Statutory guidance

Ivory Act 2018 enforcement and civil sanctions

Updated 6 June 2022

This statutory guidance explains the enforcement framework and civil sanctions that apply when someone commits an offence under the Ivory Act 2018.

The Ivory Act 2018 bans people from dealing in ivory. It applies to the United Kingdom (UK). This includes any statutory instruments made under the Act.

This guidance applies to anyone who deals in ivory, or causes, arranges or helps someone else to deal in ivory. It includes:

• any member of the public
• businesses and their employees, such as a director, manager, partner or secretary
• members of an organisation where the members manage its functions
• people who want to import or export ivory into and out of the UK

1. Offences and enforcement

An offence under the Ivory Act 2018 applies to both a seller and a buyer of an ivory item, as well as to anyone involved in the dealing in other ways. For example, if you arrange a sale of an ivory item, provide advertising of an ivory item or keep an ivory item in a shop for sale.

Dealing includes:

• buying ivory
• selling ivory or keeping ivory for sale
• hiring ivory or keeping ivory for hire
• offering or arranging to buy, sell or hire ivory
• exporting ivory from the UK for sale or hire
• importing ivory into the UK for sale or hire

Under the Ivory Act 2018, ivory means ivory taken from the tusk or tooth of an elephant. The definition may be amended by future regulations to include other species. Unless you can prove otherwise, items that are made from ivory will be assumed to be made of ivory from an elephant.

If you know or suspect, or should have known or suspected, that the item is ivory, made of ivory or has ivory in it, you’re committing an offence dealing it. If you’ve committed an offence, you may face civil sanctions or criminal prosecution.

Exempt ivory items

There are 5 categories of ivory items that may be exempt from the ban, if they meet specific criteria:

• pre-1918 items of outstanding artistic, cultural or historical value and importance
• pre-1918 portrait miniatures
• pre-1947 items with low ivory content
• pre-1975 musical instruments
• acquisitions made by qualifying museums

If you have an ivory item that you think falls into one of the exemption categories, you can apply to the Animal and Plant Health Agency (APHA) for:

• an exemption certificate for pre-1918 items of outstanding artistic, cultural or historical value and importance
• registration in the case of other exempt items

Enforcement and investigation powers

The Ivory Act civil sanctions enforcement is regulated by APHA on behalf of the Secretary of State for the Department for Environment, Food and Rural Affairs (Defra). In this guide, where we say ‘we’ it refers to APHA or another party acting on behalf of the Secretary of State.

Enforcement of the Ivory Act 2018 involves many parties including the police, customs officers and prosecuting services. Police, customs officers and accredited civilian officers (ACOs) have certain powers to investigate you and act if you’re not complying or if they suspect you’re not complying.

Police and customs officers can:

• stop and search premises, people or vehicles
• board and search vessels or aircraft
• apply for a search warrant
• examine and seize items
• ask you to provide any relevant documents, examine and take those documents

ACOs are appointed and authorised by the Secretary of State. After the ACO has notified you, they can:

• enter premises to assess compliance
• enter premises where there are reasonable grounds to suspect there is relevant evidence
• carry out examinations
• ask you to provide relevant documents, examine and take documents
• seize and detain relevant items

When we find relevant evidence of an offence we’ll consider whether prosecution is appropriate or whether the matter is suitable to be dealt with by a civil sanction. Where neither prosecution nor civil sanctions are appropriate we may decide to issue an advisory warning.

If the offence covers multiple countries, we’ll try to make sure that the investigation is coordinated from the earliest possible stage, so that only one investigation and prosecution takes place.

This guidance is in addition to Defra’s general enforcement policy.

Civil sanctions

A less serious offence is more likely to lead to civil sanctions, rather than criminal proceedings. Factors that may make an offence less serious might include, but are not limited to:

• a first time offence
• a one-off offence
• a small scale offence
• an offence with an item of low value
• no intent to deceive
• an individual private seller
• a vulnerable person committing the offence
• reliance on third party or professional advice

The civil sanction you’re issued will depend on the seriousness, circumstances, nature (type, intent and scale) and impact of the offence and what can be done to rectify it.

The type of civil penalty you get may depend on a range of factors, including:

• the sale value of the ivory item traded
• whether you’re an individual or a business
• how culpable you are
• how frequently you’ve committed an offence under the Ivory Act 2018
• your intention to deceive
• making sure the offence does not continue
• making sure you are compliant in the future
• deterring you and others from committing further offences

Civil sanctions will be proportionate to the offence and are intended to:

• address the non-compliance in good time
• minimise the likelihood of future non-compliance
• reduce any harm associated with the non-compliance
• enable escalating enforcement to secure compliance

There are 3 civil sanctions under the Act:

1. Enforcement undertakings.
2. Stop notices.
3. Monetary penalties up to £250,000.

If you’ve committed a minor breach that can be easily rectified, you may get advice (orally or in writing) to remind you to obey the law. For example, if you made an administrative error on a single occasion.

