QUEEN'S BENCH DIVISION
Strand, London, WC2A 2LL
B e f o r e :
| R (on the application of Privacy International)
|- and -
|The Commissioner for HM Revenue & Customs
Mr George Peretz (instructed by General Counsel to HM Revenue and Customs) for the Defendant
Hearing dates: 18th and 19th March 2014
Crown Copyright ©
Mr Justice Green :
|A. Introduction and issue||1-5|
|B. Relevant facts||6-27|
|(1) The initial complaint by Privacy International to BIS.||6-8|
|(2)The BIS response.||9-13|
|(3)The Privacy International complaint to HMRC||14-15|
|(4)The HMRC responses||16-27|
|a. The Decision letter||17-18|
|b. The subsequent explanation of the reasons for the Decision letter||19-23|
|c. The letters from the HMRC Strategic Export Referrals Team (SERT)||24-26|
|d. The update from HMRC||27|
|C. The position of the activists: Dr Shehabi and Mr Kersmo||28-32|
|D. The Statutory framework||33-62|
|(1) The statutory prohibition upon disclosure.||35-36|
|(2) The exceptions to the prohibition - the power to disclose under section 18(2)(a) and (d) CRCA 2005||37|
|(3) The "functions" of the HMRC in relation to export control||38-47|
|(4) The relationship between CRCA 2005 powers of disclosure and the Freedom of Information Act 2000||48-51|
|(5) The margin of appreciation accorded to HMRC||52-62|
|E. The lawfulness of the Decision: Whether to quash and remit?||63-72|
|(1) Point 1: Failure to obtain evidence from the relevant operational unit within HMRC.||64-74|
|(2) Point 2: Failure to have regard to the actual complaint letter and accompanying dossier of evidence.||65|
|(3) Point 3: The Decision letter contains an error law on its face.||66|
|(4) Point 4: The ex post facto explanations for the Decision letter are not admissible to re-write the Decision.||67|
|(5) Point 5: The Decision letter read in the light of the supplementary reasons still reflects an error of law; it relies only upon abstract arguments and fails to involve an assessment of the surrounding facts.||68|
|(6) Point 6: The update statement does not advance matters.||69|
|(7) Point 7: The Decision letter responded to the request in the wrong letter.||70|
|(8) Point 8: The position of HMRC generally reflects internal confusion which undermines the credibility of its response.||71|
|F. Factors relevant to the exercise of discretion I: The status of affected persons||74-131|
|(1) The issue||74-76|
|(2) Pressure groups / NGO's / the press||77-81|
|(6) Companies investigated:-||122|
|(i) Forewarning the suspect||123|
|(iii) Confidentiality of information||131|
|G. Factors relevant to the exercise of discretion II: Securing cooperation and confidence in the system||132-135|
|H. Factors relevant to the exercise of discretion III: The right to a No Further Action ("NFA") decision and reasons||136-179|
|(1) The issue||136-141|
|(2) The position in common law||142-162|
|(3) The position under the Framework Decision and the Council Directive||163-166|
|(4) Article 10 ECHR||167-179|
|I. The Invitation to invite the HMRC to issue Guidelines||180-185|
A. Introduction and issue
B. Relevant facts
(1) The initial complaint by Privacy International to BIS
"Most of the FinFisher products covertly install malicious software (malware) on a user's computer or mobile phone without their knowledge by tricking the user into downloading fake updates from what appear to be legitimate sources such as Blackberry, iTunes or Adobe Flash. Once the updates are accepted by the user, the computer or mobile phone device is infected allowing full access to information held on it. One product, FinFly LAN, is marketed for use for surveillance of individuals staying in hotels. You will no doubt be aware that an Intelligence Note of 8 May 2012 prepared by the Internet Crime Centre (IC3) has indicated that:
"(r)ecent analysis by the FBI and other government agencies demonstrates that malicious actors are targeting travellers abroad through pop up windows while establishing an internet connection in their hotel room."
One of the products, FinFly ISP, involves a server being inserted in the core internet network of an internet provider to facilitate "infection" of specific target personal computers. A similar product FinSpy Mobile, works in a similar way to infect mobile phones.
The promotional video with images and text shows:
• a simulation of an agent deploying "the FinFly ISP server into the Core Network"
• "FinFly ISP [analysing] traffic for easy Target Identification"
• "The Target [using] his private DSL or Dial-Up Account"
• FinFly ISP [sending] a fake iTunes update to the Target System
• That "the Target System is now infected with the FinSpy software"
• That "the Headquarters has full access to the Target System"
When an individual's device is "infected", it allows access to emails, social media messaging and Skype calls. These products also enable the entity doing the targeting to commandeer and remotely operate microphones and cameras on computers and mobile phones, thus effectively turning the targeted device into a bug which the target individual willingly and unknowingly keeps in close proximity".
(2) The BIS response
"13. The Secretary of State, having carried out an assessment of the FinSpy system to which your letter specifically refers, has advised Gamma International that the system does require a licence to export to all destinations outside the EU under category 5, Part 2 ("Information Security") of Annex 1 to the Dual-Use Regulation. This is because it is designed to use controlled cryptography and therefore falls within the scope of Annex 1 to the Dual-Use Regulation. The Secretary of State also understands that other products in the FinFisher portfolio could be controlled for export in the same way. Furthermore, it is likely that the same products would fall within the scope of the enhanced restrictions set out in the Syria Regulation and Iran Regulation if not already controlled under the Dual-Use Regulation as explained above, being "Remote infection equipment" specified in Part A of Annex V and Annex IV of the Syria and Iran Regulations respectively. Accordingly, insofar as you maintain that all of the surveillance equipment to which you refer is not the subject of export controls in the United Kingdom, the Secretary of State does not consider that to be correct".
"Other than in the case of certain Open General Export Licences, where an exporter may register for use of the licence up to 30 days after the first export under that licence, an exporter must have an appropriate licence in place prior to the export of the goods. However, none of these Open General Export Licences would be appropriate for exports of the FinSpy system".
Mr Smith proceeded to confirm that Gamma International had not sought any such licences. He then stated:
"In addition, if you or your client holds specific information on breaches of export controls by UK nationals or companies we would strongly encourage to report this information to the Customs Confidential Helpline…so that the appropriate action can be taken".
Finally, he confirmed that BIS did hold information relating to substantive discussions with Gamma International as part of the export licensing process but that pursuant to section 41(1) of the Freedom of Information Act it was exempt from disclosure because it was provided to the Department in confidence and that release would constitute a breach of confidence actionable in court. Mr Smith explained that in arriving at this conclusion he had taken into account whether disclosure of the information should be released in the public interest.
(3) The Privacy International complaint to HMRC
"We write to you at the suggestion of BIS in relation to our concerns about exports by a UK company, Gamma International, of surveillance equipment in the "FinFisher/FinSpy" range to repressive regimes around the world. We believe that this equipment is being used by oppressive governments for a wide range of human rights abuses. These include not only serious breaches of the right to privacy, but also breaches of the right to free association and free expression. At the most serious end of the spectrum, we believe that Gamma's technologies are being used to gather information on individuals who are then arrested, tortured and, in some cases, executed".
