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This
page seeks to give information to healers in Please
note that I am not a qualified legal practitioner and healers affected by
this legislation should seek professional legal advice as appropriate. Please
read the introductory guidance on the legislative process in the Chapter
29 of the Trade Descriptions Act 1969 is reproduced below under the terms of Crown Copyright Policy Guidance
issued by HMSO (Her Majesty’s Stationery Office). Copyright is owned by the Crown and
information on reproduction rights may be found on the HMSO website http://www.opsi.gov.uk/advice/crown-copyright/copyright-guidance/reproduction-of-legislation.htm
. Background The
Trade Descriptions Act 1969 was introduced in the spirit of giving a legal
framework within which wider consumer rights could be protected and within
which penalties could be applied to rogue traders. It updated existing
legislation. The Act covers several areas and not all of its sections are
directly relevant to energy healers. The
permissions surrounding reproduction of legislation are that the entire
document must be reproduced. The Trades Description Act is produced below but
is a lengthy document. Whilst it should be read in full, the following
websites give a reasonable overview of the provisions of this legislation. The
Department of Trade and Industry offer a very brief summary at http://www.berr.gov.uk/files/file8156.pdf
. Trading
Standards Central which is a consumer protection information organisation
gives more detailed guidance
at http://www.tradingstandards.gov.uk/advice/advice-business.cfm. The
two main areas covered in the Act which impact upon the activities of energy
healers are those of misleading descriptions and of pricing. Misleading descriptions In
the context of energy healers offering healing services and training courses,
the key principle to follow is that any commentary or description should not
be misleading and should give as fair a picture as possible about what is
being offered. Clearly, energy healers have some difficulty with trying to
give very precise indications of likely outcomes from healing as this varies
between client. Also, there are issues of being able to replicate outcomes
across a range of clients with similar conditions and there is a lack of
research to medically accepted standards about the work that we do. It is
better to say to potential clients and potential students in a genuine way
that outcomes from our work can be variable rather than to try to oversell
what can be delivered. The
legislation is intended to cover serious misrepresentation rather than minor
matters. The following examples which are from real life would have potential
for consideration as serious misrepresentation under the legislation if the
healers could not provide adequate proof that they can substantiate the very
definitive statements: ·
Reiki can heal anything. ·
Reiki can heal condition x and condition
y and condition z. ·
Reiki will take all your cares and
worries away. ·
Reiki cures pains. Other
law relates to the issue of describing services that we offer. In another
posting that will be made to this website, there will be reference to the law
that requires that only suitably qualified medical practitioners are allowed
to say that they can treat clients for physical problems and to cure them.
There is precedence that people like energy healers are able to say that they
give spiritual healing but saying that they can cure physical conditions is a
no go area for energy healers. I
have not been able to find definitive reference to what the law considers to
be spiritual healing. Although I am not a legal expert, I suspect that this
might be a difficult area for the law if there probably has been no
quantitative or qualitative research into what spiritual healing is and what
outcomes arise from it. Healers
need to understand that there is a concept in law about express terms and
implied terms of contract. An express
term is a term of a contract which is
clearly stated and about which there is little room for ambiguity. An implied
term is one that is not stated but can reasonably be assumed to have been
implied in the process leading to entering into contract and if appropriate
coming from trade descriptions given. Even if all express terms in the
process leading to entering into a contract are accurate, an energy healer
could still have some difficulty with the law if it could be argued that
substantive implied terms were misleading. Healers
offering treatment and training in the energies should reflect, therefore,
about what how they describe their work and the potential outcomes from it
and take professional legal advice about this if necessary. Whatever
feelings we might have about the suitability of the legal framework within
which we have to operate to our work, the law stands until changed and we
have to work within it. If we feel that the law needs changing, the correct
route is to work through our professional bodies or Members of Parliament.
What we should not do is to ignore the law because it does not match our
belief systems or experiences. Pricing In
mainstream life, pricing is a key decision making area for commercial areas
and which in the past has been used in a manipulative way to the disadvantage
of consumers. The law seeks to protect consumers from the kind of situation
where goods and services are supposedly offered at a big discount to earlier
prices as a way of encouraging sales but in fact are not at any discount at
all. This and other pricing related matters are covered in the legislation
below. In the past I have seen a few healers use the buy it now while the discount lasts
approach and a lot of attention grabbing headlines to try to encourage sales.
This is fine as long as it is undertaken within the parameters laid out in
the legislation. Reproduction of the legislation The
legislation is reproduced below. Please click on the relevant section line in
the Arrangement of Sections part to go direct to the relevant part of the
legislation. Trade Descriptions Act
1968 CHAPTER 29 ARRANGEMENT OF SECTIONS Prohibition
of false trade descriptions Section 1.
