“HMRC investigations where we suspect tax fraud.”
“We issue this Code of Practice in selected cases where we suspect tax fraud. In many cases we carry out criminal investigations of suspected fraud with a view to prosecution. But under this Code, we offer you instead the chance to make a full disclosure under a contractual arrangement called a Contractual Disclosure Facility (CDF). You have 60 days to respond. If you make a full disclosure of all tax frauds and irregularities, we will not pursue a criminal investigation with a view to prosecution.”
“2 .1 The Contractual Disclosure Facility (CDF) – what am I being offered ? The CDF offers you the chance to disclose any tax fraud you have been involved in. Remember this offer expires 60 days after you receive our letter making the offer. 2.2 HMRC’s undertaking In exchange for your undertaking, we agree that we will not pursue a criminal investigation into the tax frauds you disclose. 2.3 Your undertaking You undertake to make a full disclosure of all your tax irregularities under the terms of the CDF… This is the only way that you can be certain that we will not carry out a criminal investigation into the tax frauds we suspect. The CDF is only suitable for you if you: · Have committed tax fraud · Wish to fully disclose the tax frauds you have committed…”
“(1) The Tribunal may give a direction on the application of one or more of the parties or on its own initiative. (2) An application for a direction may be made– (a) by sending or delivering a written application to the Tribunal; or (b) orally during the course of a hearing. (3) An application for a direction must include the reasons for making that application. (4) Unless the Tribunal considers that there is good reason not to do so, the Tribunal must send written notice of any direction to every party and to any other person affected by the direction. (5) If a party or other person sent notice of the direction under paragraph (4) wishes to challenge a direction which the Tribunal has given, they may do so by applying for another direction which amends, suspends or sets aside the first direction.”
“in my view, Parliament only intended r 6(5) to be used in limited circumstances, and in particular where: i. Circumstances have changed; ii. Obvious error of law in direction; iii. Procedural irregularity in relation to the hearing at which direction made; or iv. A party did not appear and was not represented at the directions hearing. A judge would of course only grant the set-aside where it was in the interests of justice to so do.”
“[ 35] It can be seen from COP 9 that it is now made clear to the taxpayer suspected of fraud that the Revenue is not at that time carrying out a criminal investigation but reserves the right to do so in the future. Although we have not seen the document sent to the appellants, we understand that it drew a similar distinction. Mr Abell [Counsel for HMRC] submits that such a document underlines his submission that those carrying out a Hansard interview are not 'charged with a duty of investigating offences or charging offenders' within the meaning of s 67(9) of PACE and that the questions were not put 'for the purpose of obtaining evidence' within the meaning of para 10.1 of Code C in the form then in force. [36] The judge [of the court below] accepted that submission. He held that the Hansard interview was part of a civil process designed to gather in money and not a criminal investigation. As we read his ruling, he formed the view that, if Parliament had taken the view that a caution was required it would have so provided when it enacted s 105 of the 1970 Act. In short the judge took the view that the Hansard interview was part of a separate well-understood form of proceeding outside the scope of Code C. [37] While we fully understand the importance of the Revenue being able to recover the tax owed to it and the value of the Hansard procedure in that regard, we are unable to accept the Revenue's submission. The statement of the Chancellor of the Exchequer made in Parliament on18 October 1990 makes it quite clear that, while in cases of tax fraud the Revenue will be influenced by a full confession in deciding whether to accept a money settlement (including presumably an appropriate penalty), it gives no undertaking to do so or to refrain from instituting criminal proceedings. Tax fraud involves the commission of a criminal offence or offences, so that it is in our view evident that the role of the SCO investigating tax fraud involves the investigation of a criminal offence. [38] Although we recognise that a caution had not been administered in the past at a Hansard interview because such an interview has not been regarded by the Revenue as subject to Code C, in our judgment, that is to give too narrow an interpretation of the expression 'charged with the duty of investigating offences' in s 67(9) of PACE. The officers of the SCO were charged with investigating serious fraud and, since serious fraud inevitably involves the commission of an offence or offences, it seem to us to follow that they were charged with the duty of investigating offences. [39] The purpose of Code C is to ensure that interviewees are informed of their rights, one of which is not to answer to questions, and to inform them of the use which might be made of their answers in criminal proceedings. It is clear from the Parliamentary statement that the SCO had the possibility of criminal proceedings in mind in respect of the fraud about which they were asking questions and we can see no reason why the Revenue should not have cautioned taxpayers suspected of fraud before asking them questions in these circumstances. We cannot see why a caution should reduce the chances of a taxpayer making a full confession, which was the purpose of the process. However that may be, since the Revenue expressly reserved the right to prosecute for fraud, it appears to us that one of the purposes of asking the questions must have been the 'obtaining of evidence which may be given to a court in a prosecution', even if the Revenue's main aim was to arrive at a monetary settlement. [40] For these reasons we have reached a different conclusion from the judge and hold that Code C applied to the Hansard interview conducted on8 March 1995 and that the appellants should have been cautioned and a tape recording made of the interview. The question then arises whether the evidence of what the appellants said at the interview should have been excluded under s 78 of PACE on the ground that its admission would have such an adverse effect on the fairness of the proceedings that the court ought not to admit it. We turn to that question.”