"We would suggest that HMRC follows the principles set out in the Code of Practice for Victims of Crime. We would therefore be grateful if you could confirm whether there will be any investigation into unlicensed exports by Gamma and, if not, the reasons for this. If there is an imminent or ongoing investigation, we would also be grateful for a progress report now and on at least a monthly basis thereafter. We would also be grateful for your confirmation that we will be informed if any person(s) are arrested, charged or summonsed, or a decision is taken that no further action will be taken and, if the latter, the reasons for this.
As you will no doubt appreciate, when victims and those with a legitimate interest in the investigation of a crime receive little or no communication of the progress of an investigation, it can be a great source of distress, disappointment and frustration. Lack of information can also make those who report crime think that their case is being neglected or not being taken seriously. (See the research report by Victim Support "Left in the dark. Why victims of crime need to be kept informed"). We are sure that this is not the impression that HMRC would want to give, and we therefore look forward to a substantive response within the next 14 days"
(1) The HMRC responses
(a) The Decision letter
"As you may be aware, section 18 of the Commissioners for Revenue and Customs Act 2005 imposes strict controls on the disclosure of information held by HMRC. Indeed, the starting point of this legislation is that without specific legal authority officials of HMRC may not disclose any information held by HMRC in connection with its functions (which of course include enforcement of export controls) and it is a criminal offence to reveal any information from which persons (including legal persons such as companies) might be identified. Consequently HMRC cannot comment on individual cases, and in particular we will be unable to keep you or other third parties informed of the progress of any investigations.
However, I can say where HMRC receives information concerning possible export licence issues we consider the facts and take appropriate action. HMRC has policy responsibility for enforcing export controls and sanctions. We work in conjunction with the UK Border Agency to detect and investigate attempted or actual breaches of sanctions. Both HMRC and UKBA treat export controls and sanctions as a high priority for enforcement. We are therefore grateful to you for bringing these matters to our attention and providing us with relevant information".
(b) The subsequent explanation of the reasons for the Decision letter
"I should note that at that stage I had not been able to make contact with the investigatory team and discuss the matter with them. In the interest of making a prompt reply (the letter asked for a substantive reply within 14 days: I was conscious that it was already nearly three weeks since the letter had been sent and more than a week and a half since it had been received in our office) I thought it was not sensible to delay any longer before making a reply".
Mr Hathaway also explained that in drafting the response he took account of the relevant law applicable to disclosure in sections 18 and 19 CRCA 2005. He states that although he was well aware of the HMRC policy as set out in relevant Information Disclosure Guidance ("IDG") he did not need to refer to that guidance because he considered that the legal position was "clear" and his own legal analysis consistent with that contained within the IDG. In his statement he addressed the facts and matters that he says he took into account in relation to the three categories of information sought by the Claimant in its chaser letter of 21st December 2012.
"10. In drafting this reply I took account of the following. I considered that I could not advise HMRC that such disclosure would be for the benefit of a function of HMRC as a disclosure in reliance on section 18(2)(a) (or article 43(2) of the Export Control Order 2008) requires. It did not seem to me that, having regard to the functions of HMRC as set out in the CRCA and other enactments, disclosure for the purpose of keeping a complainant or alleged victim of an infringement informed of the progress of an investigation would fall within that section.
11. Nor could I see any possibility that disclosure would in this context assist any criminal investigation by HMRC into alleged breaches of export controls such that the ability to disclose under s.18(2)(d) would arise.
12. Indeed, as far as I could see, the risk was rather that disclosure would harm the investigation. If HMRC disclosed the information it would lose control of it, since there is no restriction on onwards disclosure of information disclosed under section 18(2)(d). PI presumably wished to be able to complain if in its opinion HMRC was not pursuing the matter with sufficient vigour – indeed, it seemed to me likely that, for reasons that are entirely legitimate, they had a mainly political campaigning motive for wishing to be kept informed of what was happening (a reason which could not in my view provide a basis for disclosure) – and I foresaw a risk that the material would not be confined to PI and Dr Shehabi.
13. That would in turn give rise to the following risks – first, that publicity would mean that potential suspects would be forewarned which might damage the investigation; second, that the suspects would be damaged, both personally and in their legitimate business activities, by making public the fact that they were suspected of criminal activity if in the event the investigation did not lead to anything.
14. That second consideration brings me on to a further issue which also in my view militated against disclosure could have been said to be for the purposes of a function of HMRC or of a criminal investigation. PI had referred to a specific company. Companies act through their directors and senior managers. To provide PI with regular updates of the investigation (e.g. "This month we have interviewed the directors of the company") would inevitably involve disclosure of information regarding not only an identified corporate person but also individuals who in all probability PI would also be able to identify (since directors of companies are a matter of public record, and I suspected that PI already knew who they were). Information regarding the alleged commission of an offence by an individual is 'sensitive personal data' for the purposes of the Data Protection Act 1998 and its processing (including disclosure to others) must be properly justified in order to be fair processing.
15. It will be appreciated that the 9 January letter is not claiming that there is an absolute bar on disclosure by virtue of s.18. Manifestly that is not what the section says, since it creates a whole series of exceptions under which disclosures may be made".
i. The second sentence of paragraph 10 is a statement that the purpose of keeping a complainant or alleged victim of an infringement informed of the progress of an investigation did not fall within section 18(2)(a).
ii. The second sentence of paragraph 12 is couched in generic terms since disclosure of information by HMRC, in all cases, entails the HMRC losing "control" of that information since there is no restriction on onward disclosure of information under section 18(2)(d). As such this would be a justification, if it were valid, for never disclosing information to anyone, about anything.
iii. The third sentence of paragraph 12 operates upon a presumption that the Claimant wished to receive information for motives of political campaigning which, in Mr Hathaway's view, could not provide the basis for disclosure.
iv. In paragraph 13 Mr Hathaway refers to the risk that potential suspects would be forewarned which could damage an investigation. This is a generic consideration and is in no way said to be relevant to the position of Gamma International. Once again it is a possibility that could arise in any investigation and would also be a justification, if it were valid, for never disclosing information to anyone, about anything. It is notable that no mention is made here of the fact that it is evident from information provided by BIS that Gamma International was already in discussion with BIS (and quite possibly HMRC) and nothing that the Claimant could do would forewarn Gamma International of the legal issues which they were then addressing.
v. The same applies to the other point raised in paragraph 13 namely that the suspects would be damaged personally and in the context of their legitimate business interests in the event that the investigation did not lead to anything. This is a generic consideration that, were it to be valid, would apply in all cases.
vi. Paragraph 14 focuses upon the fact that the Claimant's request concerned a "specific company" which worked through individual directors. The reason given by Mr Hathaway for rejecting this request is yet again generic, namely that to answer the request HMRC would have to divulge information about individual directors or individuals which constituted "sensitive personal data for the purposes of the Data Protection Act 1998 and its processes". As to this Mr Hathaway simply says that any such disclosure must be "properly justified". But he does not go on then to assess whether on the facts of this case it would be justified.
