Customs Watch

It does seem a bit whacky that you can buy goods with VAT levied at the local rate yet because a levy is called duty rather than VAT then free trade suddenly ceases to exist. Without the new ruling the Government could theoretically opt out of free trade by simply adding a 1% duty to all goods

From The Telegraph

British shoppers will soon be able to buy cut-price alcohol and cigarettes from the Continent without leaving home, as a result of an extraordinary legal test case that threatens to blow a multi-billion pound hole in the Treasury's coffers.

The European Court of Justice is expected to rule next week that goods can be bought in other EU states and delivered to the door while only the duty levied in the country of origin is paid. This is often a fraction of that charged in Britain.

If, as appears likely, the court rubber-stamps a previous adjudication by its advocate general, shoppers will be free to use the internet or mail order companies to find the best bargains around Europe and have them shipped home for their own consumption.

The potential savings are huge: 200 cigarettes purchased in Latvia cost only £7.20, a saving of about £43, while several European countries charge no duty on wine.

Businesses across Europe are gearing up for the changes, but the British Retail Confederation warns that UK businesses will lose unless action is taken to harmonise duty rates across the Continent.

Tax experts believe the ruling, due on November 23, will hasten moves towards single rates of tax across the EU.
 

Perhaps protectionist Governments should now simply add 1% duty to all goods and then they can opt out of free trade

From The Telegraph

British drinkers and smokers who hoped that a court ruling this morning would allow online shoppers to import cheap alcohol and tobacco from other European countries were disappointed when judges ruled against a Dutch wine-lover.

The European Court of Justice agreed that people could still escape high taxes in Britain by buying cigarettes and drink in EU countries where excise duties are lower — but only if the items were brought back personally by the purchaser.

It was a victory for the British Government and five other EU states that opposed the claim. The ruling was also welcomed by British shopkeepers and the anti-smoking campaign ASH.

The ruling came as a surprise only to commentators who assumed that the judges would follow an opinion given last year by Sir Francis Jacobs, QC, who was then an advocate general at the court.

Sir Francis had said a purchaser who bought goods from another EU country and personally arranged for their transport did not come within the scope of an EU directive imposing duty in the destination state.

The court disagreed with this. In their view, the exemption covering "products acquired by private individuals and transported by them" did not mean "transported on their behalf". This was particularly clear from the Danish and Greek versions of the directive.

That's all you want, a courier that snitches on its own customers.

From Pocket-Lint

Federation Against Copyright Theft (FACT), express delivery company FedEx and HM Revenue & Customs, has joined forces train two black Labradors named Lucky and Flo to sniff out illegal DVDs.

As part of a project promoted by the Motion Picture Association of America, Inc. (MPAA), FACT instigated the training of the two pups over an eight month period to identify DVDs that may be located in boxes, envelopes or other packaging, as well as discs concealed amongst other goods which could be sold illegally in the UK.

With the DVD piracy industry worth £278m in 2005 in the UK, DVDs are often smuggled by criminal networks involved in large scale piracy operations from around the world.

The dogs are trained to be able to detect the smell of different chemicals that are used in the manufacture and production of optical CDs

While the dogs can't distinguish between pirated discs and genuine ones, they do make it easier for investigators to find the right package to examine.

For their first major live test, Lucky and Flo were put to work at FedEx’s UK hub at Stansted Airport and were immediately successful in identifying packages and parcels containing DVDs for destinations in the UK.

Based on an article from The Telegraph

Shoppers returning from "booze cruise" trips to the Continent will no longer have their vehicles systematically seized if customs officers believe they are smuggling drink and tobacco, the Government said yesterday.

HM Revenue and Customs has been forced to back down from its zero-tolerance policy on suspected smugglers after pressure from Brussels.

The U-turn follows a five-year dispute between the Government and the European Commission over Britain's tough stance.

Under the new policy shoppers bringing back excessive amounts of alcohol and tobacco will be offered the chance to keep them in return for payment of UK duty and a penalty fine, unless there are "aggravating circumstances". They will also be warned that their vehicle could be seized in the event of a similar incident.

For goods brought back into Europe

F rom The Times

Travellers will be able to take home more shopping duty-free from outside the European Union under a directive announced by Brussels yesterday.

The increase in the duty-free allowance from €175 to €500 (£120 to £340) will be welcomed by those who buy clothes or electronics in New York, Dubai or Hong Kong but face stringent fines and tax bills if caught bringing in goods worth more than the limit.

It is a disappointment for Gordon Brown, who had campaigned to raise it to £1,000. He denounced the old limit as “unfair” at last year’s Budget, wrote to the European Commission demanding the increase and lobbied fellow finance ministers.

The Chancellor was stymied by an alliance of Western European states worried about losing too much tax income, and Eastern European countries, such as Poland and Hungary, worried about people importing van-loads of cheap duty-free goods across the border from countries even further east, such as Ukraine.

Under Brussels law all EU countries have to comply by the same rules on travel allowances, and cannot unilaterally set their duty-free limits.

The current limit of €175, set in 1994, has been widely derided in Britain as ridiculously low, being little more than the price of two quality shirts or an ordinary watch. Even the limit of €500, which is set to be introduced from January 1 next year, is not likely to be enough for international shoppers who spend far more.

