Enforcement

Customs Legislation

Upon establishment of the Irish Free State, regulations were made to adapt the existing United Kingdom’s Customs Acts to apply to the Irish Free State frontier with Northern Ireland. Since accession to the  European Union, Ireland has been part of the Customs Union with the other member states.  Since 1993, the internal customs frontiers with Northern Ireland were dismantled.

Until recently, the procedural and criminal aspects of customs legislation was regulated by the Customs Consolidation Act 1876, as amended on numerous occasions both before and since independence. The Customs Act, 2015 repeals and has replaced the legislation with a more modern scheme of legislation.


Customs Offences I

It is an offence to import or export any goods prohibited or restricted by customs law or related provisions. Any  person who

  • imports or exports any goods in contravention of legislation;
  • attempts to do so;
  • brings or sends goods to a place for the purpose of unlawful exportation;
  • attempts to do so;
  • keeps such goods for the purpose of facilitating exportation;
  • aids or abets any of the above

is guilty of a customs offence.

It is an offence to move goods into or out of the State without payment of duty or in breach of any prohibition or restriction on import or export.  It is an offence to evade or attempt to evade any customs duty applicable to importation or exportation of goods.  It is an offence to take possession, custody or charge or to remove, transport, deposit or conceal or to otherwise deal with any goods liable to duties of customs, with an intend to default state of such duties.


Customs Offences II

It is an offence to be concerned in the importation into or exportation from the Sate of prohibited or restricted goods, without the requisite licences.  It is an offence to take possession, custody or charge or to remove, transport, deposit, conceal or otherwise deal with any goods contrary to any prohibition or restriction.

There are number of customs related offences, primarily relating to non-compliance with requirements made by a customs officer in the execution of his duty, interference with customs property or equipment or adapting vehicles  for smuggling purposes.

Any goods which are subject to a prohibition and restriction on either their importation or exportation are prohibited or restricted goods for the purpose of the Customs Actt.


Customs Offences III

A person who—

  • evades or attempts to evade duties of customs chargeable on the importation of any goods with intent to defraud the State, either directly or indirectly, of such duties,
  • takes possession, custody or charge of, removes, transports, deposits, conceals, or otherwise deals with any goods in respect of which any duties of customs are for the time being payable on importation, with intent to defraud the State, either directly or indirectly, of such duties,
  • imports into the State any goods contrary to any prohibition or restriction on importation of those goods, whether or not the goods are unloaded from the conveyance in which they were imported into the State,
  • takes possession, custody or charge of, removes, transports, deposits, conceals, or otherwise deals with any goods contrary to any prohibition or restriction on importation of those goods, whether or not the goods are unloaded from the conveyance in which they were imported into the State,
  • evades or attempts to evade any duties of customs chargeable on the export of goods with intent to defraud the State, either directly or indirectly, of such duties, or
  • exports or attempts to export from the State any goods contrary to any prohibition or restriction on exportation of those goods,

commits an offence.


Customs Offences IV

A person who—

  • fails without lawful and sufficient excuse to comply with any requirement imposed on him or her under any provision of Part 4,
  • rescues, damages or destroys any thing liable to forfeiture or does anything calculated to prevent the procuring of evidence as to whether or not any thing is so liable to forfeiture,
  • throws overboard, staves or destroys any goods in order to prevent or avoid the seizure of those goods,
  • makes any signal or other communication with the intention to aid or assist the unlawful importation or unlawful exportation of goods,
  • prevents the arrest of any person by an officer of customs or rescues any person so arrested,
  • damages or otherwise interferes in any way with any equipment, vessel, aircraft, vehicle, communications system or other thing used, or intended for use, by an officer of customs,
  • wounds, maims, abducts, kills or otherwise injures a customs dog without lawful authority or reasonable excuse,
  • wilfully and prematurely removes or tampers with a seal, lock or mark that is used by an officer of customs to secure or identify any goods; The person in charge of the goods is deemed to have committed the offence, and where a seal, lock or mark has been used by an officer of customs on board a vessel or aircraft, the master or pilot-in-command is deemed to be the person in charge of the goods.
  • owns or is in charge of any conveyance which is found within the State having been constructed, adapted, altered or fitted in any manner for the purpose of concealing goods in connection with their illegal importation or exportation,
  • counterfeits or falsifies any seal, signature, initials or other mark of, or used by, an officer of customs for the verification of a document or for the security or identification of goods or for any other purpose in connection with any matter relating to customs, or
  • attempts or endeavours to commit, or aids, abets or assists in the commission of, any of the offences mentioned in this section,

commits an offence.


Customs Offences V

A person who commits  any of the above offences is liable on summary conviction, to a fine of up to €5,000 and/or six months imprisonment.  He is liable on indictment to a fine of up to €125,000 or three times the duty paid value of the goods, where they are greater than €250,000, or a terms of imprisonment up to five years or both.