"I am conscious that the reply may not have fully dealt with this aspect of the request. Certainly, for the same reasons as are set out in relation to request (b), I did not see a proper reason for promising at that stage to confirm in relation to this particular investigation that any persons had been arrested. Where HMRC has done this in the past, it has been so that publicity may be given to a widespread current general problem e.g. smuggling by aircrew, with a view to deterring such smuggling and encouraging public vigilance. There was at this stage no reason to think that breaches of export licensing requirements were rife, or any other reason why I could confidently predict that disclosure of any arrest would be for the purposes of an investigation or for the purposes of a function of HMRC. It therefore seemed to me to be wrong to give the commitment that HMRC were being asked to give at that stage (though of course I was not in any way ruling out the possibility that, were any arrest made, the view would at that later stage properly be taken that disclosure of that fact would serve a function of HMRC or assist the investigation".
Mr Hathaway acknowledges that he did not deal with the question of charge, summons or no further action decisions or the reasons therefor. No explanation for this omission is given. With regard to the question of arrest the suggestion that a different decision might be taken at a future point in time is oddly inconsistent with the third sentence of paragraph 10 which states in broad and sweeping terms that keeping complainants or alleged victims of an infringement informed of the progress in an investigation did not fall within section 18(2)(a) or the CRCA 2005 generally. It is also inconsistent with the Decision letter and the letter from Mr Armstrong which makes clear that HMRC would not provide updates to the Claimant.
(c) The letters from the HMRC Strategic Export Referrals Team (SERT)
"I acknowledge receipt of your letter dated 9 November 2012 regarding the alleged unlicensed export of surveillance equipment by Gamma International to repressive regimes around the world. Your letter and enclosures have been forwarded to me for a response as I am the Head of Policy Strategic Export Controls.
As with all information received regarding alleged strategic export control breaches, this will be assessed by our Criminal Investigators for consideration of further action.
I can assure you that we take all credible allegations seriously and will consider carefully the material you have provided".
Mr Armstrong's response does not address any of the requests formulated by the Claimant. It is cast in generic terms confirming only that "as with all information received" it would be assessed with a view to the possibility of further action. It is apparent that this response was sent in ignorance of the response sent by Mr Inglese. In his second Witness Statement Mr Hathaway confirms that he was unaware, when he drafted the Decision letter, that Mr Armstrong was proposing to respond separately. He states that had he been aware it is probable that the Solicitors' Office letter would have been no more than: "…that Mr Inglese understood that the relevant business unit would be responding shortly". Mr Hathaway then states:
"Consequently I do not regard these matters of any relevance to the view I took and they did not form any part of the decision making process.
My role is to give legal advice to officers of the Department when requested to do so. I have not sought to discuss these matters with the investigation team. It is no part of my role, my team's, or that of the Solicitor's Office generally to supervise or otherwise intervene in the conduct of operational matters.
When I drafted the letter dated 9 January 2013 I considered whether the commissioners were entitled to disclose the information sought by Privacy International and formed the view that nothing in the letter from Privacy International gave adequate grounds to indicate that an exception to our duty of confidentiality under section 18 CRCA".
"I must reiterate that section 8 of the Commissioners for Revenue and Customs Act (CRCA) 2005 imposes strict controls on the disclosure of information held by then HMRC. Without specific legal authority, no official of HMRC may disclose information held by the department in connection with its functions – including the enforcement of strategic export controls– that might identify specify individuals or businesses. It is a criminal offence to do so.
This means that HMRC cannot comment on individual case, now are we able to keep you or other third parties informed of progress of any potential enquiries".
(d) The update from HMRC
"I am instructed that HMRC has been considering carefully whether any further information relation to the matters raised by Privacy International should be provided to the public at this stage. I can tell your Lordship that the view has been reached, after careful consideration, not to do so at this time. HMRC will however keep the matter under review and will provide the public with further information about these matters if and when it is appropriate to do so having regard to the considerations set out in section 18 CRCA. I should add that although HMRC have considered the evidence given by Dr Shehabi, Mr Kersmo and Professor Deibert, they do not consider that disclosure of any further information relating to these matters would be appropriate, at least at this stage".
The position therefore as at the present date, which is nearly 2 years after Privacy International first raised the matter and about 18 months after the complaint lodged by Privacy International, is that HMRC has no intention of providing any information, to anyone. This is notwithstanding that BIS felt able to disclose information which prima facie shows that the complaint is credible and serious.
C. The position of the activists: Dr Shehabi and Mr Kersmo
(1) Dr Shehabi
"I understand that Privacy International has sent a dossier including information about my case to HM Revenue and Customs ("HMRC") over 4 months ago asking them to investigate what appears to be the unlawful exports in breach of export controls of a British company to regimes such as Bahrain that have very troubling human rights records. I have not been contacted by HMRC or any other state agency to enquire about the email that I have received. In so far as I am aware nor has Citizen Lab or anyone else who was involved in analysing the material from myself and others. I understand that [the Claimant] has sought clarification from HMRC about what is happening and has been told that no information can be provided. HMRC are refusing to tell us whether any investigation is being or will be conducted at all into possible criminal offences committed by Gamma International. I am very anxious to know what if any investigation is being done by HMRC. The absence of information nor any form of contact with me is simply fuelling thoughts that I have that for reasons that are completely unclear to me no investigation is being undertaken into the exports of Gamma International and no action is intended to be taken".
(2) Mr Kersmo
"21. If the FinFisher product is sold to repressive regimes, Gamma is providing them with the ideal tool to commit the offences of unlawful interception of communications. Gamma is aware of the fact that the relevant government will commit such an offence, and that by selling FinFisher it provides crucial assistance in carrying out this offence. This qualifies as an offence in itself on the basis of section 45 SCA.
22. In any case it is clear that Gamma provided assistance while being aware that there was a real risk that the offence would be committed, so its assistance to a government in order to obtain unauthorised access to computer and intercept communications via that computer constitutes an offence in itself on the basis of section 8 Accessories and Abetter Act 1861".
D. The Statutory framework
(1) The statutory prohibition upon disclosure
"(1) Revenue and Customs officials may not disclose information which is held by the Revenue and Customs in connection with a function of the Revenue and Customs".
(2) The exceptions to the prohibition – the power to disclose under section 18(2)(a) and (d)
" does not apply to a disclosure:
(i) is made for the purposes of a function of the Revenue and Customs, and
(ii) does not contravene any restriction imposed by the Commissioners,
(d) which is made of the purposes of a criminal investigation or criminal proceedings (whether or not within the United Kingdom ) relating to a matter in respect of which the Revenue and Customs have functions…".