This does not stop you facing civil sanctions or criminal proceedings in the future for the same minor breach or if later evidence showed the breach was more serious.

If advice is sent to you, it will be issued as an advisory letter. We’ll keep this letter on file.

APHA will keep official records of your compliance history as evidence. This includes any advice given orally or in writing relating to a minor breach.

In some cases there may be 2 or more people involved in an offence. For example, the sale of a single ivory item may involve offences by:

• a buyer
• a seller
• someone who facilitated the sale
• third party advice

We’ll consider each person’s involvement in the offence. The civil sanctions or criminal proceedings may be different for each person.

Where you may have relied on third party advice we’ll also consider their involvement in any offence committed.

Criminal prosecutions

In some circumstances, you may face a criminal prosecution. For example, if the offence is too serious for a civil sanction or if you dispute the offence and your part in it.

Factors that could make an offence more serious might include, but are not limited to:

• large scale offending (including value, volume and frequency)
• imports to the UK or exports from the UK
• multiple offences
• offences continuing over a longer period of time
• offending by a business
• trying to hide the offence or your illegal activity
• who has been affected or harmed by your actions
• continued to break the law after facing other enforcement actions
• not complying with a stop notice
• obstructing a police officer, customs officer or an ACO - in this case you may be liable to imprisonment, a fine or both

We may consider any of the following before deciding whether to start criminal proceedings:

• the impact or potential impact the offence has on the environment, people or animals
• your response to previous advice and guidance
• how much you’ve benefitted, financial or in any other way

This list is not exhaustive and other relevant factors will be taken into account when the appropriate penalty is decided.

Criminal prosecutions you could face include one or more of the following:

• a fine
• a custodial sentence
• any other sanctions at the courts’ disposal

Criminal prosecutions are conducted by the:

• Crown Prosecution Service (CPS) in England and Wales
• Crown Office and Procurator Fiscal Service (COPFS) in Scotland
• Public Prosecution Service for Northern Ireland (PPSNI) in Northern Ireland

Prosecutions may also be conducted by the Counsel General in Wales.

We’ll follow these prosecution procedures when we decide whether to report a case for criminal prosecution.

2. Enforcement undertakings

If we have reasonable grounds to suspect you’ve committed an offence, you may be offered an enforcement undertaking to put it right.

An enforcement undertaking is an agreement made between you and APHA for you to take specific action within a specified time period to:

• stop an offence at the earliest opportunity
• restore what would have been if the offence had not been committed (where possible)
• make sure the offence does not continue or happen again

We may ask you to consider an enforcement undertaking. If we have written to you, you must reply within 28 days from the date we sent the written notice to you.

You can also suggest an enforcement undertaking for us to consider.

An enforcement undertaking must include:

• the date when the offence stopped, or when it will stop (whichever is the earliest)
• details of each action or step you’ll take
• the date when you’ll complete each action or step

Enforcement undertakings are more likely to be acceptable if you’ve:

• shown willingness to undo the transaction - for example, repaying the money earned from selling the ivory item
• stopped the offence and any related action

If you fully comply with all the terms of the enforcement undertaking we will not:

• convict you of an offence under Section 12 of the Ivory Act 2018 for the offence you’ve committed
• give you a monetary penalty for the offence you have committed

Proposal and acceptance

Enforcement undertaking proposals will be considered on a case by case basis. We’ll decide whether:

• the proposal includes enough detail about the offence and any actions you’ll take to stop the offence
• the specified time period and proposed enforcement undertaking is proportionate, appropriate and achievable, considering the nature, seriousness and circumstances of the offence
• to accept a counter-proposal or to make a counter-proposal depending on your willingness to accept any counter-proposal - we’ll decide when to stop the counter-proposal process
• you made the proposal as an early and proactive response to the offence
• the undertaking is proportionate taking any previous non-compliance under the Ivory Act 2018, including previous civil sanctions or prosecution into consideration
• there is evidence of a positive commitment to the proposed actions and, in the case of a business, whether this commitment is evident at an appropriate level of the business
• we think it is likely you’ll meet your commitment, considering your undertaking proposal and information from any other source
• actions proposed in order to address the breach appear adequate to secure that the offence does not continue
• actions proposed to prevent future offending (where this is relevant) are adequate
• actions proposed are adequate to restore the position as far as possible to what it would have been if the offence had not been committed

We have discretion to either accept or reject an offer of an enforcement undertaking.

We’ll usually make a decision on whether to accept an enforcement undertaking within 28 days of receiving a proposal.

