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HMRC internal manual

Appeals reviews and tribunals guidance

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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

  • Focal Point Officers for HumInt within business units, and
  • Disclosure Officers in business areas dealing with criminal cases.

(This content has been withheld because of exemptions in the Freedom of Information Act 2000) The Financial Intelligence Team within the Serious Organised Crime Agency (SOCA) 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

Before the tribunal hearing, where there is sensitive information such as intelligence held on a 5x5x5 Information/Intelligence Report Form, see ARTG4340, the decision maker must draw it to the attention of the tribunals caseworker/Solicitor’s Office.

This will enable them to consider how it should be dealt with in any statement of case and disclosure of documents by HMRC, so that we do not inadvertently mislead either the tribunal or the customer by what we write or say.

The tribunals caseworker/Solicitor’s Office will consider whether HMRC will be relying upon the sensitive information, such as any documents that reveal there is a HumInt, when presenting the case at tribunal.

It is only in exceptional circumstances that HMRC will rely on sensitive information at tribunal, as in most cases we will be relying on evidence and not intelligence in making our case. The sensitive information may not need to be disclosed to the tribunal or the customer if we will not be relying on it when making our case.

If

  • the sensitive information is to be relied upon in the case and so referred to in any statement of case and documents listed provided by HMRC, or
  • the tribunal directs that all relevant information/documents are to be disclosed and the sensitive information is considered to be relevant but we do not think that the information should be revealed

the tribunals caseworker/Solicitor’s Office should approach

  • the NCND team at Criminal Investigations Branch 1 and the Nation HumInt Centre, or
  • the Financial Intelligence Team within SOCA, as appropriate,

who may advise them 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 given or not, the tribunals caseworker/Solicitor’s Office should approach the NCND team at Criminal Investigations Branch 1 and the Nation HumInt Centre, or the Financial Intelligence Team within SOCA as appropriate, for advice.

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, before the hearing takes place. The tribunal will then decide whether to order that the document(s) must be disclosed.

If the tribunal asks for information to be disclosed, the tribunals caseworker/Solicitor’s Office should reply:

  • “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 tribunals caseworker/Solicitor’s Office should approach the NCND team at Criminal Investigations Branch 1 the Nation HumInt Centre, or SOCA, as appropriate, for advice.

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.

However, if we do refer to intelligence (and sometimes even if we do not), the customer or their representative or the tribunal may enquire as to the source and nature of any intelligence held by us. This happens rarely. But if it does happen then the tribunals caseworker/Solicitor’s Office (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 customer from seeking further information at the hearing then they should ask for the tribunal to be adjourned and contact Tax Administration Advice (Appeals) for advice.

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