1. This clause modifies some of Customs’ powers to enter and search premises for things which are liable to forfeiture. The aim is for smuggled goods to ensure that Customs have effective powers to tackle smuggling and that human rights are safeguarded.human rights are safeguarded without impairing Customs effectiveness in tackling smuggling

2. This clause substitutes section 161 of the Customs and Excise Management Act 1979 (CEMA) with new sections 161 and 161A.

3. Section 161 currently provides for Customs officers officers to enter and search any building or place premises where there are reasonable grounds to suspect that any thinggoods liable to forfeiture under Customs law isare kept or concealed there, and to seize or detain such thingsgoods. Sub section 161(1) allows for such action to be carried out by an officer having a under the authority of a writ of assistance. , whilst sub Ssection 161(3) provides for such action to be carried out by an officer under the authority of this to be done using a search warrant issued by a justice of the peace.

4. New section 161 limits the use of the writ of assistance to those circumstances where thingsgoods liable to forfeiture are likely to be removed from the premises, destroyed or lost before a search warrant can be obtained and executed.

5. New section 161A retains the current provisions of existing section 161 regarding the use of search warrants.

6. Writs of assistance are documentary authorisations to search unspecified premises for smuggled goods. They are issued by the Queen’s Bench Division of the High Court of Justice at the beginning of the monarch’s reign and remain valid until 6 months after the end of that reign. During that time they are lodged at various Customs offices, where the senior manager is responsible for their custody and use.

7. The use of writs of assistance is entirely under the control of Customs and Excise. This enables them to be obtained more quickly than a search warrant for which application must always be made to a justice of the peace. Also unlike the search warrant, the writ is not specific to any address, so it can be used to search for smuggled goods which have been moved from premises to premises.

8. Current law regarding the writ may breach the Human Rights Act 98 (HRA), which comes into force on 2 October 2000. This is because the HRA embodies the provisions of the European Convention on Human Rights (ECHR) into UK law, and it is thought that unrestricted use of the writ may infringe Article 8 of the ECHR (Right to respect for private and family life). The basis for this view is primarily a ruling by the European Court of Human Rights in which a search by French Customs officials investigating currency offences was considered to be a breach of Article 8, as it was carried out under a statutory power of search without a warrant. However, the Court noted that urgent searches of premises might be permissable without prior judicial approval on the basis of urgency. This is supported by a decision of the Court of Appeal of Ontario in which it was ruled that the use of the Canadian version of the writ to search a house for drugs without a warrant was an abuse of the Charter of Fundamental Rights and Freedoms. Again the need for urgent searches without a warrant was recognised and Canadian Customs law and Police powers were amended accordingly.

89. To ensure that use of the writ will comply with the HRA, In the light of the introduction of the HRA, iit is proposed to modify the law relating to the writ so that its use will be limited to urgent situations where the delay caused by seeking a search warrant to search premises for smuggled goods is likely to result in such goods being destroyed or moved to another location, before Customs have the opportunity to use the warrant. Where considerations of urgency do not apply, search warrants will always be sought. The provisions of clause 25 will achieve these changes .

910. The Government is opposed to total withdrawal of the writ as it could seriously impair Customs effectiveness in tackling smuggling, particularly of excise goods. It is estimated on the basis of previous experience, that in approximately 5% of cases, the delay caused by seeking a warrant could result currently in the minimum loss of £1,000,000 of revenue detections.

101. The need for the continued use of the writ in urgent circumstances is now greater than ever owing to the recent growth in tobacco smuggling. The key to success in countering this activity is the ability to act quickly on intelligence in order to disrupt the supply networks of smuggled cigarettes, and Customs officers would not be able to do so effectively if they did not have recourse to the writ in urgent situations.