Commentary on Clauses Section 40: Confidentiality
231.The section lays down a code of confidentiality for the Revenue and Customs Prosecutions Office, and the circumstances in which disclosures of information can be made. The section also establishes a criminal offence to buttress the duty of confidentiality, and lays down how such an offence will be prosecuted.
232.Subsection (1) lays down the general principle that the Revenue and Customs Prosecutions Office may not disclose information held by the Office, in connection with any of its functions, which relates to an identifiable person.
233.Subsection (2) then provides for a limited number of specific circumstances where disclosure may be allowed.
234.Paragraph (a) allows a disclosure to be made for the purposes of a function of the Prosecutions Office, which does not contravene any restriction imposed by the Director. This would cover, for example, a disclosure made in connection with a civil proceeding ancillary to a prosecution, which might well be a public act.
235.Paragraph (b) allows RCPO to make a disclosure to HMRC in connection with any function of the Revenue and Customs, in accordance with the definition of such functions in section 25, namely 25(5)(a). This would include disclosing to HMRC information gained in the context of the prosecution of one HMRC case, which turned out to reveal a linked but different case which should be further investigated by HMRC.
236.Paragraph (c) allows RCPO to disclose for the purposes of criminal investigation or proceedings (whether or not within the United Kingdom), which is the principal business of the Office. Disclosures may have to be made outside the United Kingdom when seeking further evidence from abroad in cases concerning offences planned abroad, or straddling EU member state boundaries, e.g. under section 71 Criminal Justice Act 1993. The provision is designed to parallel the HMRC disclosure power in section 18(2)(d), so that in investigations where more evidence is to be procured after commencement of proceedings, there should be no artificial differences in the respective powers to disclose, enabling flexibility in the conduct of such investigations.
237.Paragraph (d) covers a disclosure of information which in the opinion of the Director of RCPO is desirable for the purpose of safeguarding national security. Such information may come into RCPO hands in carrying forward the conduct of a variety of prosecutions for which HMRC conducts the investigations, notably the offences under section 53 Anti-terrorism, Crime and Security Act 2001, section 1B Biological Weapons Act 1974 and section 30A of the Chemical Weapons Act 1996.
238.Paragraph (e) covers disclosure in pursuance of an order of a court, such as a subpoena or witness summons.
239.Paragraph (f) covers disclosure made with the consent of each person to whom the information relates.
240.Paragraph (g) covers disclosure pursuant to any other enactment. This would include, for example, the disclosure under section 8(1) National Audit Act 1983 to the Comptroller and Auditor General of departmental documents which he reasonably requires for the purposes of his audit.
241.Subsection (3) makes it an offence for any person to contravene the non-disclosure provisions of subsection (1) in relation to information relating to a person whose identity can be identified, either directly from the disclosure, or which can be deduced from it. The term “person” includes both natural and legal persons, and, for example, the tax affairs of a limited company are also protected by the provisions of the subsection. Meanwhile subsection (4) makes it clear that the offence does not apply to information about the internal arrangements of RCPO, whether relating to RCPO staff or other persons.
242.Subsection (5) provides certain defences for a person charged with the subsection (3) offence. In particular, he will not be guilty of the offence if he proves that he reasonably believed that the disclosure was lawful, that is that the disclosure fell within the terms of subsection (2). Similarly, he would not be guilty if he proved that he reasonably believed that the information had already been made available to the public, and that this had been done lawfully; it would be no defence in a subsequent unlawful disclosure to say that the information had been disclosed previously, if that previous disclosure was itself unlawful.
243.Subsection (6) defines “the Revenue and Customs Prosecution Office” for the purposes of the section. The definition looks forward to the time when there will be persons who were members of the Office, or who were appointed to conduct prosecutions under section 38, but have ceased to be so, e.g. by retirement, resignation, or expiry of appointment. “The Revenue and Customs Prosecutions Office”, the set of persons to be subject to the statutory duty imposed by subsection (1), is therefore defined to be the aggregate of:
	the Revenue and Customs Prosecutions Office, being the Director and his current staff, as defined in section 34(3); and
	former members of the Office, and persons holding or who have held appointments to conduct proceedings on the Director’s behalf, under section 38.
244.Subsection (7) lays down the penalties for those found guilty of the offence under subsection (3). The offence is triable either way; that is:
	either summarily, when the maximum penalty will be 12 months imprisonment, or a fine not exceeding the statutory maximum (currently £5000), or both; or
	on indictment, when the maximum penalty will be two years imprisonment, or an unlimited fine, or both.
245.Subsection (8) provides that a prosecution for the offence may be instituted in England and Wales only by the Director of Revenue and Customs Prosecutions, or with the consent of the Director of Public Prosecutions.
246.Subsection (9) provides that prosecutions for the offence may be instituted in Northern Ireland (where the Director of Revenue and Customs Prosecutions has no functions) only by the Commissioners, or with the consent of the Director of Public Prosecutions for Northern Ireland.
247.No comparable provision is needed in Scotland, because the Procurator Fiscal and the Crown Office automatically have exclusive authority to prosecute summary and indictable offences in Scotland, under the law in Scotland, without the need for specific enabling provision.
248.Subsection (10) provides that the maximum penalty on summary conviction in Scotland and Northern Ireland is to be six months, rather than twelve, to accord with normal Scottish and Northern Ireland arrangements for maximum summary penalties.
249.Subsection (11) provides that the reference to an enactment in subsection (2)(g) does not include legislation of the devolved institutions, which is not relevant here.
250.It should also be noted that section 55(7) makes a temporary change to the maximum penalty of imprisonment on summary conviction in England and Wales, provided for under subsection (7)(b), reducing it to six months from twelve months, pending the coming into force of a general amending provision about the maximum penalties on summary conviction (section 282 Criminal Justice Act 2003).