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HMRC internal manual

Enquiry Manual

Human Rights Act 1998 (HRA): Article 6: What to do when you identify a potential offence

When you first identify an inaccuracy, a failure or a wrongdoing that potentially attracts the type of penalty in EM1361, 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 the inaccuracy, failure or wrongdoing and the reasons for it. You will also need to bear in mind the behaviour that you have to establish.

For error penalties under TMA70/S95, FA98/SCH18/PARA20 and failure penalties charged under TMA70/S7(8), TMA70/S93(5), the behaviour will be

  • negligence, or
  • fraud.

If the penalty falls under FA 2007 and FA 2008 the behaviour will be

  • despite taking reasonable care
  • careless
  • non-deliberate
  • deliberate, or
  • deliberate and concealed.

In order to protect the person’s rights under Article 6 you must tell them that they may be liable to a penalty as soon as you establish that an offence may have been committed. In practice, this means that you must

  • treat all potential offences as if they are within Article 6, and
  • make the person aware of their rights under Article 6, see EM1360 and EM1364.

Where you later find that the offence under FA 2007 or FA 2008 was careless, or not deliberate, you should continue to work it 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.