Prohibition of false trade descriptions. 4.
Applying a trade description to goods. 5.
Trade descriptions used in advertisements. Power
to define terms and to require display, etc. of information 9.
Information, etc. to be given in advertisements. 10.
Provisions supplementary to sections 8 and 9. Misstatements
other than false trade descriptions 11.
False or misleading indications as to price of goods. 12.
False representations as to royal approval or award, etc.. 13.
False representations as to supply of goods or services. 14.
False or misleading statements as to services, etc.. 15.
Orders defining terms for purposes of section 14. Prohibition
of importation of certain goods 16.
Prohibition of importation of goods bearing false indication of origin. 17.
Restriction on importation of goods bearing infringing trade marks. 19.
Time limit for prosecutions. 21.
Accessories to offences committed abroad. 22.
Restrictions on institution of proceedings and admission of evidence. 23.
Offences due to fault of other person. 24.
Defence of mistake, accident, etc.. 25.
Innocent publication of advertisement. 27.
Power to make test purchases. 28.
Power to enter premises and inspect and seize goods and documents. 29.
Obstruction of authorised officers. 30.
Notice of test and intended prosecution. Miscellaneous
and Supplemental 32.
Power to exempt goods sold for export, etc.. 33.
Compensation for loss, etc., of goods seized under s. 28. 34.
Trade marks containing trade descriptions. 37.
Market research experiments. 40.
Provisions as to Northern Ireland. 41.
Consequential amendments and repeals. 42.
Continuation, for three years, of Orders in Council requiring indication of
origin. 43.
Short title and commencement. Schedule 1. Consequential
amendments. An Act to replace the Merchandise Marks Acts 1887 to 1953
by fresh provisions prohibiting misdescriptions of goods, services,
accommodation and facilities provided in the course of trade; to prohibit
false or misleading indications as to the price of goods; to confer power to
require information or instructions relating to goods to be marked on or to
accompany the goods or to be included in advertisements; to prohibit the
unauthorised use of devices or emblems signifying royal awards; to enable the
Parliament of Northern Ireland to make laws relating to merchandise marks;
and for purposes connected with those matters. [30th May 1968]. BE it enacted by the
Queen's most Excellent Majesty, by and with the advice and consent of the
Lords Spiritual and Prohibition of false trade
descriptions
1. Prohibition of false trade descriptions
(1) Any person who, in the course of a
trade or business (a) applies a false trade description to
any goods; or (b) supplies or offers to supply any goods
to which a false trade description is applied; shall, subject to the provisions of this
Act, be guilty of an offence. (2) Sections 2 to 6 of this Act shall
have effect for the purposes of this section and for the interpretation of
expressions used in this section, wherever they occur in this Act. 2. Trade description
(1)
A trade description is an indication, direct or indirect, and by whatever
means given, of any of the following matters with respect to any goods or
parts of goods, that is to say- (b) method of manufacture,
production, processing or re-conditioning ; (c)
composition; (a)
fitness for purpose, strength, performance, behaviour or accuracy; (e) any physical
characteristics not included in the preceding paragraphs; (f) testing by any person and
results thereof; (g) approval by any person or
conformity with a type approved by any person ; (h) place or date of
manufacture, production, processing or reconditioning; (i) person by whom
manufactured, produced, processed or reconditioned; (/)
other history, including previous ownership or use. (2)
The matters specified in subsection (1) of this section shall be taken— (a) in relation to any
animal, to include sex, breed or cross, fertility and soundness; (b)
in relation to any semen, to include the identity and characteristics of the
animal from which it was taken and measure of dilution. (3)
In this section " quantity " includes length, width, height, area,
volume, capacity, weight and number. (4)
Notwithstanding anything in the preceding provisions of this section, the
following shall be deemed not to be trade (a)
the Seeds Act 1920 ; (b) section 2 of the
Agricultural Produce (Grading and Marking) Act 1928 (as amended by the
Agricultural Produce (Grading and Marking) Amendment Act 1931) or any
corresponding enactment of the Parliament of (c)
the Plant Varieties and Seeds Act 1964 ; {d} the Agriculture and
Horticulture Act 1964 ; (e)
the Seeds Act ( (/)
the Horticulture Act ( any
description applied in pursuance of the Fertilisers and Feeding Stuffs Act
1926 to an article included in the first column of Schedule 1 to that Act,
and any mark prescribed by a system of classification compiled under section
5 of the Agriculture Act 1967. (5)
Notwithstanding anything in the preceding provisions of this section, where
provision is made under the Food and Drugs Act 1955, the Food and Drugs
(Scotland) Act 1956 or the Food and Drugs Act (Northern Ireland) 1958
prohibiting the application of a description except to goods in the case of
which the requirements specified in that provision are complied with, that
description, when applied to such goods, shall be deemed not to be a trade
description. 3. False Trade Description
