64 Exercise of Secretary of State’s functions through nominees.
(1) The Secretary of State may with the consent of the Treasury appoint such person or persons as he thinks fit to act as his nominees for the purposes of section 61, 62 or 63 above and the Treasury may appoint such person or persons as they think fit to act as their nominees for the purposes of section 63 above; and—
(a) securities of the successor company may be issued under section 61 or 62 above to any nominee of the Secretary of State appointed for the purposes of that section or to any person entitled to require the issue of the securities following their initial allotment to any such nominee; and
(b) any nominee of the Treasury or the Secretary of State appointed for the purposes of section 63 above may acquire securities or rights in accordance with that section,
in accordance with directions given from time to time by the Treasury or by the Secretary of State with the consent of the Treasury.
(2) Any person holding any securities or rights as a nominee of the Treasury or the Secretary of State by virtue of subsection (1) above shall hold and deal with them (or any of them) on such terms and in such manner as the Treasury or the Secretary of State with the consent of the Treasury may direct.
65 Target investment limit for Government shareholding.
(1) As soon as the successor company ceases to be wholly owned by the Crown, the Secretary of State shall by order fix a target investment limit in relation to the shares for the time being held in that company by the Treasury or the Secretary of State or their or his nominee by virtue of any provision of this Part (in this section referred to as “the Government shareholding”).
(2) The target investment limit shall be expressed as a proportion of the voting rights which are exercisable in all circumstances at general meetings of the successor company (in this section referred to as “the ordinary voting rights”).
(3) The first target investment limit fixed under this section shall be equal to the proportion of the ordinary voting rights which is carried by the Government shareholding at the time when the order fixing the limit is made.
(4) The Treasury or the Secretary of State may from time to time by order fix a new target investment limit in place of the one previously in force under this section; but—
(a) any new limit must be lower than the one it replaces; and
(b) an order under this section may only be revoked by an order fixing a new limit.
(5) It shall be the duty of the Treasury and of the Secretary of State so to exercise—
(a) their powers under section 63 above and their power to dispose of any shares held by them by virtue of any provision of this Part; and
(b) their power to give directions to their nominees,
as to secure that the Government shareholding does not carry a proportion of the ordinary voting rights exceeding any target investment limit for the time being in force under this section.
(6) Notwithstanding subsection (5) above, the Treasury or the Secretary of State may take up, or direct any nominee of the Treasury or the Secretary of State to take up, any rights for the time being available to the Treasury or the Secretary of State, or to that nominee, as an existing holder of shares or other securities of the successor company or of any subsidiary of the successor company; but if as a result the ordinary voting rights carried by the Government shareholding at any time exceeds the target investment limit it shall be the duty of the Treasury or, as the case may be, the Secretary of State to comply with subsection (5) as soon after that time as is reasonably practicable.
(7) For the purposes of this section the temporary suspension of any of the ordinary voting rights shall be disregarded.
(1) If the Secretary of State so directs at any time before the successor company ceases to be wholly owned by the Crown, such sum (not exceeding the accumulated realised profits of British Telecommunications) as may be specified in the direction shall be carried by the successor company to a reserve (in this section referred to as “the statutory reserve”).
(2) The statutory reserve may only be applied by the successor company in paying up unissued shares of the company to be allotted to members of the company as fully paid bonus shares.
(3) Notwithstanding subsection (2) above, the statutory reserve shall not count as an undistributable reserve of the successor company for the purposes of section 264(3)(d) of the Companies Act 1985; but for the purpose of determining under that section whether the successor company may make a distribution at any time any amount for the time being standing to the credit of the statutory reserve shall be treated for the purposes of section 264(3)(c) as if it were unrealised profits of the company.
(4) For the purposes of any statutory accounts of the successor company—
(a) the vesting effected by virtue of section 60 above shall be taken to have been a vesting of all the property, rights and liabilities (other than the excepted liabilities) to which British Telecommunications was entitled or subject immediately before the end of the last complete accounting year of British Telecommunications ending before the transfer date and to have been effected immediately after the end of that year; and
(b) the value of any asset and the amount of any liability of British Telecommunications taken to have been vested in the successor company by virtue of paragraph (a) above shall be taken to be the value or (as the case may be) the amount assigned to that asset or liability for the purposes of the corresponding statement of accounts prepared by British Telecommunications in respect of that year.
(5) For the purposes of any statutory accounts of the successor company the amount to be included in respect of any item shall be determined as if anything done by British Telecommunications (whether by way of acquiring, revaluing or disposing of any asset or incurring, revaluing or discharging any liability, or by carrying any amount to any provision or reserve, or otherwise) had been done by the successor company.
Accordingly (but without prejudice to the generality of the preceding provision) the amount to be included from time to time in any reserves of the successor company as representing its accumulated realised profits shall be determined as if any profits realised and retained by British Telecommunications had been realised and retained by the successor company.
(6) References in this section to the statutory accounts of the successor company are references to any accounts prepared by the successor company for the purposes of any provision of the Companies Act 1985 (including group accounts); and in this section “complete accounting year” means an accounting year ending with 31st March.
67 Temporary restrictions on successor company’s borrowings etc.
(1) If articles of association of the successor company confer on the Secretary of State powers exercisable with the consent of the Treasury for, or in connection with, restricting the sums of money which may be borrowed or raised by the group during any period, those powers shall be exercisable in the national interest notwithstanding any rule of law and the provisions of any enactment.
(2) For the purposes of this section any alteration of the articles of association of the successor company which—
(a) has the effect of conferring or extending any such power as is mentioned in subsection (1) above; and
(b) is made at a time when that company has ceased to be wholly owned by the Crown,
shall be disregarded.
(3) In this section “group” means the successor company and all of its subsidiaries taken together.
