text:
Citation, commencement and extent
1
1
These Regulations may be cited as the Civil Jurisdiction and Judgments Regulations 2009, and come into force on 1st January 2010.
2
Regulations 2 to 25 and 46 to 48 extend to England and Wales, Scotland and Northern Ireland.
3
Regulation 26 extends to England and Wales and Northern Ireland only.
4
Regulations 28 to 44 extend to England and Wales only.
5
Regulations 27 and 45 extend to Scotland only.
Amendments to the Civil Jurisdiction and Judgments Act 1982
2
The Civil Jurisdiction and Judgments Act 1982 is amended in accordance with regulations 3 to 25.
3
1
Section 1 is amended as follows.
2
In subsection (1) substitute for the definition of “the Lugano Convention” —
“the Lugano Convention” means the Convention on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters, between the European Community and the Republic of Iceland, the Kingdom of Norway, the Swiss Confederation and the Kingdom of Denmark signed on behalf of the European Community on 30 th October 2007 .
.
3
Omit subsection (2)(aa).
4
In subsection (3) —
a
in the definition of “Contracting State”, for “Lugano Contracting State” substitute “State bound by the Lugano Convention”;
b
for the definition of “Lugano Contracting State” substitute ““State bound by the Lugano Convention” in any provision, in the application of that provision in relation to the Lugano Convention has the same meaning as in Article 1(3) of that Convention;”.
5
In subsection (4)(a) for “Article 54B” substitute “Article 64”.
4
Sections 3A and 3B are repealed.
5
1
In section 4(1) omit “or of the Lugano Convention”.
2
After section 4 insert —
Enforcement of judgments, other than maintenance orders, under the Lugano Convention
4A
1
Where a judgment, other than a maintenance order, is registered under the Lugano Convention, the reasonable costs or expenses of and incidental to its registration shall be recoverable as if they were sums recoverable under the judgment.
2
A judgment other than a maintenance order registered under the Lugano Convention shall, for the purposes of its enforcement, be of the same force and effect, the registering court shall have in relation to its enforcement the same powers, and proceedings for or with respect to its enforcement may be taken, as if the judgment had been originally given by the registering court and had (where relevant) been entered.
3
Subsection (2) is subject to Article 47(3) of the Lugano Convention (restriction on enforcement where appeal pending or time for appeal unexpired), to section 7 (interest on registered judgments) and to any provision made by rules of court as to the manner in which and conditions subject to which a judgment registered under the Lugano Convention may be enforced.
.
6
1
In section 5(1) omit “or of the Lugano Convention”.
2
After section 5 insert —
Recognition and enforcement of maintenance orders under the Lugano Convention
5A
1
The Secretary of State’s function (under Article 39 and Annex II of the Lugano Convention) of transmitting to the appropriate court an application for the recognition or enforcement in the United Kingdom of a maintenance order (made under Article 38 of the Lugano Convention) shall be discharged —
a
as respects England and Wales and Northern Ireland, by the Lord Chancellor; and
b
as respects Scotland, by the Scottish Ministers.
In this subsection “the appropriate court” means the magistrates’ court or sheriff court having jurisdiction in the matter in accordance with the second paragraph of Article 39.
2
Such an application shall be determined in the first instance by the prescribed officer of the court having jurisdiction in the matter.
3
A maintenance order registered under the Lugano Convention shall, for the purposes of its enforcement, be of the same force and effect, the registering court shall have in relation to its enforcement the same powers, and proceedings for or with respect to its enforcement may be taken, as if the order had been made by the registering court.
4
Subsection (3) is subject to Article 47 of the Lugano Convention (restriction on enforcement where appeal pending or time for appeal unexpired), to subsection (6) and to any provision made by rules of court as to the manner in which and conditions subject to which an order registered under the Lugano Convention may be enforced.
5
A maintenance order which by virtue of the Lugano Convention is enforceable by a magistrates’ court in England and Wales shall, subject to the modifications of sections 76 and 93 of the Magistrates’ Courts Act 1980 specified in sections 5(5B) and 5(5C) of the Act , be enforceable in the same manner as a magistrates’ court maintenance order made by that court.
In this subsection “magistrates’ court maintenance order” has the same meaning as in section 150(1) of the Magistrates’ Courts Act 1980.
6
A maintenance order which by virtue of the Lugano Convention is enforceable by a magistrates’ court in Northern Ireland shall, subject to the modifications of Article 98 of the Magistrates’ Courts (Northern Ireland) Order 1981 specified in section 5(6A) of this Act, be enforceable as an order made by that court to which that Article applies.
7
The payer under a maintenance order registered under the Lugano Convention in a magistrates’ court in England and Wales or Northern Ireland shall give notice of any change of address to the proper officer of that court.
8
A person who without reasonable excuse fails to comply with subsection (7) shall be guilty of an offence and liable on summary conviction to a fine not exceeding level 2 on the standard scale.
9
In subsection (7) “proper officer” means —
a
in relation to a magistrates’ court in England and Wales, the designated officer; and
b
in relation to a magistrates’ court in Northern Ireland, the clerk of the court.
.
7
1
In section 6(1) omit “and the Lugano Convention”.
2
In section 6(3) for “each of those Conventions” substitute “the 1968 Convention”.
3
After section 6 insert —
Appeals under Article 44 and Annex IV of the Lugano Convention
6A
1
The single further appeal on a point of law referred to in Article 44 and Annex IV of the Lugano Convention in relation to the recognition or enforcement of a judgment other than a maintenance order lies —
a
in England and Wales or Northern Ireland, to the Court of Appeal or to the Supreme Court in accordance with Part II of the Administration of Justice Act 1969 (appeals direct from the High Court to the Supreme Court);
b
in Scotland, to the Inner House of the Court of Session.
2
Paragraph (a) of subsection (1) has effect notwithstanding section 15(2) of the Administration of Justice Act 1969 (exclusion of direct appeal to the Supreme Court in cases where no appeal to that House lies from a decision of the Court of Appeal).
3
The single further appeal on a point of law referred to in Article 44 and Annex IV of the Lugano Convention in relation to the recognition or enforcement of a maintenance order lies —
a
in England and Wales, to a county court in accordance with section 111A of the Magistrates’ Courts Act 1980;
b
in Scotland, to the Inner House of the Court of Session;
c
in Northern Ireland, to the Court of Appeal.
.
8
In section 7(1) and (5), for “4 or 5” substitute “4, 4A, 5 or 5A”.
9
In section 8(1) after “section 5” insert “or 5A”.
10
1
In section 9(1) for “Article 54B” substitute “Article 64”.
2
Omit section 9(2).
11
In section 10(3) after “Article 14” insert “of the 1968 Convention or Article 16(1) of the Lugano Convention”.
12
1
In section 11(1) omit “and the Lugano Convention”.
2
After section 11 insert —
Proof and admissibility of certain judgments and related documents for the purposes of the Lugano Convention
11A
1
For the purposes of the Lugano Convention —
a
a document, duly authenticated, which purports to be a copy of a judgment given by a court of a State bound by the Lugano Convention other than the United Kingdom shall without further proof be deemed to be a true copy, unless the contrary is shown; and
b
a certificate obtained in accordance with Article 54 and Annex V shall be evidence, and in Scotland sufficient evidence, that the judgment is enforceable in the State of origin which is bound by the Lugano Convention.
2
A document purporting to be a copy of a judgment given by any such court as is mentioned in subsection (1)(a) is duly authenticated for the purposes of this section if it purports —
a
to bear the seal of that court; or
b
to be certified by any person in his capacity as a judge or officer of that court to be a true copy of a judgment given by that court.
3
Nothing in this section shall prejudice the admission in evidence of any document which is admissible apart from this section.
.
13
In section 13(1) omit “or the Lugano Convention” and “or, as the case may be, Title IV of the Lugano Convention”.
14
In section 14 (1) and (3) omit “the Lugano Convention or”.
15
1
In section 15(1) after “Article 25” insert “of the 1968 Convention or, as the case may be, Article 32 of the Lugano Convention”.
2
In section 15(2) for the words “section 4 or 5” substitute “sections 4, 4A, 5 or 5A”.
16
In section 24(1)(c) and (2)(c) after “the Regulation” insert “or the Lugano Convention”.
17
1
Section 25 is amended as follows.
2
In subsections (1)(a) and (3)(a) for “or Lugano Contracting State” substitute “Contracting State or a State bound by the Lugano Convention”.
3
In subsection (1) for paragraph (b) substitute —
b
they are or will be proceedings whose subject-matter is either within the scope of the Regulation as determined by Article 1 of the Regulation or within the scope of the Lugano Convention as determined by Article 1 of the Lugano Convention (whether or not the Regulation or the Lugano Convention has effect in relation to the proceedings).
.
4
In subsection (3) for paragraph (b) substitute —
b
proceedings whose subject-matter is not within the scope either of the Regulation as determined by Article 1 of the Regulation or the Lugano Convention as determined by Article 1 of the Lugano Convention.
.
18
1
In section 41(1) omit “the Lugano Convention”.
2
After section 41 insert —
Domicile of individuals for the purposes of the Lugano Convention
41A
1
Subject to Article 59 of the Lugano Convention (which contains provisions for determining whether a party is domiciled in a State bound by the Lugano Convention), the following provisions of this section determine, for the purposes of the Lugano Convention, whether an individual is domiciled in the United Kingdom or in a particular part of, or place in, the United Kingdom or in a state other than a State bound by the Lugano Convention.
2
An individual is domiciled in the United Kingdom if and only if —
a
he is resident in the United Kingdom; and
b
the nature and circumstances of his residence indicate that he has a substantial connection with the United Kingdom.
3
Subject to subsection (5), an individual is domiciled in a particular part of the United Kingdom if and only if —
a
he is resident in that part; and
b
the nature and circumstances of his residence indicate that he has a substantial connection with that part.
4
An individual is domiciled in a particular place in the United Kingdom if and only if he —
a
is domiciled in the part of the United Kingdom in which that place is situated; and
b
is resident in that place.
5
An individual who is domiciled in the United Kingdom but in whose case the requirements of subsection (3)(b) are not satisfied in relation to any particular part of the United Kingdom shall be treated as domiciled in the part of the United Kingdom in which he is resident.
6
In the case of an individual who —
a
is resident in the United Kingdom, or in a particular part of the United Kingdom; and
b
has been so resident for the last three months or more,
the requirements of subsection (2)(b) or, as the case may be, subsection (3)(b) shall be presumed to be fulfilled unless the contrary is proved.
7
An individual is domiciled in a state other than a State bound by the Lugano Convention if and only if —
a
he is resident in that state; and
b
the nature and circumstances of his residence indicate that he has a substantial connection with that state.
.
19
In section 42(2)(a) omit “or, as the case may be, the Lugano Convention”.
20
1
In section 43(1)(a) omit “or of the Lugano Convention”.
2
After section 43 insert —
Seat of companies or other legal persons, or of associations, for the purposes of Article 22(2) of the Lugano Convention
43A
1
The following provisions of this section determine where a company, or other legal person or an association of natural or legal persons, has its seat for the purposes of Article 22(2) of the Lugano Convention (which confers exclusive jurisdiction over proceedings relating to the validity of the constitution, the nullity or the dissolution of such bodies, or to the validity of the decisions of their organs).
