respect of one of the offences under the subsequent section 110B(1). The offences under section 110B(1) concern failing to cooperate with an official in the exercise of the powers under section 110A.
108.Section 110A(4) sets out on behalf of whom a vehicle is seized: this depends on the identity of the “relevant official” carrying out the seizure and whether they are acting alone (“relevant official” is defined in section 110A(6) as either a constable or a person authorised by SEPA or by a waste collection authority to exercise the powers conferred by this section).
109.Section 110A(5) sets out what is meant by a relevant offence, that is, the type of offence which must be believed to have occurred in order for the powers to be engaged. An offence is relevant if legislation states that the section 110A powers may be exercised in relation to it.
110.Section 110A(6) provides various definitions that apply for the purposes of sections 110A to 110C.
111.Section 110B(1) creates offences concerned with failing to cooperate with an official in the exercise of the powers under section 110A. Section 110B(2) provides that such an offence is liable on summary conviction to a fine not exceeding level 5 on the standard scale (currently £5,000 – see section 225 of the Criminal Procedure (Scotland) Act 1995).
112.Section 110C regulates the handling by SEPA and waste collection authorities of seized property.
113.Section 110C(2) requires the authority on whose behalf the vehicle was seized to deal with it in accordance with regulations made by the Scottish Ministers under this subsection, having regard also to any Ministerial guidance.
114.Section 110C(3) deals with the content of regulations under subsection (2). Paragraph (a) requires any regulations to set out the duties of SEPA and waste collection authorities in relation to their handling of seized property; the circumstances in which such property must be returned; the circumstances in which a responsible authority may sell, destroy or otherwise dispose of seized property; and the uses to which the proceeds of any sale may be put.
115.Section 110C(3)(b) mandates the regulations to require a responsible authority to publish a notice in such form, and to take any other steps, as may be specified in the regulations for informing persons who may be entitled to the seized property that it has been seized and is available to be claimed.
116.Under section 110C(3)(c) the regulations must require a responsible authority to wait for a period specified in the regulations before disposing of seized property, with that period beginning only once the authority has taken steps specified in the regulations to inform anyone who may be entitled to the seized property in question that it has been seized and how a claim for its return may be made.
117.Section 110C(3)(d) gives the power for the regulations to provide for exceptions and make any other provision considered appropriate.
118.Section 110C(4) provides that such regulations are subject to the affirmative Parliamentary procedure.
119.Section 110D gives the Scottish Ministers a power to make regulations to provide for an offence to be, or to cease to be, a relevant offence for the purposes of section 110A. These regulations are subject to the affirmative Parliamentary procedure.