HM CUSTOMS & EXCISE
C&E S1/96 15 February 1996
PROSECUTION PROCEDURES
KEY POINTS
- HM Customs and Excise is one of a number of independent
prosecuting authorities of the Crown - it is an important
principle that prosecuting authorities are free from improper
political influence.
- Customs is not outside proper Parliamentary oversight; it is
accountable through Treasury Ministers for enforcement policy.
The Attorney General exercises a general purview over
prosecuting authorities.
- The Attorney General's general purview is covered in a Note
prepared by the Attorney General's office.
- Customs observes the evidential and public interest standards in
the Code for Crown Prosecutors placed before the House.
- The strengths of Customs' tripartite prosecution handling
arrangements were recognised in a detailed review by the
Phillips Commission in the early 1980s (which led to the setting
up of the Crown Prosecution Service for police cases).
- Independent Counsel advise on and conduct all criminal
prosecutions being tried "on indictment" i.e. trial in the Crown
Court.
CUSTOMS CASE HANDLING
The strengths of Customs' tripartite structure for handling criminal
cases were recognised in the detailed review of the Phillips
Commission in the early 1980s (which led to the setting up of the
Crown Prosecution Service for police cases).
In this tripartite arrangement:
- investigators are responsible for assessing intelligence,
determining the scope and nature of any investigation and
managing the gathering of evidence
- in-house lawyers (plus independent counsel where appropriate)
are responsible for assessing the evidence, determining whether
there is a realistic prospect of a conviction and preparing
cases for and handling of legal proceedings, including
instructing counsel
- administrators set the enforcement policy framework within which
investigations and prosecutions are conducted; determine the
"public interest" in mounting a criminal prosecution in
individual cases and authorise criminal proceedings (or
alternative course of action such as compounding).
The independence and objectivity of administrators in determining
public interest and of lawyers in assessing the evidential
sufficiency is preserved within the department. The three strands
are kept separate with the management of them only coming together at
the level of the Chairman.
CUSTOMS ID/SOLICITORS RELATIONSHIP
Customs Investigation Division is responsible for assessing the
significance of intelligence, deciding the scope and nature of any
investigation and managing the gathering of evidence. Investigators
identify and develop lines of enquiry and are generally the first to
consider the potential evidential relevance of material. They present
material gathered to in-house lawyers.
Those lawyers make the judgement as to whether the evidence affords a
realistic prospect of a conviction (the test in the Code for Crown
Prosecutors). Lawyers will identify any areas which require further
evidence and guide investigators on lines of further enquiry. It is
for lawyers to prepare the case for trial and to instruct counsel who
are either standing counsel or are nominated from a list maintained
by the Attorney General. Lawyers also advise administrators on any
issues of public interest which come to their attention which may
point against prosecution.
The separate responsibilities of the investigator, lawyer and
administrator are emphasised where a case involves sensitive or
difficult evidential or public interest issues. In such cases,
lawyers and administrators are involved at a much earlier stage than
usual (as happened in the Matrix Churchill and Supergun cases for
example).
In line with Scott's recommendations the Chairman of Customs & Excise
will review the relationship between Customs investigators and
solicitors with a view to strengthening the role of the latter.
CONDUCT OF CRIMINAL PROSECUTION
The prosecution of serious Customs cases are "on indictment" in the
Crown Court and independent counsel handle the prosecution case.
Counsel are "instructed" (briefed) by departmental lawyers. Where
there are apparent sensitivities or evidential difficulties, Counsel
is usually appointed at a relatively early stage in the case.
In representing the prosecuting authorities, Prosecuting Counsel has
personal responsibilities, as an officer of the courts, to act in
accord with the principles of commencing or continuing a criminal
prosecution only where it is proper to do so.
It is for Counsel to "settle" the indictment which determines the
actual offences to be alleged and, to a large extent, the way in
which the prosecution puts its case. Though investigators and
departmental lawyers will consider material and possible lines of
enquiry for potential relevance, prosecution decisions on relevance
and disclosure ultimately rest with Counsel.
