The Human Rights Act and Penalties: what to do when you first identify an inaccuracy, failure or wrongdoing
When you first identify that there is something wrong, that potentially attracts the type of penalties in CH300200, for example an inaccuracy, failure, or wrongdoing it is unlikely you will be able to establish the underlying behaviour without further enquiries.
In most cases, you will need to determine the extent of what is wrong and the reasons why and how it happened. You will also need to bear in mind the particular types of behaviour that you have to establish.
For the FA2007, FA2008 and FA2009 penalties, the behaviour will be one of the following:
- despite taking reasonable care
- deliberate, or
- deliberate and concealed.
If the penalty falls under other legislation you may need to establish other behaviours including
- fraud, or
In order to protect the person’s rights under Article 6 of the ECHR you must tell them that they may be liable to a penalty as soon as you find something wrong that could result in a penalty and before you discuss the behaviour. This will be when you have an evidence-based reason to believe that a penalty may be due, see CH300700. At this point you must
- treat all potential penalties as if they are within Article 6, and
- make the person aware of their rights under Article 6, see CH300100 and CH300500.
Where you later find that the behaviour was careless, or non-deliberate, you should continue as if it were subject to Article 6.
This will ensure that whenever a penalty is due
- each person is given the same rights and safeguards, and
- all cases are worked to the same standards.