CUSTOMS AND EXCISE - CIVIL PROCEDURE
Nene Packaging Limited Ltd & 5 Others v Customs & Excise Commissioners (No.17365)
VADT (Stephen Oliver QC (Ch)) 17/8/2001
The disclosure obligations on the C&E Commissioners satisfied the taxpayer's right to information of the nature of the case against him under Article 6(3)
This was a judgment following Han v Customs and Excise Commissioners (2001) STC 1188, in which the Court of Appeal held that a civil penalty for breach of customs and excise regulations should be regarded as giving rise to a "criminal charge". Each applicant based their arguments therefore on Article 6(3) of the Convention which entitles anyone faced with a criminal charge to know "the nature and cause of the accusation against him". They sought a direction that the commissioners disclose all statements, exhibits and interview records to be used by them in evidence as well as notice of any application to withhold any document or part of a document from the taxpayers.
The existing provisions of the Value Added Tax Tribunal Rules SI 590/1986 regarding service by the Customs and Excise Commissioners of a statement of case and list of documents adequately safeguarded the taxpayer's right to a fair trial by informing him of the nature of the case and the accusation against him. It was unnecessary to order disclosure of all material in the commissioners' possession.
COMMENT (September 2001)
Once proceedings are categorised as criminal, the full panoply of Article 6 guarantees is brought to bear on the matter, including the right to legal assistance, presumption of innocence, as well as the general guarantees, express or implied, that apply to all proceedings, civil or criminal. Not all of these necessarily apply to customs proceedings, however, despite the fact that it has been established in Strasbourg for some time that such proceedings sometimes fall on the "criminal" side of the Article 6 line (Salabiaku v France (1988) 13 EHRR 379 and Funke v France (1993) 16 EHRR 297).
The Court will take into account the circumstances of the investigation and the consequent proceedings to determine how strictly the Article 6 guarantees should apply. One of the guarantees for criminal defendants mentioned above under Article 6(2) was the right to a presumption of innocence. However, in Salabiaku, the Court did not accept the applicant's contention that the presumption that a person, having come through customs in possession of prohibited goods, had smuggled them. As long as such presumptions of fact are confined "within the reasonable limits which take into account the importance of what is at stake and maintain the rights of defence", they will not violate Article 6(2) (Salabiaku).
As for the merits of the applicants' argument, that they were entitled to various documents and notices in order to be properly informed of the case against them, they were on weak ground as far as Strasbourg case law is concerned. There is no authority for their contention that they should be supplied with such detailed information. What the relevant case law suggests is that it is not actually necessary that the accused be informed as to the evidence on which the charge is based, simply that they should be told of the offences with which they are charged and the date and place of their alleged commission (Brozicek v Italy (1989) 12 EHRR 371).
One final point: the court observed that the classification of certain proceedings as "criminal" in nature only has the effect that the matter is criminal in relation to Convention law, and this label does not apply for all domestic purposes. This is the quid pro quo for the "autonomous" nature of the definition, that the categorisation for Convention purposes of a case as "civil" or "criminal" does not depend upon its character in domestic law. If the Convention interpretation is unaffected by domestic law considerations, domestic law is equally unaffected by Convention definitions.
What is the consequence of this proposition? Not very significant, in fact, because it is hard to imagine any circumstances in which an aspect of C & E proceedings can be defined "for domestic purposes" in a way that is completely isolated from the Convention.
Rosalind English, 1 Crown Office Row