(1)
A false trade description is a trade description which is false to a material
degree. (2)
A trade description which, though not false, is misleading, that is to say,
likely to be taken for such an indication of any of the matters specified in
section 2 of this Act as would be false to a material degree, shall be deemed
to be a false trade description. (3)
Anything which, though not a trade description, is likely to be taken for an
indication of any of those matters and, as such an indication, would be false
to a material degree, shall be deemed to be a false trade description. (4)
A false indication, or anything likely to be taken as an indication which would
be false, that any goods comply with a standard specified or recognised by
any person or implied by the approval of any person shall be deemed to be a
false trade description, if there is no such person or no standard so
specified, recognised or implied. 4. Applying a trade mark
description to goods
(1)
A person applies a trade description to goods if he— (a)
affixes or annexes it to or in any manner marks it on or incorporates it
with— (b)
places the goods in, on or with anything which the trade description has been
affixed or annexed to, marked on or incorporated with, or places any such
thing with the goods; or (c)
uses the trade description in any manner likely to be taken as referring to
the goods. (2)
An oral statement may amount to the use of a trade description. (3)
Where goods are supplied in pursuance of a request in which a trade
description is used and the circumstances are such as to make it reasonable
to infer that the goods are supplied as goods corresponding to that trade
description, the person supplying the goods shall be deemed to have applied
that trade description to the goods. 5. Trade descriptions used
in advertisements
(1)
The following provisions of this section shall have effect where in an
advertisement a trade description is used in relations to any class of goods. (2)
The trade description shall be taken as referring to all goods of the class, whether or not in existence at the time
the (a)
for the purpose of determining whether an offence has been committed under
paragraph (a) of section 1(1) of this Act; and (b) where goods of the class
are supplied or offered to be supplied by a person publishing or displaying
the advertisement, also for the purpose of determining whether an offence has
been committed under paragraph (6) of the said section 1(1). (3)
In determining for the purposes of this section whether any goods are of a
class to which a trade description used in an advertisement relates regard
shall be had not only to the form and content of the advertisement but also
to the time, place, manner and frequency of its publication and all other
matters making it likely or unlikely that a person to whom the goods are
supplied would think of the goods as belonging to the class in relation to
which the trade description is used in the advertisement. 6. Offer to
supply
(1)
A person exposing goods for supply or having goods in his possession for
supply shall be deemed to offer to supply them. Power to define terms and
to require display, etc., of information
7. Definition
Orders
(1) Where it appears to the Board of
Trade – (a) that it would be in the interest of
persons to whom any goods are supplied; or (b) that it would be in the interest of
persons by whom any goods are exported and would not be contrary to the
interest of persons to whom such goods are supplied in the United Kingdom; that any expressions used in relation to
the goods should be understood as having definite meanings either – (i) to those expressions when used in
the course of a trade or business as, or as part of, a trade description
applied to the goods; or (ii)
to those expressions when so used in such circumstances as may be specified
in the order; and
where such a meaning is so assigned to an expression it shall be deemed for
the purposes of this Act to have that meaning when used as mentioned in
paragraph (i) or, as the case may be, paragraph (ii) of this section. 8. Marking
Orders
(1)
Where it appears to the Board of Trade necessary or expedient in the interest
of persons to whom any goods are supplied that the goods should be marked
with or accompanied by any information (whether or not amounting to or
including a trade description) or instruction relating to the goods, the
Board may, subject to the provisions of this Act, by order impose
requirements for securing that the goods are so marked or accompanied, and
regulate or prohibit the supply of goods with respect to which the
requirements are not complied with; and the requirements may extend to the
form and manner in which the information or instruction is to be given. (2)
Where an order under this section is in force with respect to goods of any
description, any person who, in the course of any trade or business, supplies
or offers to supply goods of that description in contravention of the order
shall, subject to the provisions of this Act, be guilty of an offence. (3)
An order under this section may make different provision for different
circumstances and may, in the case of goods supplied in circumstances where
the information or instruction required by the order would not be conveyed
until after delivery, require the whole or part thereof to be also displayed
near the goods. 9. Information, etc., to
be given in advertisements
(1)
