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
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 compatibilityeven 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
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
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
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
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 carriedand 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.
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
This Department has not been in the lead on
any Government bills since the requirement came into effect.
8 March 2001