V5.304 Institution of proceedings
The principle of ne bis in idem as contained in the Article 4 of Protocol 7 to the European Convention for the Protection of Human Rights and Fundamental Freedoms1 and Article 50 of the Charter of Fundamental Rights of the European Union2 will generally mean that a civil penalty in relation to VAT will not apply where criminal proceedings have been brought. However, the CJEU has held3 that the principle presupposes that it is the same person who is the subject of the penalties or criminal proceedings at issue. Consequently the principle does not prevent separate penalties being imposed on, for example, a company and an officer of that company.
The manner in which criminal proceedings are brought before the courts is modified and extended in relation to offences arising under, or applied to, VAT4. These modifications are briefly outlined below.
Where an offence is alleged to have been committed jointly by two or more persons, each may be proceeded against jointly or severally as the Director of Public Prosecutions (England and Wales), the procurator fiscal (Scotland) or the Director of Public Prosecutions for Northern Ireland (Northern Ireland) sees fit5. Where an offence is alleged to have been committed by a body corporate with the consent or connivance of one of its officers, or was attributable to his neglect, proceedings may be taken against both the officer and the body corporate6.
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