Where the defendant pleads guilty in the District Court to  an indictable offence, the penalty applicable will be that for summary conviction.

A person convicted of an offence is liable on summary conviction to a fine of up to €5,000 or imprisonment of up to six months or both.

The above is supplemental to offences under the Taxes Consolidation Act in relation to obstructing, threatening or assaulting customs officer.

The legislation sets out criteria for whether an offence might be tried summarily or on indictment.  The value of the goods are a key consideration.  Where triple the duty paid exceed €1,900, the offence is to be tried on indictment.  Below that threshold, the case is to be dealt with summarily.

The value of the goods is taken as the price that they would be expected to fetch in the open market.  In the case of prohibited goods, the value is taken as the price which could be expected to fetch on the market for an unlawful supply or sale of such goods. Where the value placed on the goods by the customs is challenged by the defendant, the District Court judge is to determine the matter before proceeding.


Forfeiture

Goods which have been legally imported or attempted to be legally imported whether in breach of duty or contrary to prohibitions or restrictions, are liable to forfeiture.  Any conveyances or any goods which are packed with or used to conceal goods liable to forfeiture, are themselves liable to forfeiture.

Where goods are seized by an officer of customs, notice of the seizure is to be given to the owner, except in certain specified circumstances.

A person who claims that anything seized as liable to forfeiture is not so liable, must within 30 days from the date of the notice of seizure or where no notice has been given but in 30 days of the date of seizure, give notice in writing to the Revenue of the claim concerned.  Otherwise the seized goods are deemed to have been duly condemned as forfeited.

There is provision for court proceedings for condemnation of seized goods.  The Revenue may stay or compound any condemnation proceedings and may restore anything seized.  Revenue officials and other officers are indemnified in respect of the seizure of goods, where they act with probable cause.


Procedural Matters

There is provision for rules of court in relation to customs offences.  They may deal in particular with joint and several liability offences by bodies, corporate and continuity of proceeding, service of summons and the non-application of the Probation Act.

In a civil or criminal case where judgment is given against Revenue officials  on account of the seizure or detention of anything, the plaintiff is not entitled to any damage or costs, besides the things seized or value of such thing.  Such officials are not liable to punishment or penalty providing the courts fines with probable cause for the seizure.

In proceedings under the Customs Act, certain things are to be presumed until the contrary is shown.  This includes, for example, that officers are property appointed and authorised.  In proceedings under the Customs Act, any question arises in relation to specified matters, the onus of proof lies on the person bringing the proceedings.

A person may be liable for more than one penalty in respect of the same offence under customs and other legislation.


Administrative Penalties

There is provision for administrative penalties for contravention of certain customs rules and procedures.    Administrative penalties for customs matters introduced in 2011 are broadened to in 2015.  A person aggrieved may by decision to apply in administrative penalty, may appeal.

The legislation specifies the breaches of customs law that may incur administrative penalties

and o specifies the amount of the different penalties to be imposed in each case. It  provides for cases where corporate entities are liable for an administrative penalty.

Any penalty payable is deemed to be a debt due to the Minister for Finance for the benefit of the Central Fund and shall be payable to the Commissioners. The Taxes Consolidation Act 1997 provisions for the collection of penalties applies.

This provision does not prevent any action or proceedings being otherwise brought for the collection or recovery of duties of customs.


Enforcement Powers

Officers of Revenue, Customs and excise branch, members of an Garda Siochana and other persons in public service employed in the prevention of smuggling have powers in relation to the enforcement of customs legislation. Their powers apply to goods which are prohibited or restricted from import or export, or which require a licence.

There are extensive powers to search any persons reasonably suspected of unlawfully possessing any such goods  or with intent to importing or  export them or to assist in doing so.

When officers of customs and excise reasonably suspect that goods are intend for import or  export in contravention of law, they may request the  person in whose possession or control they are,  give information relevant to the goods, of which they are in possession, including documents.

Information may be required about the ownership of the goods, the intended disposition, their purpose at the particular place,  whether they were intended for exports, whether a license has been obtained.  The persons is possession is obliged  to provide the information and failure to do so, is in offence subject to a customs penalty.


General Powers of Customs Officers

There is a power of entry, inspection and patrol of certain places for officers of customs and any person assisting the officer for the purpose of carrying out their functions under the Customs act at any time and without warrant.  The power to patrol along the coast and land frontier and in customs ports and  airports is part of the mechanism for combating smuggling. A customs officer may take any necessary equipment material, vehicle, et cetera. As required for investigation.

An officer of customs in uniform or in a patrol vessel may stop or cause to stop, any conveyance which is entering or has entered the State, is leaving the State or is in the contiguous zone of the State or any other place within the State.  In the case of vehicles other than at ports,  airports and on the land frontier, the right to stop applies, only where the customs officer has reasonable grounds to suspect that a customs offence is being committed.