Where it appears to the Board of Trade necessary or expedient in the interest
of persons to whom any goods are to be supplied that any description of advertisements
of the goods should contain or refer to any information (whether or not
amounting to or including a trade description) relating to the goods the
Board may, subject to the provisions of this Act, by order impose
requirements as to the inclusion of that information, or of an indication of
the means by which it may be obtained, in such description of advertisements
of the goods as may be specified in the order. (2)
An order under this section may specify the form and manner in which any such
information or indication is to be included in advertisements of any
description and may make different provision for different circumstances. (3)
Where an advertisement of any goods to be supplied in the course of any trade
or business fails to comply with any 10. Provisions
supplementary to sections 8 and 9
(1)
A requirement imposed by an order under section 8 or section 9 of this Act in
relation to any goods shall not be confined to goods manufactured or produced
in any one country or any one of a number of countries or to goods
manufactured or produced outside any one or more countries, unless— {a) it is imposed with
respect to a description of goods in the case of which the Board of Trade are
satisfied that the interest of persons in the United Kingdom to whom goods of
that description are supplied will be sufficiently protected if the
requirement is so confined; and (b) the Board of Trade are
satisfied that the order is compatible with the international obligations of
the (2)
Where any requirements with respect to any goods are for the time being
imposed by such an order and the Board of Trade are satisfied, on the
representation of persons appearing to the Board to have a substantial
interest in the matter, that greater hardship would be caused to such persons
if the requirements continued to apply than is justified by the interest of persons
to whom such goods are supplied, the power of the Board to relax or
discontinue the requirements by a further order may be exercised without the
consultation and notice required by section 38(3) of this Act. Misstatements other than
false trade descriptions
11. False or misleading
indications as to price of goods
(1)
If any person offering to supply goods of any description gives, by whatever
means, any false indication to the effect that the price at which the goods are offered is
equal to or less than— (a)
a recommended price; or (b)
the price at which the goods or goods of the same description were previously
offered by him; or
is less than such a price by a specified amount, he shall, subject to the
provisions of this Act, be guilty of an offence. (2)
If any person offering to supply any goods gives, by whatever means, any
indication likely to be taken as an indication that the goods are being
offered at a price less than that at which they are in fact being offered he
shall, subject to the provisions of this Act, be guilty of an offence. (3)
For the purposes of this section— (a) an indication that goods
were previously offered at a higher price or at a particular price— (i)
shall be treated as an indication that they were so offered by the person
giving the indication, unless it is expressly stated that they were so
offered by others and it is not expressed or implied that they were, or might
have been, so offered also by that person; and (ii)
shall be treated, unless the contrary is expressed, as an indication that
they were so offered within the preceding six months for a continuous period
of not less than twenty-eight days; (b) an indication as to a
recommended price— (i)
shall be treated, unless the contrary is expressed, as an indication that it
is a price recommended by the manufacturer or producer; and (ii)
shall be treated, unless the contrary is expressed, as an indication that it
is a price recommended generally for supply by retail in the area where the
goods are offered; (c)
anything likely to be taken as an indication as to a recommended price or as
to the price at which goods were previously offered shall be treated as such
an indication; and (d) a person advertising
goods as available for supply shall be taken as offering to supply them. 12. False representations
as to royal approval or award, etc.
(1)
If any person, in the course of any trade or business, gives, by whatever
means, any false indication, direct or indirect, that any goods or services
supplied by him or any methods adopted by him are or are of a kind supplied
to or approved by Her Majesty or any member of the Royal Family, he shall,
subject to the provisions of this Act, be guilty of an offence. (2)
If any person, in the course of any trade or business, uses, without the
authority of Her Majesty, any device or emblem signifying the Queen's Award
to Industry or anything so nearly resembling such a device or emblem as to be
likely to deceive, he shall, subject to the provisions of this Act, be guilty
of an offence. 13. False representations
as to supply of goods or services, etc.
(1)
If any person, in the course of any trade or business, gives, by whatever
means, any false indication, direct or indirect, that any goods or services
supplied by him are of a kind supplied to any person he shall, subject to the
provisions of this Act, be guilty of an offence. 14. False or misleading
statements as to services, etc..