68 Liability of Secretary of State in respect of liabilities vesting in successor company.
(1) This section applies where—
(a) a resolution has been passed, in accordance with the Insolvency Act 1986, for the voluntary winding up of the successor company, otherwise than merely for the purpose of reconstruction or amalgamation with another company; or
(b) without any such resolution having been passed beforehand, an order has been made for the winding up of the successor company by the court under that Act.
(2) The Secretary of State shall become liable on the commencement of the winding up to discharge any outstanding liability of the successor company for the payment of pensions which vested in that company by virtue of section 60 above.
(3) Any sums required by the Secretary of State for discharging any liability imposed on him by this section shall be paid out of money provided by Parliament.
(4) Where the Secretary of State makes a payment to any person in discharge of what appears to him to be a liability imposed on him by this section, he shall thereupon become a creditor of the successor company to the extent of the amount paid, his claim being treated for the purposes of the winding up as a claim in respect of the original liability.
(5) Any sums received by the Secretary of State in respect of any claim made by virtue of subsection (4) above in the winding up of the successor company shall be paid into the Consolidated Fund.
(6) The reference in subsection (2) above to the commencement of the winding up is a reference—
(a) in a case within subsection (1)(a) above, to the passing of the resolution; and
(b) in a case within subsection (1)(b) above, to the making of the order.
(1) British Telecommunications shall continue in existence after the transfer date until it is dissolved in accordance with subsection (2) below; and the period of its continued existence after the transfer date is in this Act referred to as “the transitional period”.
(2) The Secretary of State may by order, after consulting British Telecommunications and the successor company, dissolve British Telecommunications on a day specified in the order, as soon as he is satisfied that nothing further remains to be done by British Telecommunications under Schedule 5 to this Act.
(3) During the transitional period section 1(4) of the 1981 Act (composition of British Telecommunications) shall have effect as if for the word “six” there were substituted the word “ one ” and paragraph 9 of Schedule 1 to that Act (quorum of British Telecommunications) shall have effect as if after the word “three” there were inserted the words “ or the number of its members, whichever is the less ”.
70 Application of law in relation to offer of shares or debentures of the successor company.
(1) This section applies where the Secretary of State or a nominee of his offers for sale to the public shares or debentures of the successor company at a time when that company is wholly owned by the Crown; and in this section “full prospectus” means a prospectus which complies, or is deemed to comply, with the requirements of Schedule 3 to the Companies Act 1985 (matters to be specified in prospectus and reports to be set out therein).
(2) If the shares or debentures are offered by a full prospectus as respects which the conditions mentioned in subsection (3) below are fulfilled (in this section referred to as “the offer prospectus”), any form of application for the shares or debentures may (instead of being issued with a full prospectus) be issued with a notice given by the Secretary of State which includes—
(a) a brief description of the shares or debentures offered, the terms of the offer, the successor company’s business and its financial position;
(b) an indication of the places in the United Kingdom where copies of the offer prospectus are to be available for inspection by members of the public; and
(c) a statement of the effect of subsections (4) and (5) below.
(3) The said conditions are—
(a) that a copy of the prospectus has been delivered to the registrar of companies in pursuance of section 64(1) of the Companies Act 1985; and
(b) that arrangements have been made with a view to securing—
(i) that on or before the date of receipt of the form of application by a member of the public a copy of the prospectus is published in not less than four national newspapers; and
(ii) that on that date copies of the prospectus are generally available in the United Kingdom for inspection by members of the public.
(4) Where a form of application is issued without a full prospectus but with a notice given by the Secretary of State under subsection (2) above, then, for the purposes of any enactment or any rule of law—
(a) the notice shall be taken to have incorporated the offer prospectus; and
(b) any application for the shares or debentures which is made in pursuance of the notice shall be taken to have been made in pursuance of that prospectus.
(5) Where a form of application is issued without a full prospectus, neither the form of application nor any document which is issued with it shall be regarded—
(a) as a prospectus for the purposes of Chapter I of Part III of the Companies Act 1985 (prospectus requirements); or
(b) as a circular for the purposes of section 14 of the Prevention of Fraud (Investments) Act 1958 or section 13 of the Prevention of Fraud (Investments) Act (Northern Ireland) 1940 (circulars relating to investments),
but only, where the form of application is issued without a notice given by the Secretary of State under subsection (2) above, for the purpose of determining the liability of persons other than the Secretary of State.
71 Application of Trustee Investments Act 1961 in relation to investment in the successor company.
(1) For the purpose of applying paragraph 3(b) of Part IV of Schedule 1 to the Trustee Investments Act 1961 (which provides that shares and debentures of a company shall not count as wider-range and narrower-range investments respectively within the meaning of that Act unless the company has paid dividends in each of the five years immediately preceding that in which the investment is made) in relation to investment in shares or debentures of the successor company during the calendar year in which the transfer date falls (“the first investment year”) or during any year following that year, the successor company shall be deemed to have paid a dividend as there mentioned—
(a) in any year preceding the first investment year which is included in the relevant five years; and
(b) in the first investment year, if that year is included in the relevant five years and the successor company does not in fact pay such a dividend in that year.
(2) In subsection (1) above “the relevant five years” means the five years immediately preceding the year in which the investment in question is made or proposed to be made.
(1) Subject to subsection (2) below and paragraph 39 of Schedule 5 to this Act, the successor company shall be treated for all purposes of corporation tax and development land tax as if it were the same person as British Telecommunications.
(2) The successor company shall not by virtue of subsection (1) above be regarded as a body falling within section 170(12) of the Taxation of Chargeable Gains Act 1992 (bodies established for carrying on industries or undertakings under national ownership or control) or subsection (10) of section 23 of the Development Land Tax Act 1976 (statutory undertakers); and subsection (1) above shall not be regarded as preventing the vesting in the successor company of an interest of British Telecommunications constituting a disposal for the purposes of the said section 23.
