Public Interest Disclosures: principles to follow: disclosure categories: boundaries to creating categories
This annex describes the categories contained in Section 20 of CRCA, together with a brief additional explanation of the extent to which the Commissioners will currently permit disclosures under those provisions. Note that these are the only categories within which information may be disclosed in the public interest.
Remember also that, in addition to falling within one of these categories, a disclosure will only be lawful if it falls within either a general or individual instruction. See paragraph IDG60232, together with IDG60233 (general instructions) and IDG60234 (Individual Instructions).
‘To a person exercising public functions, whether in the UK or abroad, for the purpose of preventing or detecting crime, in order to comply with an obligation of the United Kingdom or Her Majesty’s Government, under an international or other agreement relating to the movement of persons, goods or services.’
Explanation: The reference to ‘person exercising public functions’ is taken from the definition of ‘public authority’ used in the Human Rights Act 1998. The agreements in question will typically be Memoranda of Understanding entered into by the Commissioners or their predecessors, with public bodies abroad. These bodies include the World Customs Organisation and other customs administrations.
‘To a body regulating a profession, in relation to misconduct on the part of a member, which relates to a HMRC function.’
Explanation: This would cover a disclosure about the misconduct of a professional person, such as an accountant preparing accounts or returns for tax purposes, but would also extend to other professionals whose misconduct related to a function of the department, e.g. in relation to the valuation of assets.
In accordance with the instructions at IDG60233 and IDG60234, any disclosure to an accountancy regulatory body must be passed by the Commissioners’ Advisory Accountant and agreed by 2 Commissioners. If you are considering making such a disclosure, you must contact the Commissioners’ Advisory Accountant (see IDG80100) in the first instance. Disclosure to any other professional regulatory body must not be authorised without reference to your Data Guardian.
‘To a constable who is exercising functions relating to the movement of persons or goods into or out of the UK. Or to a constable for the prevention or detection of crime.’
Explanation: This will cover the provision of intelligence to police officers that is not appropriate for disclosure under Section 19 ATCSA (see IDG50100). This is likely to be ‘low-level’ intelligence that contributes to an intelligence picture rather than leading to the commencement of criminal investigations or proceedings.
‘To the National Criminal Intelligence Service (NCIS), to allow NCIS to undertake its statutory role of providing a criminal intelligence service to all law enforcement agencies.’
Explanation: Following the establishment of the Serious and Organised Crime Agency (SOCA) disclosures under Section 20(5) are no longer necessary. A statutory gateway between HMRC and SOCA was provided for in the legislation creating SOCA (see IDG54600).
‘To a person exercising public functions in relation to public safety or public health, for the purposes of those functions.’
Explanation: This is designed to cover disclosures to public bodies with a responsibility for public health or public safety. It enables disclosure of information on threats to public health or public safety from any source, including individuals. The threat need not be imminent or serious, although the proportionality and necessity of any disclosure must be carefully considered in every case. It is unlikely to be proportionate to disclose information relating to a minor incident which might put public health or public safety at risk. (See IDG52000 for disclosure on health or safety matters more generally and IDG40460 for disclosure to the police to ensure the health and safety of HMRC officers).
When considering disclosure under Section 20(6), HMRC must know how the information to be provided will enable the recipient to carry out their functions in relation to public health or public safety, and there must be a realistic expectation that the recipient will act on the information disclosed. Illustrative examples of the type of disclosures permitted under Section 20(6):
To VOSA and the Traffic Commissioners for the purposes of road safety:
Disclosure would be proportionate and necessary where an HMRC officer has reason to believe that there is a quantifiable risk to the public e.g. an unsafe load or serious mechanical defect on a vehicle.
Disclosure would not be proportionate and necessary where it is the reporting of minor infringements such that the recipient was unlikely to take action based on the information provided.
To Licensing Authorities for the purposes of the authority conducting a ‘fit and proper’ test into a licence applicant/holder’s suitability:
Disclosure would be proportionate and necessary where an individual has been found by HMRC to be in possession of material likely to be relevant to the ‘fit and proper’ test into the suitability of an applicant for a licence e.g. taxi or bus drivers found in possession of indicative paedophile material; involvement in the smuggling of prohibited or restricted goods by any licence holder; or faulty or missing tachographs in relevant vehicles - all of which suggest non-compliance with the prevailing licensing requirements.
Disclosure would not be proportionate and necessary where the information has no bearing on the individual’s suitability to hold the licence i.e. where there are no implications for public safety or public health.
‘To the Police National Computer, which is maintained by the National Policing Improvement Agency, on behalf of all participating law enforcement agencies.’
Explanation: This covers the entering of certain departmental information on the PNC, which holds the national record of outstanding warrants, suspected persons, arrests, seizures, convictions etc, and is regarded as essential to the effective co-ordination of national law enforcement.