A government spokeswoman said: It is clearly not as much as we wanted, but it is a step forward. This only changed because the UK called for it.

To discourage cross-border shopping trips in Eastern Europe, the European Commission has introduced a two-tier set of allowances, with the €500 limit applying only to those who travel by air. For those travelling by boat or car, the limit will only be increased to €220.

Under the new rules duty-free limits on the amount of perfume or eau de toilette that can be brought back to Britain will be scrapped, and the limit on wine will be doubled from two litres to four litres.

A 16-litre limit on beer is also to be introduced, aimed at deterring cross-border shoppers in Eastern Europe.
 

For goods brought back into Europe

From the Daily Mail

EU finance ministers have agreed new limits for travellers' duty free allowances, setting a new higher ceiling of 300 euros (£200) for people entering the EU by land or sea and 430 euros (£290) for air passengers.

It replaces the current 175 euros (£118) limit for the amount of goods travels can bring with them without facing EU customs duty.

The increases are designed to match inflation since levels were last calculated in 1994, with lower levels for land borders to limit cross-border booze shopping.

This is an absolute nightmare. Note the use of the word indecent, this is a much milder legal adjective than obscene. Many perfectly legal films with 15/18/R18 rated sex scenes can be considered as indecent even if they would never be considered anywhere near obscene.

This is seriously worrying. The problem is that the courageous decision to fight the case as far as Crown Court has proved counter-productive. We now have a judicial ruling constituting a legal precedent which will hold until it is overruled by a higher court. Since the importer isn`t going to lay out further money on an appeal, the only ways to get this nonsense stopped will be a challenge by an importer big enough to fight a future case to the Court of Appeal or above or to find some MP prepared to introduce primary legislation to amend the law. Not easy!

By Littleman from Inquisition 21st Century

A landmark decision taken by judges at Maidstone Crown Court on the 9th of November 2005 has created a legal precedent that even if a DVD, video, magazine or whatever was legally obtained in the UK, but in your possession while traveling, Customs can seize it, if it contains a single image that they consider to be indecent. This could mean that you lose your home because you own something you bought legally in a high street shop.

Let us imagine for one second a typical scene. You are going on holiday to the continent in your car with your family. In order to while away the journey, your teenaged (18+) children have brought along a portable DVD player with a DVD of, say, 9 songs, which they intend to play on the way. This DVD was bought quite legally in the UK high street and has been classified (censored) by the BBFC and your children are old enough to watch it legally. On the way back you get stopped by customs officers at Dover and, having seen the DVD, they decide that it contains a scene (or even a single image) that could be regarded as indecent. They quote the Customs and Excise Management Act of 1876 to you as justification for its seizure, but then they also quote the Customs and Excise Management Act of 1979 as justification for seizing your car and all its contents. They even strip search you and your family. You all now find yourself standing at the side of the road in Dover with just the clothes you stand up in trying to get home.

You naturally contest the seizure, but you have to travel to over Magistrates at Penchester Road Magistrates Court, which must rate as one of the worst run courts in the whole British Legal system – they have no staff except a security guard and, crucially, no law books or knowledge of the law; even the clerk of the court admits that he has no knowledge of condemnation proceedings so they just wing it based on ‘advise’ tendered by the Customs Barrister. You have to go here, because even though CEMA 1979 allows Customs to move the hearing to a court nearer your home they won’t. They want to cause you the maximum inconvenience in order to try and provoke you into dropping the case.

But you don’t drop it, because (a) you feel you are legally in the right, as the DVD was legally obtained in the UK and (b) your car and all its contents are at stake, which can be worth many thousands of pounds. You find yourself confronted by a barrister in court, who shows a still of the indecent image from the video and asks the magistrate to judge whether or not it is indecent (not obscene note – just indecent which is a VERY low hurdle to cross and one that Customs have previously said they wouldn’t be using in future: in other words they lied). Dover magistrates almost invariably find in favour of Customs (I’ve never heard of a single case where an appellant – i.e. you – has ever won). So not only do you lose your car and contents, but you also get hit with thousands of pounds in costs (Customs Barristers charge 150 pounds for each letter they read).

You could of course challenge the magistrate’s court decision and appeal to the Crown Court. But by now you are aware that you have to provide a barrister of your own at a cost of thousands of pounds, and of course if you lose then Customs will heap on extra costs so you could end up tens of thousands of pounds out of pocket: indeed you could even lose your home because Customs will obtain a court order within 14 days of the hearing to send the bailiffs in to recover their debt. You could end up financially ruined and living in a hostel.

Sounds a bit far fetched doesn’t it? Britain is (was) the envy of the world in that its legal system is fair and if you bought the DVD in a high street shop then you assume its legal to own and re-import.

Well you’d be wrong.

In a landmark decision taken by judges at Maidstone Crown Court on the 9th of November they have created a legal precedent that even if the DVD (video, magazine or whatever) was legally available in the UK, Customs can still seize it if it contains a single image that could be considered to be indecent.