The decision may be delayed if we feel it necessary to gather further information to inform a decision. If this happens, we’ll aim to keep you informed of progress.

The examples show how we might deal with an offence. But this does not mean it will be the same in every case. We’ll consider the facts and surrounding circumstances of each particular case and could decide to take different action.

Example of an enforcement undertaking for a first time offence

A person is advertising for sale an unregistered pre-1975 musical instrument that contains less than 20% ivory. The person ought to have known that the item contains ivory and of the need to register it under section 10 of the Act. The person proposes an enforcement undertaking to APHA that involves immediately removing the item for sale until it is properly registered.

We consider the enforcement undertaking proposal to be a proactive response and are satisfied that it is a proportionate response to this first-time offence. A letter accepting the proposal is sent to the person.

Example of a rejected enforcement undertaking offer

A business has registered and is advertising for sale an ivory item under the exemption for pre-1947 items with low ivory content under section 7 of the Act (percentage volume of ivory must be less than 10%). On examination, the item clearly does not meet the less than 10% ivory exemption, or any other exemption. A business representative proposes an enforcement undertaking to us.

We feel it is necessary to gather further information to inform a decision. Further information reveals that this is a repeat offence under the Act for this business. We reject the offer on the basis that the actions proposed in order to prevent future offending appear inadequate to make sure that the offence does not happen again. We impose a monetary penalty on the business of any amount up to the maximum value of £250,000.

Variation

If you need to vary the actions specified in the enforcement undertaking or revise the time you’ve got to complete them, you can only do this if we agree to it.

We have discretion to accept or reject an application to vary an enforcement undertaking. For counter-proposals, we’ll also decide the timeframe and decision to stop the counter-proposal process.

If you need to vary the undertaking or cannot complete the enforcement undertaking in the specific time, in certain circumstances we may decide to extend the time period. For example, if you’re ill. You must explain your situation and details for the request to vary the undertaking to APHA either by email to ivoryce@apha.gov.uk or by post to:

Ivory Compliance and Enforcement team
Centre for International Trade - Bristol
Horizon House
Deanery Road
Bristol
BS1 5AH

If it is impossible for you to comply with the enforcement undertaking because of events outside of your control, you (or any other person acting on your behalf) must explain the reason and send this to us. For example, if you’re hospitalised or in a car accident.

After consideration of your request to vary the undertaking we’ll either:

• extend the period for compliance
• vary the terms of the undertaking
• refuse your request

We’ll notify you of our decision within 28 days from the date we received your variation request.

If you think it has become impossible for you to comply fully or partially with the undertaking you must tell us about it:

• in writing
• including details of the terms which have not been complied with
• why you think that it is impossible for you to comply fully or partially with the undertaking
• before the end of any deadlines specified in the undertaking

If we think you’ve provided sufficient reasoning and information to show it is impossible for you to comply with the enforcement undertaking’s full terms, we may:

• extend the period
• vary the terms
• treat you as having complied
• refuse your request

We’ll write to you with our decision within 28 days from the date we receive your written request.

Making a proposal, counter-proposal or variation

You will need to use the enforcement undertaking offer form if you want to:

• propose an enforcement undertaking
• make a counter-proposal
• request a variation to an enforcement undertaking

If we accept your proposal, counter-proposal or variation, you’ll be notified of the acceptance in writing. We’ll write to you with our decision 28 days from the date we received your offer, counter-proposal or variation.

If we inform you that we’ll only accept your offer if you revise it, you must reply within 28 days from the date we sent you the notice. Your reply must include either of the following:

• an offer in revised terms
• confirmation that no further offer of an undertaking will be made

We’ll let you know how we’re considering dealing with the suspected offence. For example, if:

• we have decided to refuse your offer or revised offer
• you’ve notified us you will not make another offer
• you’ve not made an offer or a revised offer by the deadline
• we need to investigate the suspected offence further

If we refuse your offer or revised offer, we’ll notify you within 28 days from the date we received your offer.

If you’ve notified us you will not make another offer, we’ll send the notice to you within 28 days from the date we received your notification.

If you’ve not made an offer or a revised offer by the deadline, we’ll send the notice to you 30 days after the last date we wrote to you.

If an enforcement undertaking includes repaying money earned from dealing an ivory item, the agreement must include:

• returning the money you made dealing the ivory item
• when you’ll pay
• who you’ll pay
• how you’ll pay

If the enforcement undertaking includes stopping any banned activities, the agreement must include:

• when you’ll take action to stop the activity
• how long it’ll take for you to stop the activity
• anything you need to do before you take action

Monitoring compliance with an undertaking

So that we can monitor your compliance with the enforcement undertaking, we may ask you or another person for:

• information to monitor the actions you agreed to take as part of the enforcement undertaking
• information to monitor any relevant items you’re advertising
• access to your premises for inspection

If we need to access premises, this excludes premises that are used wholly or mainly as the place where you or someone else is living. We’ll notify you and make sure entry is at a reasonable time.

