Customs legislation and human rights

Since October this year the interpretation of all law in England and Wales must have regard to the principles contained in the Human Rights Act 1998. Gavin McFarlane of Dechert and London Guildhall University foresees problems ahead in the scrutiny of Customs legislation.

The decision of the Court of Session in Scotland to disallow the seizure of the assets of a convicted drug smuggler (see page 4) has sent shock waves through Customs and Excise. It was held that to proceed on the basis of a reversal of the burden of proof infringed the asset-holder’s human rights under Article 6 of the European Convention on Human Rights. Now that the Human Rights Act 1998 has come into force in England and Wales, it would seem to be merely a matter of time before the higher courts begin to cut a swathe through the existing Customs legislation, striking down many of the principles that have given Customs an evidential and procedural advantage over the police.