(3) Where, in the discharge of any liability which is vested in the successor company by this Act, the successor company makes payments—
(a) to an occupational pension scheme,
(b) with a view to the provision of benefits authorised under Chapter 3 of Part 4 of the Finance Act 2004, and
(c) for persons who are employees of the Post Office,
the Taxes Acts shall have effect in relation to those payments as if those persons were employees of the successor company and in this subsection expressions which are used in Part 4 of the Finance Act 2004 have the same meanings as in that Part.
(4) The vesting in the successor company by virtue of section 60 above of liability for any loan made to British Telecommunications shall not affect any direction in respect of the loan which has been given by the Treasury under section 581 of the Income and Corporation Taxes Act 1988 (income tax exemption for interest on foreign currency securities).
(5) If the transfer date falls before the end of the period of three years beginning with 1st October 1981, then, for the purposes of section 29 of the Value Added Tax Act 1983 (value added tax: group registration) the successor company, the Post Office and any bodies corporate resident in the United Kingdom which are subsidiaries of either of those bodies shall be eligible to be treated as members of a group from that date until the end of that period; and where, by virtue of this subsection, two or more bodies are so treated, the Commissioners of Customs and Excise shall, as soon as practicable after the end of that period, terminate that treatment from such date as may be specified in the notice.
(1) In this Part—
“debenture” includes debenture stock;
“securities”, in relation to a company, includes shares, debentures, bonds and other securities of the company, whether or not constituting a charge on the assets of the company;
“shares” includes stock;
“subsidiary” has the meaning given by section 736 of the Companies Act 1985.
(2) An order under section 60 above nominating any company for the purposes of that section and an order under subsection (1) of that section appointing the transfer date may be varied or revoked by a subsequent order at any time before any property, rights or liabilities vest in any company by virtue of section 60 above.
(3) A company shall be regarded for the purposes of this Part as wholly owned by the Crown at any time when all the issued shares in the company are held by or on behalf of the Crown.
75 Alteration of penalties and mode of trial for certain offences under the 1949 Act.
(1) The following offences under the 1949 Act shall be triable on indictment as well as summarily, that is to say—
(a) any offence under section 5(a) of that Act (sending false or misleading messages likely to prejudice the efficiency of any safety of life service, etc.); and
(b) any offence under section 13 of that Act (using any apparatus for the purpose of interfering with wireless telegraphy).
(2) Schedule 3 to this Act shall have effect for the purpose of—
(a) incorporating the amendment made by subsection (1) above and certain other amendments made as respects Great Britain by the Criminal Justice Act 1982 in the text of section 14 of the 1949 Act (which gives the penalties for offences under that Act) as that section has effect both in Great Britain and in Northern Ireland; and
(b) making certain other amendments of that section as it so has effect;
and for other connected purposes.
(3) Nothing in this section or in any provision of Schedule 3 to this Act—
(a) shall affect the mode of trial in proceedings for an offence commenced before the date on which this section comes into force; or
(b) shall render a person liable in respect of an offence committed before that date to a punishment more severe than the punishment applicable in the case of that offence immediately before that date;
but except as provided above in this subsection the provisions of section 14 of the 1949 Act, as amended by Schedule 3 to this Act and by section 82 below, shall have effect in relation to any conviction on or after that date of an offence under that Act.
76 Arrest without warrant for certain offences under the 1949 Act.
(1) This section applies to—
(a) any indictable offence under the 1949 Act; and
(b) any offence under section 1(1) of that Act other than one consisting in the installation or use, otherwise than under and in accordance with a wireless telegraphy licence, of any apparatus not designed or adapted for emission (as opposed to reception).
(2) A constable may arrest without warrant a person who has committed, or whom the constable with reasonable cause suspects to have committed, an offence to which this section applies, if the name and address of that person are unknown to, and cannot be ascertained by, the constable or the constable has reasonable grounds for doubting—
(a) whether a name and address furnished by that person as his name and address are his real name and address; or
(b) whether that person will be at an address furnished by him for a sufficiently long period for it to be possible to serve him with a summons.
(3) The preceding provisions of this section do not apply to Scotland.
(4) This section shall not prejudice any power of arrest conferred by law apart from this section.
77 Substitution of new section for section 7 of the 1967 Act.
(1) The following section shall be substituted for section 7 of the 1967 Act (restriction on manufacture or importation of certain apparatus)—
Restriction on dealings in and custody of certain apparatus.
7 (1) This section applies to wireless telegraphy apparatus and to any apparatus designed or adapted for use in connection with wireless telegraphy apparatus.
(2) Where it appears to the Secretary of State to be expedient to do so for the purpose of preventing or reducing the risk of interference with wireless telegraphy, he may make an order applying restrictions under this section in relation to apparatus to which this section applies of any class or description specified in the order.
(3) Any of the following actions in relation to any such apparatus is subject to restriction under this section—
(a) manufacture (whether or not for sale);
(b) selling or offering for sale, letting on hire or offering to let on hire, or indicating (whether by display of the apparatus or by any form of advertisement) one’s willingness to sell or let on hire;
(c) having in one’s custody or control; and
(d) importation.
(4) An order under this section shall specify such of the actions subject to restriction under this section as are restricted by the order in the case of apparatus of any class or description specified in the order.
(5) Any action for the time being restricted by an order under this section in the case of any apparatus is prohibited by this section—
(a) save with the authority of the Secretary of State and subject to compliance with any terms and conditions attached by the Secretary of State to that authority; or
(b) in the case of action within subsection (3)(c) above, save as mentioned in paragraph (a) above or as otherwise authorised by law apart from this section.