2
A company, legal person or association has its seat in the United Kingdom if and only if —
a
it was incorporated or formed under the law of a part of the United Kingdom; or
b
its central management and control is exercised in the United Kingdom.
3
Subject to subsection (4), a company, legal person or association has its seat in a State bound by the Lugano Convention other than the United Kingdom if and only if —
a
it was incorporated or formed under the law of that state; or
b
its central management and control is exercised in that state.
4
A company, legal person or association shall not be regarded as having its seat in a State bound by the Lugano Convention other than the United Kingdom if —
a
it has its seat in the United Kingdom by virtue of subsection (2)(a); or
b
it is shown that the courts of that other state would not regard it for the purposes of Article 22(2) as having its seat there.
.
21
1
Section 44 is amended as follows.
2
In subsection (1) —
a
in paragraph (a) omit “or section 3 of Title II of the Lugano Convention”; and
b
in paragraph (b) for “Title II of either of those Conventions” substitute “Title II of the 1968 Convention”.
3
In subsection (2) omit “or, as the case may be, of the Lugano Convention”.
22
After section 44 insert —
Persons deemed to be domiciled in the United Kingdom for certain purposes of the Lugano Convention
44A
1
This section applies to —
a
proceedings within Section 3 of Title II of the Lugano Convention (insurance contracts);
b
proceedings within Section 4 of Title II of the Lugano Convention (consumer contracts); and
c
proceedings within Section 5 of Title II of the Lugano Convention (employment contracts).
2
A person who, for the purposes of proceedings to which this section applies arising out of the operations of a branch, agency or other establishment in the United Kingdom, is deemed for the purposes of the Lugano Convention to be domiciled in the United Kingdom by virtue of —
a
Article 9(2) (insurers); or
b
Article 15(2) (suppliers of goods, services or credit to consumers); or
c
Article 18(2) (employers),
shall, for the purposes of those proceedings, be treated as so domiciled and as domiciled in the part of the United Kingdom in which the branch, agency or establishment in question is situated.
.
23
1
Section 46 is amended as follows.
2
In subsection (2)(a) for “and the Lugano Convention in each of which” substitute “in which”.
3
In subsection (4) omit “the Lugano Convention”.
24
In section 50 —
a
omit the definition of “ Lugano Contracting State”; and
b
after the definition of rules of court insert —
“State bound by the Lugano Convention” has the meaning given by section 1(3);
.
25
Omit Schedule 3C.
Amendment to the Civil Jurisdiction and Judgments Act 1982 (Interim Relief) Order 1997
26
In Article 2(a) of the Civil Jurisdiction and Judgments Act 1982 (Interim Relief) Order 1997 for “or Lugano Contracting State or” substitute “Contracting State, a State bound by the Lugano Convention or a”.
Amendment to the Civil Jurisdiction and Judgments Act 1982 (Provisional and Protective Measures) (Scotland) Order 1997
27
In article 2(a) (interpretation) and article 3 (Court of Session power) of the Civil Jurisdiction and Judgments Act 1982 (Provisional and Protective Measures) (Scotland) Order 1997 , for “Lugano Contracting State” substitute “State bound by the Lugano Convention”.
Amendments to the Civil Procedure Rules 1998
28
The Civil Procedure Rules 1998 are amended in accordance with regulations 29 to 44.
29
In rule 6.31 after the definition of “domicile” insert —
j
“the Lugano Convention” means the Convention on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters, between the European Community and the Republic of Iceland, the Kingdom of Norway, the Swiss Confederation and the Kingdom of Denmark and signed by the European Community on 30 th October 2007.
.
30
In rule 6.33 for subsection (1) substitute —
1
The claimant may serve the claim form on the defendant out of the United Kingdom where each claim against the defendant to be served and included in the claim form is a claim which the court has power to determine under the 1982 Act or the Lugano Convention and —
a
no proceedings between the parties concerning the same claim are pending in the courts of any other part of the |United Kingdom or any other Convention territory; and
b
i
the defendant is domiciled in the United Kingdom or in any Convention territory;
ii
the proceedings are within article 16 of Schedule 1 to the 1982 Act or article 22 of the Lugano Convention; or
iii
the defendant is a party to an agreement conferring jurisdiction, within article 17 of Schedule 1 to the 1982 Act or article 23 of the Lugano Convention.
.
31
In rule 6.33(3) after “the 1982 Act or” insert “the Lugano Convention or”.
32
In rule 12.11(4)(a) after “Judgments Act 1982 or” insert “the Lugano Convention or”.
33
In rule 12.11(6) after the definition of “the Judgments Regulation” insert —
f
“the Lugano Convention” means the Convention on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters, between the European Community and the Republic of Iceland, the Kingdom of Norway, the Swiss Confederation and the Kingdom of Denmark and signed by the European Community on 30 th October 2007.
.
34
In rule 25.13(2)(a)(ii) for “Lugano Contracting State” substitute “State bound by the Lugano Convention”.
35
In rule 74.1(5) after the definition of “the EEO Regulation” insert —
f
“the Lugano Convention” means the Convention on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters, between the European Community and the Republic of Iceland, the Kingdom of Norway, the Swiss Confederation and the Kingdom of Denmark and signed by the European Community on 30 th October 2007.
.
36
In rule 74.2(2)(a) after “the 1982 Act” insert “or the Lugano Convention”.
37
In rule 74.3(1)(d) after “the Judgments Regulation” insert —
; and
e
the Lugano Convention,
.
38
For rule 74.4(6) substitute —
6
An application for registration under the Judgments Regulation or the Lugano Convention must, in addition to the evidence required by that Regulation or that Convention, be supported by the evidence required by paragraphs (1)(b) and (2)(e) of this rule.
.
39
In rule 74.5(2) after “the 1982 Act or” insert “,the Lugano Convention,”.
40
In rule 74.6(3)(c)(ii) for “ or under” substitute “,the Lugano Convention, or ”.
41
In rule 74.8(1) after “under the 1982 Act or the” insert “Lugano Convention or the”.
42
For paragraphs (1) and (2) of rule 74.10 substitute —
1
Registration of a judgment serves as a decision that the judgment is recognised for the purposes of the 1982 Act, the Lugano Convention and the Judgments Regulation.
2
An application for recognition of a judgment is governed by the same rules as an application for registration of a judgment under the 1982 Act, the Lugano Convention or the Judgments Regulation, except that rule 74.4(5)(a) and (c) does not apply.
.
43
For rule 74.11 substitute —
74.11
The rules governing the registration of judgments under the 1982 Act, the Lugano Convention or the Judgments Regulation apply as appropriate and with any necessary modifications for the enforcement of —
a
authentic instruments which are subject to —
i
article 50 of Schedule 3C to the 1982 Act;
ii
article 57 of the Lugano Convention; and
iii
article 57 of the Judgments Regulation; and
b
court settlements which are subject to —
i
article 51 of Schedule 1 to the 1982 Act;
ii
article 58 of the Lugano Convention; and
iii
article 58 of the Judgments Regulation.
.
44
In rule 74.12(1)(d) after “the Judgments Regulation” insert “or under article 54 of the Lugano Convention”.
Amendment to the Employment Tribunals (Enforcement of Orders in Other Jurisdictions)(Scotland) Regulations 2002
45
In the Employment Tribunals (Enforcement of Orders in Other Jurisdictions)(Scotland) Regulations 2002 —
a
for article 3(5) substitute —
5
Subject to paragraph (4), upon receiving an application which satisfies the requirements of this regulation, the Secretary shall issue to the person applying a certificate in the form of Annex V to the Convention on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters, between the European Community and the Republic of Iceland, the Kingdom of Norway, the Swiss Confederation and the Kingdom of Denmark signed on behalf of the European Community on 30th October 2007
; and
b
omit Schedule 1.
Provisions relating to Authentic Instruments and Court Settlements
46
The Civil Jurisdiction and Judgments (Authentic Instruments and Court Settlements) Order 1993 does not apply in relation to the Lugano Convention, as defined in section 1(3) of the Civil Jurisdiction and Judgments Act 1982.
47
1
— In this regulation “the Act” means the Civil Jurisdiction and Judgments Act 1982.
2
Subject to the modifications specified in paragraphs (3) and (4), sections 4A, 5A, 6A, 7 and 8 of the Act apply, as appropriate —
a
to authentic instruments and court settlements which do not concern maintenance as if they were judgments; and
b
to authentic instruments and court settlements which do concern maintenance as if they were maintenance orders.
3
In the application of section 4A(2) of the Act to authentic instruments and court settlements, for “as if the judgment had been originally given” substitute “as if it were a judgment which had been originally given”.
4
In the application of section 5A(3) of the Act to authentic instruments and court settlements, for “as if the order had been made” substitute “as if it were an order which had been made”.
5
Section 11A of the Act applies to authentic instruments as if they were judgments and in its application —
a
in subsection (1) for paragraph (b) substitute —
b
a certificate obtained in accordance with Article 57 and Annex VI shall be evidence, and in Scotland sufficient evidence, that the authentic instrument is enforceable in the Contracting State of origin.
; and
b
for subsection (2) substitute —
2
A document purporting to be a copy of an authentic instrument drawn up or registered, and enforceable, in a Contracting State other than the United Kingdom is duly authenticated for the purposes of this section if it purports to be certified to be a true copy of such an instrument by the person duly authorised in that Contracting State to do so.
.
6
Section 11A of the Act applies to court settlements as if they were judgments and in its application for “Article 54” substitute “Article 58”.
7
The disapplication of section 18 of the Act (enforcement of United Kingdom judgments in other parts of the United Kingdom) by section 18(7) extends to authentic instruments and court settlements enforceable in a Contracting State outside the United Kingdom which fall to be treated for the purposes of their enforcement as judgments of a court of law in the United Kingdom by virtue of registration under the Lugano Convention.
8
Section 48 of the Act (matters for which rules of court may provide) applies to authentic instruments and court settlements as if they were judgments or maintenance orders, as appropriate, to which the Lugano Convention applies.
Savings provision
48
1
Notwithstanding the amendments made by these Regulations, the relevant instruments continue to have effect as if the amendments had not been made, for the purposes of proceedings, judgments and authentic instruments to which the 1988 Convention continues to apply pursuant to article 63 of the 2007 Lugano Convention (transitional provision).
2
In this regulation —
a
“the 1988 Convention” means the Convention on jurisdiction and the enforcement of judgments in civil and commercial matters done at Lugano on 16 th September 1988;
b
“the 2007 Lugano Convention” means the Convention on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters, between the European Community and the Republic of Iceland, the Kingdom of Norway, the Swiss Confederation and the Kingdom of Denmark signed on behalf of the European Community on 30 th October 2007;
c
“the relevant instruments” means —
i
the Civil Jurisdiction and Judgments Act 1982;
ii
the Civil Jurisdiction and Judgments Act 1982 (Interim Relief) Order 1997;
iii
the Civil Jurisdiction and Judgments Act (Provisional Measures) (Scotland) (Order) 1979;
iv
the Civil Procedure Rules 1998;
v
the Employment Tribunals (Enforcement of Orders in Other Jurisdictions) (Scotland) Regulations 2002; and
vi
the Civil Jurisdiction and Judgments (Authentic Instruments and Court Settlements) Order 1993.
Signed by authority of the Secretary of State
Bach
Parliamentary Under Secretary of State
Ministry of Justice
29th November 2009


