On this page; No right of appeal – we have long argued . . . – About ACCESS – Background – Government response – Hoverspeed Court Victory – next – Legal position – Manifesto – Messages of support – Other campaigns – Our role – Our view – What's been happening – Why are we involved?
Cross Border Channel Shoppers Protest Campaign – Action for Casualties of Customs European Shoppers Seizures – campaign group for victims of HM Revenue and Customs.
July 2012 – Something strange is going on. People who drop appeals are being hit with duty demands. nothing-2-declare.blogspot.com
February 2012 – Fightback! Our friends at Smoking Hot continue with their great work. Why not print these leaflets and give them to fellow shoppers / leave them on the ferry etc?. nothing-2-declare.blogspot.com
2011 – We now update the UKBA page with the latest news, links and advice.
(Action for Casualties of Customs European Shoppers' Seizures)
October 2011 – So true!
April 2011 – We now know officially that Customs have imposed limits on the amounts of British tobacco that can be exported to E.U. countries. "The quota being supplied now is equal to what was sold to Belgium in the period September 2009 and August 2010. The difference is that the quota is divided into equal monthly amounts. There is no distinction into seasonal rushes or quiet periods. According to Imperial, this quota remains for now under Custom's supervision and there is no room for growth." Smaller shops are complaining the bigger suppliers are not supplying them fairly, favouring the bigger shops. We are also getting complaints from shoppers that they are only being sold the popular brands if they buy other brands as well. This creates enormous difficulties for shoppers when dealing the HMRC / UKBA oppressors at Dover and Hull.
We have finally aroused the interest of the Commission and will be persuing this case vigorously.
– March 2011 – Excellent video about the effect of Government actions against smokers (criminals benefit!). www.youtube.com
October 2010. Customs it seems, stops at nothing to frustrate our right to shop where it is cheapest. Having failed to stop a considerable percentage of tobacco smoked coming from outisde the U.K. by terrorizing shoppers (there has been a huge growth in the availability of counterfeit products available as a result), they are now working to stop Tobacco companies supplying English tobacco to Belgium and Luxembourg shops. This is in accordance with an agreement with the large tobacco manufacturers to prevent smuggling. Basically where Customs can prove smuggled tobacco has been supplied to a European shop hey can have supplies stopped. This is what it is all about (Notice 447). The recent supply issues in Belgium and Luxembourg are as a result of this agreement, which the Tobacco suppliers are to scared to do anythiung about, even though it goes against E.U. law. customs.hmrc.gov.uk
We really like what this group is doing challenging Customs and holding them to account.
– "A blog on issues and experiences of U.K. Customs and Smoking Ban. Guest posts welcome. Note:- We use the term U.K. Customs for simplicity of understanding, their official title is HMRC and are under U.K. Border Agency now.". Please remember though, that any tobacco brought back from a trip, must be solely for your own personal use (small amounts may be gifted). nothing-2-declare.blogspot.com
March 2010 – HMRC seized 4,296 cars in 2007, 2008 and 2009. Interestingly we could not find these figures in the Annual Report. Surprisingly when an MP asked for these figures he was told it could not be given on the grounds of expense, and referred to the Annual Report!
November 2009 (27th) – Welcome to Algirdas Semeta the new Commissioner responsible for Customs matters. We will be lobbying him hard on your behalf. We will be contacting him shortly. What would you like us to tell him? Let us know.
This is why (e-mail received as I wrote about the new Commissioner).
"Came back from a 2 day business trip last week along with my wife and was stopped by customs and had all our wine and baccy taken from us and most importantly they seized my car, which was worth quite a bit. We only had the guide lines for both and not a boot full!. Because i had been before and bought before then we are criminals and apparently are selling the goods, i have an import and export company and that was why we were in France and Belgium, but that made no difference. We were held in seperate rooms for nearly two hours and asked a million questions, mainly on how many ciggs we smoked. It made no difference,they were having our goods and that was it. Another couple also had there goods and car seized at the same time. This practice is just disgusting,they are like others have wrote before a law upon themselves, so smug and you can tell that they are laughing at our expence. I could write a lot more about what happened, but people beware – we only had a carrier bag of baccy and lost the car for that. I went on a legitimate business trip and need to go again next week, but i have no car now! Keep up the campaign to stop this happening to genuine shoppers and travellers."