(3) The "functions" of the HMRC in relation to export control
"(2) (a) 'function' means a power or duty (including a power or duty that is ancillary to another power or duty) and
(b) a reference to the functions of the Commissioners or of officers of Revenue and Customs is a reference to the functions conferred
(i) by or by virtue of this Act, or
(ii) by or by virtue of any enactment passed or made after the commencement of this Act…".
i) Article 41(1) provides that certain provisions of CEMA relating to "assigned matters" apply to investigations by HMRC of possible breaches of the Dual-Use Regulation;
ii) Article 41(2) provides that, in relation to such matters, HMRC have the powers they have under section 77A of CEMA (to require the provision of information under compulsion);
iii) Article 41(3) gives HMRC officials the power of arrest in relation to such matters that they have powers under section 138 of CEMA; and
iv) Article 41(4) applies provisions of CEMA dealing with criminal proceedings brought by HMRC or by the Director of Revenue and Customs Prosecutions.
" (1) Every person who is concerned (in whatever capacity) in the importation or exportation of goods for which for that purpose an entry is required by regulation 5 of the Customs Controls on Importation of Goods Regulations 1991 or an entry or specification is required by or under this Act shall—"
(a) Furnish to the Commissioners, within such time and in such form as they may reasonably require, such information relating to the goods or to the importation or exportation as the Commissioners may reasonably specify; and
(b) If so required by an officer, produce or cause to be produced for inspection by the officer—
(i) At the principal place of business of the person upon whom the demand is made or at such other place as the officer may reasonably require, and
(ii) At such time as the officer may reasonably require,
any documents relating to the goods or to the importation or exportation.
(2) Where, by virtue of subsection (1) above, an officer has power to require the production of any documents from any such person as is referred to in that subsection, he shall have the like power to require production of the documents concerned from any other person who appears to the officer to be in possession of them; but where any such other person claims a lien on any document produced by him, the production shall be without prejudice to the lien.
(3) An officer may take copies of, or make extracts from, any document produced under subsection (1) or subsection (2) above.
(4) If it appears to him to be necessary to do so, an officer may, at a reasonable time and for a reasonable period, remove any document produced under subsection (1) or subsection (2) above and shall, on request, provide a receipt for any document so removed; and where a lien is claimed on a document produced under subsection (2) above, the removal of the document under this subsection shall not be regarded as breaking the lien.
(5) Where a document removed by an officer under subsection (4) above is reasonably required for the proper conduct of a business, the officer shall, as soon as practicable, provide a copy of the document, free of charge, to the person by whom it was produced or caused to be produced.
(6) Where any documents removed under the powers conferred by this section are lost or damaged, the Commissioners shall be liable to compensate their owner for any expenses reasonably incurred by him in replacing or repairing the documents.
(7) If any person fails to comply with a requirement under this section, he shall be liable on summary conviction to a penalty of level 3 on the standard scale.
" … the Treasury may by order direct that any provision of … [PACE] which relates to investigations of offences conducted by police officers or to persons detained by the police shall apply, subject to such modifications as the order may specify, to investigations conducted by [HMRC] officers or to persons detained by [HMRC] officers".
"… function of [HMRC] means any power or duty (including a power or duty that is ancillary to another power or duty) conferred… by or by virtue of any enactment passed or made after the commencement of this Act".
(4) The relationship between CRCA 2005 powers of disclosure and the Freedom of Information Act 2000
"23. Freedom of information
(1) Revenue and customs information relating to a person, the disclosure of which is prohibited by section 18(1), is exempt information by virtue of section 44(1)(a) of the Freedom of Information Act 2000 (c. 36) (prohibitions on disclosure) if its disclosure—
(a) would specify the identity of the person to whom the information relates, or
(b) would enable the identity of such a person to be deduced.
(2) Except as specified in subsection (1), information the disclosure of which is prohibited by section 18(1) is not exempt information for the purposes of section 44(1)(a) of the Freedom of Information Act 2000.
(3) In subsection (1) "revenue and customs information relating to a person" has the same meaning as in section 19".
" …information about, acquired as a result of, or held in connection with the exercise of a function of the Revenue and Customs (within the meaning given by section 18(4)©) in respect of the person; but it does not ilcude information about internal administrative arrangements of Her Majesty's Revenue and Customs (whether relating to Commissioners, officers or others".
"1. Information is exempt information if its disclosure (otherwise than under this Act) by the public authority holding it—"
(a) is prohibited by or under any enactment".
(5) The margin of appreciation accorded to HMRC
"64. Mr Eadie made the further submission that any interference with rights under Article 8(1) was objectively justified under Article 8(2), in that the disclosures were made for the legitimate objectives of promoting the economic well-being of the country (ensuring proper, efficient and cost-effective collection of tax) and for the protection of the rights and freedoms of others (to ensure the fair distribution of the tax burden across all tax payers); and were proportionate and necessary in a democratic society. Mr Eadie submitted that in assessing the proportionality of the disclosures made, I should accord HMRC a wide margin of appreciation, on the grounds that the area of tax is a subject of economic and social policy in relation to which such a margin of appreciation is regularly allowed for public authorities: see e.g. James v United Kingdom (1986) 8 EHRR 123, esp. at para. ; National and Provincial Building Society v United Kingdom (1997) 25 EHRR 127 at paras. -. He also again emphasised the limited nature of the disclosures made by Mr Hartnett and the fact that he understood that they were being made to only two people for very limited purposes, in an "off the record" briefing.
65. I do not agree that the margin of appreciation for HMRC in relation to judgments regarding disclosure of confidential information regarding the tax affairs of an individual is as wide as Mr Eadie suggested. Although the background of tax policy and the need for well-informed practical judgments on the ground by experienced officials about how best to promote the effective collection of tax are factors which tend to expand the ambit of the margin of appreciation which is applicable in this context, the countervailing factors to which I have referred at para.  above increase the weight to be given to the interests of the individual in striking the fair balance required by the ECHR, and tend to reduce the margin of appreciation to be applied. Also, the disclosures made were not direct expressions of national policy in setting levels of taxation and so forth, unlike the sort of measures in issue in the authorities referred to above. Balancing these factors leads me to conclude that the relevant margin of appreciation is neither particularly wide nor especially narrow, but in the middle ground".