(6) An authority given by the Secretary of State for the purposes of this section in the case of apparatus of any class or description specified in an order under this section may be limited—
(a) to such of the actions restricted by the order; and
(b) to such subsidiary class or description of apparatus within the class or description specified in the order;
as may be specified in the authority.
(7) Any terms or conditions attached by the Secretary of State to any authority under this section for manufacture or importation may relate to a period after, as well as to the time of, or a period before, the manufacture or importation.
(8) The Secretary of State’s authority may be given, and any terms or conditions may be attached to it, either generally by means of a notice in the London Gazette or by an instrument in writing issued to each person authorised to do, in relation to apparatus of any class or description to which an order under this section relates, anything for the time being restricted by the order; and any such notice published in the London Gazette shall also be published in the Edinburgh Gazette and the Belfast Gazette.
(9) The Secretary of State shall not make any order under this section or give any authority for the purposes of this section or attach any term or condition to any such authority, unless the Secretary of State is satisfied that the order, authority, term or condition in question is compatible with the international obligations of the United Kingdom; and where any statutory instrument containing such an order or any notice or instrument in writing giving such an authority or attaching any term or condition to such an authority contains a statement that the Secretary of State is so satisfied, that statement shall be evidence (and, in Scotland, sufficient evidence) of that fact.
(10) Where the importation of apparatus of any class or description to which this section applies is for the time being restricted by an order under this section, a person commissioned by the Commissioners of Customs and Excise may require any person having custody or control of any apparatus of that class or description which is being or has been imported to furnish proof that the importation of the apparatus is or was not unlawful by virtue of this section; and if such proof is not furnished to the satisfaction of those Commissioners the apparatus shall be deemed, unless the contrary is proved, to be prohibited goods, and shall be liable to forfeiture under the Customs and Excise Management Act 1979.
(11) Any person who—
(a) takes any action within subsection (3)(a) or (b) above in relation to any apparatus in contravention of subsection (5) above; or
(b) without reasonable excuse has any apparatus in his custody or control in contravention of that subsection; or
(c) contravenes or fails to comply with any terms or conditions attached to any authority given by the Secretary of State for the purposes of this section (whatever the action to which that authority relates);
shall, without prejudice to any liability to a penalty which he may have incurred under the Act of 1979 mentioned above, be guilty of an offence under the principal Act.
(12) For the avoidance of doubt, it is hereby declared that in this section “manufacture” includes construction by any method and the assembly of component parts.
.
(2) Any order made under section 7 of the 1967 Act which is in force immediately before this section comes into force shall have effect—
(a) as if made under the new section 7 substituted by subsection (1) above; and
(b) as if it restricted, in the case of wireless telegraphy apparatus of any class or description specified in the order, the actions mentioned in subsection (3)(a) and (d) of the new section;
(and any such order may accordingly be varied or revoked by an order made under the new section).
79 Seizure of apparatus and other property used in committing certain offences under the 1949 Act.
(1) This section applies to—
(a) any indictable offence under the 1949 Act;
(b) any offence under section 1(1) of that Act other than one consisting in the installation or use, otherwise than under and in accordance with a wireless telegraphy licence, of any apparatus not designed or adapted for emission (as opposed to reception);
(bza) any offence under section 1A of that Act other than one where the relevant contravention of section 1 of that Act would constitute an offence so consisting;
(ba) any offence under section 5(b) of that Act;
(bb) any offence under the Marine, &c., Broadcasting (Offences) Act 1967; and
(c) any offence under section 7 of the 1967 Act.
(2) Where—
(a) a search warrant is granted under section 15(1) of the 1949 Act (entry and search of premises, etc.); and
(b) the suspected offence (or any of the suspected offences) is an offence to which this section applies;
the warrant may authorise any person authorised by OFCOM to exercise the power conferred by this subsection to seize and detain, for the purposes of any relevant proceedings, any apparatus or other thing found in the course of the search carried out in pursuance of the warrant which appears to him . . . to have been used in connection with or to be evidence of the commission of any such offence.
(3) If a constable or any person authorised by OFCOM to exercise the power conferred by this subsection has reasonable grounds to suspect that an offence to which this section applies has been or is being committed, he may seize and detain, for the purposes of any relevant proceedings, any apparatus or other thing which appears to him to have been used in connection with or to be evidence of the commission of any such offence.
(4) Nothing in this section shall prejudice any power to seize or detain property which is exercisable by a constable apart from this section.
(4A) Without prejudice to any power exercisable by him apart from this subsection, a person authorised by OFCOM to exercise any power conferred by this section may use reasonable force, if necessary, in the exercise of that power.
(5) Any person who intentionally obstructs any person in the exercise of the power conferred on him under subsection (3) above shall be guilty of an offence under the 1949 Act.
(6) References in this section to relevant proceedings are references to—
(a) any proceedings for an offence to which this section applies; and
(b) any proceedings for forfeiture under Schedule 7 to the Communications Act 2003 .
82 Amendments with respect to forfeiture on conviction.
The following subsections shall be substituted for subsection (3) of section 14 of the 1949 Act (forfeiture of wireless telegraphy apparatus used in commission of certain offences)—
(3) Where a person is convicted of—
(a) an offence under this Act consisting in any contravention of any of the provisions of Part I of this Act in relation to any station for wireless telegraphy or any wireless telegraphy apparatus or in the use of any apparatus for the purpose of interfering with any wireless telegraphy; or
(b) any offence under section 12A of this Act; or
(c) any offence under this Act which is an offence under section 7 of the Wireless Telegraphy Act 1967 (whether as originally enacted or as substituted by section 77 of the Telecommunications Act 1984);
the court may, in addition to any other penalty, order all or any of the apparatus of the station, or (as the case may be) of the apparatus in connection with which the offence was committed, to be forfeited to the Secretary of State.
