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1997 No 1372 |
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Control of Trade in Endangered
Species (Enforcement) Regulations 1997 |
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Made - - - 29th May 1997 |
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The
Secretary of State, in exercise of the powers conferred on him by subsection
(2) of section 2 of the European Communities Act 1972, being the Minister
designated for the purposes of that subsection in relation to the regulation
and control, in the interests of conservation, of the import, export,
landing, keeping, transportation and commercial display of, and trade
in and disposal of, fauna and flora (including their parts and derivatives)
and in relation to anything supplemental or incidental to those matters,
and of all other powers enabling him in that behalf, hereby makes the
following regulations:— |
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1
Citation and commencement |
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These
regulations may be cited as the Control of Trade in Endangered Species
(Enforcement) Regulations 1997 and shall come into force on 1st June
1997. |
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2
Interpretation |
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(1) In
these Regulations— |
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“acquired”
means, in relation to a specimen, taken from the wild or the point at
which it was born in captivity or artificially propagated; |
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“acquired
unlawfully” means acquired contrary to the provisions of the Principal
Regulation or the Subsidiary Regulation; |
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“authorised
person” means a person duly authorised in writing by the Secretary
of State for the purposes of these Regulations; |
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“import”
means introduce into the Community; |
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“imported
unlawfully” means introduced into the Community contrary to the
provisions of the Principal Regulation or the Subsidiary Regulation; |
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“premises”
includes any place, and, in particular, includes any vehicle, vessel,
aircraft, hovercraft, tent or movable structure; |
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“Principal
Regulation” means Council Regulation (EC) No 338/97 on the protection
of species of wild fauna and flora by regulating trade therein; |
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“registered
veterinary surgeon” means a person who is registered in the register
of veterinary surgeons under section 2 of the Veterinary Surgeons Act
1966; |
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“Subsidiary
Regulation” means Commission Regulation (EC) No 939/97 on the
implementation of Council Regulation (EC) No 338/97 on the protection
of wild species of fauna and flora by regulating trade therein. |
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(2) For
the purposes of these Regulations references to a permit or certificate
are references to any of the following— |
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(a) |
an
import permit of the kind referred to in Article 4 of the Principal
Regulation; |
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(b) |
an
export permit or re-export certificate of the kind referred to in Article
5 of the Principal Regulation; |
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(c) |
a
certificate of any of the kinds referred to in Article 10 of the Principal
Regulation; |
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(d) |
a
certificate of the kind referred to in Article 18 of the Subsidiary
Regulation; |
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(e) |
a
label of the kind referred to in Article 7(4) of the Principal Regulation;
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(f) |
in
so far as, in accordance with Article 43 of the Subsidiary Regulation,
reliance may be placed on a permit or certificate issued under Council
Regulation (EEC) No 3626/82 and Commission Regulation (EEC) No 3418/83,
a permit or certificate issued under those Regulations. |
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(3) Unless
the context otherwise requires, expressions used in these Regulations,
and which are also used in the Principal or Subsidiary Regulations,
shall have the meaning they bear in those Regulations. |
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(4) Any
reference in these Regulations to a numbered paragraph is a reference
to the paragraph so numbered in the regulation in which the reference
appears. |
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3
False statements etc |
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(1) A
person who, for the purpose of obtaining, whether for himself or another,
the issue of a permit or certificate— |
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(a) |
knowingly
or recklessly makes a statement or representation which is false in
a material particular; or |
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(b) |
knowingly
or recklessly furnishes a document or information which is false in
a material particular; or |
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(c) |
for
any purpose in connection with the Principal Regulation or the Subsidiary
Regulation, knowingly or recklessly uses or furnishes a false, falsified
or invalid permit or certificate or one altered without authorisation,
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shall
be guilty of an offence and liable, on summary conviction, to a fine
not exceeding level 5 on the standard scale or to imprisonment for a
term not exceeding three months, or to both or, on conviction on indictment,
to imprisonment for a term not exceeding two years or to a fine, or
to both. |
