Changing Customs

When a major drugs trial collapsed, customs' prosecutors suffered a barrage of criticism.

However, a right of appeal could give them more muscle, reports Grania Langdon-Down

The collapse of a high-profile drugs trial for abuse of process led to a review which could have cost Customs its role in prosecuting its own cases.

But three years on, Customs is confident that a fundamental overhaul of the legal department and a change in its culture has secured its future.

'It has been a lively period,' admits David Pickup, HM Customs and Excise Solicitor, who has headed the legal department for seven years.

'But we are confident that, now we have been given the resources, we can show the job we can actually do.

The Crown Prosecution Service Inspectorate will be monitoring how well we do and our success or failure in implementing the changes will be apparent in the course of the independent and public reports.'

Customs has been in the spotlight again recently when it lost a major test case brought by ferry operator Hoverspeed in the High Court, which ruled that its officers have no right to stop and search returning cross-Channel travellers for alcohol and tobacco unless they have reasonable grounds for suspicion.

Mr Pickup says it is 'always disappointing' to lose a case but the media reports of the judgment were 'wildly inaccurate as relatively few things went against us'.

Lawyers from his office's tax advisory team are going through the judgment line by line to analyse its practical implications before deciding whether to appeal.

It was in 1999 that charges against two alleged cocaine smugglers were dropped altogether when a retrial heard customs officers had planted bugging devices without permission.

Mr Justice Turner ruled there had been an abuse of process and made trenchant criticisms of what had taken place.

And an official inquiry into the case, led by retired judge Gerald Butler QC, said Customs' future role in taking suspects to court should now be reviewed.

This in turn led to the Gower Hammond report in March 2001, which concluded that there had to be a 'cultural change in attitudes to the role of the prosecuting lawyers in the solicitor's office and their relationship to the National Investigation Service'.

Its key recommendations that the prosecution group stay within Customs but reports directly to the Attorney-General, that the office has its own budget - substantially increased and ring-fenced - and that it is inspected by the Crown Prosecution Service Inspectorate are all in train.

Mr Pickup says: 'The impact is effectively that the whole of the solicitor's office is either in the prosecution group, which reports through me to the Attorney-General, or is part of the departmental legal group, which continues to report through me to the Customs' Commissioners.

Everyone is on one side or the other - apart from me.'

There is now a clear divide between those lawyers based with investigators who advise on sensitive legal areas arising through issues such as intrusive surveillance and informants, and those lawyers who decide on prosecutions.

'The point of separating off the prosecution group is to emphasise their independence.

The way we are now organised achieves that separation but keeps the benefits of having one office with the ability to move staff between the various groups.

It means we can develop lawyers with skills across the board in prosecutions, civil litigation, tax advice.'

He is also keen to defend his lawyers, who deal with about 2,000 cases a year.

'I think our public image is unfair.

We have been portrayed as an organisation that is not successful.

But from 1997 to 2000, at least one defendant was convicted in more than 80% of our cases and 70% of all the defendants we prosecuted were convicted.

The cases we are most concerned about are those which are stopped before being considered by a jury - and that only happens in 4% of cases, often wholly unrelated to abuse of process.'

Mr Pickup continues: 'What you have to remember is we deal with between a quarter and a third of all the big and complex cases which come before the Crown Court.

We have had a very good run over the last year - with convictions in big drugs, money laundering, and tax fraud cases - and that is the best way of demonstrating to the public the fundamental integrity and professionalism of Customs, both investigators and lawyers.'

He welcomes the proposal in the Criminal Justice White Paper - Justice for All -- to give prosecutors the right of appeal against rulings which terminate their cases before they are put to the jury.

'At the moment, however unreasonable a judge's decision may be, we have no right of appeal.

Large parts of our trials are spent in the minute examination of the procedural side of an investigation, which may have lasted three or four years, with the defence hoping to persuade the jury to stop the trial on abuse of process.

It is trench warfare which doesn't focus on the merits of the case or on the strength of the evidence,' he claims.

One of the recommendations in the Gower Hammond report was that the solicitor's office should be given more resources to keep better control of its casework.

This has led to an increase in its budget from the 'high 20s' to 44 million this year.

'The largest element is counsels' fees - more than 20 million a year.

However, I genuinely believe we have sufficient resources to make the cultural changes that lie at the heart of the report,' Mr Pickup says.

Two of those changes include taking up higher court advocacy rights - the department is starting a pilot advocacy unit, which will be run like an in-house set of chambers - and taking responsibility for magistrates' hearings from Customs officers.

'The problem is our department is not a national service - so if we have an overnight remand in Grimsby, do we provide our own staff or use a local agent? We will have to see if it is good value and then bid for more money,' he says.

The 360-strong legal department, which includes 128 lawyers, is split between London and Manchester.

The Gower Hammond report criticised working conditions, which have yet to be improved.

'There are various possibilities - Customs as a whole might move.

It is also possible the solicitor's office might move to a separate building, perhaps with the Serious Fraud Office,' he says.

However, whatever the criticisms, there is no shortage of applicants.

According to Mr Pickup, 'the pay, like most of the Civil Service, is better lower down.

Someone three years' qualified will join on 42,000, which, given many come from high-street legal firms or the junior Bar, is a substantial increase'.

Someone ten years' qualified will be on about 50,000.

'What is important is that we can give lawyers careers which are very diverse indeed.

There is no opportunity to get bored,' he promises.

How many lawyers can say that of their practice with confidence?

Grania Langdon-Down is a freelance journalist