EM1350 - Human Rights Act 1998 and Enquiries

The main guidance on the Human Rights Act can be found in the Compliance Handbook at CH300000+ for penalties and CH21300+ for information powers.

The guidance on this page is a summary of the main guidance and focuses on how it should be applied during direct tax enquiries.

What two fundamental rights must I always consider during an enquiry?

There are two basic human rights that you must be aware of when you carry out an enquiry.

These are

  • the right to a fair trial, under Article 6 of the European Convention on Human Rights, and
  • the right to privacy, under Article 8 of the European Convention on Human Rights.

These Convention rights are protected in UK law through the Human Rights Act 1998 (HRA).

Companies, partnerships and corporate bodies as well as individuals are protected by these rights, see CH300550.

When do I have to consider a person’s right to a fair trial?

The right to a fair trial applies when a person faces a charge which is considered to be ‘criminal’ under Article 6. This includes charges that result in a civil penalty which is primarily punitive and deterrent in nature, see CH300200. Most penalties, including all behaviour based penalties, fall into this ‘criminal’ category.

The Article 6 right to a fair trial does not apply when we are considering the underlying tax position, or penalties that are not considered to be ‘criminal’ for Article 6, see CH300200.

If you are in any doubt, you should always treat a penalty procedurally as if it is ‘criminal’ under Article 6, see CH300500.

What must I do to protect a person’s right to a fair trial?

Before you start any discussions with a person, see CH300700, about whether they may be liable to a ‘criminal’ penalty or their behaviour, see CH300400, you must always make them aware of their rights, primarily their right not to self-incriminate. You must do this by issuing Factsheet CC/FS9 (GOV.UK) ‘The Human Rights Act and Penalties’ or by reading them the HRA Message, see CH300900.

If you are unsure about

  • who needs to be told about their rights, see CH300550
  • how to tell the person about their rights, see CH300600
  • when to tell the person about their rights, see CH300700.

Once you have told the person about their rights and that they may be liable to a penalty, you must take steps to avoid any unreasonable delay in establishing the relevant facts and issuing any penalty that may be due, see CH301200.

Is there anything else I need to consider to protect a person’s right to a fair trial?

If

  • you suspect tax evasion, fraud, or criminal activity you must follow the guidance at CH301100 before you proceed any further with your enquiry
  • the taxpayer has died before you have issued a penalty or during the appeal period, see CH301150. Please note that TMA70/S100A(1) which allowed us to issue a penalty after a person had died was repealed in Finance Act 2007 because it was not compatible with the Human Rights Act.

When do I have to consider a person’s right to privacy?

All enquiries involve some interference with the person’s right to privacy. Article 8 permits this provided that it is lawful and proportionate.

The right to privacy covers a person’s

  • private and family life
  • home
  • correspondence.

You need to consider the impact of your enquiries on the person’s right to privacy whenever you are data gathering, using any form of surveillance, or intend to visit the person’s home or business.

What must I do to protect a person’s right to privacy?

HMRC’s information and inspection powers, see CH20000, include statutory safeguards, see CH22000, to protect taxpayers from disproportionate interference with their Article 8 rights. There are also other legal, procedural and operational safeguards that you must follow to ensure you protect a person’s right to privacy.

The following guidance will cover most situations that may arise during an enquiry.

  • Using Information and Inspection Powers, see CH250000+
  • Using the Internet for research, see CH201600+
  • Using HMRC digital devices in meetings, see CH203540+
  • Surveillance and Human Intelligence, see EM1806.

To assess whether your planned activity is reasonable and proportionate you should also see the guidance at CH21360 and CH21380.