The Human Rights Act and Penalties: how to tell the person about penalties and their rights
Whenever you have a reason to believe that a person may be liable to a penalty of the type listed in CH300200, you must tell the person as soon as possible that you are considering penalties and explain the rights that Article 6 of the ECHR gives them. This is best done face to face at a meeting but where it is not possible to arrange a meeting, you must explain their rights in writing or over the telephone.
Before you issue the HRA message or factsheet you should see CH300700 about the timing of the HRA message, and CH301000 about establishing whether the person is liable to a penalty.
When you issue the HRA message or factsheet you should explain that the message is to make the person aware of their rights. You should also explain that it does not imply in any way that we have already made a decision about
- whether or not they will be liable to a penalty
- Whether or not we will charge a civil penalty (in cases of evasion we may consider criminal prosecution).
Until you have ruled out evasion, see CH301100, you must not say anything to the person that could give them a legitimate expectation that we will charge them a civil penalty.
See below for guidance on how to issue the HRA message in meetings, by letter and by telephone.
When you are in a meeting, you must
- explain what you have found, for example an inaccuracy, and this may give rise to a penalty
- explain the person’s rights under Article 6 using the HRA message / factsheet, see CH300900
- explain how penalties can be reduced, and
give them a copy of
You should also have a copy of factsheet HMRC1 (GOV.UK) - Decisions what to do if you disagree, available at the meeting. You must give this to the person to read if they request more information about appeals.
If an agent is present at the meeting, you must give them a copy of the relevant factsheets.
Once you have explained the person’s rights you must ask them to confirm that they understand them. Make a written record of what is said in the notes of the meeting.
If you cannot meet the person but have to write to them, you must send them factsheet CC/FS9 (GOV.UK) - The Human Rights Act and Penalties.
You must send a covering letter that
- explains what you have found, for example an inaccuracy, and that this may give rise to a penalty
- explains that you have enclosed a copy of factsheet CC/FS9 (GOV.UK) - Human Rights Act, which explains their rights when we are considering penalties
- explains that this factsheet contains important information about their rights and they should take time to read it
- asks them to confirm that they understand their rights
- enclose the relevant penalty factsheet, see CH202000
When you send the factsheet with a covering letter, do not copy the whole of the text of the HRA message from the factsheet into the body of the letter. You may however, depending on the circumstances, want to emphasize some specific points from the HRA message in the covering letter.
You must also send a copy of the letter to any agent that is acting. You do not need to send the agent copies of the factsheets but your covering letter should include details of which factsheets you have sent to their client.
If the person does not confirm in writing that they understand their rights when they reply to your letter, you must ask them to confirm that they do on the next occasion you speak to them and before you discuss penalties or the underlying behaviour with them. You may have to read them the HRA message again, see CH300900. If you speak to the agent you should ask them to confirm that their client is aware of their rights before you discuss the reasons for what is wrong and the underlying behaviour. You should make a written note of what is said by the person or their agent.
If you cannot obtain confirmation, you should proceed as normal with your check. Do not delay the check because you have not been able to confirm that the person understands their rights.
Before you discuss what is wrong and the underlying behaviour on the telephone, you must
- explain what you have found, for example an inaccuracy, and that this may give rise to a penalty
- explain the person’s rights under Article 6 using either the wording at CH300900, or the standard telephone script at CH300950
- explain how any penalties can be reduced
- ask them to confirm that they understand their rights and make a written note of what is said.
Unless you sent the person a copy of factsheet CC/FS9 (GOV.UK) before you spoke to them on the telephone, you must send them a copy of factsheet CC/FS9 (GOV.UK) with a covering letter saying that the enclosed factsheet explains the rights you discussed with them on the telephone.
You must also send a copy of the letter to any agent that is acting. You do not need to send the agent copies of the factsheets but your covering letter should include details of which factsheets you have sent their client.
You cannot give the HRA message over the telephone to an agent on behalf of their client. If you are unable to speak to the person, you must write to the person instead, as described under the heading ‘By letter’ above.