Search Powers of Customs Officers

A person in charge of a vehicle, shall with the request of the officer of customs, keep it stationary, to enable the officer to board, search and examine any goods on or in it and bring it to a place required for such boarding, inspection or examination.

A customs officer may enter,  board or search any vehicle that is entering or has entered the State or is leaving or intends to leave the State and  examine goods carried on it. A customs officer may examine goods under customs control.  The customs officer may search and enter premises with a District Court warrant.  He may be accompanied by other persons as the officer considers necessary.  He may seize or detain anything found in the course of the search which appears might be required as evidence in proceedings.

A customs officer may search with reasonable cause a person in the vicinity of any port or airport, the land frontier, coast or any premises or land, the subject of a search warrant.  A customs officer may seize and detain anything found in the course of the search which may be required in proceedings for customs offences or under any other act.  There are safeguards in relation to personal searches.  Searches for internal concealed drugs are dealt with by Garda Siochana.

A customs officer may stop and question a person entering or leaving the State with regard to their journey and baggage.  Baggage may be searched.


Arrest Detention Seizure Powers

Where a customer officer has reasonable grounds to suspect a person is committing an offence in respect of

  • failure to pay duty;
  • non-compliance with customs requirements
  • where the person has assaulted an officer of customs,

the officer may arrest the person concerned without warrant.

Goods which are being imported, exported, or intended to be imported or exported, without payment of the relevant duty or in  contravention of any provision on importation or exportation may be detained, for the purpose of determining their status.  Vehicles including cars, boats, ships etc, carrying the goods may also  be detained.  The goods, vehicles  and vessels may be seized and ultimately forfeited.

A customs officer may on grounds of reasonable suspicion, detain goods and vehicles  being imported or exported into or from  the State, pending the outcome of enquiries and investigations, as to whether they are in compliance with the customs act. A  customs officer may detain goods being imported or exported that he has reasonable grounds to suspect,t might be required as evidence in criminal proceedings under the Customs Act or other legislation.

The District Court may grant search warrants permitting the  search of  books and records relating to transactions in breach of customs law.  Places or premises may be searched.  The search may be undertaken by members of the customs and excise.


Forfeiture I

Any goods liable to any duty on importation, which are imported without payment or contrary to any legislation are liable to forfeiture, together with goods which would be found packed or used with or in concealing such goods.

Goods which are in the course of being illegally imported or exported (or where there is an attempt to do so)  are liable to forfeiture.  Ships, boats carriages cars, and other vehicles used for such purpose are themselves liable to forfeiture. Where goods are found in or attached to a vehicle, the vehicle is deemed to be in use for the purpose of the transport of such goods.

If goods being goods, the exportation of which is prohibited or restricted by any enactment or statutory instrument have been dealt with as follows, they are liable to forfeiture

  • exported in contravention of any enactment or statutory instrument;
  • attempted to be so exported;
  • brought to any place for such purpose;
  • are being brought to such place for such purpose;
  • have been kept in any place facilitating exportation in contravention;
  • have been dealt with any manner with intent to evade such prohibition or restriction.

then all ships, boats, carriages and conveyances including animals used in the exportation or conveyance of goods shall themselves be liable to forfeiture


Forfeiture II

Revenue may give a notice that to a person that if he makes or intends to make a claim in relation to the seizure. The claimant must give notice of his particulars and if resident abroad, the address of a solicitor within the State authorised to accept documents.

A customs officer may seize any goods and vehicles liable to forfeiture under the act.  They may be kept in the custody of an officer of the Revenue commissioners or at secured place designated by the Revenue. Notice of seizure is given to the owner of the goods.  If he cannot be traced, it is published in Irish Oifigiul.


Notice of Forfeiture

When goods are seized, the seizing officer is to give notice in writing of the seizure and the grounds to the master or owner of the things seized if known either by delivering such notice to him personally or by letter addressed to his last known place of business or address if known.

Goods seized may be sold and disposed of as the customs authority may direct unless the person for whom such seizure has been made or some person authorised by him shall within 30 days give notice to the person seizing the same that he claims the goods, whereupon procedures shall be taken for forfeiture and condemnation.

If goods are of a perishable nature or consist of animals, they may be sold by direction of the revenue and the proceeds held were by the result of any such claim.

Any seizures which have been made and condemned under the customs act or other legislation may be disposed of in such manner as the customs may direct.


Condemnation I

Proceedings for condemnation by the court are civil proceedings, and are  commenced in the name of the Commissioners. Where in any condemnation proceedings the court finds that the thing seized was, at the time of seizure, liable to forfeiture, the court shall condemn it as forfeited, and in any other case the court shall order its release.