(1)
It shall be an offence for any person in the course of any trade or
business— (a) to make a statement which
he knows to be false ; or (b) recklessly to make a
statement which is false; (i)
the provision in the course of any trade or business of any services,
accommodation or facilities; (ii)
the nature of any services, accommodation or facilities provided in the
course of any trade or business ; (iii)
the time at which, manner in which or persons by whom any services,
accommodation or facilities are so provided; (iv)
the examination, approval or evaluation by any person of any services,
accommodation or facilities so provided; or (v)
the location or amenities of any accommodation so provided. (2)
For the purposes of this section— (a)
anything (whether or not a statement as to any of the matters specified in
the preceding subsection) likely to be taken for such a statement as to any
of those matters as would be false shall be deemed to be a false statement as
to that matter; and (b) a statement made
regardless of whether it is true or false shall be deemed to be made
recklessly, whether or not the person making it had reasons for believing
that it might be false. (3)
In relation to any services consisting of or including the application of any
treatment or process or the carrying out of any repair, the matters specified
in subsection (1) of this section shall be taken to include the effect of the
treatment, process or repair. (4)
In this section " false " means false to a material degree and
" services " does not include anything done under a contract of
service. 15. Orders defining terms
for purposes of section 14
(1)
Where it appears to the Board of Trade that it would be in the interest of
persons for whom any services, accommodation or facilities are provided in
the course of any trade or business that any expressions used with respect
thereto should be understood as having definite meanings, the Board may by
order assign such meanings to those expressions when used as, or as part of,
such statements as are mentioned in section 14 of this Act with respect to
those services, accommodation or facilities; and where such a meaning is so
assigned to an expression it shall be deemed for the purposes of this Act to
have that meaning when so used. Prohibition of importation
of certain goods
16. Prohibition of importation of goods bearing
false indication of origin
(1)
Where a false trade description is applied to any goods outside the United
Kingdom and the false indication, or one of 17. Restrictions in importation of goods
bearing infringing trade marks
(1)
In the Trade Marks Act 1938 the following section shall be inserted after section 64 :— "
64A.—(1) The person who is registered as the proprietor or registered user of
a trade mark in respect of any goods may give notice in writing to the
Commissioners of Customs and Excise (in this section referred to as the 1933
c. 22. Commissioners)— (a)
that he is the proprietor or registered user of that trade mark, and (b)
that such goods bearing the trade mark are expected to arrive in the United
Kingdom at a time and place and by a consignment specified in the notice, and (c)
that the use within the United Kingdom of the trade mark in relation to the
goods would infringe the proprietor's exclusive right to that use, and (d) that he requests the
Commissioners to treat the goods as prohibited goods. (2)
Where a notice has been given under this section in respect of any goods
bearing a trade mark and has not been withdrawn and the requirements of any
regulations made under this section are complied with, then, subject to the
following provisions of this section, the importation into the United Kingdom
of the goods shall, if the condition of paragraph (c) of the preceding
subsection is satisfied, be deemed to be prohibited unless the importation is
for the private and domestic use of the person importing the goods. (3)
The Commissioners may make regulations prescribing the form in which notices
are to be given under this section, and requiring a person giving such a
notice, either at the time of giving the notice or at the time when the goods
in question are imported, or at both those times, to furnish the
Commissioners with such evidence, and to comply with such other conditions
(if any), as may be specified in the regulations, and any such regulations
may include such incidental and supplementary provisions as the Commissioners
consider expedient for the purposes of this section. (4)
Without prejudice to the generality of the preceding subsection, regulations
made under that subsection may include provision for requiring a person who
has given a notice under subsection (1) of this section, or a notice
purporting to be a notice under that subsection,— (a)
to pay such fees in respect of the notice as may be prescribed by the
regulations ; (b) to give to the
Commissioners such security as may be so prescribed, in respect of any
liability or expense which they may incur in consequence of the detention of
any goods to which the notice relates, or in consequence of anything done in
relation to goods so detained; (c)
whether any such security is given or not, to keep the Commissioners
indemnified against any such liability or expense as is mentioned in the
preceding paragraph. (5)
For the purposes of section 11 of the Customs and Excise Act 1952 (which
relates to the disposal of duties) any fees paid in pursuance of regulations
made under this section shall be treated as money collected on account of
customs. (6)
Regulations under subsection (3) of this section shall be made by statutory
instrument, which shall be subject to annulment in pursuance of a resolution
of either House of Parliament." Provisions
as to offences
18.
