Joint Committee on Human Rights Appendices to the Minutes of Evidence


Memorandum by HM Customs and Excise


1.   What efforts has the Department made so far to implement the Act and in particular to build a Human Rights culture?

  During the two years preceding the implementation of the Act, the Department assembled and implemented a comprehensive HRA Action Plan. Key elements of the Plan included:

    —  the examination of all law, policies and procedures to check for HRA compatibility;

    —  a training and awareness plan; and

    —  the formulation of key messages to staff to help bring about a human rights culture.

The examination of all law, policies and procedures to check for HRA compatibility

  This work indicated that most areas were compatible. A number of changes were, however, recognised as necessary and these were put into effect:

    —  We played a major part in the development stages of the Regulation Of Investigatory Powers Act 2000 ("RIPA"). The Act provides a statutory basis with HRA safeguards for long-established investigative techniques such as the use of informants and surveillance by enforcement agencies. Customs has introduced authorisation procedures, which take into account HRA Articles, for activities regulated under RIPA and has provided training on RIPA requirements for investigators, intelligence staff and anti-smuggling officers.

    —  Following a review of our enforcement powers prior to HRA implementation, we revised procedures and legislation on the use of our writs for searches of premises.

    —  We have reviewed and revised our prosecution case management systems to minimise the risk of challenge on the basis of delay.

  In a small number of other areas it was recognised that there may be some doubt as to compatibility—even though there were also strong arguments in favour. Most notable among these was the status before the law of our civil penalties (see below), where in the light of legal advice we concluded that the final position would need to be clarified by the courts.

A training and awareness plan

  We gave particular emphasis to a substantial programme of training and awareness for our staff. Key elements included:

    —  Awareness sessions which were delivered to every member of the Department (23,000 people). We trained a network of more than 100 facilitators to deliver HRA sessions during 2000, with all operational staff covered prior to implementation of the Act.

    —  Provision of a user-friendly Intranet website covering all aspects of human rights and their implications. The site includes basic introductory material; an article-by-article commentary explaining the relevant elements of the Convention and their likely impact on our work; information routes covering the human rights implications for a wide range of typical operational situations; a question-and-answer section; and a news desk.

    —  Crucially, the site is also interactive: it provides every member of staff with a direct route to the relevant experts if they have a comment or query about a human rights matter. This facility, widely publicised within the Department, has been both well received and extensively used by staff.

    —  Other training was targeted at areas of particular need. Our investigators were identified as one such area and a programme of training, including coverage of RIPA, was assembled and delivered. Under a separate programme, similarly detailed training was delivered to all Departmental solicitors.

Bringing about a human rights culture

  The introduction of a Human Rights culture has been brought about by clear and consistent messages to staff, clear commitment at senior levels and the extent of our preparations, which have affected every member of the Department. Staff have been left in no doubt as to the priority that the Government and the Department attaches to human rights, and of the need to display behaviours that put respect for human rights to the fore.

  As a law enforcement agency, we had identified a risk that the Act might be viewed by staff as a constraint to effective action. We tackled this head on, ensuring that staff understood that the Act was quite the opposite: by requiring greater professionalism, systematic procedures and a high level of understanding of the extent of our powers, the Act helps to ensure successful outcomes, by avoiding mistakes and potential human rights breaches stemming from faulty procedures.

  This approach has been highly successful, finding a ready audience and gaining general acceptance. Particular evidence has come via our interactive website, where staff input demonstrates that they are now "thinking human rights" on a day to day basis, and keen to address any human rights considerations at the outset of planned action. If anything, there is a slight tendency for officers to see potential Human Rights problems where, on closer examination, none actually exists. But we take this as further welcome evidence of a developing human rights culture, with an understanding that results must never be at the expense of respect for people's fundamental rights.

  In taking all of these matters forward we have worked in particularly close consultation with the Inland Revenue; and have also consulted other departments as necessary, most notably the police and the Lord Chancellor's department.

2.   How has the Act affected the Department's approach to human rights issues and what have been the consequences both for policy formulation and the delivery of services?

