ECSH110200 - Human Rights Considerations

What is the Human Rights Act?

The Human Rights Act 1998 (“HRA”) sets out the fundamental rights and freedoms that everyone in the UK is entitled to. It incorporated the rights set out in the European Convention on Human Rights (ECHR) into domestic law. The HRA came into force in the UK on 2 October 2000.

The HRA protects the rights of every person resident in the UK regardless of whether or not they are a British citizen or a foreign national, a child or an adult, a prisoner or a member of the public. It also applies to legal persons, such as companies. Public authorities, including both HMRC as a whole, and EC-S, must comply with the HRA.

The three articles that have an impact on EC-S are Article 5, Article 6 and Article 8 HRA.

 

How the HRA applies to HMRC

As a public body, it is unlawful for HMRC to act contrary to any of the rights contained in the ECHR that have been incorporated into the HRA. Breach of an ECHR right by a decision maker may render its decision unlawful.

 

Article 5

Article 5 protects your right to liberty and security. It focuses on protecting people’s freedom from unreasonable detention.

Everyone has the right personal freedom. This means that people must not be imprisoned or detained without good reason. 

If someone is arrested, Article 5 provides that they have the right to:

  • be told promptly in a language they understand why they have been arrested and what charges they face.
  • be taken to court promptly and
  • have a trial within a reasonable time or,
  • to bail (temporary release while the court process continues), which may be subject to conditions to guarantee they appear at trial).

If someone is arrested or detained, the HRA provides that they have the right to:

  • ​​​Ask a court to decide quickly if their detention is lawful, and order their release if it is not.
  • Compensation if they have been unlawfully detained.

Whilst Article 5 does not apply directly to EC-S, it does need to be considered in criminal cases.

 

Article 6

Article 6 of the ECHR gives everyone certain rights and safeguards when their ‘civil rights and obligations’ are being determined, or where a ‘criminal charge’ is brought against them.

In the determination of civil rights and obligations or of any criminal charge, everyone is entitled to a fair and public hearing (there are circumstances where it is permissible to exclude the public, for example to protect national security interests), within a reasonable time by an independent and impartial tribunal.

The protection afforded by Article 6 is more extensive if a ‘criminal charge’ is brought, including the following rights:

  • The presumption of innocence.
  • The right to silence.
  • The privilege against self-incrimination.
  • The right to be informed promptly of the nature and cause of the charge against them.
  • To have adequate time and facilities for the preparation of a defence.
  • To defend himself in person or through legal assistance of his own choosing or, if he does not have the means to pay for legal assistance, to be given it free when the interests of justice require.
  • To examine or have examined witnesses against him and to obtain the attendance and examination of witnesses on his behalf under the same conditions.
  • To have the free assistance of an interpreter if he cannot understand or speak the language used in court.

 

Is Article 6 engaged by a civil penalty?

Although a financial penalty imposed by ECS is civil in nature, it may engage the more extensive protection afforded to those who have been charged with a criminal offence as set out above. This is an area which has generated a great deal of caselaw.

In the case of British-American Tobacco (Holdings) Ltd v Revenue and Customs Commissioners, a penalty which was domestically regarded as civil and regulatory was found to be punitive and amount to a criminal charge for the purpose of Article 6 by the First Tier Tribunal (FTT).

EC-S’ civil compliance investigations do not of themselves engage Article 6. Article 6 could however be engaged at the point a penalty is being determined or disputed.

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If the proposed action civil, or criminal, then it is important to understand the individual’s rights as set out in detail above and ensure they are upheld during the investigation.

If you are dealing with a penalty of some kind and are unsure whether or to what extent Article 6 is engaged, then you should obtain further advice from EC-S Policy.

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Article 8

Article 8(1) gives everybody (including companies) the right to respect for:

  • their private and family lives
  • their home, and
  • their correspondence.

This is sometimes called a “right to privacy”.

The European Court of Human Rights has said that private information’ should be interpreted broadly [Amann v Switzerland (16/2/2000) ECHR 27798/95]. It includes not only information about a person’s private or family life or personal relationships but also activities of a professional or business nature.

Therefore, information about the way that a business is operated should be treated as private information for Article 8 purposes.

However, Article 8(2) specifically envisages that there will be some circumstances when it is necessary for a public authority to interfere with a person’s rights of privacy. It sets out the conditions that must apply before such an intrusion is lawful.

To be lawful, an intrusion into a person’s private life must be:

  • in accordance with law
  • necessary in a democratic society, and
  • in pursuit of a legitimate aim.

These legitimate aims are listed as being in the interests of:

  • national security,
  • public safety, or
  • the economic well-being of the country,
  • for the prevention of disorder or crime,
  • for the protection of health or morals, or
  • for the protection of the rights and freedoms of others.

For EC-S, this means that any intrusive action must be in accordance with the law and necessary for the prevention of crime – specifically the prevention of money laundering, terrorist financing and proliferation financing.

In order to be necessary, the proposed action must be reasonable and proportionate to the underlying need.

For example:

Officers can require information about the way a business is operated if: the need for the information is lawful, and the action they propose is reasonable and proportionate in light of that underlying need.

EC-S have a number of powers under the Money Laundering, Terrorist Financing and Transfer of Funds (Information on the Payer) Regulations 2017 (MLR 2017), which can amount to intrusive action.

 

Legality, justification and proportionality

EC-S officers will need to ensure they are aware of the three principles of legality, justification and proportionality in the actions they take.

Legality:

Officers must be aware of the:

  • Laws and powers under which they are working.
  • Limits and constraints of those powers.

Justification:

  • Actions must be justified in each instance.
  • Officers may be called upon to justify their actions.

Proportionality:

Even when officers are acting within their powers, they should ensure that they use them in a proportionate manner.

 

Regulation 66 MLR 2017

To ensure that the use of the power is lawful in line with Regulation 66 MLR 2017 and the rights of relevant persons under Article 8 of the Human Rights Act 1998 are safeguarded, Authorising Officers of at least Senior Officer grade must authorise the use of a Regulation 66 Information Notice.

Whilst officers must take into account the legality, justification and proportionality of a notice under regulation 66, recipients of a regulation 66 notice cannot refuse to comply with a reg 66 request on the grounds that doing so might incriminate them.

For more information see ECSH71500.

 

Regulation 67 & 68 MLR 2017

There are human rights considerations which need to be taken into account if requesting, or receiving a request for information under regulations 67 or 68. For more information see ECSH72000.

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