Stopped in their tracks

HM Customs is now trying to disrupt smugglers rather than prosecute them. But does this pose a threat to people's legal rights?
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The Independent Online

For most of its 400-year history the primary aim of Her Majesty's Customs & Excise (HMCE) investigators has been to arrest and prosecute those who dare to evade excise duty and have the temerity to smuggle illegal goods into the United Kingdom. But times change, and now so have the Customs investigators' methods.

For most of its 400-year history the primary aim of Her Majesty's Customs & Excise (HMCE) investigators has been to arrest and prosecute those who dare to evade excise duty and have the temerity to smuggle illegal goods into the United Kingdom. But times change, and now so have the Customs investigators' methods.

Smugglers and fraudsters are now less likely to face the dreaded "knock" - a raid by Customs investigators - after a major but controversial policy change. Customs & Excise is now using a range of tactics under the generic term of "disruption", instead of automatically arresting and prosecuting criminals.

"We still always prosecute in major drugs cases," says a senior Customs policy officer. "But disruption is now one of a numbers of tactics we can use, and that does still include prosecution in certain cases."

Customs says it allows them to crack down on criminal enterprises quickly without the time-consuming and expensive process of taking suspects through the criminal courts.

"We have moved away from judging our success by the number of arrests, the number of prosecutions, or the number of cigarettes seized or whatever to this outcome-based strategy. Our aim is to reduce the problem as a whole. To do this we use a range of tactics with criminal prosecution at one end of the spectrum, right the way through to the seizure of goods, withdrawing approvals of warehouses and deregistering bogus VAT registrations," the Customs spokesman says.

Other methods include the more controversial use of civil law to seize money or goods, or make a suspect insolvent. More broadly, UK Customs is also helping foreign law-enforcement agencies to stop smuggling before it starts.

There are stories, which may be apocryphal, that Customs has discreetly removed illegal drug consignments as they arrive in the UK, leaving the supply gang and buying gang to fight it out over who has ripped off whom. The ensuing mayhem disrupts the gangs' criminal activities.

But the policy shift towards disruption has attracted criticism. The Shadow Paymaster General Mark Prisk MP points out that this is a major policy change, moving away from prosecuting offenders, yet it has never been subject to public debate. "I'm not aware of any significant debate about this in the House of Commons or anywhere elsewhere for that matter," he says.

David Raynes, a former Customs assistant chief investigation officer feels that disruption may improve Customs' effectiveness. "For too long the organisation I worked for thought that what we did was make arrests and prosecute people. Since our outputs were measured on that basis, we could be very successful in terms of the performance indicators we were given, yet have very little effect on the real problem."

Raynes says that Customs was not alone in considering how to deal with its performance indicators. "Historically the police have focused on the detection and prosecution of offenders. But there is a dawning realisation that the public interest is better served by measures which frustrate crime and prevent it happening."

He added that there is widespread disillusionment within the service with the criminal courts. "The general feeling among most law-enforcement officers is that the criminal process in the UK has to a great extent broken down as a servant of the public. Much of the trial process is being hamstrung by detailed arguments about process rather than criminality." He points to the trial of the infamous Liverpudlian drug-dealer Curtis Warren, who was tried in Holland in just 12 days, found guilty and given a prison sentence.

"Here, that trial would have taken 12 months or more. The trial is now rarely seeking after the truth of what occurred. It is an irrelevant gladiatorial battle, which has little relationship to guilt or innocence of the accused. Prolonged cases, particularly in fraud, utterly confuse the jury."

Customs has been a department in crisis and its staff demoralised. Over the last four years, it admits that some £10bn has been diverted from the public purse by VAT fraudsters. It is facing a number of police inquiries over the way that the HMCE has handled court cases.

In October, HMCE is being merged with the Inland Revenue to form a new tax department. Customs' investigation service is going to be part of the new Serious Organised Crime Agency (Soca) in the UK.

While the official spokesman admits that court cases are taking up huge amounts of resources, he says that disruption cannot be used by officers at will to avoid the courts. "That is not what drives policy in this area. We have a strategic policy which lays down when different approaches can be used."

Conservative MP Mark Prisk believes that the policy of disruption is a result of government pressure on Customs to stop duty evasion and VAT frauds. "The Government has set some very aggressive public service targets for Customs. My impression is that Customs feel their experience of the criminal justice system does not allow them to meet these targets. This is the way they have found to go round the problem," he says. "I'm sympathetic to the argument that in dealing with international crime and serious crime the authorities have to be robust and think laterally."

The policy of disruption is said to have been brought in by the head of Customs National Investigation Service, Paul Evans, from his previous employment at MI6. Although low-level tactics to disrupt criminal enterprise have existed for years, disruption was first used as a major tactic in the Customs 2000 "Tackling Tobacco Smuggling" strategy. It has now been adopted for the rest of Customs investigations.

But Prisk feels that the new methods have to be subject to accountability. "If somebody is accused they must have the opportunity to challenge the evidence, and if necessary have their day in court."

Prisk says this is not always happening, and his concern is that the innocent are being caught up in these new methods. He has raised the case of one man who Customs believed was engaged in a cigarette-smuggling fraud. They billed him for £1.8m unpaid duty. When he was unable to pay, Customs took over his company and put it into liquidation. His company should have been able to lodge an appeal with the VAT and Duties Tribunal to challenge the bill. But Customs had effective control of the company and blocked the appeal.

Prisk does not believe this is natural justice. He says that he intends to raise Customs' use of its extensive powers in the House of Commons. "Such a major policy approach needs to be aired in public."