Penalty for offences
(1)
A person guilty of an offence under this Act for which no other penalty is
specified shall be liable— (a)
on summary conviction, to a fine not exceeding four hundred pounds;and (b) on conviction on
indictment, to a fine or imprisonment for a term not exceeding two years or
both. 19. Time limit for prosecutions
(1)
No prosecution for an offence under this Act shall be commenced after the
expiration of three years from the commission of the offence or one year from
its discovery by the prosecutor, whichever is the earlier. (2)
Notwithstanding anything in section 104 of the Magistrates' Courts Act 1952,
a magistrates' court may try an information for an offence under this Act if
the information was laid at any time within twelve months from the commission
of the offence. (3)
Notwithstanding anything in section 23 of the Summary Jurisdiction (Scotland)
Act 1954 (limitation of time for proceedings in statutory offences) summary
proceedings in Scotland for an offence under this section may be commenced at
any time within twelve months from the time when the offence was committed,
and subsection (2) of the said section 23 shall apply for the purposes of
this subsection as it applies for the purposes of that section. (4)
Subsections (2) and (3) of this section do not apply where— (a)
the offence was committed by the making of an oral statement: or (b) the offence was one of
supplying goods to which a false trade description is applied, and the trade
description was applied by an oral statement; or (c)
the offence was one where a false trade description is deemed to have been
applied to goods by virtue of section 4(3) of this Act and the goods were
supplied in pursuance of an oral request. 20. Offences by
corporations
(1)
Where an offence under this Act which has been committed by a body corporate
is proved to have been committed with the consent and connivance of, or to be
attributable to any neglect on the part of, any 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. (2)
In this section " director", in relation to any body corporate
established by or under any enactment for the purpose of carrying on under
national ownership any industry or part of an industry or undertaking, being
a body corporate whose affairs are managed by the members thereof, means a
member of that body corporate. 21. Accessories to
offences committed abroad
(1)
Any person who. in the United Kingdom, assists in or induces the commission
in any other country of an act in respect of goods which, if the act were
committed in the United Kingdom, would be an offence under section 1 of this
Act shall be guilty of an offence, except as provided by subsection (2) of
this section, but only if either— (a)
the false trade description concerned is an indication (or anything likely to
be taken as an indication) that the goods or any part thereof were
manufactured, produced. processed or reconditioned in the (b)
the false trade description concerned— (i)
consists of or comprises an expression (or anything likely to be taken as an
expression) to which a meaning is assigned by an order made by virtue of
section 7(6) of this Act, and (ii)
where that meaning is so assigned only in circumstances specified in the
order, the trade description is used in those circumstances. (2)
A person shall not be guilty of an offence under sub-section (1) of this
section if, by virtue of section 32 of this Act, the act, though committed in
the (3)
Any person who, in the United Kingdom, assists in or induces the commission
outside the United Kingdom of an act which, if committed in the United
Kingdom, would be an offence under section 12 of this Act shall be guilty of
an offence. 22. Restrictions on
institution of proceedings and admission of evidence
(1)
Where any act or omission constitutes both an offence under this Act and an
offence under any provision contained
in or having effect by virtue of Part IV of the Weights and Measures Act 1963
or Part IV of the Weights and Measures Act (Northern Ireland) 1967— (a) proceedings for the
offence shall not be instituted under this Act, except by virtue of section
23 thereof, without the
service of such a notice as is required by subsection (2) of section 51 of
the said Act of 1963 or as the case may be, subsection (2) of section 33 of the said Act of 1967, nor after the
expiration of the period mentioned in paragraph (c) of that subsection and (b)
subsections (2), (3) and (5) to (7) of section 26 of the said Act of 1963 or,
as the case may be, of section 2 of the said Act of 1967, shall, with the
necessary modifications, apply as if the offence under this Act were an
offence under Part IV of that Act or any instrument made thereunder. (2)
Where any act or omission constitutes both an offence under this Act and an
offence under the food and drugs law evidence on behalf of the prosecution
concerning any sample procured for analysis shall not be admissible in
proceedings for the offence under this Act unless the relevant provisions of
those laws have been complied with. In
this subsection " the food and drugs laws" means the Food and Drugs
Act 1955, the Food and Drugs (Scotland) Act (a)
in relation to the said Act of 1955, sections 93 and 97 and Part I of
Schedule 7 ; (b) in relation to the said
Act of 1956, sections 30 and 33 and (c)
in relation to the said Act of 1958, sections 35 and 38 or
any provision replacing any of the said provisions by virtue of section 123
of the said Act of 1955, section 56 of the said Act of 1956, or section 68 of
the said Act of 1958. (3)
The Board of Trade may by order provide that in proceedings for an offence
under this Act in relation to such goods as may be specified in the order
(other than proceedings for an offence falling within the preceding
provisions of this section) evidence on behalf of the prosecution concerning
any sample procured for analysis shall not be admissible unless the sample has
been dealt with in such manner as may be specified in the order. 23. Offences due to fault
of other person
(1)
Where the commission by any person of an offence under this Act is due to the
act or default of some other person that other person shall be guilty of the
offence, and a person may be charged with and convicted of the offence by
virtue of this section whether or not proceedings are taken against the
first-mentioned person. Defences
24. Defence of mistake,
accident, etc.