type: legislation

jurisdiction: UK

text:
Citation, interpretation and extent
1
1
This Order may be cited as the Criminal Justice and Immigration Act 2008 (Commencement No.13 and Transitory Provision) Order 2009.
2
In this Order —
“the 2000 Act ” means the Powers of Criminal Courts (Sentencing) Act 2000 ; and
“the 2003 Act ” means the Criminal Justice Act 2003 ;
“the 2008 Act ” means the Criminal Justice and Immigration Act 2008.
Appointed date
2
The date appointed for the coming into force of the following provisions of the 2008 Act is 30 November 2009 —
a
section 1 (youth rehabilitation orders) to the extent not already in force;
b
section 2 (breach, revocation or amendment of youth rehabilitation orders);
c
section 3 (transfer of youth rehabilitation order to Northern Ireland);
d
section 4 (meaning of “responsible officer”);
e
section 5 (responsible officer and offender: duties in relation to the other);
f
section 6(1) (abolition of certain youth orders and related amendments) save to the extent it abolishes attendance centre orders and (2) and (3) to the extent they relate to the provisions specified in paragraph (p);
g
section 7 (youth rehabilitation orders: interpretation);
h
section 8 (Isles of Scilly);
i
section 75 (offences relating to the physical protection of nuclear material and nuclear facilities);
j
section 126(2) (police misconduct and performance procedures) in so far as it relates to the provision specified in paragraph (r);
k
section 148(1) and (2) (consequential etc. amendments and transitional and saving provisions), in so far as it relates to the provisions specified in paragraphs (s) and (t) respectively;
l
section 149 (repeals and revocations) in so far as it relates to the provisions specified in paragraph (u);
m
Schedule 1 (further provision about youth rehabilitation orders) to the extent not already in force;
n
Schedule 2 (breach, revocation or amendment of youth rehabilitation orders);
o
Schedule 3 (transfer of youth rehabilitation orders to Northern Ireland);
p
in Schedule 4 (youth rehabilitation orders: consequential and related amendments) —
i
paragraphs 1 and 2;
ii
paragraph 3(1), (2) and (4);
iii
paragraphs 4 to 23;
iv
paragraph 24 save to the extent it refers to Schedule 5 of the 2000 Act;
v
paragraphs 26 to 53;
vi
paragraph 54 to the extent it omits “any community order or” in section 74(3)(a) of the 2000 Act ;
vii
paragraphs 55 and 56;
viii
paragraph 57 save to the extent it omits section 137(2)(b) of the 2000 Act;
ix
paragraph 58;
x
paragraph 59(a), (b) and (d);
xi
paragraph 60(1), (2) to the extent it omits “40(1), 40C(1) or” in section 160(2)(a) of the 2000 Act and “40(2)(b), 40C(2), 68” in section 160(2)(b) of that Act, (3) and (4) to the extent it omits “37(6), 40(2), 40A(6), 40C(2)” in section 160(5)(a) of the 2000 Act and section 160(5)(b) of that Act;
xii
paragraph 61(a) save to the extent it omits the definitions of “attendance centre”, “attendance centre order” and “youth community order”, (b) and (c);
xiii
paragraphs 62 to 91;
xiv
paragraph 92(b);
xv
paragraphs 93 to 109;
q
Schedule 17 (offences relating to nuclear material and nuclear facilities);
r
in Schedule 22 (police misconduct and performance procedures), Part 2 (amendments of Ministry of Defence Police Act 1987 );
s
in Schedule 26 (minor and consequential amendments), paragraph 79 (Terrorism Act 2006 );
t
in Schedule 27 (transitory, transitional and saving provisions) —
i
paragraphs 1 to 7 (youth justice);
ii
paragraph 26 (offences relating to nuclear material and nuclear facilities);
iii
paragraph 35(2)(b) (police misconduct and performance procedures);
u
in Part 1 of Schedule 28 (repeals and revocations) the entries relating to —
i
section 34(7) of the Children and Young Persons Act 1933 ;
ii
the Social Work (Scotland) Act 1968 ;
iii
the Children and Young Persons Act 1969 ;
iv
the Northern Ireland (Modification of Enactments – No. 1) Order 1973 ;
v
the Transfer of Functions (Local Government, etc.) (Northern Ireland) Order 1973 ;
vi
the Bail Act 1976 ;
vii
Schedule 6A of the Magistrates’ Courts Act 1980 save to the extent it refers to Schedule 5 to the 2000 Act;
viii
Schedule 13 of the Criminal Justice Act 1982 ;
ix
the Mental Health Act 1983 ;
x
the Health and Social Services and Social Security Adjudications Act 1983 ;
xi
the Children Act 1989 ;
xii
the Criminal Justice Act 1991 ;
xiii
the Children (Prescribed Orders – Northern Ireland, Guernsey and Isle of Man) Regulations 1991 ;
xiv
the Prisoners (Return to Custody) Act 1995 ;
xv
the Children (Northern Ireland Consequential Amendments) Order 1995 ;
xvi
the Crime and Disorder Act 1998 ;
xvii
Chapter 1 of Part 4 of the 2000 Act save for sections 33(1)(c) and 36B ;
xviii
Chapter 2 of Part 4 of the 2000 Act;
xix
section 60(1)(a) in Chapter 4 of Part 4 of the 2000 Act ;
xx
Chapter 5 of Part 4 of the 2000 Act;
xxi
section 74(3)(a) of the 2000 Act to the extent it omits “any community order or”
xxii
sections 75 and 137(2)(a), (c) and (d) of the 2000 Act;
xxiii
section 159 of the 2000 Act save for the words “paragraph 1(1) of Schedule 5 to this Act”;
xxiv
section 160 of the 2000 Act to the extent it refers to “40(1), 40C(1) or” in subsection (2)(a), “40(2)(b), 40C(2), 68” in subsection 2(b), subsection (3)(a) and “37(6), 40(2), 40A(6), 40C(2)” in subsection (5)(a) and subsection (5)(b);
xxv
section 163 of the 2000 Act save in so far as it relates to the definitions of “attendance centre”, “attendance centre order” and “youth community order”;
xxvi
Schedules 3, 6, 7, 8, 10 and 11 to the 2000 Act;
xxvii
Schedule 9 to the 2000 Act save to the extent that paragraph 80 of that Schedule relates to the failure to comply with an attendance centre order or attendance centre rules;
xxviii
the Care Standards Act 2000 ;
xxix
the Criminal Justice and Court Services Act 2000 save for the entries related to section 52 and paragraphs 196(a) and (d) and 197(a) of Schedule 7;
xxx
the Anti-social Behaviour Act 2003 ;
xxxi
the 2003 Act save for the entries related to section 221(2) and paragraphs 8(2)(a), 95 in so far as it relates to the references in section 33(1) to an attendance centre order in the 2000 Act, 96, 102, 107 and 123(3) and (8) of Schedule 32; and
v
in Part 5 of Schedule 28 (repeals and revocations), the entries relating to the Nuclear Material (Offences) Act 1983 ).
3
The date appointed for the coming into force of the following provisions of the 2008 Act insofar as they relate to English NHS premises and are not already in force, is 30 November 2009 —
a
section 119 (offence of causing nuisance or disturbance on NHS premises);
b
section 120 (power to remove person causing nuisance or disturbance);
c
section 121 (guidance about the power to remove etc.).
Transitory provision
4
Until section 6 of the 2008 Act comes fully into force, paragraph (b) of the definition of “relevant person” in section 47(11) of the Violent Crime Reduction Act 2006e has effect as if it read “(b) an attendance centre order under section 60 of the Powers of Criminal Courts (Sentencing) Act 2000 (c. 6) or a youth rehabilitation order under Part 1 of the Criminal Justice and Immigration Act 2008 (c.4) ”.
Signed by the authority of the Secretary of State
Maria Eagle
Minister of State
Ministry of Justice
19th November 2009


