ECSH110200 – Human Rights Considerations
What is the Human Rights Act?
The Human Rights Act 1998 (“HRA”) sets out the fundamental
rights and freedoms that everyone in the UK is entitled to. It incorporated the
rights set out in the European Convention on Human Rights (ECHR) into domestic
law. The HRA came into force in the UK on 2 October 2000.
The HRA protects the rights of every person resident in the
UK regardless of whether or not they are a British citizen or a foreign
national, a child or an adult, a prisoner or a member of the public. It also
applies to legal persons, such as companies. Public authorities, including both
HMRC as a whole, and EC-S, must comply with the HRA.
The three articles that have an impact on EC-S are Article
5, Article 6 and Article 8 HRA.
How the HRA applies to HMRC
As a public body, it is unlawful for HMRC to act contrary
to any of the rights contained in the ECHR that have been incorporated into the
HRA. Breach of an ECHR right by a decision maker may render its decision
unlawful.
Article
5
Article 5 protects your right to liberty and security. It
focuses on protecting people’s freedom from unreasonable detention.
Everyone has the right personal freedom.
This means that people must not be imprisoned or detained without good
reason.
If someone is arrested, Article 5
provides that they have the right to:
be told promptly in a language
they understand why they have been arrested and what charges they face.
be taken to court promptly and
have a trial within a reasonable
time or,
to bail (temporary release while the
court process continues), which may be subject to conditions to
guarantee they appear at trial).
If someone is arrested or detained, the HRA
provides that they have the right to:
Ask a court to decide
quickly if their detention is lawful, and order their release if
it is not.
Compensation if they have been
unlawfully detained.
Whilst Article 5 does
not apply directly to EC-S, it does need to be considered in criminal cases.
Article 6
Article 6 of the ECHR gives everyone
certain rights and safeguards when their ‘civil rights and obligations’ are
being determined, or where a ‘criminal charge’ is brought against them.
In the determination of civil rights and obligations or of
any criminal charge, everyone is entitled to a fair and public hearing (there
are circumstances where it is permissible to exclude the public, for example to
protect national security interests), within a reasonable time by an
independent and impartial tribunal.
The protection afforded by Article 6 is
more extensive if a ‘criminal charge’ is brought, including the following
rights:
The presumption of innocence.
The right to silence.
The privilege against self-incrimination.
The right to
be informed promptly of the nature and cause of the charge against them.
To have adequate time and facilities for the
preparation of a defence.
To defend himself in person or through legal
assistance of his own choosing or, if he does not have the means to pay for
legal assistance, to be given it free when the interests of justice require.
To examine or have examined witnesses against
him and to obtain the attendance and examination of witnesses on his behalf
under the same conditions.
To have the free assistance of an interpreter
if he cannot understand or speak the language used in court.
Is Article 6 engaged by a civil penalty?
Although a financial penalty imposed by
ECS is civil in nature, it may engage the more extensive protection afforded to
those who have been charged with a criminal offence as set out above. This is an area which has generated a
great deal of caselaw.
In
the case of British-American Tobacco (Holdings) Ltd v
Revenue and Customs Commissioners, a penalty which was
domestically regarded as civil and regulatory was found to be punitive and
amount to a criminal charge for the purpose of Article 6 by the First Tier
Tribunal (FTT).
EC-S’
civil compliance investigations do not of themselves engage Article 6. Article
6 could however be engaged at the point a penalty is being determined or
disputed.
(This content has been withheld because of exemptions in the Freedom of Information Act 2000)
If
the proposed action civil, or criminal, then it is important to understand the
individual’s rights as set out in detail above and ensure they are upheld
during the investigation.
If
you are dealing with a penalty of some kind and are unsure whether or to what
extent Article 6 is engaged, then you should obtain further advice from EC-S
Policy.
(This content has been withheld because of exemptions in the Freedom of Information Act 2000)
Article 8
Article 8(1) gives everybody (including companies) the right to respect
for:
their private
and family lives
their home, and
their
correspondence.
This is sometimes called a “right to privacy”.
The European Court of Human Rights has said that private information’
should be interpreted broadly [Amann v Switzerland (16/2/2000) ECHR 27798/95].
It includes not only information about a person’s private or family life or
personal relationships but also activities of a professional or business
nature.
Therefore, information about the way that a business is operated should
be treated as private information for Article 8 purposes.
However, Article 8(2) specifically envisages that there will be some
circumstances when it is necessary for a public authority to interfere with a
person’s rights of privacy. It sets out the conditions that must apply before
such an intrusion is lawful.
To be lawful, an intrusion into a person’s private life must be:
in accordance
with law
necessary in a
democratic society, and
in pursuit of a
legitimate aim.
These legitimate aims are listed as being in the interests of:
national security,
public safety, or
the economic well-being of the
country,
for the prevention of disorder or
crime,
for the protection of health or
morals, or
for the protection of the rights
and freedoms of others.
For EC-S, this means that any intrusive action must be in accordance
with the law and necessary for the prevention of crime – specifically the
prevention of money laundering, terrorist financing and proliferation
financing.
In order to be necessary, the proposed action must be reasonable and
proportionate to the underlying need.
For example:
Officers can require information about the way a business is operated
if: the need for the information is lawful, and the action they propose is
reasonable and proportionate in light of that underlying need.
EC-S have a number of powers under the Money Laundering, Terrorist
Financing and Transfer of Funds (Information on the Payer) Regulations 2017
(MLR 2017), which can amount to intrusive action.
Legality, justification and proportionality
EC-S officers
will need to ensure they are aware of the three principles of legality,
justification and proportionality in the actions they take.
Legality:
Officers must
be aware of the:
Laws and powers under which they are working.
Limits and constraints of those powers.
Justification:
Actions must be justified in each instance.
Officers may be called upon to justify their actions.
Proportionality:
Even when officers
are acting within their powers, they should ensure that they use them in a
proportionate manner.
Regulation 66
MLR 2017
To ensure that
the use of the power is lawful in line with Regulation 66 MLR 2017 and the
rights of relevant persons under Article 8 of the Human Rights Act 1998 are
safeguarded, Authorising Officers of at least Senior Officer grade must
authorise the use of a Regulation 66 Information Notice.
Whilst officers must take into account the legality,
justification and proportionality of a notice under regulation 66, recipients
of a regulation 66 notice cannot refuse to comply with a reg 66 request on the
grounds that doing so might incriminate them.
For more information see ECSH71500.
Regulation 67 & 68 MLR 2017
There are human rights considerations which need to be
taken into account if requesting, or receiving a request for information under
regulations 67 or 68. For more information see ECSH72000.
(This content has been withheld because of exemptions in the Freedom of Information Act 2000)
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