FHDDS51300 | Penalties, sanctions and offences: penalties – policy: Civil sanctions - behavioural penalties

In cases where an evasion referral is made but not adopted by FIS for investigation, the case will usually be returned to the officer who made the referral. The officer should then firstly consider and take account of any instructions or advice provided by FIS.

Once a decision has been taken not to pursue the case for criminal offence action, you should then consider whether a penalty should be charged under Schedule 13 of Finance (No. 2) Act 2017. This provides for a penalty of up to £10,000 for carrying on an imported goods fulfilment business without approval. The amount of the penalty will depend on the behaviour that gave rise to the contravention and the penalty may also be subject to reductions for disclosure and for special circumstances. Also, a person will not be liable to a penalty if the contravention was not deliberate and they can demonstrate that they had a reasonable excuse for the contravention.

You should tell the person that they may be liable to a penalty as soon as you become aware of the likelihood, even if you have not yet established the type of behaviour that gave rise to the contravention.

It is particularly important that you do not discuss the type of behaviour that has led to the penalty until you have established all the facts. At that point you must explain why the person’s actions led you to conclude that the contravention was deliberate, if you have reached that conclusion.

You should then invite the person’s comments. If this is dealt with at a meeting the notes of the meeting should record fully what you said and the person’s response.

If during a telephone conversation you become aware that penalties may be due, you should explain and then follow this up by putting your reasons in writing to the person.

You should apply this guidance in conjunction with the Human Rights Act procedures at CH300000.

Principle of ‘double jeopardy’

The principle of double jeopardy means that a person cannot be held liable to a civil penalty as well as to prosecution for a criminal offence in relation to the same contravention. Therefore you must not assess for a civil penalty for carrying on an imported goods fulfilment business without approval until you know that your case is not going to be adopted by FIS for criminal investigation. If there is a criminal investigation, but it is later decided not to prosecute, you may then consider assessing a civil penalty.

Double jeopardy does not prevent us from applying more than one civil penalty if a person has breached separate FHDDS requirements. For example, if you establish that a long-established fulfilment business has traded without approval after 1st April 2019 because it failed to apply for registration until after that date you can consider applying a penalty for late registration in addition to a civil penalty for trading without approval.