text:
Citation and Commencement
1
These Regulations may be cited as the National Insurance Contributions (Application of Part 7 of the Finance Act 2004) (Amendment) Regulations 2009 and shall come into force on 1st April 2009.
Amendments to the National Insurance Contributions (Application of Part 7 of the Finance Act 2004) Regulations 2007
2
The National Insurance Contributions (Application of Part 7 of the Finance Act 2004) Regulations 2007 are amended as follows.
3
1
In regulation 2 (interpretation) for the definition of “the Special Commissioners” substitute —
“tribunal” means the First-tier Tribunal, or where determined by or under Tribunal Procedure Rules, the Upper Tribunal.
.
2
In the table in regulation 4(2) —
a
in the first column omit the entry for section 317A; and
b
in the second column omit the entry for regulation 13A.
3
In regulation 5A(1) and (3) (doubt as to notifiability) for “Special Commissioners” substitute “tribunal”.
4
In regulation 7A(2) and (3) (supplemental information) for “Special Commissioners” substitute “tribunal”.
5
In regulation 12B(1) (reasons for non-disclosure: supporting information) for “Special Commissioners” substitute “tribunal”.
6
In regulation 12C(1) and (3) (order to disclose) for “Special Commissioners” substitute “tribunal”.
7
Omit regulation 13A (Special Commissioners: procedure) .
8
Omit regulation 15(3) (modification of Part 10 of the Taxes Management Act 1970).
Dave Watts
Tony Cunningham
Two of the Lords Commissioners of Her Majesty’s Treasury
9th February 2009


text:
Citation, commencement, application and interpretation
1
1
This Order may be cited as the Audit Commission for Local Authorities and the National Health Service in England (Specified Organisations) (England) Order 2009 and shall come into force on 2nd July 2009.
2
This Order applies in relation to England only.
3
In this Order “the 1998 Act ” means the Audit Commission Act 1998.
Specified organisations
2
The following bodies are specified as organisations for the purposes of paragraph 5 of Schedule 2A (interaction with other authorities) to the 1998 Act —
a
a county council;
b
a district council;
c
a London borough council;
d
a parish council;
e
a parish meeting of a parish which does not have a separate parish council;
f
the Council of the Isles of Scilly;
g
the Common Council of the City of London in its capacity as a local authority;
h
the Greater London Authority so far as its functions are exercisable by the Mayor on its behalf;
i
a National Park authority;
j
the Broads Authority;
k
a fire and rescue authority constituted by a scheme under section 2 of the Fire and Rescue Services Act 2004 or a scheme to which section 4 of that Act applies, and a metropolitan county fire and civil defence authority;
l
the London Fire and Emergency Planning Authority;
m
an authority established under section 10 of the Local Government Act 1985 (waste disposal authorities);
n
an authority established for an area in England by an order under section 207 of the Local Government and Public Involvement in Health Act 2007 (joint waste authorities);
o
an Integrated Transport Authority;
p
Transport for London;
q
the London Development Agency.
Excluded inspections, etc
3
The following cases are those in which a notice may not be given under paragraph 5 of Schedule 2A to the 1998 Act (inspections by other inspectors of organisations within the Commission’s remit) —
a
an investigation, visit or interview by the Care Quality Commission under section 120 of the Mental Health Act 1983 (general protection of relevant patients);
b
an inspection carried out by the Care Quality Commission or Her Majesty’s Chief Inspector of Education, Children’s Services and Skills under section 31 of the Care Standards Act 2000 (inspections by persons authorised by registration authority);
c
a visit or interview carried out by the Care Quality Commission required under regulations made under paragraph 162 of Schedule A1 (Hospital and care home residents: deprivation of liberty) to the Mental Capacity Act 2005 (monitoring of operation of Schedule);
d
an inspection carried out by the Care Quality Commission under section 60 (inspections) of the Health and Social Care Act 2008 insofar as —
i
it relates to the regulatory functions of that Commission under Chapter 2 of Part 1 of the Act (registration in respect of the provision of health or social care); or
ii
it is part of a review, investigation or study undertaken by that Commission at the request of the Secretary of State under section 48(1) (special reviews and investigations), 50(5) (failings by English local authorities) or 54(4) (studies as to economy, efficiency etc) of the Act;
e
an inspection carried out by Her Majesty’s Chief Inspector of Education, Children’s Services and Skills under —
i
section 5 (duty to inspect certain schools) or 8 (other inspections) of the Education Act 2005 ,
ii
section 49 or 60 (inspections) of the Childcare Act 2006 ,
iii
section 118(6), 124 to 126, 128(1) or 136(3) of the Education and Inspections Act 2006 , or
iv
section 75(1)(a) of the Education and Skills Act 2008 (inspection);
f
a review at the request of the Secretary of State under section 20(1) of the Children Act 2004 (joint area reviews).
Signed by authority of the Secretary of State for Communities and Local Government
Sadiq Khan
Parliamentary Under Secretary of State
Department for Communities and Local Government
2nd June 2009