So what is the legal definition of indecent? A leading barrister is quoted as saying:

“No easy definition of indecency exists. The courts have said that this is something that 'offends against the modesty of the average man, offending against recognized standards of propriety at the lower end of the scale'. It depends on the circumstances and current - and in some cases local -
standards. This vagueness is dangerous. Posters for causes such as animal rights, which are deliberately intended to shock their audience, have sometimes had to contend with indecency prosecutions. Indecency is easier to prove than obscenity because there is no defense of public good, there is no need to consider the article as a whole and there is no need to satisfy the 'deprave and corrupt' test.”

In other words, it can mean anything that the Customs Officer decides offends his standards of propriety and ultimately it is him (or her) who decides that it is indecent, and you have to appeal against that decision. And what is more, the case is decided on the balance of probabilities (in other words the subjective prejudices of the officer and the magistrate) as to whether it is indeed indecent. Do you still think you’d win if they showed a single still image from the DVD (which is what the judge at Maidstone allowed) completely out of context? Particularly as there is absolutely no defense: you can’t quote public good or the fact you bought it from WH Smiths, so the article and the fate of your car and possessions and indeed even your future are weighted on whether the magistrate finds that single image indecent. That, in my opinion, is a huge miscarriage of justice.

Now it is possible that Customs will not use this legal precedent in future cases, but I wouldn’t bank on it. They have not shown themselves to be wooly minded liberals in the past and they are going to glory in their new found powers, which are over and above their already draconian powers.

For instance, they could use it not only to confiscate your car but also in order to obtain a search warrant to search your home and computer and who knows what they might find there - there is a lot of child porn going round at present primarily distributed by the FBI and the LAPD (who brazenly admitted that they now control the cp market), so there could well be a CP image lurking on your system that you didn’t know about. The next thing you know you are branded a pervert and appear on the violent sex offenders register. Now that’s a cheery thought isn’t it?

The judge himself had misgivings about his ruling, that much is clear, as he said:

“Mr. Jones [Customs Barrister] submitted that the fact that items were lawfully available in the UK did not mean that they could be necessarily imported and it is this aspect of the case that caused us the most trouble. Although we are satisfied that broadly comparable movies are available in the UK, Parliament has seen fit to maintain the prohibition on the importation of indecent or obscene articles which, of course, include the DVDs in question. Since it is an offence under Section 170(2) of the 1979 Act [CEMA] to be knowingly concerned in attempting to evade the prohibition on the importation of indecent or obscene articles imposed by section 42 of the 1876 [the original Customs and Excise Management Act] we are driven to conclude there is no lawful trade in existence in the UK with regard to articles which are judged to be indecent or obscene and that, accordingly, section 42 is saved by the exemption provided by article 36. It, therefore, follows that this appeal must be dismissed although we recognize that this decision may cause some surprise to the proprietors of the many licensed sex shops in the United Kingdom.”

‘Surprise’ is in my opinion a judicial understatement and it is not only licensed sex shops that will be ‘surprised’. The majority of 18 and R18 rated DVDs are pressed overseas, primarily in the Far East where costs are cheaper and they have spent vast sums on automation. Under this ruling the Customs can seize a consignment of these DVDs (or Video Cassettes) if they contain a single frame that Customs consider to be indecent. And it could be months before, assuming the importer/distributor wins the appeal against the seizure, they get them back which could end up breaking the smaller distributors in court costs alone never mind the loss of trade.

But at least they have a trade association which may or may not provide legal/financial backing to fight the case. The individual, i.e. you, has no recourse to such backing and must fight this alone, in court, against a very experienced barrister that knows every trick in the book to make you lose. No blame attaches to him, he is just doing his job; it’s the system that is unfair and so archaic in the 21st century. This law was brought in as a result of a moral panic in the late 1800s, led by the tabloid rag of the time the Pall Mall Gazette, that was worried about the importation of smutty images from the continent (Belgium mainly for some reason – the Pall Mall Gazette contended that Belgium was a hotbed of white slavery, which was the moral panic at that time). It has very little relevance to the modern day where the public (but not it seems our political masters) have become a lot more tolerant towards adult material. Customs still inhabit this bygone world and see anything that smacks of smut as being a danger to society. Indeed if you query them on their nonsensical application of this law they say they are ‘protecting the public’. Against what exactly? Broadmindedness? Tolerance? A deeper understanding of their own sexuality?

The ramifications attaching to this judgment are immense, particularly in the civil liberties front and as such you’d have thought that there was some sort of legal precedent that actually allowed you to import material that had been classified (censored) by the BBFC. There is of course the case of Conegate V Customs and Excise (2WLR39). This case was brought by David Sullivan (of Asian Babes fame) against a seizure of inflatable sex toys which were considered obscene by Customs. He had to fight his way all the way to the High Court before (after a ruling by the ECHR) he won the case on the basis that the prohibition meant a restraint of the free passage of goods contrary to the Treaty of Rome on the basis that similar articles were legally manufactured and/or available in the UK. However the Customs Barrister successfully claimed that a later ruling in Noncyp heard by Bow Street Stipendiary Magistrate (1989 2WLR39) stated that the prohibition on the importation of obscene/indecent articles was permitted under the Treaty of Rome (in that a state could decide to ban the importation on the basis of protecting public morals) and that Conegate referred to sex toys and could not be applied to this case. The judge decided that even though the articles had been passed by the BBFC there still couldn’t be a lawful trade in indecent material in the UK.

