VFR09200 - Criminal jurisdiction under the Visiting Forces Act 1952 and action in offence cases: offence cases

Offences committed on entering or leaving the UK
Revenue offences detected within the UK
Questioning suspected offenders
Action in offence cases

{#Offences}Offences committed on entering or leaving the UK

You should follow the appropriate instructions in the HMRC Criminal Justice Procedure for offences involving excise goods only. Proceedings in such cases should normally be instituted by information and summons; immediate proceedings by way of arrest and charge should be restricted to those cases where the offender is unlikely to be available for later proceedings by information and summons (for example, if likely to leave UK jurisdiction shortly). When an offender is arrested you should notify the Visiting Forces Unit of Expertise in order that the appropriate force authority of the sending country may be informed and you should allow the offender to communicate with the force authority. Whenever possible, you should notify the Visiting Forces Unit of Expertise and any officer of the sending country before the offender is charged.

Action should be taken in accordance with the HMRC Criminal Justice Procedure and be appropriate to the type of prohibited and restricted goods involved in the offence.

{#Revenue}Revenue offences detected within the UK

No revenue offence will arise solely from the possession by an entitled person of excessive quantities of duty and VAT free goods, however acquired. A revenue offence does occur when the goods which have been supplied, free of VAT and duty, for use by visiting force personnel are sold, lent or hired to a non-entitled person.

{#Questioning}Questioning suspected offenders

The successful prosecution of an offence under CEMA Section 170 requires, in all cases, the proof of guilty knowledge on the part of the alleged offender and questioning is to be directed with this in mind. The goods may be liable to forfeiture under CEMA Section124, whether guilty knowledge can be established or not. When questioning a suspect you should follow the guidance given in the HMRC Criminal Justice Procedure.

These notes are intended to supplement the action to be taken as described in the HMRC Criminal Justice Procedure not to replace them.

{#Action}Action in offence cases

Non-entitled persons

Before any offence action, it is vital to liaise with the Visiting Forces Unit of Expertise. This is to ensure that, where an entitled person is involved, appropriate liaison with the visiting force has occurred and the question of criminal jurisdiction has been established.

When a non-entitled person is found in possession of imported goods which have been obtained duty and/or VAT-free by an entitled person:

  • the goods are liable to seizure;
  • the possessor of the goods should be questioned to establish evidence of an offence under CEMA Section 170 and an attempt made to trace and question the entitled person who supplied the goods;
  • if the goods discovered are all imported, they should be seized and the matter fully investigated to determine the identity of all the offenders, the quantity and description of all the goods involved and the nature of the offences;
  • if some or all of the goods are not imported (for example, British-manufactured spirits or tobacco), the goods are to be detained and the facts reported to the Visiting Forces Unit of Expertise. The reports should include details of the source and revenue status of the goods, where known. No further action should be taken until the Visiting Forces Unit of Expertise has been consulted;
  • where the non-entitled person becomes subject to proceedings for theft of those goods and/or other smuggled goods, the procedure laid down in the HMRC Criminal Justice Procedure should be followed.

You should also consider whether goods may be liable to seizure under the conditions of the Customs & Excise (Personal Reliefs for Special Visitors) Order 1992 (SI1992/3156).

Visiting forces personnel

Before any offence action, it is vital to liaise with the Visiting Forces Unit of Expertise. This is to ensure that, where an entitled person is involved, appropriate liaison with the visiting force has occurred and the question of criminal jurisdiction has been established.

The legal position of the entitled person, whether a member of a visiting force or of a civilian component or dependant, is explained in VFR09100. When the revenue is:

  • £750 or below and there are no aggravating circumstances, action should be confined to seizure of the goods;
  • Exceeds £750, or aggravating circumstances exists, the matter should be fully investigated and consider action described in the relevant section of the HMRC Criminal Justice Procedure.
  • If it appears likely that the alleged offender will be unavailable for possible later proceedings, you should consider the possibility of instituting proceedings by arrest and charge. If arrest and charge is decided upon, you should follow the directions set out in the HMRC Criminal Justice Procedure and notify the Visiting Forces Unit of Expertise to liaise with the force authority.

When considering reports under this paragraph you should bear in mind that:

  • in general it is more difficult to prove intent to evade the revenue in cases detected within the UK as compared with detections at importation;
  • the possibility of diplomatic repercussions arising from incautious action, makes it particularly important that any action is done in consultation with the Visiting Forces Unit of Expertise and VAT International. It may also be necessary or appropriate to consult with an HMRC solicitor at an early stage if there is any doubt as to the sufficiency of the evidence;
  • in cases where criminal proceedings may be instituted, advice must be sought from the Solicitor before proceedings are commenced, either by charging the offender or by the ordering of proceedings by information and summons;
  • whenever compounding is offered or proceedings are instituted, the force authorities must be informed of the Department’s action via the Visiting Force Unit of Expertise who will liaise with the force authority.
  • When a decision is taken to proceed against forces personnel by information and summons you must seek the advice of the Visiting Forces Unit of Expertise and VAT International team.

Dependants

Although not strictly covered in this respect by the NATO Status of Forces Agreement or the Visiting Forces Act, dependants should be dealt with as if they were members of a visiting force or its civilian component.