www.bifa.org


Policy & Compliance


focusing on the necessary checks to be undertaken on potential customers, prior to handling their business. Also, the Association has prepared, in line with AEO guidance, information on how to risk assess individual shipments prior to submitting a customs entry. However, it must be remembered that compliance requires a


multi-layered approach, consisting of company policies and procedures plus the training of employees both in how to complete a customs entry, etc, and also their wider legal responsibilities.


Staff oversight Most companies focus on their own legal obligations and overlook the fact that their staff can be prosecuted. Too many times, situations are uncovered where staff preparing and submitting customs entries fail to understand that they are preparing a legal document for which they might be prosecuted as an individual if an error is made. Customs entry work has been reduced by some employers to little more than a data entry function. Section 167 the Customs and Excise Management Act 1979


clearly states: “167(1) If any person either knowingly or recklessly: (a)makes or signs, or causes to be made or signed, or delivers or causes to be delivered to the Commissioners or an officer, any declaration, notice, certificate or other document whatsoever; or


(b)makes any statement in answer to any question put to him by an officer which he is required by or under any enactment to answer, “being a document or statement produced or made for any


purpose of any assigned matter, which is untrue in any material particular, he shall be guilty of an offence under this subsection and may be arrested; and any goods in relation to which the document or statement was made shall be liable to forfeiture.” To a lay person, ‘recklessness’ is likely to be defined as a state of


mind where a person deliberately and unjustifiably pursues a course of action while consciously disregarding any risks flowing from such action. Also, reckless can be defined as where a reasonable person should have been aware of the risk that his or her actions pose. In a different environment a good example might be where someone drives a car whilst highly intoxicated. Set against a background of greater scrutiny by the authorities


and a stricter approach to enforcement, a greater willingness to issue civil penalties against traders for non-compliance has been noted. BIFA has become aware of at least two cases where the individual import clerk has been interviewed under caution, and prosecutions may result. This is not a comfortable position for either the individual employee or employer. The first and most important point is for all companies to


acquaint themselves with the relevant legislation, CIPS and other guidance on the subject, and to formulate the appropriate due diligence policies and procedures. It is essential that these procedures do include reference to the individual employee’s legal responsibilities relative to completing customs entries and similar activities. Employers must ensure that these policies are:


• Made available and are adequately explained to employees; • Monitored to ensure that they remain compliant with the law and guidance;


• Monitored to ensure that employees know about and follow them;


• Include an escalation procedure for staff to raise concerns with their superiors about either specific or general customs compliance issues;


January 2020


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Such policies and procedures should be ‘living’ documents being well understood and referred to as applicable. It should not be a document that sits on the shelf and is dusted off when there is an internal audit or external compliance visit.


• A review process to facilitate management reviews of individual situations and/or the overall processes;


• Probably most importantly, relevant training must be provided to employees relative to key customs legislation.


Such policies and procedures should be ‘living’ documents being


well understood and referred to as applicable. They should not be documents that sit on the shelf and are dusted off when there is an internal audit or external compliance visit. In a wider sense, employers will have to consider how to manage


the situation to provide support to individual employee(s) under investigation, and also to prevent wider disruption in the workplace. In all probability, the employer will not be aware of the full facts involving the investigation into an individual employee by the authorities. It is important for Members to develop consistent policies to


ensure that they can adequately deal with such situations. These should include clearly defining the senior personnel and who will manage the situation from the employer’s perspective. These senior staff should also have a clear understanding of HMRC/police powers relating to caution, arrest and the correct interview protocols.


Support for employees The employer will have to consider and detail if, and in what circumstances, it will provide legal support to individual employee(s) whilst the latter is/are under investigation. One area that must be carefully considered is the difficult decision about the point that support will be withdrawn. Regulators have advised BIFA that it is appreciated that an employer, in at least the initial stages of an investigation, is likely to want to support its staff member. Given the higher levels of government intervention and a stricter


interpretation of the law, companies should review and where applicable amend and/or add to their procedures in order to protect their interests. To conclude, an essential part of Members’ due diligence


procedure is having appropriate checks in place to ensure that the trader it is dealing with is bona fide in order protect the customs agent from involvement in tax evasion. The second part of the compliance strategy will be the Member’s


internal policies and procedures to ensure that entries are correctly completed in line with the tariff and other regulations. The last, and on occasion sometimes overlooked, strand is to ensure that staff are properly trained in both their daily tasks and the wider legal elements of their customs role. Combining all three elements will help companies satisfy their responsibilities as detailed in CIP (2017) 27 and ensure that staff are adequately trained to ensure that they comply with customs law. In the final analysis, both compliance and due diligence are


continuous and evolving processes based upon both knowing your customer and understanding its business.


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