Human Rights Act: Article 6: Culpability
Until you have established all the facts you will not be able to determine whether the offence is culpable, that is, whether the person is liable to a penalty. You need to establish that
- the behaviour giving rise to the offence is appropriate for the legislation concerned, see EM1363, and
- for failure offences, the person did not have a reasonable excuse for the failure which was remedied without unreasonable delay after the excuse ended.
It is important that you do not express any opinion on the degree of culpability until you have
- gathered and considered all the facts
- discussed your views with your manager or team leader, and
- made any appropriate referral to the Evasion Referral Team, see EM0303.
It is possible that the person or their agent will want to discuss your view of the person’s behaviour as soon as you mention the possibility that a penalty is due. You should resist all attempts to do so. You should tell them that you are not in a position to discuss this in detail but you will do so once all the facts have been established and you have considered them. This would be an ideal opportunity to remind them of any documents or information you require to progress your compliance check.
You may also want to explain that if the person chooses not to answer your questions, you can use your information powers, see CH23050, to get the information you need to further your compliance check. You should give the person a copy of factsheet CC/FS2 where appropriate.