text:
Citation, commencement, and interpretation
1
1
This Order may be cited as the Criminal Procedure and Investigations Act 1996 (Application to the Armed Forces) Order 2009 and shall come into force on 31st October 2009.
2
In this Order —
a
references to the accused are to the person mentioned in article 2(a) or (b);
b
references to recording information are references to putting it in a durable or retrievable form (such as writing or tape).
3
Where there are more than one accused in any proceedings this Order applies separately in relation to each of the accused.
4
In this Order —
“ 1996 Act ” means the Criminal Procedure and Investigations Act 1996;
“ 2006 Act ” means the Armed Forces Act 2006 ;
“appeal” means an appeal referred to in article 2(b);
“civilian subject to service discipline” has the same meaning as in the 2006 Act;
“court administration officer” means the court administration officer for the Court Martial, the Service Civilian Court and the Summary Appeal Court appointed under section 363 of the 2006 Act;
“Director” means the Director of Service Prosecutions appointed under section 364 of the 2006 Act;
“judge advocate” has the same meaning as in the 2006 Act;
“legal representative” means —
a person who has a general qualification within the meaning of section 71 of the Courts and Legal Services Act 1990 ,
an advocate or solicitor in Scotland,
a member of the Bar of Northern Ireland or a solicitor of the Court of Judicature of Northern Ireland, or
a person who has in any of the Channel Islands, the Isle of Man, a Commonwealth country or a British overseas territory rights and duties similar to those of a barrister or solicitor in England and Wales, and is subject to punishment or disability for breach of professional rules,
and in this definition the reference to the Court of Judicature of Northern Ireland is to be read as a reference to the Supreme Court of Northern Ireland until paragraph 5 of Schedule 11 to the Constitutional Reform Act 2005 comes in to force;
“material” means material of all kinds, and in particular includes —
information; and
objects of all descriptions;
“prosecution” includes the respondent to an appeal under section 141 of the 2006 Act;
“relevant period” means the period provided for by article 8, apart from the reference in that article to articles 9, 10 and 11;
“service court” means the Summary Appeal Court, the Service Civilian Court, the Court Martial or the Court Martial Appeal Court; and
“subject to service law” has the same meaning as in the 2006 Act.
Application of this Order
2
Subject to article 21 (transitionals), this Order applies where —
a
a person is charged under section 120 or 121 of the 2006 Act and the charge is allocated for trial by the Court Martial or the Service Civilian Court; or
b
a person brings an appeal to the Summary Appeal Court under section 141 of the 2006 Act.
Revocation
3
1
Subject to paragraph (2), the Criminal Procedure and Investigations Act 1996 (Application to the Armed Forces) Order 2008 is revoked.
2
The rules of common law which —
a
were effective immediately before 1st January 2008, and
b
relate to the disclosure of material by the Director,
do not apply as regards things falling to be done after that time in relation to the alleged offence.
3
Paragraph (2) does not affect the common law rules as to whether disclosure is in the public interest.
Initial duty of Director to disclose
4
1
The Director must —
a
disclose to the accused any prosecution material which has not previously been disclosed to the accused and which might reasonably be considered capable of undermining the case for the prosecution against the accused or of assisting the case for the accused, or
b
give to the accused a written statement that there is no material of a description mentioned in sub-paragraph (a).
2
For the purposes of this article prosecution material is material —
a
which is in the Director’s possession, and came into his possession in connection with the case for the prosecution against the accused; or
b
which, in pursuance of a code of practice made under section 78(2)(b) of the 1996 Act, he has inspected in connection with the case for the prosecution against the accused.
3
Where material consists of information which has been recorded in any form, the Director discloses it for the purposes of this section —
a
by securing that a copy is made of it and that the copy is given to the accused, or
b
if in the Director’s opinion that is not practicable or not desirable, by allowing the accused to inspect it at a reasonable time and a reasonable place or by taking steps to secure that he is allowed to do so,
and a copy may be in such form as the Director thinks fit and need not be in the same form as that in which the information has already been recorded.
4
Where material consists of information which has not been recorded, the Director discloses it for the purposes of this section by securing that it is recorded in such form as he thinks fit and —
a
by securing that a copy is made of it and that the copy is given to the accused; or
b
if in the Director’s opinion that is not practicable or not desirable, by allowing the accused to inspect it at a reasonable time and a reasonable place or by taking steps to secure that he is allowed to do so.
5
Where material does not consist of information, the Director discloses it for the purposes of this article by allowing the accused to inspect it at a reasonable time and a reasonable place or by taking steps to secure that he is allowed to do so.
6
Material must not be disclosed under this article to the extent that a judge advocate, on an application by the Director, concludes it is not in the public interest to disclose it and orders accordingly.
7
Material must not be disclosed under this article to the extent that it is material the disclosure of which is prohibited by section 17 of the Regulation of Investigatory Powers Act 2000 .
8
The Director must act under this article as soon as reasonably practicable after the charge is brought by the Director against the accused.
Initial duty of Director to disclose: further provisions
5
1
This article applies where —
a
the Director acts under article 4, and
b
before so doing he was given a document in pursuance of provision included in a code of practice made under section 78(2)(b) of the 1996 Act and referred to in section 24(3) of that Act.
2
In such a case the Director must give the document to the accused at the same time as the Director acts under article 4.
Disclosure of material by the Director to the accused by sending it to his commanding officer
6
1
This article applies if the accused is a person subject to service law or a civilian subject to service discipline.
2
For the purposes of articles 4 and 5, the Director may send any material or written statement or document to the accused’s commanding officer.
3
On receipt of any material, written statement or document sent to him in accordance with paragraph (2) above, the accused’s commanding officer must —
a
ensure that the accused receives it as soon as practicable; and
b
as soon as practicable after the accused has received it, notify the Director in writing of the date on which the accused received it.
4
Where the Director acts under paragraph (2) for the purposes of article 4, for the purposes of this Order the date on which the Director complies with that article or purports to comply with it shall be the date on which the accused received from his commanding officer the material disclosed, or the statement or document given, by the Director.
5
In this article, “commanding officer” means the commanding officer of the accused as determined by or under regulations made by the Defence Council under section 360 of the 2006 Act.
Compulsory disclosure by accused
7
1
This article applies where the Director complies with article 4 or purports to comply with it.
2
Where this article applies, the accused must give a defence statement to —
a
the court administration officer; and
b
the Director.
3
A defence statement is a written statement —
a
setting out the nature of the accused’s defence, including any particular defences on which he intends to rely;
b
indicating the matters of fact on which he takes issue with the prosecution;
c
setting out, in the case of each such matter, why he takes issue with the prosecution; and
d
indicating any point of law (including any point as to the admissibility of evidence or an abuse of process) which he wishes to take, and any authority on which he intends to rely for that purpose.
4
A defence statement that discloses an alibi must give particulars of it, including —
a
the name, address and date of birth of any witness the accused believes is able to give evidence in support of the alibi, or as many of those details as are known to the accused when the statement is given; and
b
any information in the accused’s possession which might be of material assistance in identifying or finding any such witness in whose case any of the details mentioned in sub-paragraph (a) are not known to the accused when the statement is given.
5
For the purposes of this article, evidence in support of an alibi is evidence tending to show that by reason of the presence of the accused at a particular place or in a particular area at a particular time he was not, or was unlikely to have been, at the place where the offence is alleged to have been committed at the time of its alleged commission.
Disclosure by accused: time limits
8
1
Subject to paragraph (2) and articles 9, 10 and 11, the accused must give a defence statement during the period of 28 days beginning with the day immediately after the day on which the Director complies, or purports to comply, with article 4.
2
If, at the start of the period referred to in paragraph (1) —
a
the accused has applied for the grant of legal aid in respect of his trial or appeal, and
b
that application has not been determined,
then paragraph (1) shall have effect as if the period referred to in that paragraph begins with the day immediately after the day on which that application is determined.
9
1
The relevant period shall, if a judge advocate so orders, be extended by so many days as he specifies.
2
The judge advocate may only make such an order if an application which complies with paragraph (3) is made by the accused during the relevant period.
3
An application under paragraph (2) must —
a
state that the accused believes, on reasonable grounds, that it is not possible for him to give a defence statement during the relevant period;
b
specify the grounds for so believing; and
c
specify the number of days by which the accused wishes the relevant period to be extended.
4
A judge advocate shall not make an order under paragraph (1) unless he is satisfied that the accused cannot reasonably give or, as the case may be, could not reasonably have given a defence statement during the relevant period.
10
1
Where a judge advocate has made an order under article 9(1), the relevant period as extended in accordance with that order shall, if a judge advocate so orders, be further extended by so many days as he specifies.
2
Paragraphs (2) to (4) of article 9 shall, subject to paragraph (4), apply for the purposes of an order under paragraph (1) as they apply for the purposes of an order under article 9(1).
3
There shall be no limit on the number of applications that may be made under article 9(2) as applied by paragraph (2); and on a second or subsequent such application the judge advocate shall have the like powers under paragraph (1) as on the first such application.
4
In the application of article 9(2) to (4) in accordance with paragraph (2), any reference to the relevant period shall be construed as a reference to that period as extended or, as the case may be, further extended by an order under article 9(1) or paragraph (1) or (3) above.
11
1
If the relevant period or that period as extended would, apart from this paragraph, expire on any of the days specified in paragraph (2), that period shall be treated as expiring on the next following day which is not one of those days.
2
The days referred to in paragraph (1) are Saturday, Sunday, Christmas Day, Good Friday and, in the United Kingdom, any day which under the Banking and Financial Dealings Act 1971 is a bank holiday.
Disclosure by accused: further provisions
12
1
Where an accused’s legal representative purports to give a defence statement on behalf of the accused, the statement shall, unless the contrary is proved, be deemed to be given with the authority of the accused.
2
If it appears to the judge advocate at preliminary proceedings that an accused has failed to comply fully with article 7, so that there is the possibility of comment being made or inferences drawn under article 16(2), he shall warn the accused accordingly.
3
In paragraph (2) “preliminary proceedings” means any proceedings held for the purpose of giving directions, orders or rulings for the purpose of trial or the hearing of an appeal.
4
During a trial before the Court Martial or an appeal before the Summary Appeal Court, the judge advocate —
a
may direct that the other members of the court be given a copy of the defence statement; and
b
if he does so, may direct that it be edited so as not to include references to matters evidence of which would be inadmissible.
5
A direction under paragraph (4) —
a
may be made either of the judge advocate’s own motion or on the application of any party;
b
may be made only if the judge advocate is of the opinion that seeing a copy of the defence statement would help the other members to understand the case or to resolve any issue in the case.
Continuing duty of Director to disclose
13
1
This article applies at all times —
a
after the Director has complied with article 4 or purported to comply with it; and
b
before the accused is acquitted or convicted or the Director decides not to proceed with the case concerned.
2
The Director must keep under review the question whether at any given time (and, in particular, following the giving of a defence statement) there is prosecution material which —