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(2) A
person who knowingly or recklessly makes an import notification which
is false in a material particular shall be guilty of an offence and
liable— |
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(a) |
on
summary conviction, to a fine not exceeding level 5 on the standard
scale, or to a term of imprisonment not exceeding three months, or to
both; or |
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(b) |
on
conviction on indictment, to imprisonment for a term not exceeding two
years or to a fine, or to both. |
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(3) Without
prejudice to Article 11(2)(a) of the Principal Regulation— |
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(a) |
a
permit or certificate in relation to which an offence under paragraph
(1) has been committed shall be void; and |
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(b) |
an
import notification in relation to which an offence under paragraph
(2) has been committed shall be void. |
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4
Misuse of permits and certificates |
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(1) A
person who knowingly falsifies or alters any permit or certificate shall
be guilty of an offence and liable— |
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(a) |
on
summary conviction, to a fine not exceeding level 5 on the standard
scale, or to a term of imprisonment not exceeding three months, or to
both; or |
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(b) |
on
conviction on indictment, to imprisonment for a term not exceeding two
years or to a fine, or to both. |
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(2) A
person who knowingly uses a permit, certificate or import notification
for any specimen other than that for which it was issued shall be guilty
of an offence and liable— |
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(a) |
on
summary conviction, to a fine not exceeding level 5 on the standard
scale, or to a term of imprisonment not exceeding three months, or to
both; or |
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(b) |
on
conviction on indictment, to imprisonment for a term not exceeding two
years or to a fine, or to both. |
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(3) A
person who knowingly uses a specimen of a species listed in Annex A
of the Principal Regulation otherwise than in accordance with the authorisation
given at the time of issue of the import permit or subsequently, shall
be guilty of an offence and liable— |
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(a) |
on
summary conviction, to a fine not exceeding level 5 on the standard
scale, or to a term of imprisonment not exceeding three months, or to
both; or |
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(b) |
on
conviction on indictment, to imprisonment for a term not exceeding two
years or to a fine, or to both. |
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5
Proof of lawful import or export |
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Where
any specimen is being imported or exported or has been imported or brought
to any place for the purpose of being exported, a person commissioned
by the Commissioners of Customs and Excise, or a person authorised by
them, may require any person possessing or having control of that specimen
to furnish proof that its importation or exportation is or was not unlawful
by virtue of the Principal Regulation or, as the case may be, the Subsidiary
Regulation and, until such proof is furnished, the specimen shall be
liable to detention under the Customs and Excise Management Act 1979
and, if such proof is not furnished to the satisfaction of the Commissioners,
the specimen shall be liable to forfeiture under that Act. |
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6
Compliance with permits or certificates |
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Any
person who knowingly contravenes any condition or requirement of a permit
or certificate issued in accordance with the Principal Regulation or
Subsidiary Regulation shall be guilty of an offence and liable— |
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(a) |
on
summary conviction, to a fine not exceeding level 5 on the standard
scale, or to a term of imprisonment not exceeding three months, or to
both; or |
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(b) |
on
conviction on indictment, to imprisonment for a term not exceeding two
years or to a fine, or to both. |
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7
Movement of live specimens |
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(1) Where
an import permit or any certificate issued in accordance with the Principal
Regulation in respect of a live specimen of a species listed in Annex
A to the Principal Regulation specifies an address at which the specimen
must be kept, any person who, without reasonable excuse, and contrary
to Article 9 of the Principal Regulation, |
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(a) |
causes
or permits that specimen to be transferred from that address without
prior written authorisation from the Secretary of State; or |
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(b) |
keeps
that specimen at premises other than the specified address or location
without prior written authorisation from the Secretary of State, |
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shall
be guilty of an offence. |
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(2) Any
person guilty of an offence under paragraph (1) shall be liable— |
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(a) |
on
summary conviction, to a fine not exceeding level 5 on the standard
scale, or to a term of imprisonment not exceeding three months, or to
both; or |
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(b) |
on
conviction on indictment, to imprisonment for a term not exceeding two