"50. The rationality standard is a flexible one, which varies in the width of the discretion allowed to a decision-maker according to the strength of the public interest and the strength of the interests of any individual affected by the decision to be taken: R v Secretary of State for Defence, ex p. Smith  QB 517; R (Bancoult) v Secretary of State for Foreign and Commonwealth Affairs  UKHL 61;  1 AC 453. The basic statutory rule under which HMRC operate is that set out in section 18(1) of the 2005 Act, requiring them to maintain confidentiality of information about a taxpayer's affairs. That reflects a very longstanding tradition and strong public expectation of the standards to be expected of the tax authorities, particularly in relation to information which taxpayers provide to the authorities about themselves. It also reflects a strong policy interest associated with the fair and efficient collection of taxes, namely to encourage taxpayers to be frank and open with HMRC about their affairs - undeterred by fear that the information they disclose might be released to the public - so that HMRC can make a proper and accurate assessment of the tax due from them. These features of the context in which HMRC operate tend, in my view, to narrow the scope of the discretion to be allowed to HMRC under the rationality standard in disclosing information about taxpayers outside HMRC or other responsible public bodies. Thus, for example, it would have been a matter for grave concern and close scrutiny by the court if Mr Hartnett had given the journalists (even in an "off the record" briefing) access to the full tax files of Mr McKenna and Ingenious Media, with all the private information which they had supplied to HMRC about themselves, even if he did think that such a course might help in some way with the collection of tax".
i. The maintenance of good and cooperative relations with the press: This included ensuring that the public were well informed on matters of controversy relating to the tax system:
"The efficient and effective collection of tax which is due is a matter of obvious public interest and concern. Coverage in the press about such matters is vital as a way of informing public debate about them, which is strongly in the public interest in a well-functioning democracy. HMRC have limited resources to devote to the many aspects of their tax collection work, and it is legitimate and appropriate for them to seek to maintain relations with the press and through them with the public to inform public debate about the tax regime and the use of HMRC's resources" (ibid paragraph ).
ii. Maintaining confidence in the tax system: This embraced the correction of false information and the suppression of false perceptions that the Revenue engaged in "cosy" deals with tax payers:
"It is also relevant to the exercise of HMRC's functions to provide proper and accurate information to correct mis-apprehensions or captious criticism regarding the exercise of their functions (such as any misplaced suggestion that they had engaged in unduly lenient "cosy deals" with certain taxpayers), in order to maintain public confidence in the tax system. If such confidence were undermined, the efficient collection of taxes could be jeopardised, as disaffected taxpayers might withhold co-operation from the tax authorities" (ibid paragraph ).
iii. Encouraging the provision of information by taxpayers and the press: This included providing information to the press in order to encourage the press to be forthcoming with HMRC:
"[The Permanent Secretary's] wish to encourage the journalists to share information with HMRC about tax avoidance, which could be of direct assistance to HMRC in relation to their tax collection functions by helping to inform them about where to focus their attention and investigations, was a further legitimate basis for that decision. He could rationally and lawfully take the view that the journalists would be unlikely to assist HMRC in this way unless HMRC for their part demonstrated a degree of measured frankness about the topics under discussion in return" (ibid paragraph ).
iv. Deterrence: This included providing information to convey to the public HMRC's negative views about particular types of tax scheme given that this was important to deterrence:
"HMRC had an interest to challenge and investigate the true reasons of taxpayers for participation in such schemes, which had already been manifested by HMRC before the briefing. It was fair and appropriate for HMRC to seek to convey the message to the public that taxpayers who participated in such schemes could expect to have such participation rigorously scrutinised by HMRC, and thereby seek to deter taxpayers who did not have substantial and genuine commercial reasons apart from simply seeking to avoid tax from participating in the schemes in the first place" (ibid paragraph ).
"1. Information is the key to sound decision-making, to accountability and development; it underpins democracy and assists in combatting poverty, oppression, corruption, prejudice and inefficiency. Administrators, judges, arbitrators, and persons conducting inquiries and investigations depend upon it; likewise the press, NGOs and individuals concerned to report on issues of public interest. Unwillingness to disclose information may arise through habits of secrecy or reasons of self-protection. But information can be genuinely private, confidential or sensitive, and these interests merit respect in their own right and, in the case of those who depend on information to fulfil their functions, because this may not otherwise be forthcoming. These competing considerations, and the balance between them, lie behind the issues on this appeal".
E. The lawfulness of the Decision: Whether to quash and remit?
(1) Point 1: Failure to obtain evidence from the relevant operational unit within HMRC.
(2) Point 2: Failure to have regard to the actual complaint letter and accompanying dossier of evidence.
(3) Point 3: The Decision letter contains an error of law on its face.
(4) Point 4: The ex post facto explanations for the Decision letter should not be treated as admissible to re-write the letter
(5) Point 5: The Decision letter read in the light of the supplementary reasons still reflects an error of law; it sets out only abstract arguments and does not involve an assessment of the surrounding facts
(6) Point 6: The update statement does not advance matters.
(7) Point 7: The Decision letter responded to the request in the wrong letter.
(8) Point 8: The position of HMRC generally reflects internal confusion which undermines the credibility of its response.
F. Factors relevant to the exercise of discretion I: The status of affected persons
(1) The issue
(2) Pressure groups/NGO's/the press
"Information is the key to sound decision-making, to accountability and development; it underpins democracy and assists in combatting poverty, oppression, corruption, prejudice and inefficiency. Administrators, judges, arbitrators, and persons conducting inquiries and investigations depend upon it; likewise the press, NGOs and individuals concerned to report on issues of public interest".
The role that NGOs play in enforcing legal rights in court is an acknowledged and important one. They have locus for instance to challenge in the public interest the decisions of public prosecutorial authorities not to prosecute: See paragraph  below. In relation to victims of crime the EU Council Directive on the role of victims of crime in criminal proceedings (discussed fully below at paragraphs 87 and 105 et seq) expressly contemplates that non-governmental organisations will play a significant role. Recital 62 to the Council Directive states:
"Member States should encourage and work closely with civil society organisations, including recognised and active non-governmental organisations working with victims of crime, in particular in policymaking initiatives, information and awareness-raising campaigns, research and education programmes and in training, as well as in monitoring and evaluating the impact of measures to support and protect victims of crime. For victims of crime to receive the proper degree of assistance, support and protection, public services should work in a coordinated manner and should be involved at all administrative levels — at Union level, and at national, regional and local level. Victims should be assisted in finding and addressing the competent authorities in order to avoid repeat referrals. Member States should consider developing 'sole points of access' or 'one-stop shops', that address victims' multiple needs when involved in criminal proceedings, including the need to receive information, assistance, support, protection and compensation".
"44. In general, it is legitimate for HMRC to seek to maintain good and cooperative relationships with the press. The efficient and effective collection of tax which is due is a matter of obvious public interest and concern. Coverage in the press about such matters is vital as a way of informing public debate about them, which is strongly in the public interest in a well-functioning democracy. HMRC have limited resources to devote to the many aspects of their tax collection work, and it is legitimate and appropriate for them to seek to maintain relations with the press and through them with the public to inform public debate about the tax regime and the use of HMRC's resources. It is also relevant to the exercise of HMRC's functions to provide proper and accurate information to correct mis-apprehensions or captious criticism regarding the exercise of their functions (such as any misplaced suggestion that they had engaged in unduly lenient "cosy deals" with certain tax payers), in order to maintain public confidence in the tax system. If such confidence were undermined, the efficient collection of taxes could be jeopardised, as disaffected tax payers might withhold cooperation from the tax authorities. These considerations provided good objective grounds for [the Permanent Secretary's] decision to participate in the briefing and to seek to foster the spirit of cooperation with the journalists to which I have referred.