November 2009 – Good news! The European Commission has asked the French Government to "amend, within two months, its legislation and administrative practice regarding the movement and holding of manufactured tobacco purchased by private individuals in other Member States for their own needs. The legislation and practice in question are an obstacle to applying the principle of free movement of goods in the internal market. The request has been made in the form of a reasoned opinion, the second stage of infringement proceedings under Article 226 of the EC Treaty. If France does not amend its legislation and practice within the time limit stipulated, the Commission may decide to bring the matter before the Court of Justice". www.europa.eu
August 2009 – Hope for victims of Customs? In the news recently news about another Customs cock involving the seizure of goods referring to the wrong piece of legislation. Followers of HMRC will not be surprised at this given their appalling record of incompetence. Although it offers hope to approximately 4,000 people to get their seized goods back, it's worth noting that holders of illegal goods will mostly get them back even if they were selling them illegally, whilst innocent shopper's who have had their goods seized because the Officer who internviewed them "thought" they might be selling them (no evidence needed) will not. Some advice from an expert (thanks W.). www.independent.co.uk
"Following the Hoverspeed Judgment 2001, a new Tobacco Products Regulations 2001 was implemented to supercede in part regulation 5 of the Excise Goods (Holding, Movement, Warehousing and REDS) Regulations 1992. It changed and narrowed the categories of person liable to pay excise duty countable as benefit in tobacco-smuggling cases. Under Regulation 13 of the former TPR 2001, the person/s liable for the duty are: The person holding the tobacco products at the excise duty point (sea/air ports);
And any person who caused the tobacco products to reach an excise duty point. The new TPR 2001 regulations do not use the expression "importer" and they also exclude the consignee who was previously made liable.
So to clarify, if a person was found by HMRC to either be storing, in possession or selling cigarettes, then if that person was able to show/prove that he/she had not smuggled/imported those cigarettes into the United Kingdom, then HMRC would be unwise to bring a confiscation order against that person/s."
August 2009 – Still spending too much time on those of us within our border perhaps? news.bbc.co.uk/1/hi/uk/8180120.stm
Long queues at Calais Port, yet most of these British cars waiting have driven around Europe, crossing borders as foreigners and not been stopped or even noticed they have crossed a border. Is the United Kingdom Border Agency about controlling those of us within our borders?
July 2009 – Amazing, British justice in 2009. Two days in Court and £1,200 costs. Appeal (that's right, appeal) against a Customs seizure in which you have had no opportunity to get legal advice, and on the most dubious grounds (regular traveller, attitude) and your costs range "from" £1,500 for a few hours in Court. No wonder people have lost faith in our Judicial system. news.bbc.co.uk
July 2009 – New Border Agency comes into effect – what its about (notes that about £174 million lost due to tobacco smuggling. The actual figure nationally is in the billions, yet they concentrate their efforts at our ports targeting United Kingdom citizens. www.bia.homeoffice.gov.uk
This is the Press release from the E.U. Commission. www.europarl.europa.eu/news
or download the PDF file.
Comment – It worth pointing out that the original proposal put before the Parliament to vote on, which has been much amended, wanted to get rid of the guidelines completely because they create confusion. We welcome that move, unfortunately the MEP's have decided otherwise. They may have done so because of fears Customs agency's would see any move to abolish guidelines as a green light to seize regardless.
The Press release says this " Some Member States' tax authorities have on occasion apparently acted to enforce the guidelines as absolute limits – for example, the Commission took action against the United Kingdom on this point. The case did not come to court as the United Kingdom amended its practice in the meantime. To avoid such possible misinterpretation, the Commission is proposing to delete all reference to guideline amounts. Parliament however, feels that this may create more confusion, and says the indicative guidelines should remain."
Whilst the ability of HMCR to re-interpret law is extraordinary (guideline = limits, no evidence of selling tobacco illegally = smuggler), the thrust of this law and the MEP's vote suggests they all want to keep Duty Paid shopping.
In 2005 the European Parliament voted to abolish the guidelines altogether! news.bbc.co.uk/2/hi/business/4073670.stm
November 2008 – French Customs. We hear there is an ongoing infringement procedure against the French law which restricts the amount shoppers can carry through France. This law is only being applied to French citizens though.
July 2007 – We hear Customs are x-raying suitcases on the way out, looking for hand luggage bags inside. The assumption seems to be that you will fill them up with tobacco to smuggle. We also hear that at some Spanish airports, when they find tobacco, they are ringing United Kingdom Customs to tell them.
