ARTG8505 | First-tier and Upper Tribunals: preparing for Tribunal: disclosure of information

The tribunal may order that the following may not be disclosed or made public

• specified documents or information, or

• any matter likely to lead to members of the public identifying anyone the tribunal thinks should not be identified.

The rules do not set out any conditions or factors which should inform the tribunal’s consideration of whether to make such an order. The tribunal will be bound by the overriding objective to deal with cases fairly and justly, see ARTG8020.

Procedure for handling sensitive information

General advice on issues relating to Human Intelligence information and disclosure is available from Focal Point Officers for HumInt within business units and Disclosure Officers in business areas dealing with criminal cases.

(This content has been withheld because of exemptions in the Freedom of Information Act 2000) However, in difficult or complex cases, advice on handling SARs intelligence is available from the RIS Financial Intelligence Team, an HMRC team embedded within the National Crime Agency (NCA) (This content has been withheld because of exemptions in the Freedom of Information Act 2000).

Before the tribunal hearing

Before the tribunal hearing, where there is sensitive information such as intelligence held on a 5x5x5 Information/Intelligence Report Form, see ARTG4340, the decision maker must draw it to the attention of the litigator to enable them to consider how it should be dealt with in any statement of case and disclosure of documents by HMRC, so that we do not inadvertently mislead either the tribunal or the customer by what we write or say.

The decision maker should also make any specialists involved in the case aware that there is sensitive information held and that the litigator/Solicitor’s Office will keep them informed of progress in the case so that they can comment as necessary.

The litigator/Solicitor’s Office will consider whether HMRC will be relying upon the sensitive information, such as any documents that reveal there is a HumInt, when presenting the case at tribunal. It is only in exceptional circumstances that HMRC will rely on sensitive information at tribunal, as in most cases we will be relying on evidence and not other material in making our case. The sensitive information may not need to be disclosed to the tribunal or the customer if we will not be relying on it when making our case. If

• the sensitive information is to be relied upon in the case and so referred to in any statement of case and documents listed provided by HMRC, or

• the tribunal directs that all relevant information/documents are to be disclosed and the sensitive information is considered to be relevant but we do not think that the information should be revealed, or

• there is an application for disclosure of sensitive information, or

• the tribunal indicates that it is considering directing that disclosure of sensitive information be made.

the litigator/Solicitor’s Office should approach the NCND team at Criminal Investigations Branch 1 and the National HumInt Centre, or the Financial Intelligence team within NCA as appropriate, who may advise them to make a without notice application to the tribunal for an order that the information/document(s) should not be disclosed on the basis that it is not in the public interest to do so.

Where there is any doubt as to whether disclosure should be given or not, the litigator/Solicitor’s Office should approach the NCND team at Criminal Investigations Branch 1 and the Nation HumInt Centre or NCA as appropriate, for advice.

While the customer may apply to the tribunal to require disclosure of documents at any time after they have appealed / notified their appeal to the tribunal, usually this happens after HMRC have sent their statement of case and list of documents to be relied upon to the tribunal and the customer, before the hearing takes place. The tribunal will then decide whether to order that the document(s) must be disclosed.

If the customer asks for information to be disclosed, the litigator/Solicitor’s Office should reply:

• “It is HMRC policy to neither confirm nor deny the existence, use or identity of, any human source of intelligence” (where the request directly relates to the existence of HumInt), or

• “It is not in the public interest to answer that question” (otherwise)

But if the customer is not satisfied with this response or the tribunal directs that the information must be disclosed, the litigator/Solicitor’s Office should approach the NCND team at Criminal Investigations Branch 1 and the Nation HumInt Centre, or NCA as appropriate, for advice.