The power conferred by virtue of paragraph (a) or (c) above does not apply to wireless telegraphy apparatus not designed or adapted for emission (as opposed to reception).
(3A) Without prejudice to the operation of subsection (3) of this section in relation to any other apparatus, where a person is convicted of an offence under this Act involving restricted apparatus, the court shall order the apparatus to be forfeited to the Secretary of State unless the accused or any person claiming to be the owner of or otherwise interested in the apparatus shows cause why the apparatus should not be forfeited.
Apparatus is restricted apparatus for the purposes of this subsection if custody or control of apparatus of any class or description to which it belongs is for the time being restricted by an order under section 7 of the Wireless Telegraphy Act 1967.
(3B) Apparatus may be ordered to be forfeited under this section notwithstanding that it is not the property of the person by whom the offence giving rise to the forfeiture was committed, and any apparatus ordered to be forfeited under this section may be disposed of by the Secretary of State in such manner as he thinks fit.
(3C) Subsections (3) to (3B) of this section have effect notwithstanding anything in section 140 of the Magistrates’ Courts Act 1980 or Article 58 of the Magistrates’ Courts (Northern Ireland) Order 1981.
(3D) The court by whom any apparatus is ordered to be forfeited under this section may also order the person by whom the offence giving rise to the forfeiture was committed not to dispose of that apparatus except by delivering it up to the Secretary of State within forty-eight hours of being so required by him.
(3E) If a person against whom an order is made under subsection (3D) of this section contravenes that order or fails to deliver up the apparatus to the Secretary of State as required he shall be guilty of a further offence under this Act which, for the purpose of determining the appropriate penalty in accordance with the provisions of this section relating to penalties (whether as originally enacted or as substituted by paragraph 1 of Schedule 3 to the Telecommunications Act 1984), shall be treated as an offence under the same provision as the offence for which the forfeiture was ordered.
.
83 Disposal of apparatus and other property seized by virtue of section 79.
(1) Any property seized by a person authorised by the OFCOM in pursuance of a warrant under section 15(1) of the 1949 Act or in exercise of the power conferred by section 79(3) above may be detained—
(a) until the end of the period of six months beginning with the date of the seizure; or
(b) if proceedings for an offence to which section 79 above applies involving that property or proceedings for forfeiture of that property under Schedule 7 to the Communications Act 2003 are instituted within that period, until the conclusion of those proceedings.
(2) After the end of the period for which its detention is authorised by virtue of subsection (1) above, any such property which—
(a) remains in the possession of OFCOM; and
(b) has not been ordered to be forfeited under section 14 of the 1949 Act (which includes provision for forfeiture of wireless telegraphy apparatus used in the commission of certain offences) or under Schedule 7 to the Communications Act 2003;
shall be dealt with in accordance with the following provisions of this section (and references in those provisions to the relevant property are references to any property to which this subsection applies).
(3) OFCOM shall take reasonable steps to deliver the relevant property to any person appearing to them to be its owner.
(4) Where the relevant property remains in the possession of OFCOM after the end of the period of one year immediately following the end of the period for which its detention is authorised by subsection (1) above, OFCOM may dispose of it in such manner as they think fit.
(5) The delivery of the relevant property in accordance with subsection (3) above to any person appearing to OFCOM to be its owner shall not affect the right of any other person to take legal proceedings against the person to whom it is delivered or against anyone subsequently in possession of the property for the recovery of the property.
(1) Where any of the following instruments, namely—
(a) any licence granted under section 1 of the 1949 Act (licensing of wireless telegraphy),
(b) any regulations made under that section,
(c) any regulations made under section 10 of that Act (regulations as to radiation of electro-magnetic energy etc.),
(d) any order made under section 7 of the 1967 Act (restriction on dealings in and custody of certain apparatus), or
(e) any authority given for the purposes of that section,
contains any provision which is framed by reference to relevant apparatus for the time being approved under this section for the purposes of that instrument, such apparatus may be approved for those purposes by the relevant authority.
In this subsection “relevant apparatus” means wireless telegraphy apparatus or apparatus designed or adapted for use in connection with wireless telegraphy apparatus.
(2) A person applying for an approval under this section may be required by the relevant authority to comply with such requirements as the relevant authority may think appropriate; and those requirements may include a requirement to satisfy some other person with respect to any matter.
(3) An approval under this section may apply either to particular apparatus or to any apparatus of a description specified in the approval, and may so apply either for the purposes of a particular instrument falling within any of paragraphs (a) to (e) of subsection (1) above or for the purposes of instruments falling within any of those paragraphs of a description so specified.
(4) An approval under this section may specify conditions which must be complied with if the approval is to apply, for any purposes specified in the approval, to any apparatus which is so specified or is of a description so specified, and any such condition may impose on the person to whom the approval is given a requirement from time to time to satisfy any person with respect to any matter.
(5) The relevant authority may at any time vary or withdraw any approval given by the relevant authority under this section.
(6) A person appointed by the relevant authority may exercise any function conferred on the relevant authority by the preceding provisions of this section to such extent and subject to such conditions as may be specified in the appointment.
(7) The relevant authority may by order provide for the charging of fees in respect of the exercise of any function in pursuance of this section by or on behalf of the relevant authority; and an appointment under subsection (6) above may authorise the person appointed to retain any fees received by him in pursuance of any such order.
(8) Nothing in subsection (7) above shall preclude a person (not being the relevant authority or a person acting on the relevant authority's behalf) by whom any matter falls to be determined for the purposes of any requirement imposed in pursuance of subsection (2) or (4) above from charging any fee in respect of the carrying out of any test or other assessment made by him.
(8A) Subject to subsection (8B), in this section “the relevant authority” means—
(a) in such cases as may be specified in an order made by the Secretary of State, the Secretary of State; and
(b) in any other case, OFCOM.