The case in question was appealed by an artist who wanted to import certain videos so he could use them as models for a series of drawings he had been commissioned to produce. The videos were recommended to him by the commissioning editor. He checked to see if the videos (which were about spanking) were likely to be seized and was confident that they wouldn’t be. The legal advice he got was that they’d be covered by Article 12 of the Human Rights Act as they were to be used in the production of artistic works and anyway there was no sex in them (they were deemed obscene on the basis of a 10 second long piece of footage). The judge ruled out the application of the HRA in customs cases. Customs are evidently above the Human Rights Act, which is bizarre and very worrying. And it also calls into doubt the very future of the BBFC. Do they, in future have to get Customs clearance before they can issue a certificate or will they just issue a warning that you could be held legally liable if you are dumb enough to try and re-import a video you legally purchased in the UK which they passed (censored)?

So what can be done about it? Well it could be appealed, but the appellant does not have the legal expertise or the finances to appeal it (he did well to get that far as a private individual and indeed was praised by the judge for the submission he made) and the reason for him wanting this material has long since gone and he didn’t want to get hit with more costs (the judge in this case reduced the costs claimed by Customs by a considerable amount) and no-one in the video distribution industry or any Human Rights Group seem interested so it is doubtful whether it will be. So we are stuck with it.

So the next time you find yourself standing in your holiday clothes at the side of a wet and rainy road on the outskirts of Dover, together with your granny and screaming kids, trying to hitch a ride while Customs are rummaging through your house, then praise the Almighty that you are a citizen of the ‘most tolerant nation in Europe’.

You can contact the appellant via the www.inquisition21.com website.

Report from an observer in court

Further to the above account of the Customs trial, I have a number of additional notes by way of appendage as it would be nice to include just one of the most blatant absurdities in this case.

A twist in the tail

As Customs had seized the material, the artist duly notified the party who had commissioned his work to say there was a problem. No doubt aware of the strange practices by UK customs, uninvited, they simply made a new shipment. The video in question was intercepted and viewed by Customs and this time cleared for onward delivery to the artist.

The artist therefore presented the video to the judge as part of his legal case against Customs & Excise together with the original packaging which indicated it had been duly approved for importation by Customs & Excise.

At the end of the trial, the judge ruled that Customs & Excise made a lawful seizure, and that if any part of any article was deemed indecent, the entire shipment is subject to confiscation. These goods were therefore not given to the artist. The judge, gave back the video the artist had submitted as evidence, as it was entirely lawful, knowing this was the very same video that Customs & Excise had objected to and had just been seized.

It would seem the legal precedent that had just been set had been based on a contradiction, as the judge had ruled one video to be indecent and therefore unlawful and withheld it, and judged the other video to be lawful and returned it to the artist. The two videos were the same; this was known to the court, which rather begs a question or two!

There may yet be a sting in the tale as I observed that Customs & Excise made a note of the artist's license plate as he set off on his long journey home.

Court witness

Second report from an observer in court

Comedy in court

The Bench consisted of a judge flanked by two magistrates. The judge who was normally a barrister had no idea as to what the law actually was and kept asking the Customs Barrister what he should rule on.

The Customs Barrister was none the wiser, and despite quoting some criminal laws that did not directly apply to the case in question and he admitted as much, he attempted to look up the law during one of the breaks from court by
borrowing a book from the bench. Nevertheless, the judge seemed to always follow the directions of the barrister, despite the fact they were not based on the actual laws that applied to this case. The barrister even said he was happy for the judge to use the ordinary dictionary in deciding what was
obscene or indecent. It appeared there wasn't a dictionary in the court.

There were many breaks in court proceedings, primarily due to the fact that the Customs censor, a young girl called Sarah, could not either find the right video or find the frames of the video she wanted to show. In the case of the third video, it would not play at all and when something was shown in its place, even the Judge noticed this was the first video being played again.

After most of the time had been wasted while Sarah was playing with the video machine, the Judge simply requested the Customs censor take the stand and asked her if she had reviewed all the material to which she responded with a rather unconvincing yes. He then said he presumed that Customs had shown the worst material to start with which Sarah agreed with. The video with what was deemed to contain the worst scene was the same as the video
the judge gave back to the artist as perfectly legal, that is, presuming the judge did not break the law.

What was most bizarre of all was the fact that it all appeared to be done with with a splash of comedy. Some Hungarian history videos included some spanking and most of the time in court was spent looking for the spanking. No one in court looked either entertained or disturbed by the video, though
the judge was too disturbed by the descriptions of videos readily available in the shops to want to see them, despite the fact that one of them was simply rated 18. The Customs Barrister was unable to define any relevant law, the Bench did not have a clue, but the defendant quoted relevant law, provided supporting evidence, had taken every precaution not to break the law, and despite Customs & Excise suggesting that he had not quoted the Customs & Excise website that made rather a strong case against them, a
printed copy was presented by the artist to the judge and read out in court.

It all appeared to be a one off victory for the little man against the power of the state, but from what unfolded in court, it was as if the judge had ruled that white was black. Customs & Excise changed its website and an artist had a bill with menaces for £1500. What had he done wrong?

Absolutely nothing. What had Customs & Excise done wrong? According to the judge, absolutely nothing.

UK drinkers who go to the continent to buy cheap alcohol may soon find it easier to bring back large amounts, thanks to the European Parliament.