June 2006 – It's official. In a shameful climbdown the new Commissioner and his department are effectively washing their hands of the problems United Kingdom shoppers have had. Apparently United Kingdom Customs will no longer seize cars for a first offence. We know this to be a complete untruth as we hear regularly from shoppers who HAVE had cars seized on first trips. They will also consider fines more. We think there will be an even greater crackdown. Pity they cannot devote more time to the problems of counterfeit goods in our markets – an even bigger problem than smuggling of tax paid goods.
May 2007 – This response from the E.U. (PDF file) neatly sums up the law and how they now see things with regard to United Kingdom shoppers. Bring back Bolkestein!
February 2007 – Seems the Commission accept what HMRC tell them. We have had sight of a letter in which they say "The fight against fraud and tax evasion is a top priority for the E.U. The Commission will do everything it can to protect the rights of customers under Community law. It cannot however tolerate tax evasion and customs fraud." Carousel fraud anyone?
April 2006 – Bad news. We hear that the new Commissioner is withdrawing the European Court of Justice referral, as he accepts the United Kingdom is now is now complying with E.U. law. We are writing to our supporters.
October – Welcome to the new Taxation and Customs Commissioner Laszlo Kovacs, who takes over from Frits Bolkestein.
BAD NEWS! Customs have won the Judicial Review of the KING and PARSONS case.
GOOD NEWS! Customs recently lost a case and must now pay United Kingdom prices to successful appelants. Quote KING and PARSONS.
Still no response from our Government. In October last year the United Kingdom Government promised to put forward proposals to satisfy the E.U. regarding the infringement proceedings. We understand they are still waiting. A good example of the sort of misleading PR spin this lot engages in.
19th October 2004 – Time to settle
Government climbdown? If the rumours are true, it appears the Government have finally accepted their actions are breaking European law. ACCESS thinks its time to talk and settle the argument once and for all.
8th October – Give them Hell!
ACCESS appeals to E.U. Commission to come down hard on British Customs and Excise
Progress is being made – despite the bluster from the Government, we understand they are taking seriously the Commission threat to take them to the European Court of Justice. In our view the Court would be a good thing to happen for shoppers. As far as the British Government goes it would be very bad news. The opinion universally is that they will lose, and lose badly. It would be better for them to settle, not just with the Commission but pressure groups as well.
A.C.C.E.S.S. is a group for all victims of HM Revenue and Customs seizures of tobacco, alcohol and vehicles – a policy which has now been ruled illegal.
The experiences of United Kingdom citizens shopping in other E.U. member states is detailed on our web site. Regular visitors to Europe, fed up with being stopped, will also be aware of the horrifying restrictions on our right to travel freely and without fear.
The Law Society Gazette. www.lawgazette.co.uk
A useful Brief history. www.tax.org
"HMCE bang on about bootleggers being into porn and drugs, so why just count my cases of ale? – shopper"
No fair right of appeal – we hear of a lady who appointed a Solicitor to fight her case. SHE HAS BEEN UNABLE TO FIND A SOLICITOR IN DOVER TO HANDLE THE CASE – NONE OF THEM THINK IT IS WORTH APPEALING.
End of matter – did you know that even before your case comes to Court HM C and E view the matter as over? We hear of a lady whose Motorbility vehicle was seized. They wrote immediately to Motorbility (a disabled car charity) to say she was not be allowed to have another vehicle as she had broken the terms of her contract (breaking the law). She is till awaiting a Court hearing.
Anti shoppers not anti smugglers – we hear of a man who came back from Prague thinking the 3,200 cigarettes guideline applied (it does not – yet). He refused to let them seize and insisted he be allowed to pay the duty. No-one knew what to do and they had to ring Dover to find out. In law, this option exists and should be offered to travellers, especially those nabbed for the first time. It never is, at our ports anyway.
Assumption all the way – we increasingly hear from shoppers who are not even asked if they will be selling. Fair? We don't think so.
Once upon a time British citizens needed just a passport if travelling abroad. Today they need to provide proof of earnings, savings and wedding invitations amongst other items. You will also have your details taken (to monitor your movements) and frequent travel will be interpreted as a sign of wrongdoing. Unemployment and sickness will automatically be interpreted as a bar to shopping abroad. Despite the Foot and Mouth outbreak, and the growing amounts of heroin and ecstasy on our streets are increasingly evident, large amounts of extra money are being spent to stop people shopping in other E.U. counties.
Being part of the European Union is suppose to mean freedom of movement for goods and people. Exporters of course benefit enormously from the coming down of barriers – so should British citizens.
