Does a computer constitute a document under the terms of the Customs and Excise Management Act 1979?

12 July 2010

R (on the application of Glenn & Co (Essex) Ltd) v Revenue and Customs Commissioners [2010] All ER (D) 163 (Jun)

HMRC officers entered the claimants premises unannounced and without a warrant. The purpose of the operation was to conduct interviews and to inspect business records, including computers.

While at the premises, the Revenue officers disconnected and removed a computer server and nineteen computers with the purpose of interrogating the hard disks. All but one of the computers was returned the next day, with the remaining one and the server being returned the following day.

The Issue

In October 2009, the claimant was granted permission to apply for judicial review challenging the legality of the removal of the computers on the ground that the powers conferred by s 118B of the Customs and Excise Management Act 1979 did not permit the removal of the computers because they were not documents within the meaning of section 118B(1) notwithstanding the extending effect of section 114 of the Finance Act 2008. The claimant argued that each of the computers that were removed included documents that did not fall within Section 118 (b) (1) of the 1979 Act and that consequently, HMRC did not have the power to remove the computers.

The Judgement

The Court ruled that the application should be dismissed. It argued that Section 114 of the FA 2008 was entirely appropriate in this case because a computer was a thing in which information was recorded and the power of inspection conferred by the Customs & Excise Management Act did extend to the inspection of computers. The Court stated that the terms in section 114 of the FA 2008 were widely drafted and couldn’t be interpreted narrowly so as to provide a loophole that could be exploited to avoid inspection (and thus accountability). It also stated that it was clear, from settled law, that a computer hard disk was a single storage entity; it was not simply a container of files but was properly regarded as a single object that contained a variety of materials, some of which might be irrelevant to the inspection.

The fact that the computers that were inspected might have contained information which did not fall within the category specified in Section 118(b)(1)(b) did not prevent the exercise of that power in relation to that computer provided that it contained some information within that category.


Conclusions

Traders involved in International Trade will be subject to periodic audits from HMRC audit teams and you are obliged not only to allow HMRC access to all documents but also all the means on which documents are stored. You are obliged to keep your customs records for 4 years post-import and can face fines and penalties if you fail to do so. The introduction of Senior Accounting Officer accountability under the Finance Act 2009, Authorised Economic Operator status and the general raising of the bar for customs compliance means that not only are you required to keep your customs documents for 4 years but those documents that should be kept in the first place are clearly listed and expected by HMRC audit teams. International Trade Solutions prides itself on its success and client satisfaction rates in helping businesses achieve robust customs compliance procedures. For a first free consultation about your obligations contact us on (01905) 619229 or email us at mail@internationaltradesolutions.co.uk

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