As part of inspections to monitor your compliance, at your premises we may:

• examine, measure or photograph anything that we think is or may be relevant
• ask you to produce any document or record in the person’s possession or control that we think is or is likely to be relevant
• take copies or extracts from any relevant document or record found on the premises
• monitor advertising of any relevant item

Certificate of compliance

A certificate of compliance may be issued if we decide either of the following:

• you’ve complied with the enforcement undertaking
• we’ve agreed it has been complied with, even if you’ve not fully complied with the enforcement undertaking

You or any other person, must provide sufficient information so that we can decide whether you’ve done all the actions agreed in the enforcement undertaking within the agreed timeframe.

You can apply for a certificate of compliance at any time. To apply for a certificate of compliance, you will need to use the enforcement undertaking compliance certificate form. We’ll send you this form when we write to you to accept your proposal.

We’ll decide whether or not to issue a certificate of compliance.

We may consider information from:

• your application
• monitoring and inspections
• any other sources

Opportunity to provide further information

If we think you’ve not fully complied with the enforcement undertaking’s terms, we’ll write to you to let you know and tell you what we think you’ve not fully complied with.

You have 28 days from the date we wrote to you to submit further information to show how you’ve complied.

Certificate of compliance accepted

If we’re satisfied that you’ve complied with the enforcement undertaking’s terms, we’ll issue you with a certificate of compliance. We’ll tell you within 28 days from the date we received either of the following:

• your completed form and notification of acceptance
• further information submitted

If you’ve completed all the actions specified in the enforcement undertaking, we’ll not give you a monetary penalty and you will not face criminal prosecution for that offence.

Certificate of compliance declined

If we think you’ve not complied with the enforcement undertaking’s terms, we’ll tell you within 28 days from the date we received either of the following:

• your completed form and notification of acceptance
• further information submitted

If you fail to complete the actions, either partly or fully, you may face further civil sanctions or criminal proceedings.

We’ll tell you how we’re considering dealing with the offence.

Right to appeal

If we decide not to issue you with a certificate of compliance, you’ve got the right to appeal. Your right to appeal will be explained alongside the decision.

If you’ve only partly complied with the enforcement undertaking, you may face further civil sanctions or criminal proceedings. If this happens, we may consider that you’ve partly complied before we decide to impose any further civil sanctions or consider criminal proceedings.

Inaccurate, incomplete or misleading information

If you’ve given us any inaccurate, misleading or incomplete information, we’ll treat you as if you’ve not complied with the enforcement undertaking.

We may revoke a certificate of compliance if it was issued on the basis of inaccurate, incomplete or misleading information. If the certificate of compliance is revoked, it will be as if you had not complied with the enforcement undertaking.

We’ll write to you within 28 days starting from the date we received further information and tell you how we are considering dealing with the offence.

3. Stop notices

A stop notice bans you from carrying on a particular activity or activities that we reasonably believe involves or is likely to involve you committing an offence under section 12 of the Ivory Act 2018.

We’ll serve you with a stop notice in writing with the aim of putting an end to a continuing offence or to prevent future offending.

A stop notice will set out:

• why the notice was issued
• any banned activities
• any steps you must take to comply with the notice
• any steps you must take before you can continue with the activity specified in the notice
• the consequences of non-compliance with the stop notice
• your rights to appeal

We may not serve a stop notice if you’ve already:

• taken appropriate steps to address the non-compliance
• received a monetary penalty for the same offence
• discharged liability for a monetary penalty for the same offence

If the offence is a continuing one, we may serve a stop notice in relation to the continuation of the offence after you’ve received a monetary penalty.

Sometimes a stop notice may only ban a specific activity until you take a specific action to do one or both of the following:

• end ongoing non-compliance
• prevent future non-compliance

Completion certificates

If we’re satisfied that you’ve complied with the stop notice, we’ll issue a completion certificate. In certain circumstances, however, the stop notice will remain in force on an ongoing basis. For example, if your item is not capable of meeting any of the exemption criteria.

A stop notice will stay in force until you’ve completed all of the required actions and been issued with a completion certificate. After you’ve completed the actions specified in the stop notice, you can apply for a completion certificate at any time.

We would normally expect you to apply for a completion certificate within 28 days of completing the actions needed or by the date specified in the stop notice, if this later.

To apply for a completion certificate, you must apply using the Stop Notice Completion Certificate Application. We’ll send you this form as part of the stop notice.

We’ll decide within 14 days from the date we receive your application whether or not to issue a completion certificate and we’ll inform you in writing.

