In a decision which gives crucial guidance on where the line of acceptability should be drawn when it comes to communications between officialdom and the press, the High Court has dismissed complaints that a senior Government officer violated two taxpayers’ confidentiality during an ‘off the record’ briefing to journalists.
In the course of the briefing, the officer – one of the highest officials within Her Majesty’s Revenue and Customs (HMRC) – had named the taxpayers in connection with certain tax avoidance schemes which he described as ‘scams for scumbags’ and which he said posed a ‘£5 billion risk’ to the public finances.
The briefing formed the basis of articles which later appeared in a leading national newspaper in which the taxpayers were identified. They launched judicial review proceedings, claiming that the officer’s disclosures to the journalists were unlawful and that they had suffered estimated losses of £20 million as a result.
The taxpayers’ argued that the officers’ comments amounted to an ‘abuse of power’ and a clear breach of HMRC’s duty to maintain taxpayer confidentiality under section 18 of the Revenue and Customs Act 2005. The disclosures were also said to breach the taxpayers’ legitimate expectations and to have violated their privacy rights, enshrined in article 8 of the European Convention on Human Rights.
In dismissing their claims, the Court noted that the officer, whilst using more colourful language than he would have employed in a more public context, had been aware of his duties to maintain taxpayer confidentiality. Keen to establish a rapport with the journalists, he had not expected his ‘relatively open and frank’ remarks to make their way into print given the off-the-record nature of the briefing.
There was a rational connection between the officer’s comments and the function of HMRC to collect tax in a cost-effective and efficient manner. It was reasonable for the officer to wish to maintain good and co-operative relations with the press and his limited disclosures to the journalists were made with ‘measured frankness’.
The officer was entitled to brief ‘apparently responsible journalists from a reputable newspaper’ on HMRC’s ‘negative attitude’ towards the tax avoidance schemes. He had rationally taken the view that a measured degree of disclosure was necessary to discourage the public from participation in such schemes and the Court found that the comments he made were lawful and ‘clearly objectively justified’.