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Criminal Law Should the Illegal Importation of Tobacco and Cigarettes be a Criminal Offense

Introduction.The illegal importation of tobacco and cigarettes costs the United Kingdom billions every year in taxes, yet it is not, under a certain threshold, a criminal offence. This article will explore the motivations behind the policy of keeping the illegal importation of tobacco and cigarettes a civil matter, by posing the question as to whether the illegal importation of tobacco and cigarettes should be a criminal offence? Joining the European Union has meant that the United Kingdom no longer has sovereign rights in determining what is, or is not, an acceptable allowance.

A good place to start will, therefore, entail a basic examination of what the law says regarding cigarette importation focusing on the guidelines that currently are in force today.What will become apparent from this will concern the fact that the guidelines are just that, there are no hard and fast rules in relation to the amount. There is, however, a mechanism in place to prevent people from importing excessive amounts in order to gain an economic advantage. The main crux of this article will focus upon the current method of distinguishing what cigarettes are for personal use, and what cigarettes are for commercial gain. Finally, the discussion will focus upon whether the classification of importing low level cigarettes and tobacco for commercial gain should be a criminal offence, and, therefore, install the deference that was once afforded to the English legal system.

Current Law on Importation of Cigarettes and Tobacco into the United Kingdom.When the United Kingdom decided to join the European Economic Community (EU) there were certain rights and obligations that befell every citizen who resided within the United Kingdom. As part of a package of rights, free movement of goods was to be guaranteed. This entailed goods being purchased within one member state, and excise duty being paid on the goods, being allowed to pass through the borders of the member states without any other levies being placed upon them.

This provision was meant to harmonise the tax levied on products in different member states. This initiative has failed to materialise in relation to tobacco products.The UK's rate of Tobacco Duty is considerably higher than in most of the rest of Europe (the TMA puts the average price of 20 cigarettes on the continent at around 2.40) and other parts of the world. This has led to many smokers in the United Kingdom going to the European mainland and purchasing their cigarettes there. It has also increased smuggling for commercial purposes, as the rewards can be substantial.

Article 9 of Directive 92/12/EEC sets out guidelines for national governments on quantities considered not to be of commercial volumes. The government immediately issued guidelines which stated that only 800 cigarettes and 1 kilo of tobacco could be imported into the United Kingdom under these guidelines.There was a wave of protests from different sources, with high level EU officials claiming that the United Kingdom was not cooperating with the spirit of the EU by denying its citizens the rights that they had agreed to afford them once the Treaty was signed. In October 2001 Single Market Commissioner Frits Bolkestein launched an action stating "The commission is concerned that the controls currently being applied at UK ports and airports, and the sanctions being applied when UK excise duty law is breached, may breach the EU rules which give travellers the right to buy abroad.

".The United Kingdom reviewed its policy following many cases that went as high as the Court of Appeal. The guidelines now state that 3200 cigarettes are now allowable and 3 kilos of tobacco. Customs and Excise officials were still given the authority to challenge individuals if they believed that the cigarettes and tobacco were purchased for commercial purposes. The problem still remains, however, in distinguishing what cigarettes are for personal use, and what cigarettes are for commercial gain.Methods Employed to Distinguish Cigarettes for Personal Use and Those Purchased for Commercial Purposes.

The EU has set out guidelines for what it believes are reasonable quantities for personal consumption, to distinguish from commercial volumes. A traveller with amounts over the guidelines could be allowed through if they can prove it is for personal consumption, for example at a wedding party. Amounts below the guidelines could lead to enforcement action if, for example, the same person was coming through several times a week in an attempt to build up commercial levels of stock.

It has been asserted that UK customs could be applying the rules too harshly.It has been stated that 80% of smuggled cigarettes comes in via container, and the detection rate for tobacco coming in by foot or car is about 3% of the remaining 20%. The aim is to detect 10%, which means for all the money spent and irritation caused, just 2% of smuggled tobacco will be detected. Why is the Government tackling shoppers with relatively small amounts? If Customs believe that people who are carrying such small amounts of these products are engaging in a commercial venture, thus avoiding the duty, then surely this should be a criminal offence.The Criminality of Tobacco Smuggling.For one to understand the reasoning behind not classifying tobacco smuggling as a criminal activity, one first needs to understand some basic principals about the English legal system.

In civil cases, one must convince a judge or jury on the balance of probabilities. This system allows for a lower standard of proof. If a judge or jury is not convinced, on the balance of probabilities by the evidence that has been presented, then that the tobacco is not for commercial purposes, then they can decide in favour of the customs. In criminal law, the standard of proof is beyond all reasonable doubt.

The customs must prove, therefore, that the tobacco was for commercial purposes, and will have to produce much more in evidence to prove this assertion.There is also another far more cynical policy behind this classification. There will be no legal aid granted to an individual when fighting a seizure order on their goods. The Crown, however, will employ a solicitor and barrister for the court hearing. This strikes at the very heart of any judicial notion of a right to a fair trial provided under Article 6 of the European Convention of Human Rights. The Crown argues that representation can be sought by any individual; however, when the stakes are so low, and the legal costs will outweigh the actual cost of the goods that have been seized, one might question the productiveness of pursuing such a course of action.

Customs and Excise are getting the best of both worlds in that the policy of keeping this a civil matter law allows them to assume your guilt on the balance of probabilities, yet the punishments they inflict are worst than criminals going through the criminal justice system. No wonder the British legal system is being brought into disrepute.Conclusion.There is no denying the fact that the aggressive procedures employed by the Customs and Excise are saving the government millions, if not billions in tax.

The question still remains as to whether this is being done legally. The Court has confirmed that those who bring back large quantities of alcohol and tobacco must accept an evidential burden to provide a satisfactory explanation, the absence of which may well cause Customs to conclude that they are not for own use but held for a commercial purpose, yet this reverses the evidentiary burden in a perverse way. Those who assert a state of affairs have an evidentiary burden to prove the fact that they are asserting, not the other way round.The contemptuous policy of defining this cause of action as civil is not only perverse as it is vicious, it has resulted in Customs & Excise, who one would normally associate with the Ambulance service and the Police force, now viewed with open contempt. More seriously, many people now feel too intimidated to travel freely. It reminds one of The Peoples Republic of East Germany.

The only way to restore credibility to the English legal system is to reclassify this specific action as criminal, thus allowing all of the safeguards afforded to society in the process.

.Thomas Gallagher
LLb Liverpool John Moores University
LLM Liverpool University.

If anybody would like to know more about the operations that the Customs and Excise take part in, then please visit http://www.cia-uk.co.uk and http://www.criminal-information-agency.com/hmcustoms/ and http://www.


By: Thomas Gallagher

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