MEPs have voted in favour of a proposal to abolish guidelines on the levels of alcohol and tobacco that people can bring back to the UK for personal use. The current guidelines are 90 litres of wine and 110 litres of beer. These personal usage limits - which apply to all member states of the EU and not just the UK - are, however, only advisory. As the EU is a single market, people can in theory buy as much alcohol and tobacco as they want on a cross-border shopping trip, or so-called 'booze cruise', as long as it is for their personal use.

At present, HM Revenue & Customs can and do confiscate large purchases if it even vaguely suspects they are going to be re-sold.

The European Commission has already threatened the UK government with court action for being too heavy-handed in its application of the guideline. In a number of cases people have had their cars impounded, in addition to having their drink confiscated, on their return to Britain from the continent.

 

The MEPs were asked for their opinion as part of the Commission's ongoing consultation process on the matter.
They said the guideline limits are both non-binding and hard to enforce, and therefore should now be scrapped.

In response, the UK Government has argued that such heavy handed confiscation actions are necessary to prevent the black market sale of alcohol and tobacco.

Conservative MEP John Purvis welcomed the result of the parliament's vote. If we live in a single market, we should be allowed to take advantage of it without a cloud of suspicion hanging over us.

I sometimes scan the crowds in the customs hall at Heathrow and wonder how many of them are aware that they are almost certainly bringing more than the pitiful limit of £145  worth of goods. Probably best to retain innocence as they are probably less likely to attract the attention of those who are are a law unto themselves.

 

From The Mirror

The Chancellor Gordon Brown wants to get rid of unfair and outdated rules by raising the allowance from £145 to £1,000 for products being brought into the UK from outside the EU.

It will be a major boost for the tens of thousands of Britons who fly to the US to take advantage of the strong pound. It means that shoppers will be able to bring back many more clothes and electrical goods without being hit by huge duty and VAT bills.

A Treasury source said: We want to see a big increase in the limit. Tourists should be able to buy a reasonable amount on shopping trips to the States without worrying about being hit by customs. "At present if shoppers try to get through the 'nothing to declare' channel they can be hit with duty and VAT. In some cases they can even face an additional penalty or have the goods confiscated.

The so-called travellers' allowances were first agreed in 1969. The threshold is fixed by EU law but the current £145 limit has not been touched since 1994. Brown wants all EU member states to agree to the rise by the end of this year. A Treasury official said: It would be a popular move for shoppers and would show Europe is serious about becoming more global in its outlook.

Press release from ACCESS (Action for Casualties of Customs and Excise Shoppers' Seizures). From  day-tripper.net a web magazine for channel shoppers.

On the 10th of February, the European Taxation and Customs Commissioner László Kovács met the UK Chancellor of the Exchequer Gordon Brown, the Paymaster General Dawn Primarolo and the Economic Secretary to the Treasury John Healey, to discuss a range of EU tax issues in the light of the forthcoming UK Presidency.
 

David Ash, ACCESS Co-ordinator said;

"No doubt they will have some explaining to do about the draconian penalties imposed on British shoppers who shop in other EU member states for tobacco and alcohol, and the effective lack of a fair right of appeal. Tens of thousands of vehicles have been seized on grounds such as frequency of travel, and many hundreds of thousands have had goods seized, with travellers even being told “we don’t like the way you answered the questions” as evidence of smuggling. Many more, like me, who neither smoke nor buy tobacco, resent being stopped coming back to the U.K. and even before we leave, to be asked where we are going shopping and how much money we have on us. Coach companies have scaled down, or done away with altogether, shopping trips to Europe as the delays Customs routinely inflict on them make such trips uneconomic.

It is worth reminding readers that a smuggler to the UK Government is someone who deprives the Exchequer of money, whereas to the Commission and the rest of us, a smuggler is someone who profits from illegal trade.

99% of victims who appeal, lose when they finally get to the Magistrates Court. Having already lost their goods and vehicles, they then suffer a further penalty of costs from £750 each, even if they drop the appeal having started it (it is now virtually impossible to find a solicitor to represent you, such is the one sidedness of the appeals process). The 1% who succeed at Magistrates Court find their agony prolonged as Customs invariably appeal, necessitating a visit to the Crown Court. Even if you win again, Customs will then make you a derisory offer, or the value of the goods seized at the prices pertaining two or three years ago where you bought them, and not at current UK prices. It is fair to say, that even when you win, you lose.

Of course these experiences put people off travelling to other EU member states.

And its not worth appealing. In one notable case I dealt with, which got as far as the High Court (Customs lost), the victim was stopped and detained when he next went abroad. Anyone vigorously challenging Customs (and winning) will find the Inland Revenue suddenly appearing or raids on their homes “because they have a had a tip off tobacco is being sold illegally”.

Tribunals (why are there two routes of appeal?) have proved remarkably selective in the evidence they use when finding in favour of Customs, and even a vigorous and costly defence will inevitably fall apart for the most pathetic of reasons. It seems odd to read of cases where the loss of a car is described as “not causing hardship”. A customs Officer will be able to rely on his notes “ as it was a long time ago”, whereas the victim will be challenged by Customs and described as devious, obviously dodgy etc. when they cannot remember the exact time something took place.