years or to a fine, or to both. |
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8
Purchase and sale etc |
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(1) Subject
to paragraphs (3) and (4), a person who, contrary to Article 8 of the
Principal Regulation, purchases, offers to purchase, acquires for commercial
purposes, displays to the public for commercial purposes, uses for commercial
gain, sells, keeps for sale, offers for sale or transports for sale
any specimen of a species listed in Annex A to the Principal Regulation
shall be guilty of an offence. |
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(2) Subject
to paragraphs (4) and (5), any person who, contrary to Article 8 of
the Principal Regulation, purchases, offers to purchase, acquires for
commercial purposes, sells, keeps for sale, offers for sale or transports
for sale any specimen of a species listed in Annex B to the Principal
Regulation which has been imported or acquired unlawfully shall be guilty
of an offence. |
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(3) Paragraph
(1) does not apply to anything done under, and in accordance with the
terms of, any certificate or general derogation granted pursuant to
Article 8 of the Council Regulation. |
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(4) A
person shall not be guilty of an offence under paragraph (1) or (2)
if he proves to the satisfaction of the court that at the time the alleged
offence was committed he had no reason to believe that the specimen
was a specimen of a species listed in Annex A, or as the case may be
Annex B. |
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(5) A
person shall not be guilty of an offence under paragraph (2) if he proves
to the satisfaction of the court— |
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(a) |
that
at the time when the specimen first came into his possession he made
such enquiries (if any) as in the circumstances were reasonable in order
to ascertain whether it was imported or acquired unlawfully; and |
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(b) |
that
at the time the alleged offence was committed, he had no reason to believe
that the specimen was imported or acquired unlawfully. |
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(6) Without
prejudice to the generality of paragraph (5) above, a person shall be
taken to have made such enquiries as are mentioned there if he produces
to the court a statement which was furnished by the person from whom
he obtained possession of the specimen (“the supplier”),
which was signed by the supplier or by a person authorised by him, and
which states that— |
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(a) |
the
supplier made enquiries at the time the specimen came into his possession
in order to ascertain whether it was a specimen which had been imported
or acquired unlawfully; and |
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(b) |
the
supplier had no reason to believe at the time he relinquished possession
of the specimen to the accused that the article was at that time a specimen
which had been imported or acquired unlawfully. |
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(7) A
person who furnishes, for the purposes of regulation 6 above, a statement
which he knows to be false in a material particular, or recklessly furnishes
for those purposes a certificate which is false in a material particular,
shall be guilty of an offence. |
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(8) A
person guilty of an offence under paragraph (1), (2) or (7) above shall
be liable— |
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(a) |
on
summary conviction, to a fine not exceeding level 5 on the standard
scale, to a term of imprisonment not exceeding three months, or to both;
and |
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(b) |
on
conviction on indictment, to a term of imprisonment not exceeding two
years or a fine, or to both. |
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9
Powers of entry |
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(1) If,
on an application made by a constable, a justice of the peace or sheriff
is satisfied that there are reasonable grounds for believing— |
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(a) |
that
there is any unlawfully imported or acquired specimen on premises specified
in the application; or |
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(b) |
that
an offence under these Regulations has been or is being committed and
that evidence of the offence may be found on any premises, |
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and
that any of the conditions specified in paragraph (2) applies, he may
issue a warrant authorising any constable to enter upon and search those
premises; and such a warrant may authorise persons to accompany any
constable who is executing it. |
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(2) The
conditions referred to in paragraph (1) are— |
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(a) |
that
admission to the premises has been refused; or |
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(b) |
that
refusal is apprehended; or |
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(c) |
that
the case is one of urgency; or |
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(d) |
that
an application for admission to the premises would defeat the object
of the entry. |
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(3) A
constable who is, by virtue of paragraph (1), lawfully on any premises
may, in order to determine the identity or ancestry of any specimen,
require the taking from any specimen of a sample of blood or tissue
provided that— |
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(a) |
the
sample is taken by a registered veterinary surgeon; and |
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(b) |
the
taking of such a sample will not cause lasting harm to the specimen.