Condemnation proceedings may be instituted in the High Court or, if in the opinion of the Commissioners the value of the thing seized (that is to be the subject of such proceedings) does not exceed—

  • €75,000, the Circuit Court, or
  • €15,000, the District Court.

In any condemnation proceedings, the claimant or any solicitor acting on behalf of such claimant, shall state on oath that the thing seized was, or was to the best of his or her knowledge and belief, the property of the claimant at the time of the seizure.


Condemnation II

The Commissioners may, in their discretion, stay or compound any condemnation proceedings. The Commissioners may restore anything seized which is the subject of condemnation proceedings. Where in any condemnation proceedings—

  • judgment is given for the claimant and the court or judge certifies that there was probable cause for making such seizure or detention, no officer of the Commissioners or other person who made or assisted in making the seizure is liable to any civil or criminal proceedings on account of the seizure or detention of the thing seized, and
  • anything is condemned as forfeited, the forfeiture shall apply from the date when the liability to forfeiture arose.Following condemnation of goods as forfeited by court, they must be sold, destroyed or otherwise disposed of as the Revenue shall direct.

The Revenue may restore seized goods to a claimant prior to condemnation by the court.  They may return goods to a claimant prior to court proceedings, on payment of a sum not exceeding the value of the goods plus duty or tax payable.  If they are subsequently determined by a court not to be liable to forfeiture, the claimant will be repaid the sum, less any tax due.


References and Sources

Text Books

Customs Law of the European Union 4th ed 2012 M Fabio

EC Customs Law (Oxford European Community Law Library) 2nd Edition 2008 Timothy Lyons

Customs Code of the European Union Hardcover (1996) Tom Walsh  Damian McCarthy

European Union Customs Code 2015 Tom Walsh

EU Legislation

The Union Customs Code  Regulation (EU) No 952/2013 of the European Parliament and of the Council.

amended by Regulation 2016/2339

The UCC Delegated Act Commission Delegated Regulation No 2015/2446.

The UCC Implementing Act Commission Implementing Regulation No 2015/2447.

The UCC Transitional Delegated Act wCommission Delegated Regulation No 2016/341.

Copyright (Customs) Regulations 1964, S.I. No. 231 of 1964443

Irish Legislation

Customs Act 2015

Customs-Free Airport Act 1947

Customs-free Airport Order 1947 (and numerous amendement)

Transport Customs-Free Airport (Amendment) Act 1958

Free Ports Act 1986

Customs and Excise (Mutual Assistance) Act 2001

ustoms and Excise (Mutual Assistance) Act, 2001

(Commencement) Order 2002, S.I. No. 59 of 20022996

Customs and Excise (Mutual Assistance) Act 2001 (Section 8)

(Protection of Manual Data) Regulations 2004, S.I. No. 254 of 2004

Customs (Electronic Filing of Returns) Order 2014, S.I. No. 474 of 2014

Customs and Excise (Provision of Information relating to Persons, Conveyances and Goods) Regulations 2011, S.I. No.

410 of 2011

European Communities (Customs) Regulations 1972, S.I. No. 334 of 1972

European Communities (Customs) (Amendment) Regulations, S.I. No. 211 of 1980

European Communities (Customs) (No.2) Regulations, S.I. No. 202 of 1982

European Communities (Customs) Regulations, S.I. No. 78 of 1983

European Communities (Customs) Regulations, S.I. No. 365 of 1984

European Communities (Customs) (No.2) Regulations, S.I. No. 366 of 1984

European Communities (Customs) (Revocation of Statutory Instruments) Regulations

European Communities (Customs and Excise) Regulations 1991, S.I. No. 57 of 19913925

European Communities (Customs and Excise) (Amendment) Regulations 1991, S.I. No. 174 of 1991

European Communities (Customs and Excise) (Amendment) (No. 2) Regulations 1991, S.I.No. 368 of 1991

1992

European Communities (Customs and Excise) Regulations 1992, S.I. No. 394 of 1992

European Communities (Customs) (No. 2) Regulations 1992, S.I. No. 431 of 1992

European Communities (Customs) (No. 3) Regulations 1992, S.I. No. 432 of 1992

European Communities (Community Transit) Regulations 1992, S.I. No. 433 of 1992

European Communities (Tir Carnet and Ata Carnet Transit) Regulations 1993, S.I. No. 61 of 1993

European Communities (Customs Appeals) Regulations 1995, S.I. No. 355 of 1995

European Communities (Customs Declarations) Regulations 1996, S.I. No. 114 of 1996

European Communities (Customs Action against Goods suspected of Infringing certain Intellectual Property Rights) (Amendment) Regulations 2013, S.I. No. 309 of 2013

European Union (Customs enforcement of Intellectual Property Rights) Regulations 2013, S.I.No. 562 of 2013