ISSUE 99 TUESDAY, 16 MARCH 2010 GENEVA BULLEtiN INSIDE THIS ISSUE UP AND DOWN, ROUND Extradiction 2 AND ABOUT Illicit tobacco a danger to kids 3 Yesterday morning we received a refreshing If this behaviour does not change, it blast of useful information and intelligent presages disaster for the negotiations. Health benefits of higher taxes 4 policy analysis from consultants There is little time to come to agreement. Include key inputs 5 commissioned to write the Secretariat’s Every hour spent ignoring the framework in Fighting illicit trade in Jordan 6 technical paper. It was a concise and the technical paper makes success less authoritative account of a feasible global likely. If Parties have practical objections to tracking and tracing regime that would that framework, they should voice them allow Parties to build on their existing clearly and suggest plausible, positive systems, where those already exist. alternatives. TODAY Parties then asked a series of relevant, A small handful of Parties may wish to see informed and important questions about the negotiations founder. But FCA does not 13.15 - 14.15 how the proposed system would work. We believe it is what the great majority of FCA lunchtime briefing now know for sure that: Parties intend for this week. We urge Key Issues of an illicit trade protocol Parties most strongly to return to the • A regime can be set up that technical paper, to consider how to answer Venue: Salle 4 accommodates different Parties’ existing the questions that remain, and to bring arrangements for tracking and tracing and their negotiating positions into line with the tax stamps overall solution now in plain sight. • Parties with no existing system can One weakness in an otherwise excellent work their way up, starting with a basic presentation from the consultants was their system of human-readable serial numbers repeated reference to “counterfeit”, • The technology now exists to mark at perhaps reflecting experience in tracking pack level and tracing pharmaceuticals where this is a critical issue. • There is a useful and properly limited role for a global information focal point, as For the purpose of controlling illicit tobacco a portal to route enquiries to databases it does not matter whether a SiNCE THE OPENING OF THE operated by Parties. manufacturer’s intellectual property is infringed. Illicit cigarettes may be lawfully FIRST WORKING GROUP FOR But in the afternoon it all started to go produced product diverted to avoid duty, THE FRAMEWORK CONVENtioN backwards. Instead of working out how to product in plain packaging, or presented as move the text of Article 7 towards the ON tobACCO CONTROL ON a brand claimed to be legitimate. But in fact rational proposals of the technical paper, it is always intended for illicit channels (for 29 OCtobER 1999 and how to address some key remaining example “Jin Ling”). Or it may be a faked questions (such as on data privacy), too well-known brand. 47,351,848 many Parties simply repeated negotiating positions they had drawn up before even All illicit products are of equal significance PEOPLE HAVE DIED FROM considering the technical paper. Some in defrauding governments of tax, in TOBACCO-RELATED DISEASES Parties once again tried to extoll their own undermining efforts at tobacco control and arrangements. The technical paper makes in promoting death and disease. Preventing (AS OF 9AM ON 16 MARCH 2010 this game irrelevant. Other Parties tried yet the misuse of tobacco manufacturers’ again to insert weasel wording to allow trademarks by, for example, creating them to choose when and whether to counterfeiting offences is no business of a implement any kind of tracking and tracing public health treaty. system at all, which would defeat the Call it unlawful manufacturing. Call it purpose of the whole proposal. smuggling. Please don’t call it counterfeit. 1 ISSUE 99 TUESDAY, 16 MARCH 2010 GENEVA EXTRADitioN FOR ILLICIT TobACCO TRADE CRimES: WHICH CRimES AND HoW? Is there a necessity for specific extradition provisions in the in and arrested Arsenovich, Kelly and Farrell. Neal was later protocol? FCA does not believe so. The UN Convention against arrested at his home. £15,000 was recovered from him, together Transnational Organised Crime (UNCTOC) already provides for with two cash counting machines and a mobile telephone. a detailed extradition framework provision for: Paperwork involving previous deliveries to Belby Lodge was recovered. A roll of tape was also found, scientific examination of • transnational (cross-border) which showed that it had been used to tape the box containing the • organised (involvement of three or more) £258,390. Hood was arrested in September when two mobile phones linking him to the applicant Neal and co-accused were • serious illicit tobacco crime (any domestic crimes punished seized. Continuing inquiries revealed that there had been some by four years or more). twelve consignments in total. The duty evaded was