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(4) An
authorised person may, at any reasonable time and (if required to do
so) upon producing evidence that he is so authorised, enter and inspect
for the purpose of— |
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(a) |
ascertaining
whether the premises are being used for any of the following activities:
purchase, offering to purchase, acquisition for commercial purposes,
display to the public for commercial purposes, use for commercial gain,
sale, keeping for sale, offering for sale or transporting for sale contrary
to Article 8 of the Principal Regulation; or |
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(b) |
verifying
information supplied by a person for the purpose of obtaining a permit
or certificate; or |
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(c) |
ascertaining
whether any live specimen is being kept on premises at the address specified
in the import permit issued for that specimen as that at which the specimen
is to be kept; or |
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(d) |
ascertaining
whether any condition of a permit or certificate has been or is being
observed, |
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any
premises where he has reasonable cause to believe a specimen is being
kept. |
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(5) An
authorised person who is, by virtue of paragraph (4), lawfully on any
premises may, in order to determine the identity or ancestry of any
specimen for the purposes specified in that paragraph, require the taking
from any specimen of a sample of blood or tissue provided that— |
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(a) |
the
sample is taken by a registered veterinary surgeon; and |
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(b) |
the
taking of such a sample will not cause lasting harm to the specimen.
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(6) Any
person who intentionally obstructs an authorised person acting in accordance
with the powers conferred by this regulation shall be guilty of an offence
and shall for every such obstruction be liable on summary conviction
to a fine not exceeding level 3 on the standard scale. |
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(7) If
a person, with intent to deceive, pretends to be an authorised person,
he shall be guilty of an offence and liable— |
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(a) |
on
summary conviction, to a fine not exceeding level 5 on the standard
scale, or to a term of imprisonment not exceeding three months, or to
both; or |
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(b) |
on
conviction on indictment, to imprisonment for a term not exceeding two
years or to a fine, or to both. |
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10
Powers of seizure |
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A
constable who is, by virtue of regulation 9(1) above, lawfully on any
premises may seize any thing where he has reasonable grounds for believing
that such seizure is— |
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(a) |
necessary
for the protection of the constable or any person accompanying him;
or |
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(b) |
otherwise
essential to effect seizure of the specimen referred to in that paragraph;
or |
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(c) |
necessary
for the conservation of evidence; or |
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(d) |
in
the interests of the welfare of the specimen. |
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11
Forfeiture |
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(1) The
court by which any person is convicted of an offence under these Regulations—
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(a) |
shall
order the forfeiture of any specimen or other thing in respect of which
the offence was committed; and |
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(b) |
may
order the forfeiture of any vehicle, equipment or other thing which
was used to commit the offence. |
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(2) In
paragraph (1)(b) “vehicle” includes aircraft, hovercraft
and boat. |
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12
Offences by corporations |
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(1) Where
an offence under these regulations which is committed by a body corporate
is proved to have been committed with the consent or connivance of,
or to be attributable to any neglect on the part of, a director, manager,
secretary or other similar officer of the body corporate, or any person
who was purporting to act in any such capacity, he, as well as the body
corporate, shall be guilty of that offence and shall be liable to be
proceeded against and punished accordingly. |
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(2) For
this purpose “director”, in relation to any body corporate
whose affairs are managed by its members, means any member of the body. |
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(3) Where
an offence under these Regulations committed by a Scottish partnership
or unincorporated association (other than a partnership) is proved to
have been committed with the consent or connivance of, or to be attributable
to neglect on the part of, a partner in the partnership or, as the case
may be, a person concerned in the management and control of the association,
he (as well as the partnership) shall be guilty of the offence and liable
to be proceeded against and punished accordingly. |
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13
Revocation and savings |
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The
Control of Trade in Endangered Species (Enforcement) Regulations 1985
are hereby revoked. |
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