ARTG8640 - First-tier and Upper Tribunals: the tribunal hearing: disclosure of information

Tribunal powers to direct that information/documents must not be disclosed

The tribunal may order that

  • specified documents or information, or
  • any matter likely to lead to members of the public identifying anyone the tribunal thinks should not be identified

may not be disclosed or made public. The rules do not set out any conditions or factors which should inform the tribunal’s consideration of whether to make such an order. The tribunal will be bound by the overriding objective to deal with cases fairly and justly, see ARTG8020.

Procedure for handling sensitive information

General advice on issues relating to intelligence information and disclosure is available from

  • Intelligence Advisors in RIS,
  • Disclosure Officers in business areas dealing with criminal cases, and
  • Operational Security Officers within Fraud Investigation Service (FIS).

(This content has been withheld because of exemptions in the Freedom of Information Act 2000) The Financial Intelligence Team within the National Crime Agency (NCA) may be contacted for advice if necessary (This content has been withheld because of exemptions in the Freedom of Information Act 2000) .

Before the tribunal hearing

Decision makers will normally use intelligence to gather facts or documents which can then be used as corroborating evidence when making a tax decision.

Intelligence should not generally be used as evidence for decision-making in tax cases and intelligence should not be sent to the litigator unless appropriate authorisation has been given.

Sending intelligence (including HumInt) to the litigator could potentially lead to a breach of the neither-confirm-nor-deny policy (NCND). In most cases we will be relying on evidence and not intelligence when making our case before the tribunal.

If deviation from the NCND policy is, very exceptionally, considered necessary then the NCND Policy team should be contacted at the earliest opportunity (see {#}NCND Policy team intranet page).

Authority from the Director of FIS is required before making an appealable decision which relies upon intelligence or other sensitive information and which could breach the NCND policy if that intelligence or sensitive information is disclosed to the tribunal at a later date. The NCND Policy team will assess the intelligence material and obtain authorisation.

Agreement to disclose may also be needed from other stakeholders, including the owners of any sensitive material, before authority can be given to use it in support of a tax decision.

Where, exceptionally, there is sensitive information or intelligence that is being relied upon to support a decision under appeal, the decision maker should bring its existence to the attention of the litigator before the tribunal hearing. This will enable them to consider:

  • whether that intelligence can be relied upon to support the decision under appeal,
  • how it should be dealt with in any statement of case,
  • the disclosure of that information.

Where

  • sensitive information or intelligence is relied upon in the case or referred to in any documents provided to the tribunal by HMRC, or
  • the tribunal directs that all relevant information/documents are to be disclosed and the sensitive information is considered relevant to that direction

the litigator should seek further advice, as appropriate, from:

  • the NCND Policy team,
  • the National HumInt Centre,
  • the Financial Intelligence Team within NCA, or
  • if the material is otherwise sensitive, the owner of that information

on how to refer to and present it.

The litigator may be advised to make a without notice application to the tribunal for an order that the information/document(s) should not be disclosed on the basis that it is not in the public interest to do so.

Where there is any doubt as to whether disclosure should be made or not, the litigator must approach the NCND Policy team, the National HumInt Centre, the Financial Intelligence Team within NCA, or the relevant stakeholder as appropriate for advice.

Applications for Disclosure

While the customer may apply to the tribunal to require disclosure of documents at any time after they have appealed/notified their appeal to the tribunal, this will usually happen after HMRC have sent their statement of case and list of documents to be relied upon to the tribunal and the customer (i.e. before the hearing takes place). The tribunal will then decide whether to order that the document(s) must be disclosed.

If an appellant makes an application for disclosure that would include sensitive information or intelligence, advice should always be sought at the earliest opportunity from the NCND Policy team, the National HumInt Centre, NCA, and/or the owner of that material before responding to the application.

If the appellant or the tribunal asks that sensitive information or intelligence be disclosed, our reply should be as follows:

  • “It is HMRC policy to neither confirm nor deny the existence, use or identity of, any human source of intelligence” (where the request directly relates to the existence of HumInt), or
  • “It is not in the public interest to answer that question” (otherwise)

If the tribunal is not satisfied with this response the litigator should approach the NCND Policy team, the National HumInt Centre, NCA, and/or the owner of that material as appropriate, for further advice before taking any further action.

At the tribunal hearing

In most cases, we will be relying at the tribunal on evidence we have gathered and not the outside intelligence which may have prompted us to seek the evidence, so intelligence information would not be referred to at the hearing. Intelligence should not be included or referred to in documents put before the tribunal, such as witness statements, without first seeking advice.

Where we refer to intelligence, the appellant, their representative, or the tribunal could enquire as to the source and nature of any intelligence held in relation to a tax decision under appeal. This happens rarely, but where it does the litigator (or decision maker/review officer if appearing as a witness) should say:

  • “It is HMRC policy to neither confirm nor deny the existence, use or identity of, any human source of intelligence” (where the request directly relates to the existence of HumInt), or
  • “It is not in the public interest to answer that question” (otherwise)

If either the tribunal requires a more detailed response or does not prevent the appellant from seeking further information at the hearing then the litigator should ask for the tribunal to be adjourned and contact Tax Administration Litigation and Advice (TALA) for advice.

(This content has been withheld because of exemptions in the Freedom of Information Act 2000)