Appellants don’t qualify for legal aid as the prosecution is under the civil head, even though Customs send along a Barrister and a Customs Officer when the condemnation hearing is heard (described by the Government as an appeal). This hearing is necessary for the goods to be legally condemned, and is the second part of the seizure process, which begins with the seizure at the port by a Customs Officer. This all costs tens of thousands of pounds in legal fees and Customs time, and all for a few hundred pounds worth of tobacco which an individual had bought where it is cheapest.

The previous Commissioner Mr Bolkestein, did sterling work defending the right of British shoppers to shop in other EU member states and after being given the run around by HM Government finally announced the Commission would be taking the UK Government to the European Court of Justice last October. One hopes the new one will be as vigorous.

The Government had engaged in a P.R. blitz from September 2004, assuring us that firm proposals to satisfy the Commission would be put forward “within two weeks”. I understand the Commission is still waiting.

With many of those involved in this unhappy affair now acting pro bono such is their outrage at the impossibility of getting a case referred to the European Court of Justice (all national processes must be exhausted first), and with cases pending about the lack of a fair right of appeal (which will see this issue come before the European Court of Human Rights), notwithstanding the dramatic decline in cross channel travel despite historically low fares (it is Customs who are to blame), it is time for the Commissioner to pursue with vigour the case against the British Government.

This is an issue which is important for all European citizens and must be solved sensibly. With counterfeit tobacco now accounting for over 40% of tobacco consumed it is time to accept the Governments policy has failed.

In an age where innocent shoppers who have dared to shop where it is cheapest lose their vehicles, goods and suffer large costs should they dare to appeal, sit side by side in the same Court as muggers and thieves, who walk free with a community order and a Probation Officer to help them, it is fair to suggest that this Government has got its priorities hopelessly wrong.

I re-iterate my call for a full EU Parliamentary enquiry into cross border shopping."

Based on an article from the BBC

The European Commission is taking legal action against Britain over cross-Channel shoppers, despite a last minute concession from the government.

The EC says British Customs officers are too tough in their treatment of consumers bringing cheap alcohol and cigarettes into the country. Goods are confiscated if the officers believe they have not been bought for personal consumption. Dozens of people every year have goods and even their cars seized by customs.

Under EU rules, shoppers can buy beer, wine and cigarettes abroad, where taxes are lower, and bring them into Britain without paying British excise duties. Customs officers have seized goods and impounded cars when shoppers come back with large amounts of goods to sell to friends and family.

The Treasury, which says it loses about £3bn every year in excise duty revenue, insists the government is only targeting smugglers.

In a statement announcing its decision to take the UK to court, the commission said: The UK's practices jeopardise the right of all EU consumers to buy goods in other member states, excise duty paid, and bring these products home for their 'own use' without any formalities and without having to pay taxes a second time. In particular, the commission considers the UK's policy of seizing goods and sometimes cars even for minor offences is disproportionate. The latest action follows on earlier letters and a formal request to the UK to change its law.

EU commissioner for taxation and customs Frits Bolkestein said he "understood any member state's need to fight fraud" but the commission "simply cannot accept" such disproportionate penalties.

On Tuesday Chancellor Gordon Brown agreed Customs should let first-time offenders keep their cars and goods but pay evaded UK duty and a fine. It is accepted that we are talking about just 28 to 30 cases a year and we are very close to a deal with the commission, a government spokesman said. The chancellor has shown he is willing to make concessions and there is not a lot more to be done.

Treasury Minister John Healey said the government would continue fighting its case with Mr Bolkestein's successor, Latvian Ingrida Udre, who takes over responsibility for customs and tax on 1 November. And he hoped court action could be halted if the government re-submitted its case.

Customs have been caught abusing their powers. Its about time someone brought this shameful episode to a close. I think we should redeploy this untrustworthy bunch of thugs to go and help Warmonger Bush in Iraq. I am sure Iraqi borders are in desperate need of undie sifters whose number one aim in life is to check people's duty free.

Based on an article from the BBC

The chancellor could back down in a row with the European Commission over the tough penalties on "booze-cruisers". Gordon Brown is believed to be ready to agree first-time offenders who import goods for friends for no profit will no longer have their cars seized.

And such shoppers will not now have their goods seized, but instead made to pay the duty evaded plus a fine. A climbdown could avert court action by the European Commission which has dubbed the rules "disproportionate".

EU single market rules state that shoppers can buy any amount of drink and cigarettes abroad and bring it into Britain without paying British excise duties, as long as it is for themselves and not for commercial sale.

Duties are supposed to be paid if the goods are bought for someone else - friends or family - even if it is not for profit.

UK customs has confiscated goods or imposed fines where people have broken trumped up law. In some cases people who have been accused of smuggling have had their cars impounded and even crushed.

The European Commission has branded the sanctions too severe in cases where people would not profit from selling the goods to family and friends. It has said taking property amounts to a "severe and intrusive" sanction when applied to "minor fiscal offences of a not-for-profit character".

The commission had ordered UK customs to change its stance, and threatened to refer the matter to the European Court of Justice. Talks between the commission and HM Customs and Excise held earlier this month reportedly failed to resolve the issue.

HM Customs and Excise says officers only seize goods and impound vehicles if they suspect the rules are being exploited by people bringing in vast quantities of alcohol and tobacco which cannot possibly be only for their own use.