The fight for shoppers and travellers rights against a Government that views all British Citizens who travel, shop or work abroad, as smugglers.
A campaign group of concerned citizens fighting on these fronts called A.C.C.E.S.S. (Action for Casualties of HM Revenue and Customs Shoppers' Seizures), has been set up to co-ordinate our efforts and help victims more effectively. If you want to help fight back, contact us.
The cross border channel shoppers protest campaign is against Customs and Excise limits and the current clampdown on legitimate day trippers and shoppers to France and Belgium.
As our message board shows, the limits set by HM Revenue and Customs arouse much controversy. Whilst we do not condone bootlegging of tobacco, the "limits" as set by the Government for tobacco are enforced in a way which actively discourages shoppers from travelling. They are applied per 6 months. If you are from the North of England you may only make the journey once or twice a year, yet get treated the same – why should people in the South have a much greater opportunity to buy cheap wine and tobacco?
Customs and Excise have imposed limits of the quantities of Tobacco and Alcohol shoppers may bring in and are enforcing them vigorously, in a manner which many find intimidating. Tobacco smokers are being unfairly short changed.
HELP! – if you have any comments or tips that will help advance the cause of channel shopping, please contact us
We send reports to the Commission every month. It helps if you do to. E-mail the Commissioner, Laszlo Kovacs (laszlo.kovacs atcec.eu.int), with copies to his Head of Cabinet (laurs.norlund at cec.eu.int) and the Director General for Taxation (robert.verrue at cec.eu.int), as well as your local MP and MEP.
Europe takes action at last. See below for the latest action from Europe. This is very good news indeed.
ACCESS and Day-tripper.net re-iterate our call for a full European Parliament inquiry into this whole affair, with a view to defining once and for all, what rights European citizens have to travel and shop in other member states, with regard to national borders or internal Customs authority's.
The recent large increase in tobacco prices in France, notwithstanding the accession of many new countries whose tobacco and alcohol prices are way below the average in Europe, makes this ever more urgent.
In view of the many successes in the High Court by victims of HM Customs and Excise, as well as the ongoing interest by the Commission, we call for a full review of ALL cases, and where appropriate, compensation.
A word of caution – the Commission do not see any success as giving hope to individual victims. We are seeking clarification on this, and continue to promote or encourage all those whose actions will, ultimately, hold the United Kingdom Government to account for their actions.
2005 – Unfortunately the new Commissioner, whose interest in individual citizens right's seems non existent, has withdrawn the case.
Cross-border shopping: Commission requests United Kingdom to amend its policy of seizure of tobacco and cars
Reference: IP/04/867 Date: 07/07/2004
P/04/867 Brussels, 7th July 2004
Cross-border shopping: Commission requests United Kingdom to amend its policy of seizure of tobacco and cars
The European Commission has decided to send the United Kingdom a formal request to amend its policies relating to excise duties and cross-border shopping for tobacco and alcohol. The Commissions request concerns the policy of seizing goods and sometimes cars even for minor offences and follows on earlier letters of formal notice (see IP/01/1482, IP/02/1320 and IP/03/1539). 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. The request has been sent in the form of a reasoned opinion which is the second stage of the infringement procedure provided for in Article 226 of the Treaty. If there is no satisfactory response to the reasoned opinion within two months the Commission may refer the matter to the Court of Justice.
Frits Bolkestein, the European Commissioner for Taxation and Customs Union, said "The Commission has been following the situation over a long period of time, and we have had constructive exchanges of views with the United Kingdom authority's. Although there have been some positive developments, we still do not see eye to eye on the penalties applied for minor offences. The United Kingdom sanctions, which are based on the seizure of goods, and sometimes cars, quite often go too far and interfere with people exercising the rights given to them by the EU's Internal Market to go shopping in other Member States. This is obviously not acceptable."
All E.U. citizens have the right to buy excise goods (tobacco and alcohol) in other Member States, pay the excise duty in the other Member States, and to bring these products home without any formalities and without having to pay taxes a second time, provided the goods are not for commercial use and that they transport the goods themselves. However, if the goods are held for purposes other than private use, or if they are transported on behalf of a third party, the excise duties become due again outside the state of purchase.
