(1) The Commissioner may not give a controller or processor a penalty notice in reliance on section 149(2) with respect to the processing of personal data for the special purposes unless—
(a) a determination under section 174 with respect to the data or the processing has taken effect, and
(b) a court has granted leave for the notice to be given.
(2) A court must not grant leave for the purposes of subsection (1)(b) unless it is satisfied that—
(a) the Commissioner has reason to suspect a failure described in section 149(2) which is of substantial public
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