The right to purchase tobacco and alcohol abroad for "non-commercial" use was agreed by EU governments in 1992 as part of the opening up of the European single market.

Cross-channel shopping is an attractive option for many as it is a way of by-passing high British tax rates on cigarettes and alcohol.

Melon Farmers wish Hoverspeed well with their case against those that take the law into their own hands. Customs cause misery and fear without due respect for justice and human rights.

From the Daily Mail

Cross-Channel company Hoverspeed has filed a High Court claim for £50 million against Customs and Excise. The claim follows a civil hearing brought over what Hoverspeed saw as heavy-handed action by Customs officials in searching passengers.

The company, which operates Dover-Calais and Newhaven-Dieppe services, were victorious in the civil action when it was ruled that officials were acting unlawfully in conducting random searches.

Hoverspeed had taken the experiences of two particular passengers to make its case. A preliminary hearing on the new claim is fixed for November 25.

The announcement by Hoverspeed came as the threat of European legal action still hung over the Government despite last-minute talks designed to resolve a wrangle over cheap alcohol and cigarettes.

British Customs officials spent two and a half hours at the European Commission headquarters in Brussels yesterday, explaining their policy of targeting cross-channel smugglers abusing the right to bring in large quantities of booze and cigarettes.

The Commission says innocent shoppers are being caught up in over-zealous checks and face hefty fines, the seizure of goods and even the confiscation of their cars.

Usually their only offence is to exceed ill-defined and informal limits on how much drink and alcohol they can bring back from the continent for personal use without being subject to UK excise duties.

Thursday's meeting came as a Saturday deadline loomed to either ease "disproportionate" penalties or be taken to court for alleged breaches of EU rules on the free movement of goods and people.

Based on an article from the BBC

British customs officials will meet the European Commission in a bid to avoid court action for penalising shoppers importing cheap alcohol and tobacco.

Customs and Excise bosses face talks in Brussels on Thursday to justify or change "disproportionate" penalties at ports for people who import too much.

Customs chiefs were meant to justify the penalties by 9 September, but the deadline was extended by a month. A Commission spokesman said current customs practices "have to change".

EU single market rules state that shoppers can buy any amount of drink and cigarettes abroad and bring it into Britain without paying British excise duties, as long as it is for their themselves and not for commercial sale. Duties are supposed to be paid if the goods are bought for someone else - friends or family - even if it is not for profit.

Penalties for those believed to be breaking these rules at Channel ports have included the seizure of cars in some cases.

A Commission spokesman said: We are looking forward to the UK authorities clarifying precisely how they are going to change their practices as regards penalties for people bringing in large quantities of alcohol and tobacco and selling it on a non-profit basis to their friends and families. We have told the UK that the current penalties - not only the payment of fines but also the seizure of the goods and their cars - are disproportionate. We have told them they have to change".

Customs officers say they are only seizing goods and impounding vehicles if they suspect the rules are being exploited by people bringing in vast quantities of alcohol and tobacco which cannot possibly be only for their own use.

But the Commission says taking property amounts to a "severe and intrusive" sanction when applied to "minor fiscal offences of a not-for-profit character", even if it is justified in some cases. Failure to ease the measures could mean European court action for breaching rules on the free movement of goods across EU borders.

The right to purchase tobacco and alcohol abroad for "non-commercial" use was agreed by EU governments in 1992 as part of the opening up of the European single market.

EU guidelines state that anything up to 800 cigarettes, 400 cigarillos, 90 litres of wine (including a maximum of 60 litres of sparkling wine) and 110 litres of beer should be considered to be for personal use, and therefore not subject to domestic excise duties.

However, national authorities should consider "individual circumstances" when carrying out checks.

Frits Bolkestein, the European Commissioner for Taxation and Customs Union, said: I recognise and support strongly member states' efforts to fight excise duty fraud - but this must not be at the expense citizens' rights to take full advantage of the Internal Market. Bolkestein has warned: Cross-border shopping is a fundamental right under EU law and should not be regarded as a form of tax evasion - even if it does give rise to revenue losses for the UK exchequer.

Based on an article from the BBC

Brussels has accused British Customs of disproportionate tactics in tackling people bringing excessive amounts of alcohol and tobacco into the UK. The UK Government has been told it has two months to satisfy the commission its approach is not in breach of EU or face legal action. They say people can bring in any amount of booze and tobacco for personal use.

UK Customs have been seizing alcohol and tobacco and stealing vehicles if they think goods will be sold. The Treasury says it is loosing huge amounts of tax revenue as people bring in cigarettes and alcohol from across the Channel, where duty tends to be lower.

The commission has already formally told the government to justify the tactics. Now it has gone further and warned that Britain could be taken to the European Court of Justice for breaching EU rules on the free movement of good and cross-border shopping.

A statement said: The commission has decided to send the UK a formal request to amend its policies relating to excise duties and cross-border shopping for tobacco and alcohol. The commission's request concerns the policy of seizing goods and sometimes cars even for minor offences. The commission considers that such seizures are disproportionate to the gravity of the offence in some situations and represent an obstacle to the free movement of goods subject to excise duties in the internal market. If there is no satisfactory response to the reasoned opinion within two months the commission may refer the matter to the Court of Justice.