(1)
In any proceedings for an offence under this Act it shall, subject to subsection (2) of this
section, be a defence for the person charged to prove— (a) that the commission of
the offence was due to a mistake or to reliance on information supplied to
him or to the act or default of another person, an accident or some other
cause beyond his control; and (b) that he took all
reasonable precautions and exercised all due diligence to avoid the
commission of such an offence by himself or any person under his control. (2)
If in any case the defence provided by the last foregoing subsection involves
the allegation that the commission of the offence was due to the act or
default of another person or to reliance on information supplied by another
person, the person charged shall not, without leave of the court, be entitled
to rely on that defence unless, within a period ending seven clear days
before the hearing, he has served on the prosecutor a notice in writing
giving such information identifying or assisting in the identification of
that other person as was then in his possession. (3)
In any proceedings for an offence under this Act of supplying or offering to
supply goods to which a false trade description is applied it shall be a
defence for the person charged to prove that he did not know, and could not
with reasonable diligence have ascertained, that the goods did not conform to
the description or that the description had been applied to the goods. 25. Innocent publication
of advertisement
(1)
In proceedings for an offence under this Act committed by the publication of
an advertisement it shall be a defence for the person charged to prove that
he is a person whose business it is to publish or arrange for the publication
of advertisements and that he received the advertisement for publication in
the ordinary course of business and did not know and had no reason to suspect
that its publication would amount to an offence under this Act. Enforcement
26. Enforcing authorities
(1) It shall be the duty
of every local weights and measures authority to enforce within their area
the provision of this Act and of any order made under this Act; and section
37 of the Weights and Measures Act 1963 (power of local authorities to
combine) shall apply with respect to the functions of such authorities under
this Act as it applies with respect their functions under that Act. (2)
Every local weights and measures authority shall, whenever the Board of Trade
so direct, make to the Board a report on the exercise of their functions
under this Act in such form and containing such particulars as the Board may
direct. (3)
Where a complaint is made to the Board of Trade that all or any of the
functions conferred by this Act on a local weights and measures authority are
not being properly discharged in any area, or the Board are of opinion that
investigation should be made as to whether those functions are being properly
discharged in any area, the Board may cause local inquiry to be held, and— (a) in relation to such an
inquiry in England or Wales subsections (2) to (5) of section 290 of the
Local Government Act 1933 (evidence and costs at local inquiries), but
subsection (4) (costs of department) only in a case where the Board so
direct, shall apply as the inquiry were held in pursuance of subsection (1)
of that section; (b)
in relation to such an inquiry held in Scotland, subsections (2) to (9) of
section 355 of the Local Government (Scotland) Act 1947 (provisions as to
local inquiries) shall apply as if the inquiry were held in pursuance of
subsection (1) of that section. (4)
The person appointed to hold an inquiry under the preceding subsection shall
report the results thereof in writing to the Board of Trade, who shall
publish the report together with such observations, if any, as they think fit
to make thereon. (5)
Nothing in this section shall be taken as authorising a local weights and
measures authority in 27. Power to make test
purchases
(1)
A local weights and measures authority shall have power to make, or to
authorise any of their officers to make on its behalf, such purchases of
goods, and to authorise any of its officers to secure the provision of such
services, accommodation or facilities, as may appear expedient for the
purpose of determining whether or not the provisions of this Act and any
order made thereunder are being complied with. 28. Power to enter
premises and inspect and seize goods and documents
(1)
A duly authorised officer of a local weights and measures authority or of a
Government department may, at all reasonable hours and on production, if
required, of his credentials, exercise the following powers, that is to
say,— (b) if he has reasonable
cause to suspect that an offence under this Act has been committed, he may,
for the purpose of ascertaining whether it has been committed, require any
person carrying on a trade or business or employed in connection with a trade
or business to produce any books or documents relating to the trade or
business and may take copies of, or of any entry in, any such book or document; (c)
if he has reasonable cause to believe that an offence under this Act has been
committed, he may seize and detain any goods for the purpose of ascertaining,
by testing or otherwise, whether the offence has been committed; (d} he may seize and detain
any goods or documents which he has reason to believe may be required as
evidence in proceedings for an offence under this Act; (e)
he may, for the purpose of exercising his powers under this subsection to
seize goods, but only if and to the extent that it is reasonably necessary in
order to secure that the provisions of this Act and of any order made thereunder are duly observed, require any
person having authority to do so to break open any container or open any vending
machine and, if that person does not comply with the requirement, he may do
so himself. (2)
An officer seizing any goods or documents in the exercise of his powers under
this section shall inform the person from whom they are seized and. in the
case of goods seized from a vending machine, the person whose name and
address are stated on the machine as being the proprietor's or, if no name