a
might reasonably be considered capable of undermining the case for the prosecution against the accused or of assisting the case for the accused; and
b
has not been disclosed to the accused.
3
If at any time there is any such material as is mentioned in paragraph (2) the Director must disclose it to the accused as soon as is reasonably practicable.
4
In applying paragraph (2) by reference to any given time the state of affairs at that time (including the case for the prosecution as it stands at that time) must be taken into account.
5
Where the accused gives a defence statement under article 7 —
a
if as a result of that statement the Director is required by this article to make any disclosure, or further disclosure, he must do so as soon as reasonably practicable after the accused gives the defence statement; and
b
if the Director considers that he is not so required, he must give to the accused a written statement to that effect as soon as reasonably practicable after the accused gives that statement.
6
For the purposes of this article prosecution material is material —
a
which is in the Director’s possession and came into his possession in connection with the case for the prosecution against the accused, or
b
which, in pursuance of a code of practice made under section 78(2)(b) of the 1996 Act, he has inspected in connection with the case for the prosecution against the accused.
7
Paragraphs (3) to (5) of article 4 (method by which the Director discloses) apply for the purposes of this article as they apply for the purposes of that.
8
Material must not be disclosed under this article to the extent that a judge advocate, on an application by the Director, concludes it is not in the public interest to disclose it and orders accordingly.
9
Material must not be disclosed under this article to the extent that it is material the disclosure of which is prohibited by section 17 of the Regulation of Investigatory Powers Act 2000.
Application by accused for disclosure
14
1
This article applies where the accused has given a defence statement under article 7 and the Director has complied with article 13(5) or has purported to comply with it or has failed to comply with it.
2
If the accused has at any time reasonable cause to believe that there is prosecution material which is required by article 13 to be disclosed to him and has not been, he may apply to a judge advocate for an order requiring the Director to disclose it to him.
3
For the purposes of this article prosecution material is material —
a
which is in the Director’s possession and came into his possession in connection with the case for the prosecution against the accused;
b
which, in pursuance of a code of practice made under section 78(2)(b) of the 1996 Act, he has inspected in connection with the case for the prosecution against the accused; or
c
which falls within paragraph (4).
4
Material falls within this paragraph if in pursuance of a code of practice made under section 78(2)(b) of the 1996 Act the Director must, if he asks for the material, be given a copy of it or be allowed to inspect it in connection with the case for the prosecution against the accused.
5
Material must not be disclosed under this article to the extent that a judge advocate, on an application by the Director, concludes it is not in the public interest to disclose it and orders accordingly.
6
Material must not be disclosed under this article to the extent that it is material the disclosure of which is prohibited by section 17 of the Regulation of Investigatory Powers Act 2000.
Director’s failure to observe time limits
15
1
This article applies if the Director —
a
purports to act under article 4, but does not comply with the requirement to act as soon as reasonably practicable under article 4(8); or
b
purports to act under article 13(5), but does not comply with the requirement to act as soon as reasonably practicable.
2
Subject to paragraph (3), the failure to comply with the relevant requirement does not on its own constitute grounds for staying the proceedings for abuse of process.
3
Paragraph (2) does not prevent the failure constituting such grounds if it involves such delay by the Director that the accused is denied a fair trial.
Faults in disclosure by accused
16
1
This article applies where article 7 applies and the accused —
a
fails to give a defence statement;
b
gives a defence statement but does so after the relevant period extended (if at all) in accordance with articles 9 to 11;
c
sets out inconsistent defences in his defence statement; or
d
at his trial or appeal —
i
puts forward a defence which was not mentioned in his defence statement or is different from any defence set out in that statement;
ii
relies on a matter which, in breach of the requirements imposed by article 7, was not mentioned in his defence statement;
iii
adduces evidence in support of an alibi without having given particulars of the alibi in his defence statement; or
iv
calls a witness to give evidence in support of an alibi without having complied with article 7(4)(a) or (b) as regards the witness in his defence statement.
2
Where this article applies —
a
the judge advocate of the court before which the trial or appeal is proceeding or any party other than the accused may make such comment as appears appropriate;
b
the Court Martial, the Service Civilian Court or the Summary Appeal Court (as the case may be) may draw such inferences as appear proper in deciding whether the accused is guilty of the offence concerned.
3
Where —
a
this article applies by virtue of paragraph (1)(d)(ii), and
b
the matter which was not mentioned is a point of law (including any point as to the admissibility of evidence or an abuse of process) or an authority,
comment by another party under paragraph (2)(a) may be made only with the leave of the judge advocate.
4
Where the accused puts forward a defence which is different from any defence set out in his defence statement, in doing anything under paragraph (2) or in deciding whether to do anything under it the judge advocate shall have regard —
a
to the extent of the differences in the defences; and
b
to whether there is any justification for it.
5
A person shall not be convicted of an offence solely on an inference drawn under paragraph (2).
6
In this article, a reference to evidence in support of an alibi shall be construed in accordance with article 7(5).
Public interest: review
17
1
This article applies at all times —
a
after a judge advocate makes an order under article 4(6), 13(8) or 14(5), and
b
before the accused is acquitted or convicted or the Director decides not to proceed with the case concerned.
2
The accused may apply at any time to a judge advocate for a review of the question whether, at any given time, it is still in the public interest to disclose material affected by the order referred to in paragraph (1).
3
Without prejudice to paragraph (2), during the trial of the accused before the Court Martial or the Service Civilian Court or his appeal before the Summary Appeal Court the judge advocate must keep the question mentioned in paragraph (2) under review without the need for an application.
4
If the judge advocate at any time concludes that it is in the public interest to disclose material to any extent —
a
he shall so order, and
b
he shall take such steps as are reasonable to inform the Director of his order.
5
Where the Director is informed of an order made under paragraph (4) he must act accordingly having regard to the provisions of this Order (unless he decides not to proceed with the case concerned).
Applications: opportunity to be heard
18
Where —
a
an application is made under article 4(6), 13(8), 14(5) or 17(2),
b
a person claiming to have an interest in the material applies to be heard by the judge advocate, and
c
he shows that he was involved (whether alone or with others and whether directly or indirectly) in the Director’s attention being brought to the material,
the judge advocate must not make an order under article 4(6), 13(8), 14(5) or 17(2) (as the case may be) unless the person applying under sub-paragraph (b) has been given an opportunity to be heard.
Confidentiality of disclosed information
19
1
If the accused is given or allowed to inspect a document or other object under —
a
article 4, 5, 13 or 17, or
b
an order under article 14,
then, subject to paragraphs (2) to (4), he must not use or disclose it or any information recorded in it.
2
The accused may use or disclose the object or information —
a
in connection with the proceedings for whose purposes he was given the object or allowed to inspect it;
b
with a view to the taking of further proceedings before a service court or a civilian court with regard to the matter giving rise to the proceedings mentioned in sub-paragraph (a); or
c
in connection with the further proceedings referred to in sub-paragraph (b).
3
The accused may use or disclose —
a
the object to the extent that it has been displayed to the public in open court, or
b
the information to the extent that it has been communicated to the public in open court,
but the preceding provisions of this paragraph do not apply if the object is displayed or the information is communicated in proceedings to deal with a contempt of court under article 20.
4
If —
a
the accused applies to a judge advocate for an order granting permission to use or disclose the object or information, and
b
a judge advocate makes such an order,
the accused may use or disclose the object or information for the purpose and to the extent specified by the judge advocate.
5
An application under paragraph (4) may be made and dealt with at any time and in particular after the accused has been acquitted or convicted or the Director has decided not to proceed with the case concerned.
6
Where —
a
an application is made under paragraph (4), and
b
the Director or a person claiming to have an interest in the object or information applies to be heard by the judge advocate,
the judge advocate must not make an order granting permission unless the person applying under sub-paragraph (b) has been given an opportunity to be heard.
Confidentiality: contravention
20
1
Where a person (the “offender”) who is subject to service law or a civilian subject to service discipline knowingly uses or discloses an object or information recorded in it and the use or disclosure is in contravention of article 19, he shall be guilty of an offence under section 309(1) of the 2006 Act.
2
If the object concerned is in the offender’s possession, the judge advocate of the court finding him guilty of the offence under paragraph (1) may order that the object shall be forfeited and dealt with in such manner as the judge advocate may order.
3
The power of the judge advocate under paragraph (2) includes power to order the object to be destroyed or to be given to the Director or to be placed in his custody for such period as the judge advocate may specify.
4
If —
a
the judge advocate proposes to make an order under paragraph (2), and
b
the person found guilty of the offence under paragraph (1), or any other person claiming to have an interest in the object, applies to be heard by the judge advocate,
the judge advocate must not make the order unless the applicant has been given an opportunity to be heard.
5
If a copy of the object concerned is in the offender’s possession, the judge advocate may order that the copy shall be forfeited and dealt with in such manner as the judge advocate may order.
6
Paragraphs (3) and (4) apply for the purposes of paragraph (5) as they apply for the purposes of paragraph (2), but as if references to the object were references to the copy.
7
An object or information shall be inadmissible as evidence in civil proceedings if to adduce it would in the opinion of the court be likely to constitute an offence under paragraph (1); and “the court” here means the court before which the civil proceedings are being taken.
Transitional provisions
21
1
In this article —
a
“ 2008 Order ” means the Criminal Procedure and Investigations Act 1996 (Application to the Armed Forces) Order 2008;
b
“commencement” means the date on which this Order comes into force;
c
“relevant person” means a person who on or after 1st April 2008 was charged under section 83B of the Army Act 1955 or the Air Force Act 1955 , section 52I of the Naval Discipline Act 1957 or article 6 of the Standing Civilian Courts Order 1997 .
2
In article 2(a) the reference to a person charged under section 120 or 121 of the 2006 Act includes a relevant person; and references in this Order to the accused shall be construed accordingly.
3
Where the accused is a relevant person —
a
anything (including any failure or omission) done under the 2008 Order on a date before commencement by or in relation to a prosecutor (within the meaning of that order) shall be treated for the purposes of this Order as if it had been done on that date by or in relation to the Director under the equivalent provision of this Order;
b
anything done under the 2008 Order on a date before commencement by a judicial officer (within the meaning of that Order) shall be treated for the purposes of this Order as if it had been done on that date by a judge advocate under the equivalent provision of this Order;
c
any other thing (including any failure or omission) done on a date before commencement by or in relation to him shall be treated for the purposes of this Order as if it had been done by or in relation to him on that date under the equivalent provision of this Order;
d
any reference in this Order to a specified provision of it includes, in relation to any date before commencement, the equivalent provision of the 2008 Order;
e
any reference in this Order to his “commanding officer” is, in relation to any date before commencement, his commanding officer as determined by or under section 82 of the Army Act 1955 or the Air Force Act 1955 or section 52E of the Naval Discipline Act 1957.
Kevan Jones
Parliamentary Under Secretary of State
Ministry of Defence
14th April 2009