  The Act has certainly been successful in bringing Human Rights to the forefront of our thinking. Those formulating policy and framing legislative changes are now aware of the need routinely to address the issues of human rights compliance. In addition, as a major law enforcement Department, every aspect of our investigation and enforcement practice has been influenced by implementation of the Act, and consideration is now given to HRA issues in all dimensions of our enforcement policy and practice. Through our extensive training programme all staff are now aware of the explicit need to respect Human Rights in all that they do, particularly in the delivery of services to the public.

  Although the UK has been signed up to the Convention since 1951, there can be no doubt that it is the HRA 1998 that has led to the current clear understanding and awareness of Human Rights as an issue, and to the Human Rights culture that is now in place.

3.   What have been the implications for the department of any court judgements on Human Rights matters since the Act came into force last October? And crucially, what impact has the Act had on everyday life in your fields of responsibility?

(i)  Taxation: civil evasion penalties

  A VAT and Duties Tribunal decision (Han and Yau v Commissioners of Customs and Excise), released on 19 December 2000, concluded that civil penalties imposed for VAT and excise evasion under section 60 of the VAT Act 1994 and section 8 of the Finance Act 1994 respectively are "criminal charges" within the context of Article 6 of the HRA. This Tribunal only considered if civil penalties are criminal charges within Article 6 and has yet to consider if Customs civil evasion procedures comply with the HRA.

  We sought Counsel's opinion on the ruling, who advised that the correct course of action would be to seek definitive clarification at a "leapfrog" appeal to the Court of Appeal.

  It is unlikely that the Tribunal case in relation to Customs procedures will be heard before the full Court of Appeal on civil penalties is held in the summer. In the meantime, we have introduced procedural changes which we believe provide the key safeguards required by Article 6. We are nevertheless seeking to stand-over new cases which reach Tribunal, where the success of the appellant's arguments is likely to hinge on the outcome of this appeal, until the appeal itself has been heard. Ultimately, our overriding concern is to ensure that our procedures respect people's Convention rights, which is why we are seeking definitive clarification in this important area.

(ii)  Forfeiture and confiscation of drug trafficking proceeds

  The Judicial Committee of the Privy Council (in the case of HM Advocate v Mcintosh) recently overturned a ruling of the Court of Criminal Appeal in Scotland that a confiscation order against a convicted drug trafficker's assets was a breach of Article 6 HRA because the confiscation procedure went against the presumption of innocence. The Privy Council held that the defendant did not face a criminal charge within the meaning of Article 6(2) where the court was considering making a confiscation order. This ruling is particularly important to Customs since we view the confiscation of assets as a major weapon in the fight against drug trafficking and other serious crime.

(iii)  Seizure and restoration

  A number of cases are currently pending which allege that the seizure of goods and vehicles in which the goods were carried—and the penalties imposed (largely in the Excise regime) are contrary to Article 1 of Protocol 1 and Article 6. The cases of Goldsmith and Lyon is currently under appeal to the High Court on whether the reverse burden of proof provision in (civil) condemnation proceedings is in breach of Article 6 as the proceedings are criminal in nature.

(iv)  Delay

  A number of challenges at criminal prosecutions following investigations by Customs in Scotland (where the Act was implemented over a year ahead of England and Wales) on the grounds of unreasonable delay in bringing proceedings, have caused the Department and the Scottish prosecution authorities to revise case management procedures to provide regular review of time limits. Customs officers are also having to monitor closely delays caused by defence action in order to be in a position to rebut any subsequent claims by the defence of abuse of process.

(v)  UN Sanctions Orders

  On the basis of legal advice, rather than as a result of a court case since implementation, we can no longer use powers under UN Sanctions Orders to obtain from those suspected of offences information and documents, for the purpose of detecting sanctions evasion. This is because of the right not to self incriminate. We do not, however, consider that this will have any significant effect in our ability to investigate sanctions evasion cases.

  More generally, the impact of the Act on the Department has been summarised in our responses to questions one and two above.

4.   How have you addressed (where it has arisen) the duty under section 19 of the Act to make statements of compatibility or non-compatibility with the Convention in relation to Government bills?

  This Department has not been in the lead on any Government bills since the requirement came into effect.

8 March 2001

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