Introduction: Human Rights Act
On 2nd October 2000 the Human Rights Act 1998 came into force. From that date the provisions of the European Convention on Human Rights (ECHR) were incorporated into UK law.
Article 6 of the Convention gives people the right to a fair hearing within a reasonable time in civil and criminal cases.
Article 6 applies to all proceedings that may result in what the European courts consider a “criminal charge” for the purposes of Article 6.
It is important to note that proceedings classified as “criminal” for Article 6 are not the same as the proceedings classed as criminal in UK domestic law.
Proceedings classified as “criminal” under Article 6 include
- all proceedings, classified in UK domestic law as criminal proceedings, and
- some proceedings that may result in penalties and surcharges, despite the fact that these are classified as civil proceedings in UK domestic law.
Because all HMRC penalty proceedings are civil proceedings under UK domestic law, there is no question that anything other than the civil standard of proof, based on the balance of probabilities, applies to these proceedings.
Equally, the burden of proof does not change because a penalty is a “criminal charge” for the purposes of Article 6.
It is also important to note that Article 6 only applies to some penalty proceedings.
HMRC accept that penalties based on a maximum of 70% or 100% of the tax unpaid should be treated as “criminal” for the purposes of Article 6, and that the additional protections under Article 6 apply to these proceedings.
Penalties for deliberate inaccuracies are an example of penalties that fall in the 70-100% range, see CH81150 to CH81161.
If the maximum penalty for an error falls within this range, the HRA warning should have been given as soon as the error was identified and before we started to consider the behaviours that led to the error.
All, decision makers, review officers and tribunal caseworkers should be aware of the right to a fair hearing and act in a way that is in line with the Convention rights throughout the appeal process. For more information, see the Human Rights intranet pages.