It is an offence to make a false representation to get a completion certificate.

Completion certificate accepted

If we decide that you’ve complied with the stop notice, we’ll issue you with a completion certificate. Once you’ve received the completion certificate, the stop notice will no longer apply.

If you carry on or repeat the illegal activity, we’ll consider further civil sanctions or criminal prosecutions. This applies even if you initially complied and got a completion certificate.

Completion certificate declined

If we decide not to issue you with a completion certificate, you’ve got the right to appeal. Your right to appeal will be explained alongside the decision.

Failure to comply

It is an offence for any person served with a stop notice to not comply with it. If you fail to comply with a stop notice it will be taken seriously and criminal proceedings will be considered.

In England and Wales, if you fail to comply with a stop notice this may lead to one or both of the following:

• imprisonment for a term up to 6 months
• a fine

In Scotland and Northern Ireland, if you fail to comply with a stop notice this may lead to one or both of the following:

• imprisonment for a term up to 6 months
• a fine up to level 5 on the standard scale

Examples: stop notices

The examples show how we might deal with an offence. But this does not mean it will be the same in every case. We’ll consider the facts and surrounding circumstances of each particular case and could decide to take different action.

Example of a stop notice for an unregistered item

A person is advertising for sale an ivory item that is a pre-1918 portrait miniature with a surface area of no more than 320 square centimetres. The item has not been registered under section 10 of the Act.

The Secretary of State may serve a stop notice banning the person from continuing to advertise the item or from concluding a sale until the item has been registered under section 10 of the Act.

Once the action in the stop notice has been completed, the person may apply for a completion certificate.

Example of a stop notice for a non-exempt item

A person is advertising for sale an ivory item that is prohibited. The item is not capable of meeting any of the exemption criteria.

The Secretary of State may serve a stop notice banning the person from trading the item.

4. Monetary penalties

A monetary penalty is a requirement to pay an amount up to £250,000. A monetary penalty may be more appropriate where previous civil sanctions have failed to secure compliance.

We may impose a monetary penalty on you if we’re satisfied beyond reasonable doubt:

• that you have committed a relevant offence
• the amount of the proposed penalty appropriately reflects the amount of financial benefit gained from the offence

Businesses and unincorporated associations (such as a club, society or group) must pay a monetary penalty out of the funds of the business or the association.

The Secretary of State may be less likely to impose a monetary penalty if:

• it was your first offence
• it was a minor breach of the Ivory Act 2018
• you can evidence you are an innocent party to the offence
• you can evidence you were deliberately defrauded

If it was a first offence or a minor breach, we must also be satisfied that you’ve already taken appropriate steps to make sure the:

• offence does not continue or happen again
• position is, as far as possible, restored to what it would have been if the offence had not been committed

If the offence is a single offence continuing over several days, we would generally impose a single penalty rather than a series of monetary penalties.

If you were deliberately defrauded by someone else, we may consider prosecuting that person. This could allow a compensation order to be made to you as a victim. For example, where a buyer made sure they applied due diligence before buying and was defrauded by the seller.

We are not able to impose a monetary penalty if:

• you have agreed an enforcement undertaking and complied with it
• we have already served you with a stop notice
• we’re no longer satisfied beyond reasonable doubt that you committed the offence, after taking into account your response to the proposal notice
• we think the proposed monetary penalty amount does not appropriately reflect the financial benefit you gained from the offence, after taking into account your response to the proposal notice or receiving new information

If we think the amount does not appropriately reflect the financial benefit you gained from the offence, we may decide to cancel the first monetary penalty notice and serve a new proposal notice with a different monetary penalty of a higher or lower amount.

Calculation of a monetary penalty

We’ll decide the amount of the money penalty. The monetary penalty can be any amount up to the maximum of £250,000.

We’ll calculate the monetary penalty amount based on:

• the impact of the offence has had - this includes how far you have undermined the Ivory Act 2018 and its objectives
• what is needed to deter you and others from future offending
• the ivory item’s value and any financial benefit you gained from dealing

Reasonable and proportionate

We’ll calculate what level of monetary penalty is reasonable and proportionate, based on the nature, seriousness and circumstances of the offence.

‘Reasonable’ means an ordinary, reasonable person would think the proposed monetary penalty amount is appropriate for the offence committed.

‘Proportionate’ means there is a clear relationship between the proposed monetary penalty amount and:

• the ivory item’s value, including how much you’re likely to have gained financially from dealing it
• how seriously your offence undermined the Ivory Act 2018

Evidence and information

We may ask you for information so we can decide whether it is appropriate to impose a monetary penalty and to calculate the amount you should pay. We’ll ask you for evidence as part of the investigation process, so we can calculate the amount of financial benefit you gained from the offence.

