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05-3-2017 9:52 pm  #2

Re: New proposals for tougher penalties

Whatever HMRC wants, it gets. You can bet that will happen soon. It's time alleged offenders were given the same protection as that in a criminal court, proven beyond doubt, rather than maybe did, maybe he didn't but we'll seize anyway.

I don't want to rake up last year's differences but I'm afraid without the protection of the European Court, more gov't depts may be ready to flex their muscles against Joe Public.

Please ensure you do not divulge any information which could identify you as Border Force will use your posts here as evidence against you in court.


16-3-2017 8:33 pm  #3

Re: New proposals for tougher penalties

Well if losing in condemns (or not appealing in the first place) means that the importer would be liable to a penalty in addition to the forfeiture of his goods, this would suggest that the proceedings should be regarded as criminal rather than civil.

In Goldsmith v Customs and Excise Commissioners [2001] 1 WLR 1673 it was argued that forfeiture and condemnation proceedings under section 139 and Schedule 3 to the 1979 Act involved the determination of a criminal charge.

This argument. however was rejected, Lord Woolf CJ stating at [22]:

I turn to the question of whether forfeiture proceedings are criminal. Full weight must be given to the consequence of goods being forfeited and condemned as forfeited. However, reference must also be made to the fact that the legislation categorises the proceedings as civil. Reference is also to be made to the fact that none of the usual consequences of a criminal conviction follow from condemnation and forfeiture proceedings. There is no conviction or finding of guilt. Under domestic law the person concerned is not treated as having a conviction. The person concerned is not subject to any other penalty, apart from the consequences of the forfeiture and loss of the goods."

(See Mudie & Anor, R (On the Application Of) v H M Customs & Excise [2003] EWCA Civ 237)

 Moreover, tax evasion (smuggling) is a criminal offence as opposed to (say) late filing of a tax return. Therefore beyond reasonable doubt rather than the balance of probabilities should be the standard of proof.


18-3-2017 11:06 am  #4

Re: New proposals for tougher penalties

This is why everyone was concerned when penalty charges first started to be used by the police to enforce against minor offences. Penalty charges, the removal of most legal aid, and the removal of the cap on how high a fine a magistrate can install.  It all results in the balance of evidence needing a lower bar, and the penalties for reaching that bar becoming even more serious. 


30-3-2017 8:35 pm  #5

Re: New proposals for tougher penalties

According to police guidelines, Penalty Notices for Disorder (includes shoplifting, drunk and disorderly, litter): 

3.1 A PND may only be given where a constable has reason to believe that a person aged 18 or over has committed a penalty offence and they have sufficient evidence to support a successful prosecution.

 3.2 The evidence should be capable of satisfying the evidential and public interest tests of the CPS’s Code for Crown Prosecutors.

3.3 Interviews and questioning must comply with the practice and procedures established by PACE Code C Anyone receiving a PND has the right to opt to be tried in a criminal court.

 None of the above would appear to apply to excise interviews conducted by HMRC/UKBF. 

A recent legal challenge to a PND raised the question of compatibility with Article 6 ECHR:

 It was contended that the statutory provisions were “incompatible” with Article 6 of the European Convention on Human Rights because they “reverse the onus of proof after the 28 day period whereby the [appellant] is presumed guilty of the offence”.The absence of a provision for challenge was also incompatible with Article 13, it was argued, as the “failure to provide an appeal procedure” deprives the [appellant] of an “effective remedy”.but the High Court of Justiciary Appeal Court ruled that a Bill of Suspension was “not a competent mode of review” and that the correct way to challenge the provisions was by way of judicial review in the Court of Session.

 However, Lord Carloway added that none of this was to say that the procedure would not be classified as criminal for the purposes of Article 6 ECHR. Applying the criteria in [i]Engel v Netherlands[/i] (No. 1) (1976), he said, “it may be that the nature of the offence, as described in the 2004 Act, may prompt such a classification notwithstanding the domestic one and the limited nature of the penalty… 

It could certainly be argued that the above considerations should also apply to seizures, in that the importer is in effect presumed guilty of “smuggling” if he does not issue a NOC within 1 month. 

Last edited by turbulentupstart (30-3-2017 8:37 pm)


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