45. [The Permanent Secretary's] wish to encourage the journalists to share information with HMRC about tax avoidance, which could be of direct assistance to HMRC in relation to their tax collection functions by helping to inform them about where to focus their attention and investigations, was a further legitimate basis for that decision. He could rationally and lawfully take the view that the journalists would be unlikely to assist HMRC in this way unless HMRC for their part demonstrated a degree of measured frankness about the topics under discussion in return.
46. In addition, I consider that [the Permanent Secretary] could lawfully and rationally take the view he did regarding cooperation and sharing information with the journalists at the briefing so as to encourage them to understand and convey to the public the negative attitude which HMRC had to participation by taxpayers in film investment schemes. HMRC and [the Permanent Secretary] were lawfully entitled to take the view that loss of tax revenue as a result of participation in film investment schemes was detrimental to the due and proper collection of taxes and that it would be desirable to seek to deter members of the public from being too ready to participate in such schemes. There was a significant question mark in relation to such schemes whether participants in them were motivated by genuine commercial calculations rather by a predominant desire to use them to avoid paying tax which would otherwise be due from them. HMRC had an interest to challenge and investigate the true reasons of tax payers for participation in such schemes, which had already been manifested by HMRC before the briefing. It was fair and appropriate for HMRC to seek to convey the message to the public that tax payers who participated in such schemes could expect to have such participation vigorously scrutinised by HMRC, and thereby seek to deter taxpayers who did not have substantial and genuine commercial reasons apart from simply seeking to avoid tax from participating in the schemes in the first place".
"The rules and practices as regards to the standing and main rights and victims to be approximated with particular regard to the right to be treated with respect for their dignity, the right to provide and receive information, the right to understand and be understood, the right to be protected at the various stages of procedure and the right to have allowance made for the disadvantages of living in a different Member State from the one in which the crime was committed".
"(a) "victim" shall mean a natural person who has suffered harm, including physical or mental injury, emotional suffering or economic loss, directly caused by acts or omissions that are in violation of the criminal law of a Member State".
"(d) "proceedings" shall be broadly construed to include, in addition to criminal proceedings, all contacts of victims as such with any authority, public service or victim support organisation in connection with their case, before, during, or after criminal process."
"1. Each Member State shall ensure that victims have a real and appropriate role in its criminal legal system. It shall continue to make every effort to ensure that victims are treated with due respect with the dignity of the individual during proceedings and shall recognise the rights and legitimate interests of victims with particular reference to criminal proceedings.
2. Each Member State shall ensure that victims who are particularly vulnerable can benefit from specific treatment best suited to their circumstances".
"2. Each Member State shall ensure that victims who have expressed a wish to this effect are kept informed of: (a) the outcome of their complaint…"
There is nothing in the Framework Decision which accords to the recipient of information about "outcome" a right to challenge a decision not to prosecute. This, however, is a right found in the Council Directive (see below).
"26. When providing information, sufficient detail should be given to ensure that victims are treated in a respectful manner and to enable them to make informed decisions about their participation and proceedings. In this respect, information allowing the victim to know about the current status of any proceedings is particularly important. This is equally relevant for information to enable a victim to decide whether to request a review of a decision not to prosecute. Unless otherwise required, it should be possible to provide the information communicated to the victim orally or in writing, including through electronic means".
"28. Member States should not be obliged to provide information where disclosure of that information could affect the proper handling of a case or harm a given case or person, or if they consider it contrary to the essential interests of their security".
"29. Competent authorities should ensure that victims receive updated contact details for communication about their case unless the victim has expressed a wish not to receive such information".
"43. The right to a review of a decision not to prosecute should be understood as referring to decisions taken by prosecutors and investigative judges or law enforcement authorities such as police officers, but not of the decisions taken by the court. Any reviews of a decision not to prosecute should be carried out by a different person or authority to that which made the original decision, unless the initial decision not to prosecute was taken by the highest prosecuting authority, against who's decision no review can be made, in which case the review may be carried out by that same authority. A right to a review to a decision not to prosecute does not concern special procedures, such as proceedings against members of parliament or government, in relation to the exercise of their official position.
44. A decision ending criminal proceedings should include situations where a prosecutor decides to withdraw charges or discontinue proceedings".
"(a) victim means:
i) a natural person who has suffered harm, including physical, mental or emotional harm or economic loss which was directly caused by a criminal offence;
ii) family members of a person whose death was directly cause by a criminal offence and who have suffered harm as a result of that person's death".
"The police will keep you regularly updated on progress during the investigation of a serious criminal offence. If the crime is less serious, the police will provide you with contact details so you can find out what stage the investigation has reached. You will be informed upon the conclusion of the investigation (eg charge, caution). If you have given a statement to a defence lawyer, you can ask them about the progress of the case to date".
(6) Companies investigated
(i) Forewarning the suspect
"a vain man, he is a former Deloitte partner, he's a clever guy, he's made a fortune, he's a banker and all of that but actually he's a big risk for us so we would like to recover lots of tax relief that he's generated for himself and other people. Are we winning? I would say beginning to…".
The Permanent Secretary also made the following observation which was anything but flattering about the Claimants:
"I think we'll clean up on film schemes over the next few years. You may end up laughing at that statement because maybe we'll lose it in the courts, litigation's a hell a of a risk, but you won't find anybody here at all, even the most pro-wealthy people, and I'm not sure we've got any, who thinks film schemes are anything other than scams for scumbags".
(iii) Confidentiality of information
- A decision not to prosecute involved a third party (the subject of the investigation) with legitimate interests in the confidentiality of its affairs and in the protection of its reputation;
- Reputational damage could be serious for an exporter for whom the mere suspicion of breach of export control could result in blacklisting by foreign governments in major export markets
- As such there was a risk, the extent of which would vary from case to case, that disclosure by HMRC of the fact of an investigation could cause such commercial or reputational damage that public confidence in HMRC's enforcement of tax or export control rules was reduced.
- In such cases, HMRC was required to take account of that risk in determining whether or not disclosure was made for the purpose of its functions and could not disclose where it reasonably concluded that disclosure would on balance harm its ability to discharge its functions. The simple fact of an investigation could therefore be confidential. This extended even to the fact that an investigation had terminated and there would be no prosecution.
- A complainant's right of access to a court to challenge a no further action ("NFA") decision was in tension with other important principles and interests, and Parliament has dealt with that tension in terms that leave no room for the Claimant's submission that HMRC must take the approach that informing the complainant outweighs every other consideration short of a serious threat to life.