If we think there is not enough information to calculate the financial benefit, we could ask you to produce further documents. If you cannot or will not assist, then we may calculate the penalty amount based on the information already available.

If we’re considering imposing monetary penalties for 2 or more people for the same offence, we’ll consider each person separately. If we’re considering imposing monetary penalties on a corporation and an officer working for that corporation, we’ll consider the corporate body and officer separately.

We will not generally impose a series of monetary penalties if:

• a single, continuing offence has occurred over several days
• a single penalty is appropriate

To decide the monetary penalty amount, we may consider:

• any early action to remedy the non-compliance and its effects
• prompt and complete voluntary disclosure in relation to the non-compliance
• culpability (blame) and harm factors, when determining the seriousness of the offence
• intent to deceive
• scale of offending
• multiple offences
• concealment of activity
• compliance history
• whether the offence was committed by an individual or a corporation
• how long the offence has been going on for
• any financial benefit unlawfully gained
• fees owed for the legal requirement to register an exempt item (where applicable)
• the financial position of an individual or a business and their ability to pay the monetary penalty
• whether the total monetary penalty is reasonable and proportionate to the offending behaviour

Proposal notice for a monetary penalty

Before we impose a monetary penalty, we’ll serve you with a proposal notice. The proposal notice will set out:

• the reason for the proposed monetary penalty
• the amount of the proposed monetary penalty
• an explanation of the decision-making process for the amount to be paid
• the option of making a discharge payment to remove your liability for the monetary payment
• if you decide to pay the discharge payment, information about how long you have to pay it and what happens if you do
• information on your right to make written representations and objections to the proposed monetary penalty - this includes how long you have to do this
• circumstances when we may not impose the monetary penalty

Opportunity to discharge liability

You’ll be given the opportunity to discharge your liability by paying a discharge payment. The amount you have to pay will be specified in the proposal notice. The amount you have to pay to discharge your liability will be less than or equal to the amount of the proposed monetary penalty.

If you want to discharge your liability, you must pay the discharge payment by the deadline specified in the proposal notice. This will be a maximum of 28 days, starting on the day you received the proposal notice. We’ll write to you to confirm receipt of payment.

You will not be issued with a monetary penalty notice until after the deadline for paying a discharge payment to discharge liability has passed.

If you discharge liability, you will not be served with the monetary penalty and you cannot be convicted of that same offence.

If you have discharged liability, we:

• cannot serve you with a stop notice in relation to the same offence
• will publish details of the offence and discharge payment in our report of the use of civil sanctions under the Ivory Act 2018 - this is a legal requirement

If you do not discharge your liability we’ll impose the monetary penalty by serving a monetary penalty notice with the amount you must pay.

Right to make representations

You have the right to make written representations and objections to the proposed monetary penalty. You can include anything you think is relevant to the alleged offence.

You must make your written representations and objections by the specified deadline in the proposal notice. This will be a maximum of 28 days from the date you received your proposal notice.

You cannot make representations or objections if you’ve already chosen to pay a discharge payment.

You must write to APHA with your representation or objections by email to ivoryce@apha.gov.uk or by post to:

Ivory Compliance and Enforcement team
Centre for International Trade - Bristol
Horizon House
Deanery Road
Bristol
BS1 5AH

Once the deadline for making representations and objections has passed we’ll consider:

• relevant information you have raised
• relevant and reliable information received from any other source (for example evidence from an investigation)

After considering this new information, if we decide it is not appropriate to impose a monetary penalty we’ll notify you in writing of our decision.

After we’ve considered your representations and objections, we may still decide to serve the monetary penalty. If this happens, you’ll be given another opportunity to discharge liability for the proposed monetary penalty. You’ll have 28 days from the date we inform you that we’ve considered your representations and objection but still intend to impose the monetary penalty to pay the discharge payment.

After receiving new information, we may decide it is appropriate to withdraw the original proposal notice and serve a new proposal notice. We may decide to do this based on:

• representations and objections
• circumstances such as illness or events outside of your control
• relevant information not being made available to us before we served you with a proposal notice

The new proposal notice may include a new amount for the monetary penalty and discharge liability if we think the original amounts do not properly reflect the amount of financial gain from the offence.

You are entitled to make representations in writing on the new proposal notice with objections and explanations. You must explain the reason why the information was not previously available and send this by email to ivoryce@apha.gov.uk or by post to:

Ivory Compliance and Enforcement team
Centre for International Trade - Bristol
Horizon House
Deanery Road
Bristol
BS1 5AH

If we accept your representation you’ll be notified in writing and issued with a new proposal notice.

Imposition of a monetary penalty

If we decide to impose a monetary penalty, we must serve you with a notice.