text:
1
This Order may be cited as the Contracting Out (Administrative Work of Tribunals) Order 2009 and comes into force on 2nd March 2009.
2
The Lord Chancellor may enter into such contracts with other persons for the provision, by them or their sub-contractors, of staff to carry out the administrative work of —
a
the First-tier Tribunal;
b
the Upper Tribunal;
c
employment tribunals;
d
the Employment Appeal Tribunal; and
e
the Asylum and Immigration Tribunal.
3
In the table in article 2(2) of the Contracting Out of Functions (Tribunal Staff) Order 2001 omit the following entries —
a
paragraph 7 of Schedule 2 to the Immigration and Asylum Act 1999 (Immigration Appeal Tribunal); and
b
paragraph 7 of Schedule 3 to that Act (adjudicators for the purposes of the Immigration and Asylum Act 1999).
By authority of the Lord Chancellor
Bridget Prentice
Parliamentary Under-Secretary of State,
Ministry of Justice
22nd January 2009


text:
Citation and interpretation
1
1
This Order may be cited as the Finance Act 2008, Schedule 40 (Appointed Day, Transitional Provisions and Consequential Amendments) Order 2009 and comes into force on 1st April 2009.
2
In this Order a reference to a paragraph (without more) is a reference to that paragraph of Schedule 40 to the Finance Act 2008.
3
In this Order —
“filing date”, in relation to a relevant document, means —
where the document is required to be given to HMRC , the date by which it is required to be given, and
where the document is not required to be given to HMRC, the date on which it is given;
“HMRC” means Her Majesty’s Revenue and Customs ;
“relevant documents” means documents given to HMRC of a kind inserted in the Table in paragraph 1 of Schedule 24 by paragraph 2(4) or (5);
“relevant tax” means any tax inserted in the Table in paragraph 1 of Schedule 24 by paragraph 2(4) or (5);
“Schedule 24” means Schedule 24 to the Finance Act 2007 ; and
“tax period” has the meaning given in paragraph 28(g) of Schedule 24.
Appointed day
2
The day appointed for the coming into force of Schedule 40 to the Finance Act 2008 is 1st April 2009.
3
In their application in relation to penalties payable under paragraph 1 of Schedule 24 (error in taxpayer’s document), the entries inserted by paragraph 2(4) and (5) shall have effect in relation to —
a
relevant documents —
i
which relate to tax periods commencing on or after 1st April 2009, and
ii
for which the filing date is on or after 1st April 2010;
b
relevant documents relating to all claims for repayments of relevant tax made on or after 1st April 2010 which are not related to a tax period;
c
relevant documents produced under regulations under section 256 of the Inheritance Tax Act 1984 (“ IHTA 1984 ”) (regulations about accounts, etc ), where the date of death is on or after 1st April 2009; and
d
in any other case, relevant documents given where a person’s liability to pay relevant tax arises on or after 1st April 2010.
4
In their application in relation to penalties payable under paragraph 1A of Schedule 24 (error in taxpayer’s document attributable to another person), the entries inserted by paragraph 2(4) and (5) shall have effect in relation to —
a
relevant documents —
i
which relate to tax periods commencing on or after 1st April 2009, and
ii
for which the filing date is on or after 1st April 2010;
b
relevant documents relating to all claims for repayments of relevant tax made on or after 1st April 2010 which are not related to a tax period;
c
relevant documents produced under regulations under section 256 of IHTA 1984 (regulations about accounts, etc) where the date of death is on or after 1st April 2009; and
d
in any other case, relevant documents given where a person’s liability to pay relevant tax arises on or after 1st April 2010.
5
In their application in relation to assessments falling within paragraph 2 of Schedule 24 (under-assessment by HMRC), the entries inserted by paragraph 2(4) and (5) shall have effect in relation to tax periods commencing on or after 1st April 2009, where the filing date for the relevant document is on or after 1st April 2010.
Transitional provisions
6
1
Paragraph 21 (consequential repeals) repeals the provisions listed in paragraph (2) only in so far as those provisions relate to conduct involving dishonesty which relates to —
a
an inaccuracy in a document, or
b
a failure to notify HMRC of an under-assessment by HMRC.
2
The provisions referred to in paragraph (1) are —
a
in the Finance Act 1994 —
i
section 8 (penalty for evasion of excise duty), and
ii
paragraphs 12 and 13 of Schedule 7 (insurance premium tax: civil penalties),
b
paragraphs 18 and 19 of Schedule 5 to the Finance Act 1996 (landfill tax: civil penalties: evasion and misdeclaration or neglect),
c
paragraphs 98 and 99 of Schedule 6 to the Finance Act 2000 (climate change levy: civil penalties: evasion, liability of directors and misdeclaration or neglect),
d
in Schedule 6 to the Finance Act 2001 —
i
paragraphs 7 and 8 (aggregates levy: civil penalties: evasion, liability of directors and misdeclaration or neglect), and
ii
paragraph 9A(5)(b) (penalty under paragraph 7 above),
e
section 133(2) to (4) of the Finance Act 2002 (aggregates levy: amendments to provisions about civil penalties).
7
Notwithstanding paragraph 29(d) of Schedule 24 (consequential amendments), sections 60 and 61 of the Value Added Tax Act 1994 ( VAT evasion) shall continue to have effect with respect to conduct involving dishonesty which does not relate to an inaccuracy in a document or a failure to notify HMRC of an under-assessment by HMRC.
Consequential amendments to enactments
8
Schedule 1 contains amendments of enactments in consequence of the provisions omitted by paragraph 21 and by paragraph 29 of Schedule 24.
9
Schedule 2 contains consequential amendments to secondary legislation.
Steve McCabe
Dave Watts
Two of the Lords Commissioners of Her Majesty’s Treasury
9th March 2009


text:
Citation and commencement
1
These Regulations may be cited as the Road Tunnel Safety (Amendment) Regulations 2009 and shall come into force on 20th February 2009.
Amendments to the Road Tunnel Safety Regulations 2007
2
The Road Tunnel Safety Regulations 2007 are amended in accordance with these Regulations.
Interpretation etc.
3
In regulation 2(2), omit “is set out”.
Duties of administrative authority
4
In regulation 5, omit paragraph (2)(c).
Duties of the Tunnel Manager
5
In regulation 9, for paragraph 9(3)(b) substitute —
3
(b) send the incident report to the administrative authority, the safety officer and such of the emergency services as are appropriate.
Appointment of inspection entity
6
In regulation 12, omit paragraph (3).
Duties of inspection entity
7
In regulation 13, for paragraphs (1) to (3) substitute —
1
In order to verify whether the road tunnel for which it is the inspection entity complies with the provisions of these Regulations, the inspection entity shall carry out in relation to the road tunnel the following inspections, examinations and tests —
a
a thorough visual inspection of the fabric of the road tunnel;
b
a thorough visual inspection of the mechanical and electrical equipment of the road tunnel;
c
a detailed examination of all the accessible parts of the road tunnel; and
d
a detailed examination and test of the mechanical and electrical equipment of the road tunnel.
2
The inspections, examinations and tests referred to in paragraph (1) shall be carried out at the following intervals —
a
an inspection under paragraph (1)(a), within two years of these Regulations coming into force, or within two years of the road tunnel coming into operation, whichever is the later, and thereafter every two years;
b
an inspection under paragraph (1)(b) annually;
c
an examination under paragraph (1)(c), within six years of these Regulations coming into force, or within six years of the road tunnel coming into operation, whichever is the later and thereafter every six years and;
d
an examination and test under paragraph (1)(d) within three years of these Regulations coming into force, or within three years of the road tunnel coming into operation, whichever is the later, and thereafter every three years.
3
The inspection entity shall compile a report containing details of all inspections and examinations and tests carried out under this regulation and shall forward that report to the administrative authority, tunnel manager and safety officer.
Road Tunnels already in operation
8
In regulation 15(7) for “1st October 2006” substitute “1st October 2010”.
Application of Regulations where the same person undertakes functions of different authorities
9
In regulation 20, for paragraph (1) substitute —
20
1
Where these Regulations impose on one of the authorities specified in paragraph (2) any obligation to send information or documentation to another such authority, and the same person acts as both authorities, that person shall instead ensure that a complete set of records is maintained in relation to each role.
Signing for tunnels
10
1
In the Schedule, for the second column of paragraph 2.3.4 substitute —
Lane signal
The signs shown in diagrams 5001.1, 5001.2, 5003, 5003.1, 5005 and 5005.1 in Schedule 10 to the TSRGD shall be used for lane signals.
Signed by the authority of the Secretary of State for Transport
Paul Clark
Parliamentary Under Secretary of State
18th January 2009
Department for Transport


text:
Title, commencement and interpretation
1
1
The title of this Order is the Velindre National Health Service Trust (Establishment) (Amendment) Order 2009 and it comes into force on 1 October 2009.
2
In this Order, “the principal Order” (“ y prif Or hymyn ”) means the Velindre National Health Service Trust (Establishment) Order 1993 .
Amendment of article 3 of the principal Order
2
Article 3(2)(d) of the principal Order is omitted.
Edwina Hart
Minister for Health and Social Services, one of the Welsh Ministers.
23 July 2009


text:
Citation and commencement
1
This Order may be cited as the Lyme Bay Designated Area (Fishing Restrictions) (Amendment) Order 2009; it comes into force on 31st July 2009.
Amendment of the Lyme Bay Designated Area (Fishing Restrictions) Order 2008
2
1
The Lyme Bay Designated Area (Fishing Restrictions) Order 2008 is amended as follows.
2
In paragraph (2) of article 3 omit “or disembarkation”.
Huw Irranca-Davies
Parliamentary Under Secretary of State
Department for Environment, Food and Rural Affairs
24th June 2009
Paul Goggins
Minister of State
Northern Ireland Office
27th June 2009


text:
1
These Regulations may be cited as the Income and Corporation Taxes (Electronic Communications) (Amendment) Regulations 2009 and come into force on 1st January 2010.
2
They amend the Income and Corporation Taxes (Electronic Communications) Regulations 2003 as described in the Schedule.
Mike Eland
Dave Hartnett
Two of the Commissioners for Her Majesty’s Revenue and Customs
7th December 2009


text:
1
This Order may be cited as the Value Added Tax (Supplementary Charge) Order 2009 and comes into force on 31st December 2009.
2
There is no supplementary charge on a supply of goods within paragraph 2 of Schedule 3 to the Finance Act 2009 if —
a
the only relevant condition met is condition D ,
b
the VAT invoice —
i
relates to a supply of goods made under a hire-purchase, conditional sale or credit sale agreement,
ii
forms part of that agreement, and
iii
is issued in accordance with normal commercial practice in relation to a supply made under such an agreement, and
c
the basic time of supply of the goods is intended and expected to be within six months of the date of the VAT invoice which relates to the supply.
3
In this Order —
a
“normal commercial practice” means the normal commercial practice of the supplier at a time when an increase in the rate of VAT in force under section 2 of the Value Added Tax Act 1994 is not expected, and
b
“basic time of supply” has the meaning given in paragraph 4(1) of Schedule 3 to the Finance Act 2009.
Tony Cunningham
Dave Watts
Two of the Lords Commissioners of Her Majesty’s Treasury
30th November 2009