(8B) Where an application for the purposes of this section is made to the Secretary of State or OFCOM and it appears to the person to whom it is made that it should have been made to the other—
(a) that person shall refer the application to the other; and
(b) the application shall be proceeded with as if made to the person to whom it is referred.
(9) Any sums received by the Secretary of State under this section shall be paid into the Consolidated Fund.
85 Information etc. to be marked on or to accompany apparatus.
(1) Where it appears to OFCOM expedient that any description of relevant apparatus should be marked with or accompanied by any information or instruction relating to the apparatus or its installation or use, OFCOM may by order—
(a) impose requirements for securing that relevant apparatus of that description is so marked or accompanied, and
(b) regulate or prohibit the supply of any such apparatus 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 given.
(2) An order under this section may, in the case of apparatus 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 apparatus.
(3) Where an order under this section is in force with respect to relevant apparatus of any description, any person who, in the course of any trade or business, supplies or offers to supply relevant apparatus of that description in contravention of the order shall, subject to section 87 below, be guilty of an offence and liable on summary conviction to a fine not exceeding level 5 on the standard scale.
(4) For the purposes of this section a person exposing relevant apparatus for supply or having such apparatus in his possession for supply shall be deemed to offer to supply it.
(5) In this section and section 86 below—
(a) “relevant apparatus” means wireless telegraphy apparatus or apparatus designed or adapted for use in connection with wireless telegraphy apparatus; and
(b) “supply” shall have the same meaning as it has in Part II of the Consumer Protection Act 1987.
86 Information etc. to be given in advertisements.
(1) Where it appears to OFCOM expedient that any description of advertisements of relevant apparatus should contain or refer to any information relating to the apparatus or its installation or use, OFCOM may by order impose requirements as to the inclusion of the information, or an indication of the means by which it may be obtained, in advertisements of that description.
(2) An order under this section may specify the form and manner in which any information or indication required by the order is to be included in advertisements of any description.
(3) Where an advertisement of any relevant apparatus which is to be supplied in the course of any trade or business fails to comply with any requirement imposed under this section, any person who publishes the advertisement shall, subject to section 87 below, be guilty of an offence and liable on summary conviction to a fine not exceeding level 5 on the standard scale.
(4) Section 85(5) above applies for the purposes of this section; and in this section “advertisement” includes a catalogue, a circular and a price list.
87 Offences under section 85 or 86 due to default of third person.
(1) Where the commission by any person of an offence under section 85 or 86 above 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 subsection whether or not proceedings are taken against the first-mentioned person.
(2) In any proceedings for an offence under either of those sections it shall, subject to subsection (3) below, be a defence for the person charged to prove that he took all reasonable steps and exercised all due diligence to avoid committing the offence.
(3) Where the defence provided by subsection (2) above involves an allegation that the commission of the offence was due to the act of default of 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.
(4) In any proceedings for an offence under section 86 above 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 that section.
91 Construction of references to conclusion of proceedings.
(1) Where proceedings for an offence to which section 79 above applies or for the forfeiture of any apparatus under Schedule 7 to the Communications Act 2003 have been terminated by any decision of a description against which an appeal will lie (whether by way of case stated or otherwise and whether with or without leave), those proceedings shall not be regarded as concluded for the purposes of section 83(1)(b) above—
(a) until the end of the ordinary time for appeal against that decision, if no appeal proceedings in respect of it are brought within that time; or
(b) if any such proceedings are so brought, until the conclusion of the appeal proceedings.
(2) Subsection (1) above shall apply for determining, for the purposes of paragraph (b) of that subsection . . . , when any appeal proceedings are concluded as it applies for determining when original proceedings . . . are concluded.
(3) References in subsection (1) above, as it applies in relation to any proceedings, to a decision terminating those proceedings, include references to any verdict, sentence, finding or order which puts an end to those proceedings.
(4) References in this section . . . to appeal proceedings include references to an application for leave to appeal.
92 Interpretation of Part VI and minor amendments.
(1) In this Part—
“the 1949 Act” means the Wireless Telegraphy Act 1949;
“the 1967 Act” means the Wireless Telegraphy Act 1967; and
“wireless telegraphy”, “wireless telegraphy apparatus”, “emission” and “interference” have the same meanings as in the 1949 Act.
(2) In section 15(4) of the 1949 Act (obstruction of search and seizure powers, etc.)—
(a) in paragraph (a) the word “ intentionally ” shall be inserted before the word “obstructs”; and
(b) in paragraph (b) the words “ without reasonable excuse ” shall be inserted before the words “fails or refuses”.
(3) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
(4) In paragraph 6 of Schedule 2 to the 1949 Act (rules of procedure for appeal tribunal to be made by tribunal) for the words from “by the tribunal” to the end of the paragraph there shall be substituted the words “ by the Secretary of State by statutory instrument. ”.
93 Grants to promote interests of disabled persons.
(1) The Secretary of State may, with the approval of the Treasury, make grants for the purpose of defraying or contributing towards—
(a) any expenses which may be incurred by any person in supporting research into or the development of apparatus to which this section applies; or
(b) any fees incurred by any person in respect of the exercise in relation to apparatus to which this section applies of any function conferred by or under section 22 above.
(2) This section applies to—
(a) telecommunication apparatus which is constructed for use by disabled persons;
(b) telecommunication apparatus which is so constructed as to be capable of being adapted for such use; and
(c) apparatus by means of which telecommunication apparatus falling within paragraph (b) above may be so adapted.
(3) In making a grant under this section, the Secretary of State may impose such conditions as he thinks fit and may, in particular, impose a condition requiring the repayment of all or any part of the grant—
(a) if any other condition is not complied with; or
(b) in such other circumstances as he may specify.