and address are so stated, the occupier of the premises on which the machine
stands or to which it is affixed. (3)
If a justice of the peace, on sworn information in writing— (i)
that any goods, books or documents which a duly authorised officer has power
under this section to inspect are on any premises and that their inspection
is likely to disclose evidence of the commission of an offence under this
Act; or (ii)
that any offence under this Act has been, is being or is about to be committed on any premises ; and {b) is also satisfied either— (i)
that admission to the premises has been or is likely to be refused and that
notice of intention to apply for a warrant under this subsection has been
given to the occupier; or (ii)
that an application for admission, or the giving of such a notice, would
defeat the object of the entry or that the premises are unoccupied or that
the occupier is temporarily absent and it might defeat the object of the
entry to await his return, the justice may by warrant under his hand, which
shall continue in force for a period of one month, authorise an officer of a
local weights and measures authority or of a Government department to enter
the premises, if need be by force. In
the application of this subsection to (4)
An officer entering any premises by virtue of this section may take with him
such other persons and such equipment
as may appear to him necessary; and on leaving any premises which he
has entered by virtue of a warrant under the preceding subsection he shall,
if the premises are unoccupied or the occupier is temporarily absent, leave
them as effectively secured against trespassers as he found them. (5)
If any person discloses to any person— (b)
any information obtained by him in pursuance of this Act; he
shall be guilty of an offence unless the disclosure was made in or for the
purpose of the performance by him or any other person of functions under this
Act. (6)
If any person who is not a duly authorised officer of a local weights and
measures authority or of a Government department purports to act as such
under this section he shall be guilty of an offence. (7)
Nothing in this section shall be taken to compel the production by a
solicitor of a document containing a privileged 29. Obstruction of
authorized officers
(1)
Any person who—
(b)
wilfully fails to comply with any requirement properly made to him by such an
officer under section 28 of this Act; or (c)
without reasonable cause fails to give such an officer so acting any other
assistance or information which he may reasonably require of him for the
purpose of the performance of his functions under this Act, shall be guilty
of an offence and liable, on summary conviction, to a fine not exceeding
fifty pounds. (2)
If any person, in giving any such information as is mentioned in the
preceding subsection, makes any statement which he knows to be false, he
shall be guilty of an offence. (3)
Nothing in this section shall be construed as requiring a person to answer
any question or give any information if to do so might incriminate him. 30. Notice of test and
intended prosecution
(1)
Where any goods seized or purchased by an officer in pursuance of this Act
are submitted to a test, then— (b)
if the goods were purchased and the test leads to the institution of
proceedings for an offence under this Act. the officer shall inform the
person from whom the goods were purchased, or, in the case of goods sold
through a vending machine, the person mentioned in section 28(2) of this Act,
of the result of the test; and
shall, where as a result of the test proceedings for an offence under this
Act are instituted against any person, allow him to have the goods tested on
his behalf if it is reasonably practicable to do so. (2)
No proceedings for an offence under this Act, other than an offence under
section 28(5) or 29, shall be instituted by a local weights and measures
authority unless they have given to the Board of Trade notice of the intended
proceedings and either a period of twenty-eight days has elapsed since the
giving of the notice or the Board of Trade have before the end of that period
issued a certificate under this section. (3)
A notice under subsection (2) of this section must be accompanied by a
summary of the facts on which the charges are to be founded. (4)
A certificate of the Board of Trade that a notice under subsection (2) of
this section was given on a date specified in the certificate and was
accompanied by the summary required under subsection (3) of this section
shall be conclusive evidence that the notice was given on that date and was
accompanied by such a summary; and any document purporting to be such a
certificate and to be signed on behalf of the Board shall be deemed such a
certificate, unless the contrary is shown. 31. Evidence by certificate
(1)
The Board of Trade may by regulations provide that certificates issued by
such persons as may be specified by the regulations in relation to such matters
as may be so specified shall, subject to the provisions of this section, be
received in evidence of those matters in any proceedings under this Act (2)
Such a certificate shall not be received in evidence— (a) unless the party against
whom it is to be given in evidence has been served with a copy thereof not
less than seven days before the hearing; or (b)
if that party has, not less than three days before the hearing, served on the
other party a notice requiring the attendance of the person issuing the
certificate. (3)
In any proceedings under this Act in Scotland, a certificate received in
evidence by virtue of this section or, where the attendance of a person
issuing a certificate is required under sub-section (2)(b) of this section, the evidence of that person, shall be
sufficient evidence of the matters stated in the certificate. (4)
For the purposes of this section any document purporting to be such a
certificate as is mentioned in this section shall be deemed to be such a
certificate unless the contrary is shown. (5)
Regulations under this section shall be made by statutory instrument which
shall be subject to annulment in pursuance of a resolution of either House of
Parliament. Miscellaneous
and supplemental
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