European Commissioner Frits Bolkestein, who overseas taxation and customs, has said: Cross-border shopping is a fundamental right under EU law and should not be regarded as a form of tax evasion - even if it does give rise to revenue losses for the UK Exchequer. A spokesman for the Treasury said the UK Government would not be "lectured" by someone "pretending to be a friend of the British tourist". We fully support British shoppers' rights to bring back as much tobacco and alcohol as they like from the Continent for their own consumption. Our sanctions regime is designed to protect those rights while deterring people from breaking the law - and it is entirely proportionate to a smuggling problem that funds organised crime and costs the British taxpayer £4bn a year.

John Cooper, criminal barrister, looks at HM Customs and Excise's astonishing range of power and the conflict that it entails with the police

From The Times

The influence and range of Customs and Excise are meant to frighten the wrongdoer. It has been doing that since medieval times. But in the 21st century, has the lawabiding citizen reason to feel uneasy about how its powers are exercised?

This week the first full-scale inquiry into how Customs goes about its work will be published. The retired judge, Gerald Butler, will report to the Attorney-General on the collapse of a trial that followed an 18-month investigation and a seizure of £34 million of cocaine. Five alleged drug smugglers had charges against them thrown out because investigators had failed to follow correct procedures. The allegation was that the customs surveillance operation was illegal. Mr Justice Turner described the collapse of the trial as a "debacle" and he expressed "a deep sense of judicial concern". Customs officials faced the possibility of disciplinary action.

The powers and extent of influence exercised by Customs and Excise are wide-reaching and were recognised as such in 1985 when Mr Justice Forbes observed in the case of R v HM Customs & Excise Ex Parte Haworth that "the powers entrusted to Her Majesty's Customs and Excise are in themselves astonishing".

Only the Crown Prosecution Service (CPS) initiates more prosecutions in England and Wales and has a wider armoury of criminal offences than Customs and Excise. A momentary trawl through transgressions that can incur the wrath of customs prosecutors reveals sanctions and offences such as confiscation of assets, smuggling, drug importation, importation of indecent or obscene material, VAT offences and the draconian Customs and Excise Management Act catch-all section. This states that any person who is "in any way knowingly concerned in carrying, removing, depositing, harbouring, keeping or concealing or in any manner dealing with (specified goods) and does so with intent to defraud Her Majesty of any duty payable on goods or to evade prohibition or restrictions with respect to those goods" shall be guilty of an offence.

Sometimes Customs does not even have to prove guilt: an innocent individual can find his money forfeited if Customs convinces a court that it represents proceeds of drug trafficking whether or not a successful prosecution has been brought. Its job is made even easier by having to prove its case only on the lower civil standard of proof. As a matter of practice, magistrates rarely have the instinct to deny the Duty men.

Even when customs and police responsibilities overlap, Customs can find its powers far more wide-ranging. For example, its power to prosecute importation of indecent or obscene material is significantly wider than that given to the police, because it extends to indecent material not subject to a tendency to deprave and corrupt.

Upon conviction, a defendant prosecuted by Customs can face lengthy and severe sentences. Under the Misuse of Drugs Act 1971, defendants can face life sentences and one regularly hears of judges delivering imprisonment of up to 15 years even for a defendant of previous good character.

There is even the possibility that minor criminal offences currently considered for prosecution by Customs will be decriminalised with the introduction of parallel civil penalties. This has already been done in relation to VAT and moves to extend this power are imminent. This will result in an agency having far-reaching powers not only to prosecute but also to sue. For this to be done the agency about to take on this responsibility must be beyond reproach.

There have always been degrees of animosity between the police and Customs. Operations involving the two forces can be fraught with difficulty. This can only be intensified after the Government's recent announcement that complaints against the police will be investigated by "independent" bodies. One such body will be Customs and Excise. Quite how happy the police force will be with Customs acting in a judicial capacity over their activities can only be assessed with time but some may point to recent history to bring into doubt the credentials of Customs to judge another law enforcement agency.

One does not have to go further than the Crown Court which overlooks the House of Commons, Middlesex Guildhall, to see why the police may doubt the Government's wisdom to trust Customs with such wide-ranging powers.

In October 1999, a £15 million cannabis prosecution mounted by Customs and Excise was dropped, costing the taxpayer more than £1 million. One of the defendant's solicitors observed that no reason had been given for Customs' decision to offer no evidence but customs officers were involved in an undercover operation accompanied by the Special Boat Service and indulged in "some highly questionable activities".

Why should Customs be given such "astonishing" powers? Could it be because it is a revenue collection agency?

Unlike the police, Customs and Excise is responsible for the collection of taxes and duties. The Government of the day has a very focused intent to provide the revenue protection agency with as much power as it legitimately can. But the distinction between Customs and police on the collection of revenue is beginning to blur. Mo Mowlam, Minister for the Cabinet Office, has just announced plans to encourage courts to make use of their discretion to confiscate the proceeds of serious crime and then rechannel it into crimefighting initiatives. As such, the role of the police becomes closer and closer to that of Customs not only as a body instigating prosecutions but also in playing a crucial role in the collection of money to be put to public use. Soon people may start to ask, with force, why Customs should continue to be treated as an elite and privileged organisation.