A monetary penalty notice will include:

• the reason for the imposed monetary penalty
• the monetary penalty amount
• how you can pay
• how long you have to pay
• your right to appeal
• what happens if you do not pay the monetary penalty

You’ll have at least 28 days from the date you receive the monetary penalty notice to pay it, but you may have longer depending on the circumstances.

Payment of a monetary penalty

You must pay the amount in the monetary penalty notice within 28 days, starting from the day you received the notice. We may specify a period of longer than 28 days if we think it is appropriate.

If you provide appropriate evidence, we may consider allowing:

• an extended period of time for payment
• payment by instalments in a specified timeframe

Appropriate evidence may include information on:

• your assets, income and expenditure
• the annual turnover of a business

You must make the request in writing together with your evidence and before the 28 days deadline for payment of the penalty. You must send your request and evidence by email to ivoryce@apha.gov.uk or by post to:

Ivory Compliance and Enforcement team
Centre for International Trade - Bristol
Horizon House
Deanery Road
Bristol
BS1 5AH

If you do not pay a monetary penalty we would normally take court proceedings to recover the debt and associated costs.

We’ll write to inform you when we have received your payment.

Examples: monetary penalties

The examples show how we might deal with an offence. But this does not mean it will be the same in every case. We’ll consider the facts and surrounding circumstances of each particular case and could decide to take different action.

Examples of a monetary penalty for the sale of an illegal item

A person is found to have sold an ivory item that is banned and is falsely registered as compliant with one of the exemption categories. The item is not capable of meeting any of the exemption criteria.

As part of the investigations we ask for evidence to understand how the person financially benefited from the offence. This evidence included asking for the value of the sold item.

We then serve a proposal notice on the person detailing the proposed monetary penalty and the option of paying a discharge payment. A monetary penalty can be imposed up to the maximum value of £250,000.

The person does not discharge liability and is served a monetary penalty notice.

Example of discharging liability for a monetary penalty

On inspecting a business premises an ACO finds several items of ivory for sale that have not been registered. All the items meet one of the exemptions under section 10 of the Ivory Act 2018.

The business representative proactively removes the items from sale and says they will take the necessary action to register them.

The Secretary of State serves a proposal notice on the person. It details the proposed monetary penalty of an amount up to £250,000 and the option of paying a discharge payment, providing the business with the opportunity to discharge their liability.

The business wants to discharge its liability and so it pays the discharge payment within the specified timeframe. The monetary penalty cannot be imposed.

5. Challenges and appeals

You’ll be provided with details of your rights to appeal.

You have statutory rights to appeal:

• the imposition of a stop notice
• the imposition of a monetary penalty, including the amount of the penalty
• a decision not to issue a certificate of compliance for an enforcement undertaking
• a decision not to issue a completion certificate for a stop notice
• for seized items to be returned

This guide does not cover the appeal process for a:

• refusal or revocation of an exemption certificate for a pre-1918 item purported to be of outstandingly high artistic, cultural or historical value (full details under Section 5 of the Ivory Act 2018)
• decision regarding forfeiture of seized items (full details under Section 31 of the Ivory Act 2018)

If you want to appeal a civil sanction imposed under the Ivory Act 2018, your case will be dealt with by the General Regulatory Chamber of the First-tier Tribunal.

Your rights to appeal

You can appeal to the First-tier Tribunal for 4 different reasons:

1. Appeal our decision not to issue you a certificate of compliance for completing an enforcement undertaking.
2. Appeal a stop notice.
3. Appeal our decision not to issue you a completion certificate for a stop notice.
4. Appeal a notice imposing a monetary penalty.

Enforcement undertakings: certificate of compliance

You can appeal to the First-tier Tribunal against our decision not to issue you a certificate of compliance for completing actions agreed as part of an enforcement undertaking.

You can appeal our decision if you think it was:

• based on an error of fact
• wrong in law
• unfair or unreasonable

The enforcement undertaking, and your legal duty to comply with it, will continue to apply until the First-tier Tribunal has reached a decision on your appeal.

Stop notices

You can appeal a stop notice if you think:

• it was based on an error of fact
• it was wrong in law
• it was unreasonable
• any step specified in the notice is unreasonable
• you have not committed the offence or would not have committed such an offence even if the stop notice had not been served

The stop notice, and your legal duty to comply with it, will continue to apply unless the First-tier Tribunal:

• suspends the stop notice to consider your appeal
• decides to overturn the stop notice based on your appeal

Stop notices: completion certificates

You can appeal to the First-tier Tribunal against our decision not to issue you a completion certificate for taking the specified actions or steps in a stop notice.

You can appeal our decision if you think it was:

• based on an error of fact
• wrong in law
• unfair or unreasonable

The stop notice, and your legal duty to comply with it, will continue to apply unless the First-tier Tribunal orders an interim suspension of the stop notice to consider your appeal.