Under its present sanctions policy, the United Kingdom distinguishes between offenders holding goods with a view to selling them for profit, and those who hold goods for reasons that fall outside the notion of "own use" (e.g. persons who purchase goods for friends or neighbours but without seeking to make a profit). For this latter category of cases, the policy is to seize the goods, which are not then restored. Any vehicle used for the transport of the goods can also be seized, and may be returned only on certain conditions, or not at all.
The seizure of property is, by its very nature, a severe and intrusive sanction. It may be justified for certain situations but the Commission considers that, when applied to minor fiscal offences of a "not for profit" character, it goes further than is strictly necessary and represents an unacceptable obstacle to the free movement of goods. The Commission takes the view that, for these cases, the purpose of the excise system could be achieved by lesser means such as the collection of the duties and payment of a penalty.
The latest information on infringement proceedings concerning all Member States can be found at the following site:
Making a complaint against a Member State. ec.europa.eu
The European Commission has stepped up its battle with the Government over the right of travellers to bring as much cheap alcohol and tobacco into the country as they wish.
After months of wrangling between Brussels and London, the Commission accused Customs officials of using "disproportionate" tactics in the fight against shoppers bringing in more than the advisory limits for drink and cigarettes.
Now the Government has two months to satisfy the Commission its methods do not breach E.U. rules on free movement – or face legal action.
Under E.U. rules on the free movement of goods, individuals can bring in any amount of drink and tobacco as long as it is for their own use.
But to stop abuses of the system, Customs officials have been seizing drink and cigarettes and even confiscating the vehicles that contain them at the Channel ports if they think the goods are not for personal consumption but are being sold on at a profit.
The Treasury argues it loses huge amounts of tax revenue because people are taking advantage of the E.U. single market to buy alcohol and cigarettes at lower tax rates across the Channel.
The Commission has already formally challenged the Government twice to justify the tactics.
Now it has gone further, issuing a final "reasoned opinion" – in effect an ultimatum giving the United Kingdom two months to justify its action or be taken to the European Court of Justice for breaching E.U. rules on the free movement of goods and cross-border shopping.
The row has become bitter between Customs officials and Brussels – and Chancellor Gordon Brown was hardly impressed when Mr. Bolkestein dismissed London's fears over lost revenue with the words: "Cross-border shopping is a fundamental right under E.U. law and should not be regarded as a form of tax evasion – even if it does give rise to revenue losses for the United Kingdom exchequer."
A Commission spokesman said: "We have bent over backwards to resolve this matter amicably, but Customs officials just won't play ball".
No right of appeal – we have long argued the Appeals process for victims is effectively non-existent. Let the E.U. Commission know – write to President José Manuel Barroso, with a copy to the head of the Commission's Legal Service Michel Petite and a copy to the Secretary General David O'Sullivan.
October 30th 2002 – Customs Officers will establish if you are a smuggler or not by asking you certain questions. It is up to him/her to be satisfied that you are not.
October 28th 2002 – Customs Officers will establish if you are a smuggler or not by asking you certain questions. It is up to you satisfy him /her that you are not.
www.day-tripper.net, which started the PROTEST Campaign and has become a focus for all those fighting this Governments ridiculous policies on shopping in other E.U. member states, is now co-ordinating efforts to get compensation for anyone affected. Whether you have had you car or van confiscated, alcohol or tobacco, we feel you will have a claim. Some cases are stronger than others, but the group is fighting to ensure as many people as possible benefit.
Why? Because any Government that should dare to think about, let alone introduce and implement such policies deserves to be hit hard, and where it hurts (in their pockets). More
What do we hope to achieve? We intend to offer better support to travellers, and help some test cases through the courts to establish more clearly what our rights as Britons in Europe actually are. We will be fighting for compensation as well.
If the Government is happy to accept foreign investment here because our social taxes are lower, why can't British citizens benefit from the lower prices in other European countries where social taxes are higher, but spending taxes and duties so much lower? Yet another case of Britain being in Europe for what we can get out of it, rather than for what we can contribute and share. A situation where safeguarding revenue is more important than catching drug smugglers is obviously silly. A country which cautions drug users, but confiscates the cars and goods of shoppers offends its citizens. A Government which talks about the rule of law, yet routinely grants excessive powers to agencies as a means of flouting them, is undermining the most basic principles of our society.
Since December 2000 a massive crackdown has been taking place called "Operation Maximum Disruption". Supposedly aimed at large scale tobacco smuggling, in reality it targets individual British citizens shopping in and travelling to Europe. Customs and Excise have even confiscated some coaches. The lack of concern for shoppers welfare and rights has now gone too far (people are even being told they may not travel). Individuals and many other associated with cross channel shopping are coming together to from a campaign for fair treatment of British Cross Border Shoppers.