text:
Citation, commencement and interpretation
1
1
This Order may be cited as the Medicines (Exemptions and Miscellaneous Amendments) Order 2009 and shall come into force on 21st December 2009.
2
In this Order —
“ the Act ” means the Medicines Act 1968;
“clinical management plan” means a written plan (which may be amended from time to time) relating to the treatment of an individual patient agreed by —
the patient to whom the plan relates;
the doctor or dentist who is a party to the plan, and
any supplementary prescriber who is to prescribe, give directions for administration or administer under the plan;
“medicinal product” includes any article or substance in respect of which section 130(1) of the Act (meaning of “medicinal product” and related expressions) has effect;
“mixing of medicines” means the combining of two or more medicinal products together for the purposes of administering them to meet the needs of a particular patient;
“nurse independent prescriber” means a person (“N”) —
who is a registered nurse or a registered midwife, and
against whose name is recorded in the professional register an annotation signifying that N is qualified to order drugs, medicines and appliances as a nurse independent prescriber or a nurse independent/supplementary prescriber;
“pharmacist independent prescriber” means a person (“P”) —
who is a pharmacist, and
against whose name is recorded in the relevant register an annotation signifying that P is qualified to order drugs, medicines and appliances as a pharmacist independent prescriber;
“the Pharmacy and General Sale Order ” means the Medicines (Pharmacy and General Sale – Exemption) Order 1980 ;
“the POM Order ” means the Prescription Only Medicines (Human Use) Order 1997 ;
“supplementary prescriber” means a person (“S”) who is a —
a registered nurse;
a pharmacist;
a registered midwife;
a person whose name is registered in the part of the register maintained by the Health Professions Council in pursuance of article 5 of the Health Professions Order 2001 relating to —
chiropodists and podiatrists;
physiotherapists;
radiographers: diagnostic or therapeutic,
a registered optometrist,
against whose name is recorded in the relevant register an annotation or entry signifying that S is qualified to order drugs, medicines and appliances as a supplementary prescriber or, in the case of a nurse or midwife, as a nurse independent/supplementary prescriber.
Exemption to the restrictions imposed by sections 7 and 8 of the Medicines Act 1968
2
The restrictions imposed by sections 7 and 8 of the Medicines Act (general provisions as to dealing with medicinal products and provisions as to manufacture and wholesale dealing) do not apply to the mixing of medicines by —
a
a nurse independent prescriber or a pharmacist independent prescriber;
b
a supplementary prescriber but only where the mixing of medicines forms part of the clinical management plan for an individual patient;
c
a person in accordance with the written directions of a —
i
doctor;
ii
dentist;
iii
nurse independent prescriber; or
iv
pharmacist independent prescriber;
d
a person in accordance with the written directions of a supplementary prescriber but only where the mixing of medicines forms part of the clinical management plan for an individual patient.
Amendment to Schedule 5 to the POM Order
3
1
Schedule 5 to the POM Order (exemption for certain persons from section 58(2) of the Act) is amended as follows.
2
In Part 2 (exemptions from the restriction on supply) , at the end add —
9 Persons (“P”) who are members of Her Majesty’s armed forces. 9 All prescription only medicines. 9 The supply shall be —
in the course of P undertaking any function as a member of Her Majesty’s armed forces; and
where P is satisfied that it is not practicable for another person who is legally entitled to supply a prescription only medicine to do so; and
only in so far as is necessary —
for the treatment of a sick or injured person in a medical emergency, or
to prevent ill-health where there is a risk that a person would suffer ill-health if the prescription only medicine is not supplied.
.
3
In Part 3 (exemptions from restriction on administration), at the end add —
10 Persons (“P”) who are members of Her Majesty’s armed forces. 10 All prescription only medicines. 10 The administration shall be —
in the course of P undertaking any function as a member of Her Majesty’s armed forces; and
where P is satisfied that it is not practicable for another person who is legally entitled to administer a prescription only medicine to do so; and
only in so far as is necessary —
for the treatment of a sick or injured person in a medical emergency, or
to prevent ill-health where there is a risk that a person would suffer ill-health if the prescription only medicine is not administered.
.
Amendment of the Pharmacy and General Sale Order
4
1
The Pharmacy and General Sale Order is amended as follows.
2
In article 1(2) (citation, commencement and interpretation) after the definition of “registered dietician” insert —
“registered dispensing optician” means a person who is registered in the register of dispensing opticians maintained under section 7(b) of the Opticians Act 1989 ;
.
3
In Schedule 1 (exemptions for certain persons from sections 52 and 53) —
a
in Part 1 at the end add —
13. Registered dispensing opticians. 13. Pharmacy medicines for external use containing chloramphenicol at a strength not exceeding —
0.5 per cent in eye drops;
1 per cent in ointment.
13. The sale or supply shall be only in the course of their professional practice.
b
in Part 2 at the end add —
16. Her Majesty’s armed forces. 16. All medicinal products. 16. The supply shall be only so far as is necessary for the treatment of a sick or injured person or the prevention of ill-health.
Signed by authority of the Secretary of State for Health
Mike O’Brien
Minister of State,
Department of Health
16th November 2009
Michael McGimpsey
Minister of Health, Social Services and Public Safety
19th November 2009


text:
Citation, commencement and application
1
1
These Regulations may be cited as the Personal Injuries ( NHS Charges) Amendment (No. 2) Regulations 2009 and shall come into force on 4th May 2009.
2
These Regulations apply in relation to England and Wales.
Amendment of the Personal Injuries (NHS Charges) Amendment Regulations 2009
2
In regulation 4 of the Personal Injuries (NHS Charges) Amendment Regulations 2009 (saving) for “paragraph 1” substitute “paragraph 1(b) to (e)”.
Signed by authority of the Secretary of State for Health.
Ben Bradshaw
Minister of State,
Department of Health
26th March 2009


text:
Citation and Commencement
1
This Order may be cited as the Immigration (Passenger Transit Visa) (Amendment) (No. 4) Order 2009.
2
1
Subject to paragraph (2) this Order comes into force on the day after the day on which it is laid.
2
Article 3(3) comes into force on 1st July 2009.
Amendments to the Immigration (Passenger Transit Visa) Order 2003
3
1
The Immigration (Passenger Transit Visa) Order 2003 shall be amended as follows.
2
In article 2, paragraphs (1) and (4), for “or (3A)” substitute “, (3A) or (3B)”.
3
In article 2, paragraphs (1) and (4), omit “, (3A)”.
Phil Woolas
Minister of State
Home Office
17th May 2009


text:
Citation and commencement
1
1
These Regulations may be cited as the Income Tax (Pay As You Earn) (Amendment) Regulations 2009 and shall come into force on 1st April 2009.
2
These Regulations have effect as follows —
a
regulations 4, 5, 6, 7 and 8 have effect from 1st April 2009; and
b
regulations 3, 9 and 10 have effect from 6th April 2009.
Amendment of the Income Tax (Pay As You Earn) Regulations 2003
2
The Income Tax (Pay As You Earn) Regulations 2003 are amended as follows.
New employees (other than pensioners)
3
1
In regulation 46(1B), start a new line and continue —
A seconded expatriate who is a national of an EEA state (see section 56(3)(za) of ITA ), or is a Commonwealth citizen (see section 278(2)(a) of ICTA ), must provide confirmation of this as additional information.
.
2
After regulation 46(1B), insert —
1C
In this regulation and in regulations 47 to 49, a “seconded expatriate” is an employee meeting one of the following descriptions.
Description 1: An employee in section 689 ITEPA (employee of non-UK employer) whose “work” in section 689(6) starts on 6 April 2009 or later.
Description 2: An employee in a branch of an employer. These Regulations would not apply to that employer but for that branch. The employer seconded the employee to that branch. The employee was not employed in the United Kingdom immediately before the secondment. The secondment starts on 6 April 2009 or later.
.
3
In regulation 46(2), start a new line and continue —
A seconded expatriate must indicate instead which of the following statements applies —
Statement A: the employee intends to live in the United Kingdom for more than 6 months;
Statement B: the employee intends to live in the United Kingdom for less than 6 months;
Statement C: the employee will work both inside and outside the United Kingdom, but will live outside.
.
4
Change regulation 47’s heading to —
Procedure in Form P46 cases: (a) seconded expatriate is national of EEA state or Commonwealth citizen, or (b) employee is not seconded expatriate and Statement A applies
.
5
In regulation 47(1) after “employee” insert “(not a seconded expatriate)”. Then start a new line and continue —
It also applies to a seconded expatriate who confirms being a national of an EEA state or being a Commonwealth citizen (see regulation 46(1B)).
.
6
Change regulation 48’s heading to —
Procedure in Form P46 cases: (a) Statement B applies (not seconded expatriate), or (b) Statement B or C applies (seconded expatriate)
.
7
In regulation 48(1) after “employee” insert “(not a seconded expatriate)”. Then start a new line and continue —
It also applies in the case of a seconded expatriate who indicates in the Form P46 that Statement B or C applies.
.
8
Change regulation 49’s heading to —
Procedure in Form P46 cases: (a) Statement C applies (not seconded expatriate), or (b) Statement A applies (seconded expatriate), or (c) Form P46 not signed when required
.
9
After regulation 49(3), insert —
4
In the case of a seconded expatriate, the emergency code must be used instead of the basic rate code mentioned in paragraphs (2)(c) and (3) (see also regulation 7(3) about the codes).
.
Inspection and production of documents, etc
4
In regulation 78 (notice and certificate if tax may be unpaid) —
a
in paragraph (6) for “in accordance with regulation 97 (inspection of employer’s PAYE records)” substitute “under Schedule 36 to the Finance Act 2008 (information and inspection powers)”; and
b
in paragraph (7) omit “, regulation 97 applies to that inspection and”.
5
In regulation 79(1) for “regulation 97” substitute “Schedule 36 to the Finance Act 2008 (information and inspection powers)”.
6
For regulation 97 (inspection of employer’s PAYE records) substitute —
Retention by employer of PAYE records
97
1
An employer must keep and preserve for not less than three years after the end of the tax year to which they relate all PAYE records which are not required to be sent to HMRC by other provisions in these Regulations.
2
The duty under paragraph (1) to keep and preserve PAYE records may be discharged by preserving them in any form or by any means.
3
“PAYE records” means the following documents and records —
a
all wages sheets, deductions working sheets, documents completed under regulation 46 (Form P46) and other documents and records relating to —
i
the calculation of the PAYE income of the employees,
ii
relevant payments to the employees, or
iii
the deduction of tax from, or accounting for tax in respect of, such payments, and
b
all documents relating to any information which an employer is required to provide to HMRC under regulation 85 (Forms P11D and P9D).
.
7
In column 2 of the list of provisions in each of regulations 150(1) (application of other regulations), 174(1) (application of other regulations) and 184B (application of other regulations) for “inspection of employer’s PAYE records” substitute “retention by employer of PAYE records”.
8
In column 2 of the list of provisions in regulation 218(2) (certificate that sum due), for “regulation 97” substitute “Schedule 36 to the Finance Act 2008”.
Cars
9
In regulation 90 (quarterly return if a car becomes available or unavailable (Form P46 (Car)) —
a
after paragraph (1) insert —
1A
This regulation does not apply if the reason a car becomes available or unavailable is that one car is replaced with another.
; and
b
in paragraph (2) for “Inland Revenue” substitute “HMRC”.
Reserve forces’ pay
10
In the meaning for “reserve pay” in regulation 122(1), after “forces” insert —
, excluding such payments made on 6 April 2009 or later
.
Dave Hartnett
Mike Eland
Two of the Commissioners for Her Majesty’s Revenue and Customs
10th March 2009