Appendix 1 - Current powers and practice under the Customs Acts
Part 8 of the Customs Act 1966 provides for the powers which may be exercised by customs officers.
Section 215A (as inserted by the Customs Amendment Act (No 2) 1983) provides certain conditions subject to which all powers of entry to any building may be exercised:
"215A. Conditions as to powers of entry under Customs Acts - Notwithstanding anything in any of the Customs Acts, every provision in any of those Acts giving any officer power to enter any building, whether under the authority of a warrant or otherwise, shall be subject to the following conditions:
(a) Reasonable notice of the intention to enter shall be given, except where it would frustrate the purpose of the entry;
(b) Entry shall be made at a time reasonable in the particular circumstances;
(c) Identification shall be produced on initial entry and, if requested, at any subsequent time;
(d) The authority for the entry and the purpose of the entry shall be stated."
A number of the protective principles which we have formulated in this report are contained in this provision.
Section 216 provides for the Comptroller of Customs to grant a Customs warrant to any officer of Customs. Section 217 provides for entry and search under such a Customs warrant. Section 217(1) - (2A) (as inserted by the Customs Amendment Act (No 2) 1983) provide:
"(1) Subject to subsection (2) of this section, any officer having with him a Customs warrant granted to him under this Act may at any time in the day or night and on any day of the week enter into, by force if need be, and search any house, premises, or place in which he has reasonable cause to suspect that there are any uncustomed goods, or any goods subject to the control of the Customs, or any goods unlawfully imported, or any forfeited goods, or any goods in respect of which any offence has been committed against the Customs Acts, or any books or other documents relating to any such goods, or any books or other documents containing information that may lead to the recovery of any penalty or other money under the Customs Acts, or any goods, books, or other documents which are evidence as to the commission of any offence against any of the Customs Acts, and may on any such entry break open and search any boxes, receptables, packages, or places in which any such goods, books, other documents, or evidence may be or may be supposed to be.
(2) On each occasion on which any officer proposes to use his warrant, for the purposes of this section, he shall first apply to the Collector who shall, if he considers that such reasonable cause as aforesaid exists
(a) Give permission to the officer to make application in writing on oath to a District Court Judge, a Justice of the Peace, or a Registrar or a Deputy Registrar of any Court who, if he has reason to believe such reasonable cause exists, shall sanction in the prescribed from the use of the warrant; or
(b) If he considers that the case is one of great emergency where immediate action is necessary, the Collector may authorise the use of the warrant.
(2A) On each occasion on which a Customs warrant is used, whether pursuant to paragraph (a) or paragraph (b) of subsection (2) of this section, the Collector shall, within 3 days thereafter, furnish to the Comptroller a written report on the use of the warrant and the circumstances in which it came to be exercised."
After the discussions with senior Customs officers we were impressed with the degree of accountability which s217(2)(a) and (b) in practice provide.
Every proposed exercise of the warrant power must first be considered by the Collector who, if satisfied that reasonable cause exists, authorises an application pursuant to s217(2)(a) to a District Court Judge, Justice of the Peace or a Registrar or Deputy Registrar of any Court to sanction the proposed use of the warrant.
In an emergency situation the Collector may authorise the proposed use of the warrant pursuant to s217(2)(b).
In either case the Collector must submit a report on the use of the warrant to the Comptroller.
Administrative guidelines complement the checks and balances built into the Act to ensure that officers who hold a Customs warrant are fully aware of their legal responsibilities when exercising their warrant powers.
As at 31 March 1988 there were only 29 Customs officers, including 15 Collectors, who held Customs warrants (out of a total of 1015 Customs officers). All were senior officers.
Between 4 April 1986 and 25 March 1987 there were 239 applications for an exercise of the warrant power pursuant to s217. Of the total warrants executed there were 38 occasions on which the use of the warrant was authorised by a Controller pursuant to s217(2)(b) as an emergency measure.
There is a long-standing co-operative agreement between the Customs Department and the Police relating to the co-ordination of joint operations where an operation by one organisation will involve the other's area of responsibility.
During this period joint Customs/Police operations were undertaken on 82 occasions (78 relating to drugs, 4 relating to commercial fraud). This figure represents 34% of all Customs warrant operations.