The protest will continue until British citizens enjoy the same rights as other European citizens. We are working with others to advance the cause of the right of British citizens to travel freely.
Because it's fair! The web master does not even smoke, but he does see the gross injustice smokers face. We think that you should be allowed to buy enough for 6 months use in one go, more if you come from far afield (although this is becoming irrelevant in this age of cheap air travel). This means that a smoker on 50 a day will be able to buy more than someone on 10 a day. We also think it is wrong to be in Europe but not part of it. If it's OK for foreign companies to come here because of lower taxes, why can't British shoppers go to their countries to take advantage of lower alcohol and tobacco prices? We also do not think it acceptable that any arm of Government should ever behave in the C and E do (without doubt they are bullying thugs who enjoy the misery they bring to bear on honest people). The recent Foot and Mouth outbreak was apparently caused by foreign food imports. The number of Inspectors available in major ports is about 8. The outbreak has cost billions, yet we can find the money to finance 1,000's of Customs Officers to harass shoppers.
But there is now confusion. Arguments over popular campaigns (that's us!), Court actions or questions raised by the European Commission have sown confusion for the cross-Channel traveller. They have also made it more difficult for front line Customs staff to run the current regime." We reprint this message in reply which sums up what United Kingdom citizens have actually experienced and how they really feel.
"Dear Mr. Ash,
I personally think that without your excellent site the changes would never have come about. I thank you on behalf of all my family who immediately on today's announcement decided that a family trip with the children included would be great.
My husband and I have missed out on such pleasures for the last few years, as the rest of the family with young children were too afraid to go shopping in France in case they were left stranded in Dover with hungry screaming young children, even though they never brought back more than the suggested amounts.
I thank you for making my Christmas special this year."
No British journalist should EVER receive such e-mails. It's wake up time New Labour – people matter.
Has anything really changed? From an e-mail October 2002
"Came through as a foot passenger, normally no problem. Asked if I was from the north east? Well its hard to hide your accent. Given a slip of paper. I had 4,000 cigs, which were confiscated. They said that I had travelled twice in 3 Months
I am going to appeal. Why me?
In other words travel history is still being taken into account even where they have no proof you had Excise goods with you on previous journeys.
Another silly reason for stopping a traveller (from a supporter);
I get stopped virtually every time I use Eurotunnel at Folkestone simply because of the car I am in (I do our motoring column and therefore tend to drive newer and possibly more glamorous vehicles on these trips) and that simply isn't a good enough reason in my book, although you dare not say so at the time. Keep up the good work.
It's fine saying awful things about C and E given their current behaviour (and by implication the Government for instigating this campaign), but what do we want?
1 – Equal treatment for smokers. If wine drinkers can bring back 120 bottles or 240 days worth of wine (at 1/2 bottle a day), then we say smokers should be able to have similar limits. Given that tobacco lasts about 1 year, we believe a cigarette limit of 3,000 is fair for a 20 a day smoker (this about 5 months worth). For people travelling from far away, reasonableness suggests an even higher "limit". October 2002 – Partly Achieved – new cigarettes guideline 3,200, HRT 3 kgs.
2 – Guidelines and a Charter which takes into account the right of United Kingdom citizens to travel and shop freely in other European countries.
3 – Clear rules which protect the civil liberties of United Kingdom citizens. The concerns we have are legitimate and perhaps the most worrying aspect of this campaign.
4 – Annual limits, which, if C and E can prove a shopper has exceeded, could result in the confiscation of their vehicle or prosecution. At the moment the law is unclear. To be fair it should be open, clear and legitimate.
5 – the application of British Criminal Law by C and E. I.e. you are innocent until proven guilty. At the moment C and E can assume you are guilty of smuggling and they do not need any proof, as their work falls under Civil Law. Whilst Napoleonic Law (in effect in most European countries) requires you to prove your innocence, British Criminal Law assumes you are innocent until proven guilty. Up until 1994 C and E action did in fact come under Criminal Law.
6 – a lowering of taxes on tobacco – there is problem with tobacco smuggling only because the profits are so big. Small shopkeepers are suffering due to the large amounts of illegal tobacco in circulation.
7 – a law prohibiting Customs and Excise Officers quizzing children (as young as 8!) on their parents movements.