The tenor of HMRCs submission is that in the field of export control concerns about exporter's economic interests and reputation may be viewed as weighing very heavily, or possibly decisively, in the evaluative scales and that therefore it was necessary to treat even the fact of an investigation as confidential. In the absence of facts against which the submission can be measured it is not possible to express other than some broad observations about this position. First, I note that HMRC accepts that each case must be viewed on its own facts; which is correct. Secondly, in principle I accept that there may be circumstances beyond a threat to life which might justify not providing a NFA decision and/or reasons. Thirdly, the case of R (Corner House Research) v Director of the Serious Fraud Office  UKHL 60 suggests that these might be limited (see paragraphs  –  below for analysis) and puts into context the argument that the simple fact of an investigation should be treated as confidential because it might have negative repercussions on the export prospects of a company. Fourthly, at first blush the asserted link between making disclosure of the fact of an investigation and a risk to confidence in the system seems tenuous. It is hard to see why the fact that a company is being investigated for alleged breach of expert controls is materially different to an investigation into say alleged corruption or bribery where the SFO routinely announces whether it is opening an investigation and sometimes provide summaries about the facts of a case. Fifthly, this issue is at its most acute in the case of a decision to close an investigation (and hence not to report it to the CPS for them to decide whether to charge and prosecute the suspect). If the CPS decides to prosecute then the matter falls into the public domain and justice is performed in public. If, however, the decision is not taken to report to the CPS then HMRC has not explained why this should be confidential and would risk harming confidence in the system if that fact were disclosed. If it is a good decision then disclosure should enhance confidence in the rigour and objectivity of HMRC's investigative processes. If, however, it is a flawed and bad decision then a person with a proper locus should not be denied an opportunity to seek judicial review. Finally, and more generally, it is important to stress that even in investigations where confidentiality arises not every item of information about a complainant or about an investigation will be confidential. Even if some items are confidential this does not prevent HMRC disclosing other non-confidential information. And it is very far from clear that the information actually sought in this case will affect confidentially at all. This is exactly the approach that BIS adopted. It provided such information as it was able; and withheld the other parts which it concluded were confidential: See paragraph  above.
G. Factors relevant to the exercise of discretion II: Securing cooperation and confidence in the system.
"HMRC accept in principle, by analogy with the reasoning set out by Sales J in Ingenious Media, that the maintenance of public confidence in the system of export control assists their ability, under CEMA as applied by article 41 of the ECO, to investigate allegations of potential infringements of export control rules: if such confidence were undermined, such investigations could be hindered, for example because public co-operation was withheld from HMRC. As a result, disclosure that assists in maintaining such public confidence is capable of falling within article 43(2)(a) of the ECO or section 18(2)(a) of the CRCA.
However, as HMRC have maintained consistently in evidence to the Public Accounts Committee, effective tax collection depends on individuals and businesses believing that information that HMRC hold in connection with their functions will be appropriately protected. The same point applies in relation to export control. So a particular disclosure that increased confidence in the system of export control but, in HMRC's assessment in the circumstances of the case, had the wider and more serious impact of undermining confidence that HMRC would keep sensitive information confidential, would not - overall - benefit HMRC's ability to investigate alleged infringements of any matter for which they are responsible: such a disclosure would not, therefore, fall within section 18(2)(a) of the CRCA or article 43(2)(a) of the ECO. As canvassed in oral argument, a number of other factors may also be relevant to that assessment, in any particular case".
H. Factors relevant to the exercise of discretion III: The right to a No Further Action ("NFA") decision and reasons
(1) The issue
i. First that as a matter of common law (taking due account of Article 6 of the European Convention on Human Rights) in principle a person in the position of Dr Shehabi or Mr Kersmo (and indeed the Claimant) has a right to challenge by way of judicial review a decision not to prosecute. If, in the exercise of its powers, HMRC could routinely refuse to inform a complainant as to the outcome of the complaint then that right to apply for judicial review would be rendered nugatory. The result would offend the right to access to a court recognised under the common law and under Article 6 of the Convention.
ii. Secondly, it is contended that qua "victim" under the relevant EU legislation on victims rights a person has a right to both general information about investigations and also a reasoned decision if there is to be no prosecution. Hence, HMRC (and/or the CPS once it has assumed responsibility for deciding whether to prosecute) is under a duty to provide information; there being no power not to do so.
iii. Thirdly, pursuant to Article 10 of the European Convention on Human Rights the Claimant is entitled to receive and/or be provided with information and in so far as section 18 CRCA is deployed to restrict the communication of this information it is, prima facie, in violation of Article 10(1) and would have to be justified under Article 10(2) (which it cannot be on the facts of this case, as set out in the Decision letter).
(2) The position in common law
"24 … In oral argument before the House counsel stated that the Secretary of State did not condone delay in notification of a decision on asylum. These were weasel words. There was no unintended lapse. The practice of not notifying asylum seekers of the fact of withdrawal of income support was consistently and deliberately adopted. There simply is no rational explanation for such a policy. Having abandoned this practice the Secretary of State still seeks to justify it as lawful. It provides a peep into contemporary standards of public administration. Transparency is not its hallmark. It is not an encouraging picture.
25. The Court of Appeal observed about the interpretation of the regulation (para 30):
". . . once an asylum seeker knows that her application has been refused, and that she is not to be given leave to enter the country on any other basis, and has the reasons for those decisions, she can reasonably be expected to make a choice: either to accept the decision and leave or to stay and fight but without recourse to state benefits. But she cannot reasonably be expected to make that choice before she knows of the decisions and the reasons for them. There is nothing in the material before us to suggest that it is consistent with the declared purpose of the regulation to expect her to do so."
I would respectfully endorse this observation.
26. The arguments for the Home Secretary ignore fundamental principles of our law. Notice of a decision is required before it can have the character of a determination with legal effect because the individual concerned must be in a position to challenge the decision in the courts if he or she wishes to do so. This is not a technical rule. It is simply an application of the right of access to justice. That is a fundamental and constitutional principle of our legal system: Raymond v Honey  1 AC 1, 10G per Lord Wilberforce; R v Secretary of State for the Home Department, Ex p Leech,  QB 198, 209D; R v Secretary of State for the Home Department, Ex p Simms  2 AC 115.
27. What then is the relevance of this dimension for the present case? The answer is provided by Lord Hoffmann's elegant explanation of the principle of legality in the Simms case. He said, at p 131 E-G:
"Parliamentary sovereignty means that Parliament can, if it chooses, legislate contrary to fundamental principles of human rights. The Human Rights Act 1998 will not detract from this power. The constraints upon its exercise by Parliament are ultimately political, not legal. But the principle of legality means that Parliament must squarely confront what it is doing and accept the political cost. Fundamental rights cannot be overridden by general or ambiguous words. This is because there is too great a risk that the full implications of their unqualified meaning may have passed unnoticed in the democratic process. In the absence of express language or necessary implication to the contrary, the courts therefore presume that even the most general words were intended to be subject to the basic rights of the individual. In this way the courts of the United Kingdom, though acknowledging the sovereignty of Parliament, apply principles of constitutionality little different from those which exist in countries where the power of the legislature is expressly limited by a constitutional document".
This principle may find its primary application in respect of cases under the European Convention on Human Rights. But the Convention is not an exhaustive statement of fundamental rights under our system of law. Lord Hoffmann's dictum applies to fundamental rights beyond the four corners of the Convention. It is engaged in the present case.