conservatively The UN Office on Drugs and Crime, in Vienna, provides a fully estimated at around £4,000,000. The cigarettes originated in developed and highly experienced system of administrative Greece before being driven across Europe to a depot in Belgium. support for this framework. From there they were imported into the U.K through various ports. Telephone analysis showed substantial telephone contact between Extradition is a difficult, expensive and lengthy process and is the applicants and co-accused. not commonly resorted to except in the most serious cases. Not many states regularly make extradition requests. This Had British law enforcement authorities been interested in prompts two questions in respect of extradition for tobacco- arresting further members of the supply organisation they related crimes: would have had to extradite them from Greece, or wherever they were located. 1. Which Crimes? 2. How? For practical reasons, extradition should apply only in serious cases. An example of a serious case is R v Neal and Hood Mostly, a state seeking the extradition of an alleged criminal will [2003] EWCA Crim 3449, an appeal against sentence before need a bilateral extradition treaty with the state in which that the English Court of Appeal. At their trial Neal and Hood had person is located. Some states do, however, extradite on the pleaded guilty to a contravention of the section 170(2) of the basis of domestic legislation only. International treaties like the Customs and Excise Management Act 1979, and were proposed protocol provide a basic framework in which bilateral sentenced to five and three years respectively. One of their relations are established and domestic legislation enacted; they co-accused had been acquitted, but the others had pleaded are seldom relied upon as the sole basis for extradition. Their guilty. The Court of Appeal’s summary of the evidence is main function is to ensure that states include the particular kind illustrative of the facts of a serious case: of offence within their bilateral relations and in their domestic law as extraditable offences. This case involved the importation of large numbers of cigarettes between September 2000 and September 2001. On 27 April 2001 R v Neal and Hood reflects conduct that the UNCTOC was Customs officers intercepted a trailer containing smuggled designed to suppress: structured groups of more than three cigarettes arriving at Hull. Some three million cigarettes were people (organised), crossing borders and territories of a discovered concealed in pallets of olives, involving a potential loss number of states (transnational), involving serious domestic of duty in the region of £400,000. Customs officers photographed offences carrying penalties of more than four years the load, samples were taken from it and it was allowed to imprisonment (serious crime). The UK, like other states harmed proceed. It was delivered to Clark’s yard at Belby Lodge, Howden. by such activities, has chosen to treat them as serious crime Customs officers observed part of the load being broken down. through the imposition of a maximum seven year sentence Neal was seen driving Clark’s Land Rover Discovery. A week later under section 12 of the Finance Act 1988. While most states on 4 May 2001, a similar consignment was intercepted, concealed are party to UNCTOC, not all have imposed a penalty of four in a trailer load of reels of yarn. It was also addressed to Clark at years or more for illicit tobacco crime. What states should be his yard at Belby. Later examination showed that the reels seeking is more effective application of the existing UNCTOC contained 3.8 million cigarettes, involving a loss of duty in the regime to serious illicit tobacco crime rather than duplicate that region of £530,000. Customs officers observed Arsenovich, a regime in the protocol. senior member of the supply organisation in Greece who was Professor Neil Boister University of Canterbury entrusted to collect the money, meet Kelly and Farrell in Doncaster New Zealand in an Audi motorcar. He was seen to collect a briefcase from his hotel and put it in the boot of the Audi. He placed it next to a cardboard box containing £258,390. Before closing the boot he had a look inside the box at which point Customs officers moved 2 ISSUE 99 TUESDAY, 16 MARCH 2010 GENEVA CHEAP ILLICit tobACCO IS A DANGER to KIDS Excellent research from a programme in the North of England • A third of all smokers aged 14-17 bought illicit tobacco and aimed at fighting illicit trade shows just how it undermines on average it accounted for almost half of their total tobacco control policies and increases consumption, consumption. particularly among young people and poorer social groups. FINDINGS ON PUBLIC ATTITUDES In June 2009 the North of England Tackling Illicit Tobacco for • Overall almost six out of 10 people (57%) felt very Better Health programme commissioned a study into the illicit uncomfortable with illicit tobacco.