“Everyone charged with a criminal offence has the following minimum rights: (a) to be informed promptly, in a language which he understands and in detail, of the nature and cause of the accusation against him;…”
“2 Interpretation of Convention rights (1) A court or tribunal determining a question which has arisen in connection with a Convention right must take into account any-- (a) judgment, decision, declaration or advisory opinion of the European Court of Human Rights… whenever made or given, so far as, in the opinion of the court or tribunal, it is relevant to the proceedings in which that question has arisen.”
“When the open justice point was being argued before the Judge [at the High Court], the position was no different from that which is present in many cases, civil or criminal. There are allegations and counter-allegations of serious misconduct. A person on the receiving end of such allegations will always be at significant risk of reputational damage. However, if the allegations are false, he will obtain his vindication through the judicial process, if not as a result of interlocutory application, then after a trial.”
“In determining whether it is necessary to hold a hearing in private, or to grant anonymity to a party, the court will consider whether, and if so to what extent, such an order is necessary to protect the privacy of confidential information relating to the party, or (in terms ofart 8 of the convention ) the extent to which the party's right to respect for his or her private life would be interfered with. The relevant test to be applied in deciding whether a person's art 8(1) rights would be interfered with in the first place, or in other words whether the article is engaged so as to require justification under art 8(2), is whether in respect of the disclosed facts the person in question had a reasonable expectation of privacy: see Campbell v Mirror Group Newspapers Ltd[2004] UKHL 22 at [21],[2004] 2 All ER 995 at [21],[2004] 2 AC 457 per Lord Nicholls of Birkenhead, and Murray v Express Newspapers plc[2008] EWCA Civ 446 at [24], [2008] 3 FCR 661 at [24],[2008] 3 WLR 1360 of the judgment of the court. If art 8(1) is engaged, the court will then need to conduct a balancing exercise on the facts, weighing the extent of the interference with the individual's privacy on the one hand against the general interest at issue on the other hand…In cases of the present type, the competing interest is the general imperative for justice to be done in public, as confirmed byart 6(1) of the convention .”
“[35] It is relevant to bear in mind, I think, that taxation always has been, and probably always will be, a subject of particular sensitivity both for the citizen and for the executive arm of government. It is an area where public and private interests intersect, if not collide; and for that reason there is nearly always a wider public interest potentially involved in even the most mundane seeming tax dispute…in tax cases the public interest generally requires the precise facts relevant to the decision to be a matter of public record, and not to be more or less heavily veiled by a process of redaction or anonymisation. The inevitable degree of intrusion into the taxpayer's privacy which this involves is, in all normal circumstances, the price which has to be paid for the resolution of tax disputes through a system of open justice rather than by administrative fiat.”
“Mr Warby [for the Appellants] attempted to respond to this analysis by an alternative submission whereby he contended that, at the interlocutory stage, the open justice principle might yield to the right to privacy and protection of reputation on the basis that the putative victim has at least an arguable case. This links with his fifth submission that the open justice principle can safely be mollified at the interim stage because, if the allegations are later found to be true at trial, publicity can follow, with the result that a temporary suspension of open justice will have done no harm. I can see no warrant for a general lowering of the bar. Outside the area of statutory or other established exceptions, the open justice principle has universal application except where it is strictly necessary to depart from it in the interests of justice. If an application for departure is made, it will fall to be decided by reference to the principles which I have been considering, whether the proceedings are at an interim or final stage.”
“The preponderance of English authority supports the view that once material has been read or referred to in open court, it enters the public domain. It seems to me that there is a need for a clear and simple rule on this point, which reflects the principle of open justice, and which can be overridden, if at all, only in exceptional circumstances where the interests of justice so require…The touchstone, in my view, is whether the hearing in question is held in public, not whether it is in fact attended by any member of the public.”
“(4) The Tribunal may allocate a case as a Complex case under paragraph (1) or (3) only if the Tribunal considers that the case-- (a) will require lengthy or complex evidence or a lengthy hearing; (b) involves a complex or important principle or issue; or (c) involves a large financial sum. (5) If a case is allocated as a Complex case-- (a) rule 10(1)(c) (costs in Complex cases) applies to the case; and (b) rule 28 (transfer of Complex cases to the Upper Tribunal) applies to the case.”
“The Tribunal will assess whether, having regard to the nature of a particular case, any one or more of these criteria are satisfied. In making this assessment the Tribunal will take into account all the circumstances, including the implications of the costs-shifting regime (subject to the right of the taxpayer to opt out) and the fact that cases allocated to the Complex category are eligible, subject to various consents, to be transferred to the Upper Tribunal. If on such an assessment the Tribunal considers that a case meets the stated criteria, it will, in the absence of special factors, allocate the case to the Complex category.”
“In any case, it is clear beyond argument, we think, that the assessment of what is 'complex' evidence or a 'complex' issue within r 23(4)(a) and (b) is a matter of judgment. The task of making that judgment is assigned to the tribunal whose decision, if made applying the correct principles, can be overturned on an appeal to the Upper Tribunal only if it can be said that no reasonable tribunal could have reached that decision.”
“However, we do say this: if the tribunal does have a discretion to allocate other than as Complex a case which is capable of being allocated as Complex, it must be a discretion of limited scope. The general rule should, we consider, be that a case capable of being allocated as Complex ought to be so allocated. Any discretion to allocate other than in accordance with that general rule should be exercisable only in the light of special factors.”
“The next question is who is to assess whether a case should be allocated as Complex. The answer to that is, we consider, clear: it is the tribunal. Rule 23(4) permits the tribunal to allocate a case as Complex only if the tribunal consider that the case satisfies one or more of the three criteria.”