28. This view is reinforced by the constitutional principle requiring the rule of law to be observed. That principle too requires that a constitutional state must accord to individuals the right to know of a decision before their rights can be adversely affected. The antithesis of such a state was described by Kafka: a state where the rights of individuals are overridden by hole in the corner decisions or knocks on doors in the early hours. That is not our system. I accept, of course, that there must be exceptions to this approach, notably in the criminal field, e.g. arrests and search warrants, where notification is not possible. But it is difficult to visualise a rational argument which could even arguably justify putting the present case in the exceptional category. If this analysis is right, it also engages the principle of construction explained by Lord Hoffmann in Simms."
"It is essential to ensure that the reasons for decisions, and in particular public interest considerations giving rise to decisions, are documented. This record can be used if necessary, to demonstrate that the decision to prosecute was taken only a full and proper review of the case, Interested parties could also be informed of the reasons for decisions".
"The Director of the Serious Fraud Office has decided to discontinue the investigation into the affairs of BAE Systems plc as far as they related to the Al Yamamah defence contract with the Government of Saudi Arabia. The decision has been taken following representations that had been made both to the Attorney General and the Director of the SFO concerning the need to safeguard national and international security. It has been necessary to balance the need to maintain the rule of law against the wider public interest. No weight has been given to commercial interest or to the national economic interest".
"… expressed the clear view that continuation of the investigation would cause serious damage to UK/Saudi security, intelligence and diplomatic cooperation which is likely to have seriously negative consequences for the United Kingdom public interest in terms of both national security and our highest priority foreign policy in the Middle East. The heads of our security and intelligence agencies and our ambassador to Saudi Arabia shared this assessment".
"He must seek to exercise his powers to promote the statutory purpose for which he has given them. He must direct himself correctly in law. He must act lawfully. He must do his best to exercise an objective judgement on the relevant material available to him. He must exercise his powers in good faith, uninfluenced by any ulterior motive, predilection or prejudice. In the present case, the claimants have not sought to impugn the Director's good faith and honesty in any way".
"35. The evidence makes plain that the decision to discontinue the investigation was taken with extreme reluctance. As the Director put it in his second witness statement:
'11. Investigation of prosecution of serious crime is a major public interest that the SFO exists to promote. My job is to investigate and prosecute crime. The Al Yamamah investigation was a major investigation. The idea of discontinuing the investigation went against my every instinct as a prosecutor…'
The Attorney General on 13 December 2006 was said to be "extremely unhappy" the implications of dropping the investigation at that stage. What determined the decision was the Director's judgment that public interest in saving British lives outweighed the public interest in pursuing BAE to conviction. It was a courageous decision, since the Director could have avoided making it by disingenuously adopting the Attorney General's view (with which he did not agree) that the case was evidentially weak. Had he anticipated the same consequences and made the same decision in the absence of an explicit Saudi threat it would seem the Divisional Court would have upheld the decision, since it regarded the threat as "the essential point" in the case".
"The extent or detail of information referred to in paragraph 1 may vary depending on the specific needs and personal circumstances of the victim and the type or nature of the crime. Additional details may also be provided at later stages depending on the needs of the victim and the relevant, at each stage of the proceedings, of such details".
(3) The position under the Framework Decision and the Council Directive
"Right to receive information about their case
1. Member States shall ensure that victims are notified without unnecessary delay of their right to receive the following information about the criminal proceedings instituted as a result of the complaint with regard to a criminal offence suffered by the victim and that, upon request, they receive such information:
(a) any decision not to proceed with or to end an investigation or not to prosecute the offender;
(b) the time and place of the trial, and the nature of the charges against the offender.
2. Member States shall ensure that, in accordance with their role in the relevant criminal justice system, victims are notified without unnecessary delay of their right to receive the following information about the criminal proceedings instituted as a result of the complaint with regard to a criminal offence suffered by them and that, upon request, they receive such information:
(a) any final judgment in a trial;
(b) information enabling the victim to know about the state of the criminal proceedings, unless in exceptional cases the proper handling of the case may be adversely affected by such notification.
3. Information provided for under paragraph 1(a) and paragraph 2(a) shall include reasons or a brief summary of reasons for the decision concerned, except in the case of a jury decision or a decision where the reasons are confidential in which cases the reasons are not provided as a matter of national law".
(4) Article 10 ECHR
"Article 10 – Freedom of expression
1. Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers. This article shall not prevent States from requiring the licensing of broadcasting, television or cinema enterprises.
2. The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary".
"The Court observes that the right to freedom to receive information basically prohibits a Government from restricting a person from receiving information that others wish or my be willing to impact to him, Article 10 does not, in circumstances such as those of the present case confer on the individual a right of case to a register containing information on his personal position, nor does it embody an obligation on the Government to impart such information to the individual".
"The Claimant is not seeking access to documents that HMRC holds. It simply wishes to be informed by HMRC whether an investigation is taking place and if not why not. HMRC's position is that even if it would be desirable for it to provide that information, and it would wish to impart it, it is prohibited from doing so by CRCA 2005 s 18. The case therefore falls squarely within the …. "well established " principle referred to in Kennedy and Leander, namely that a restriction on receiving information which others may wish to impart engages Art 10".
"Compatibility ratione personae requires the alleged violation of the Convention to have been committed by a Contracting State or to be in some away attributable to it".
I. The invitation to invite the HMRC to issue Guidelines
"54. The Code will normally provide sufficient guidance to Crown Prosecutors and to the public as to how decisions should or are likely to be taken whether or not, in a given case, it will be in the public interest to prosecute. This is a valuable safeguard for the vulnerable, as it enables the prosecutor to take into account the whole background of the case. In most cases its application will ensure predictability and consistency of decision-taking, and people will know where they stand. But that cannot be said of cases where the offence in contemplation is aiding or abetting the suicide of a person who is terminally ill or severely and incurably disabled, who wishes to be helped to travel to a country where assisted suicide is lawful and who, having the capacity to take such a decision, does so freely and with a full understanding of the consequences. There is already an obvious gulf between what section 2(1) says and the way that the subsection is being applied in practice in compassionate cases of that kind.
55. The cases that have been referred to the Director are few, but they will undoubtedly grow in number. Decisions in this area of the law are, of course, highly sensitive to the facts of each case. They are also likely to be controversial. But I would not regard these as reasons for excusing the Director from the obligation to clarify what his position is as to the factors that he regards as relevant for and against prosecution in this very special and carefully defined class of case. How he goes about this task must be a matter for him, as also must be the ultimate decision as to whether or not to prosecute. But, as the definition which I have given may show, it ought to be possible to confine the class that requires special treatment to a very narrow band of cases with the result that the Code will continue to apply to all those cases that fall outside it.
56. I would therefore allow the appeal and require the Director to promulgate an offence-specific policy identifying the facts and circumstances which he will take into account in deciding, in a case such as that which Ms Purdy's case exemplifies, whether or not to consent to a prosecution under section 2(1) of the 1961 Act".