(4) There shall be paid out of money provided by Parliament any sums required by the Secretary of State for making grants under this section.
(5) Any sums received by the Secretary of State under subsection (3) above shall be paid into the Consolidated Fund.
(1) Where the Office of Fair Trading, the Commission or (as the case may be) the Secretary of State (in this section “the relevant authority”) makes a relevant order, the order may also provide for the revocation or modification of licences granted under section 7 above to such extent as may appear to the relevant authority to be requisite or expedient for the purpose of giving effect to, or taking account of, any provision made by the order.
(2) In subsection (1) above, “relevant order” means—
(a) an order under section 75, 83 or 84 of, or paragraph 5, 10 or 11 of Schedule 7 to, the Enterprise Act 2002 where—
(i) one or more than one of the enterprises which have, or may have, ceased to be distinct enterprises was engaged in the carrying on of a commercial activity connected with telecommunications; or
(ii) one or more than one of the enterprises which will or may cease to be distinct enterprises is engaged in the carrying on of a commercial activity connected with telecommunications; or
(b) an order under section 160 or 161 of that Act where the feature, or combination of features, of the market in the United Kingdom for goods or services which prevents, restricts or distorts competition relates to commercial activities connected with telecommunications.
(3) Expressions used in subsection (2) above and in Part 3 or (as the case may be) Part 4 of the Enterprise Act 2002 have the same meanings in that subsection as in that Part.
97 Contributions by local authorities towards provision of facilities.
(1) Where a local authority consider that it would be for the benefit of the whole or any part of their area that—
(a) any additional telecommunication facilities should be provided; or
(b) any existing telecommunication facilities should continue to be provided,
by a public telecommunications operator, whether within or outside the area to be benefited, the authority may undertake to pay to that operator any loss he may sustain by reason of the provision or continued provision of those facilities.
(2) In the application of this section to Scotland, nothing in subsection (1) above shall authorise the giving of an undertaking as respects the provision or continued provision of facilities outside the area to be benefited.
(3) In this section “local authority”—
(a) in relation to England . . ., means a county council, , a district council, a London borough council, the Common Council of the City of London or, a parish council . . .;
(aa) in relation to Wales, means a county council, a county borough council or a community council;
(b) in relation to Scotland, means a council constituted under section 2 of the Local Government etc. (Scotland) Act 1994;
(c) in relation to Northern Ireland, means a district council.
98 Use of certain conduits for telecommunication purposes.
(1) The functions of an authority with control of a relevant conduit shall include the power—
(a) to carry out, or to authorise another person to carry out, any works in relation to that conduit for or in connection with the installation, maintenance, adjustment, repair or alteration of electronic communications apparatus;
(b) to keep electronic communications apparatus installed in that conduit or to authorise any other person to keep electronic communications apparatus so installed;
(c) to authorise any person to enter that conduit to inspect electronic communications apparatus kept installed there;
(d) to enter into agreements, on such terms (including terms as to the payments to be made to the authority) as it thinks fit, in connection with the doing of anything authorised by or under this section; and
(e) to carry on an ancillary business consisting in the making and carrying out of such agreements.
(2) Where any enactment or subordinate legislation expressly or impliedly imposes any limitation on the use to which a relevant conduit may be put, that limitation shall not have effect so as to prohibit the doing of anything authorised by or under this section.
(3) Where the doing by an authority with control of a public sewer of anything authorised by this section would, apart from this subsection, constitute a contravention of any obligation imposed (whether by virtue of any conveyance or agreement or otherwise) on the authority, the doing of that thing shall not constitute such a contravention to the extent that it consists in, or in authorising, the carrying out of works or inspections, or keeping of apparatus, wholly inside a public sewer.
(4) Subject to subsections (2) and (3) above, subsection (1) above is without prejudice to the rights of any person with an interest in land on, under or over which a relevant conduit is situated.
(5) Without prejudice to subsections (1) to (4) above, the Secretary of State may by order provide for any local Act under or in accordance with which any conduits (whether or not relevant conduits) are kept installed in streetsroads to be amended in such manner as appears to him requisite or expedient for securing—
(a) that there is power for those conduits to be used for the purposes of any electronic communications network or of any electronic communications service;
(b) that the terms (including terms as to payment) on which those conduits are used for those purposes are reasonable; and
(c) that the use of those conduits for those purposes is not unreasonably inhibited (whether directly or indirectly) by reason of the terms of any consent, licence or agreement which has been given, granted or made in relation to any of those conduits for the purposes of that Act.
(6) In this section “relevant conduit” means—
(a) any conduit which, whether or not it is itself an electric line, is maintained by an electricity authority for the purpose of enclosing, surrounding or supporting such a line, including where such a conduit is connected to any box, chamber or other structure (including a building) maintained by an electricity authority for purposes connected with the conveyance, transmission or distribution of electricity, that box, chamber or structure; or
(b) a water main or any other conduit maintained by a water authority for the purpose of conveying water from one place to another; or
(c) a public sewer; or
(d) a culvert which is a designated watercourse within the meaning of the Drainage (Northern Ireland) Order 2006.
(7) In this section a reference to the authority with control of a relevant conduit—
(a) in relation to a conduit or structure falling within paragraph (a) or (b) of subsection (6) above, shall be construed as a reference to the authority by whom the conduit or structure is maintained;
(b) in relation to a public sewer, shall be construed, subject to subsection (8) below, as a reference to the person in whom the sewer is vested; and
(c) in relation to a culvert falling within paragraph (d) of subsection (6) above, shall be construed as a reference to the Department of Agriculture for Northern Ireland.