8 – special tax breaks for the cross channel companies – we are at a disadvantage being an island, and unable to travel and shop as freely as our fellow E.U. citizens.
Hoverspeed courageously stood up for its customers and took the Government to Court. Having won decisively many thought the Government would take stock and stop harassing shoppers. The judgement clearly stated that they had to have a reason to stop someone. Now Hoverspeed themselves are thinking of taking out an injunction to force the Government to obey the Court ruling. We now live a country where having won in Court, the victor has to go back to force the loser (HM Government) to abide by the ruling. Our normal assumptions of our government ruling by consent and the rule of law appear to have been shattered. It seems neither our courts or citizens matter any more.
The Government have appealed a few parts of the judgement. As it has been made to the Court of Appeal this means that there is a possibility of a further appeal by Hoverspeed should they lose this time, but unlikely to be one granted to Customs if they lose again.
It is possible, but by no means sure, that this Hoverspeed case will be referred by the English Court to the European Court of Justice (ECJ). However, if it is not, there is no right of appeal for either party to the ECJ. It may go to the House of Lords, which is the highest appellate Court in the English legal system.
The ECJ is not an appellate Court and is not part of the English legal system. It can consider cases concerned with European law that are referred to it by the English courts (and other member states' courts) and cases brought by the Commissioners. The European Court of Human Rights is also not an appellate Court and it hears human rights cases brought by individuals after they have exhausted all other remedies if any.
On August 15th 2002 the Government notified Hoverspeed of their intention to appeal. They have appealed some of the judgement, but accepted all of the important rulings. In the meantime the ruling stands (is law), until such time if any as an application by Customs is made to stay any part of the order made at first instance. The Appeal was heard on the 5th and 6th November and the judgment made on the 10th December 2002.
In the meantime sadly, HM Customs and Excise had decided to re-interpret the Court ruling. Whilst the ruling does not go as far as Day-tripper.net would like, it was nonetheless a devastating blow to HM Government. In many ways the position as far as ordinary law abiding citizens has worsened. People are now being stopped ON THE WAY OUT! Some are even being told its part of a random search – which is almost certainly unlawful.
We think what you do in another E.U. member state is beyond their remit and that you should ask what their reason is. If they do not have one, refuse to answer any more questions. After all if they stop you on the way out, this gives them an excuse to stop you on the way back (by saying they were not satisfied with the answers you gave previously). Either way, the questioning is designed to intimidate.
Apparently Customs are now saying they always have done this – oh yes? The web master who travels almost weekly has only been stopped once on the way out in three years. The normal deception was involved – men in Dover Port jackets stopping you for "speeding" or "security". However I noticed the C and E badge on their jackets underneath.
For the avoidance of doubt, the 31st July judgment remained in effect until a higher Court overrules it or any part of it or unless and until it is stayed by a Court pending an appeal (no such application for a stay has been made). We have been sent letters from HM C and E suggesting otherwise – this approach is designed to confuse and deceive, and is if anything downright dishonest.
The law remains for the time being exactly as it was declared in the 31 July judgment and if someone (for example, a Customs officer) claims otherwise then they are wrong.
The road hauliers won their case against the Government imposing £2,000 fines if stowaways were found. However, the Government is behaving in the usual "ignore the Courts" manner. The Solicitors involved have this to say;
"It is bizarre that the Home Office has not yet agreed to reimburse the penalties which had already been paid. The courts have determined that the civil penalty scheme was unjust and was non-compliant with relevant Human Rights issues. The system has been amended by legislation. How on earth can the Government justify its decision to retain penalties that were paid under a system that has been confirmed by the courts to be incompatible with the ECHR? It is not correct to say that those who paid up have accepted their liability. Payments were made under protest, to avoid being sued or to get vehicles returned or to preserve a credit rating. Why should those few be treated more harshly than the majority who dug in their heels and refused to pay? Where's the justice in that?"
Note the increase in the quantity of legitimate cross border shopped tobacco. Presumably the seizures in previous years were in fact legitimately shopped tobacco?
Interesting facts from the TMA. The percentage of smuggled and counterfeit tobacco has, despite repeated predictions year on year, not gone down much. The percentage of non U.K. bought tobacco has gone down which they attribute to the weak pound not HMRC. Genuine U.K. brand seizures account for only 6% of large scale seizures, yet most of the action is against shoppers not criminal gangs. www.the-tma.org.uk
Cigarette prices over the last 20 years in the U.K. www.the-tma.org.uk
Latest European Tobacco prices from the Tobacco Manufacturers Association. www.the-tma.org.uk
Hand rolling tobacco consumption, last 20 years. www.the-tma.org.uk
Cigarette consumption, last 20 years. www.the-tma.org.uk
Tax revenue from Tobacco, last 20 years. www.the-tma.org.uk
Having spent a little time thinking about this matter, I am increasingly of the opinion that any change to be announced by the government is likely to be cosmetic.