Monetary penalties

You can appeal a notice imposing a monetary penalty if you think:

• it was based on an error of fact
• it was wrong in law
• the amount of the penalty is unreasonable
• the decision is unreasonable for any other reason

You can apply to the Tribunal to delay the requirement to pay the penalty, so that you do not have to pay the penalty until the First-tier Tribunal has reached a decision.

Process for appeal and First-tier Tribunal powers

The First-tier Tribunal is independent and will listen to both the person making the appeal and APHA’s representations before it reaches a decision.

The Tribunal Procedure (First-tier Tribunal) (General Regulatory Chamber) Rules (2009) (SI 2009/1976) set out many aspects of tribunal procedure. This includes:

• how you should lodge an appeal with the First-tier Tribunal
• how affected parties will be notified of the appeal
• specific documents the First-tier Tribunal needs
• the deadline for making an appeal to the First-tier Tribunal

To appeal, you must send a notice of appeal to the General Regulatory Chamber of the First-tier Tribunal. You can appeal against the:

• notice of the civil sanction
• written decision not to issue a completion certificate or a certificate of compliance

You must appeal within 28 days from the date that we sent you our notice or decision.

The First-tier Tribunal only deals with appeals against civil sanctions and not criminal offences.

First-tier Tribunal powers: stop notices and monetary penalties

For appeals against stop notices and monetary penalties the First-tier Tribunal may:

• refuse an application to suspend a stop notice or monetary penalty
• direct APHA to suspend the stop notice or monetary penalty until the appeal has been determined
• direct APHA to suspend the stop notice or monetary penalty for as long as specified by the First-tier Tribunal
• withdraw or confirm a stop notice
• withdraw or confirm the imposition of a monetary penalty
• vary any activities specified in the stop notice
• vary any steps you need to take that are specified in the stop notice
• vary the amount of a monetary penalty you have to pay
• vary the terms for making the payment, such as extending the deadline to make payment or allowing you to pay by instalments
• substitute the civil sanction for a different civil sanction
• refer back to us the decision whether to confirm a stop notice or the imposition of a monetary penalty, or any matter relating to that decision

If the decision is referred back to us, we’ll reconsider the First-tier Tribunal’s decision, but would be entitled to come to a different decision.

In certain circumstances, we may not oppose a notice of appeal sent to the First-tier Tribunal. The appeal will be treated as if it was in your favour and there’s no need for the First-tier Tribunal to hear it.

If we decide not to oppose an appeal, we’ll notify you of the action we are taking within 28 days, starting on the day we notified the Tribunal that it would not be opposed.

First-tier Tribunal powers: certificates

For appeals against a refusal to issue an enforcement undertaking certificate of compliance or a stop notice completion certificate, the First-tier Tribunal may:

• require us to issue a certificate of compliance or a completion certificate
• confirm our decision not to issue a certificate of compliance or a completion certificate
• refer back to us the decision whether to issue a certificate of compliance or a completion certificate, or any matter relating to those decisions

If the decision is referred back to us, we’ll reconsider the First-tier Tribunal’s decision, but would be entitled to make the same decision or come to a different decision.

6. Publication to report our use of civil sanctions

Under the Ivory Act 2018 we must publish a report about the use of civil sanctions. The report must include cases where:

• an enforcement undertaking was accepted
• a stop notice was served
• a monetary penalty was imposed
• liability for a monetary penalty was discharged

Where an enforcement undertaking was agreed we’ll publish:

• the name and details of any relevant business
• the terms of the undertaking
• the period for completing the undertaking
• any certificate of compliance issued
• any other relevant matter or information

We do not have to include any information in the report that we think:

• would be inappropriate
• would be unlawful
• might adversely affect current investigations or proceedings

The Secretary of State may include in the report information from:

• the police
• the CPS
• a Procurator Fiscal
• the PPSNI

The Secretary of State may publish criminal prosecution information.

The report will be published as a list that will be updated on a periodic basis, at least annually.

We’ll report on certificates of compliance issued after people have complied with an enforcement undertaking. If a certificate of compliance is issued after the enforcement undertaking is first reported on, the certificate of compliance details will be added the next time the publication is updated.

We’ll report whether a completion certificate has been issued after people have complied with a stop notice. If a completion certificate is issued after the stop notice is first reported on, the details of the completion certificate will be added the next time the publication is updated.

7. Enforcement cost recovery notices

An enforcement cost recovery notice (ECRN) allows us to charge for the costs we incur in relation to a stop notice or monetary penalty up to the time that we issue the stop notice or monetary penalty. We do not intend to serve ECRNs initially, but this will be kept under review. If we decide to bring into force the relevant provisions of the Act, we’ll issue further guidance.