(8) Where—
(a) the functions of an authority with control of a public sewer are, in pursuance of any enactment, discharged on its behalf by another person, and
(b) the other person is authorised by the authority with control of the sewer to act on its behalf for the purposes of the matters referred to in subsection (1) above,
this section shall have effect in relation to that sewer as if any reference to the authority with control of the sewer included, to such extent as may be necessary for the other person so to act, a reference to the other person.
(9) In this section—
“alteration”, “street road” and “telecommunication apparatus” have the same meanings as in Schedule 2 to this Act;
“conduit” includes a tunnel or subway;
“electric line”—
in Great Britain, has the same meaning as in the Electricity Act 1989; and
in Northern Ireland, has the same meaning as in the Electricity (Northern Ireland) Order 1992;
“electricity authority” means a person authorised by a licence under Part I of the Electricity Act 1989 to supply or participate in the transmission of electricity or a person authorised by a licence under Part II of the Electricity (Northern Ireland) Order 1992 to transmit or supply electricity;
“public sewer”—
in England and Wales, has the same meaning as in the Public Health Act 1936;
in Scotland, means any sewer which is vested in Scottish Water; and
in Northern Ireland, means a sewer as defined in the Water and Sewerage Services (Northern Ireland) Order 2006;
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
“subordinate legislation” means any subordinate legislation within the meaning of the Interpretation Act 1978 or any instrument, as defined in section 1 of the Interpretation Act (Northern Ireland) 1954;
“water authority”—
in England and Wales, means the Environment Agency, the Natural Resources Body for Wales or a water undertaker;
in Scotland, means Scottish Water; and
in Northern Ireland, means the a water undertaker (within the meaning of the Water and Sewerage Services (Northern Ireland) Order 2006);
“water main”—
in England and Wales, means a water main or resource main within the meaning of the Water Industry Act 1991;
in Scotland, means a main within the meaning of the Water (Scotland) Act 1980; and
in Northern Ireland, means a water main or resource main within the meaning of the Water and Sewerage Services (Northern Ireland) Order 2006.
101 General restrictions on disclosure of information.
(1) Subject to the following provisions of this section, no information with respect to any particular business which—
(a) has been obtained under or by virtue of the provisions of this Act ... ; and
(b) relates to the private affairs of any individual or to any particular business,
shall during the lifetime of that individual or so long as that business continues to be carried on, be disclosed without the consent of that individual or the person for the time being carrying on that business.
(2) Subsection (1) above does not apply to any disclosure of information which is made—
(a) for the purpose of facilitating the performance of any functions assigned ... to the Secretary of State, or OFCOM by or under this Act ... ;
(b) for the purpose of facilitating the performance of any functions of any Minister, any Northern Ireland department, the head of any such department, the Competition and Markets Authority ; the Water Services Regulation Authority the Director General of Electricity Supply the Director General of Electricity Supply for Northern Ireland or the Director General of Gas for Northern Ireland the Office of Rail and Road , OFCOM , the Civil Aviation Authority or a local weights and measures authority in Great Britain under any of the enactments or subordinate legislation specified in subsection (3) below;
(bb) for the purpose of facilitating the carrying out by the Comptroller and Auditor General of any of his functions under any enactment;
(c) in connection with the investigation of any criminal offence or for the purposes of any criminal proceedings; or
(d) for the purpose of any civil proceedings brought under or by virtue of this Act or any of the enactments or subordinate legislation specified in subsection (3) below; ...
(e) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
(3) The enactments and subordinate legislation referred to in subsection (2) above are—
(a) the Trade Descriptions Act 1968;
(b) the 1973 Act;
(c) the Consumer Credit Act 1974;
(d) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
(e) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
(f) the Estate Agents Act 1979;
(g) the 1980 Act.
(h) the Consumer Protection Act 1987.
(i) the Consumer Protection (Northern Ireland) Order 1987.
(i) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
(j) the Water Act 1989 , or the Water Act 2003 or the Water Act 2014.
(k) the Electricity Act 1989.
(l) the Electricity (Northern Ireland) Order 1992.
(ll) The Gas (Northern Ireland) Order 1996;
(m) the Railways Act 1993
(n) the Competition Act 1998
(o) Part I of the Transport Act 2000.
(p) the Enterprise Act 2002
(q) the Communications Act 2003 ...
(r) the Railways Act 2005.
(s) the Energy (Northern Ireland Order 2003;
(t) the Water and Sewerage Services (Northern Ireland) Order 2006.
(u) the Business Protection from Misleading Marketing Regulations 2008;
(v) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
(w) Parts 3 and 4 of the Enterprise and Regulatory Reform Act 2013;
(x) the following provisions of the Digital Markets, Competition and Consumers Act 2024—
(i) Part 3;
(ii) Chapter 1 of Part 4;
(iii) Chapter 2 of Part 5.
(4) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
(5) Any person who discloses any information in contravention of this section shall be guilty of an offence and liable—
(a) on summary conviction, to a fine not exceeding the statutory maximum;
(b) on conviction on indictment, to imprisonment for a term not exceeding two years or to a fine or to both.
(6) Information obtained by OFCOM in the exercise of functions which are exercisable concurrently with the Competition and Markets Authority under Part I of the Competition Act 1998 is subject to Part 9 of the Enterprise Act 2002 (Information) and not to subsections (1) to (5) of this section.
(1) Where a body corporate is guilty of an offence under this Act and that offence is proved to have been committed with the consent or 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) Where the affairs of a body corporate are managed by its members, subsection (1) above shall apply in relation to the acts and defaults of a member in connection with his functions of management as if he were a director of the body corporate.
(1) Proceedings for any offence under this Act which is punishable on summary conviction may be commenced at any time within twelve months next after the commission of the offence.
(2) Subsection (1) above shall not apply for the purposes of an offence under any provision of the Enterprise Act 2002 as applied by virtue of section 13B above.