My view now is that the proper way to address Customs' disgraceful conduct in respect of seizures at the ports is to amend existing statutes so that:
(i) Seizure of vehicles is no longer permitted unless criminal proceedings are brought in respect of an importation or supply of goods carried in the vehicle, and not until a successful conviction has been obtained for which the time limited in which to appeal against conviction without special leave has expired and only then by order of the Court. It seems to me that seizure of a vehicle that is legally in the possession of a suspect is quite clearly in the nature of a punishment and therefore should only be associated with a criminal offence of which the subject has been convicted and after exhausting any appeals against conviction that are open to him. An appeal against an order of the Court for seizure should be treated as (part of) an appeal against sentence;
(ii) seizure of goods is no longer permitted unless the goods to be seized were imported into the United Kingdom without the payment of the appropriate United Kingdom duty and the goods are in the course of being or have been supplied commercially within the United Kingdom and only if it is intended by those seizing to issue criminal proceedings in respect of the supply in the United Kingdom of those goods within, say 3 days of the seizure. If proceedings have not been brought within that time limit, the goods must be returned to the person from whom they were seized immediately provided that s/he was legitimately in possession of the goods, and otherwise to their rightful owner. If criminal proceedings are brought and the importer or supplier or person from whom they were seized is not convicted at first instance, seized goods are to be returned as above within 28 days and/or within the same period of time compensation is to be paid to the person (s) from whom they were seized and/or the owner calculated on the basis of the market value of the goods in the United Kingdom and the reasonable costs of and occasioned by the seizure.
The Hoverspeed judgement gave the United Kingdom public two extremely significant results, both of which represented total defeat for Customs (who had unsuccessfully opposed Hoverspeed on these issues) and neither of which were appealed by Customs:
(i) The burden of proof was reversed. It is, and should always have been according to the law, up to Customs to prove that the goods were intended for commercial use. If they do not have the evidence to prove this at the time of seizure then they are not entitled to seize goods or vehicles;
(ii) The relevant section of the Personal Reliefs Order, which represented the United Kingdom's failed attempt to incorporate E.U. law into English law, was inconsistent with E.U. law. It was and had always been wrong and therefore no longer had any force. The result is a new statutory instrument which may (arguably) now be consistent with E.U. law (the matter has not yet been considered by a Court).
Customs elected to leave the judgement standing in these respects and to appeal on 2 very narrow issues:
(a) The finding of the Court that the stopping of the vehicle in the particular case in question was unlawful;
(b) The finding of the Court that the subsequent seizure was unlawful just because the stopping was unlawful.
Customs lost their appeal on (a) and won on (b). Apart from the individual case in question, the effect on the United Kingdom public is as follows. While a stopping in which Customs are unable to furnish a lawful excuse may be unlawful, any subsequent seizure of excise goods (and vehicle) made following that stopping will not necessarily be unlawful merely because the stopping was unlawful (but the seizure may nonetheless be unlawful for other reasons).
In making their judgement the Court also ruled that "reasonable grounds to suspect", in respect of stopping by reason of suspicion of excise goods intended for commercial use, could derive from information by way of profiles or trends. In other words, if Customs give excise goods as their reason for stopping (rather than claiming it is for prohibited or restricted goods), then profiling and trend data can be used to furnish them with the reasonable grounds that are required by law in order to make that stopping lawful.
As to the effect of all this, briefly I believe that it is as follows:
(1) Those whose goods and/or vehicles were seized under application of rules which were based upon the wrong interpretation of the E.U. directive in respect of burden of proof and/or upon the inconsistent incorporation of the relevant E.U. law into English law are broadly speaking now entitled to compensation;
(2) Those whose goods and/or vehicles were forfeited either by default or by the courts or following review of a request to restore whether or not ordered by the tribunal under application of rules which were based upon the wrong interpretation of the E.U. directive in respect of burden of proof and/or upon the inconsistent incorporation of the relevant E.U. law into English law are broadly speaking now entitled to compensation.
I hope that helps to clarify matters.