Annex A - Policy and Strategy Agreement

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Consultation on policy and strategy
Consultation on cases
Operational policy issues
Cost and liability to account for revenues
Exchange of information
International work
Ministerial or Parliamentary correspondence
Parliamentary Questions
Complaints against HMRC and RCPO
Requests from the Press
Requests for information from the public

1. Consultation on policy and strategy

1.1 The policies and strategies of HMRC in respect to criminal investigations will be determined by the Commissioners, complying with any directions of a general nature given to them by the Treasury.

1.2 The policies and strategies of RCPO will be determined by the Director under the superintendence of the Attorney.

1.3 The Paymaster General and the Attorney will consult each other as necessary on matters of policy and strategy affecting both HMRC and RCPO.

1.4 The Commissioners and the Director will also consult each other as necessary on matters of policy and strategy. Such consultation will include meeting every quarter as described in the Memorandum of Understanding.

1.5 At least 14 days before each quarterly meeting, the Commissioners and the Director will between them:

Agree an agenda;
Identify those who should be invited to attend; and
Issue invitations at least 7 days before the meeting.

1.6 Each meeting will be minuted and the minutes circulated within 7 days.

1.7 The Commissioners and the Director will each nominate Single Points of Contact (SPOC) to assist in the resolution of policy and strategy issues of mutual interest.

1.8 Where a particular issue does not require the personal attention of the Commissioners and the Director, they may delegate it to the SPOCs for resolution in consultation with the appropriate senior managers in HMRC and RCPO.

1.9 Where the SPOCs are unable to resolve a particular issue between them, they will escalate it to the appropriate level.

1.10 In addition to dealing immediately with issues requiring urgent resolution, the SPOCs will liaise each month on matters of mutual interest. Meetings between them will be minuted and the minutes circulated within 7 days. Agreements reached and decisions taken other than in a meeting will be recorded.

1.11 Issues of mutual interest may include:

The development of complementary policies and strategies;
The creation of partnerships with other agencies;
The number and type of criminal investigations to be undertaken by HMRC;
The number and type of prosecutions to be undertaken by RCPO;
The likely impact on RCPO’s resources of HMRC’s investigations or proposed investigations;
The likely impact on HMRC’s resources of RCPO’s prosecutions or proposed prosecutions;
The funding of additional prosecution casework and any consequential training requirements arising from changes in HMRC’s strategies and/or changes in the law;
The most effective means of bidding for resources from all available sources;
The development of clear and consistent criteria for selecting which of HMRC’s cases should be prosecuted and which should be dealt with by other means;
Issues of policy relating to international matters including Mutual Legal Assistance;
The development of complementary operational practices and internal guidance; and
Changes to law, criminal and civil procedures and/or Government policy.

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2. Consultation on cases

2.1 The roles and responsibilities of the Commissioners and the Director with respect to the institution and conduct of prosecutions are set out in the Commissioners for Revenue and Customs Act 2005.

2.2 Where an investigating body other than HMRC or a prosecuting authority other than RCPO seeks consent to institute proceedings in England and Wales for an offence relating to the functions of the Commissioners or notifies the Commissioners or the Director of their intention to institute proceedings where no such consent is required, the SPOCs will be informed, and will consult each other in order to establish:

any policy issues arising from the intended prosecution; and
whether the intended prosecution may impact on any existing investigation or prosecution.

The SPOCs will refer the matter to the Commissioners and the Director if necessary.

2.3 RCPO will act in accordance with the Prosecutors Convention of 11 February 1998 where an overlapping or joint prosecution is contemplated.

2.4 Whenever a policy issue arises in a particular case, the RCPO Prosecutor will contact the RCPO Policy and Strategy SPOC who will decide whether to contact the HMRC Policy and Strategy SPOC. The HMRC SPOC will advise on HMRC’s view of the matter.

2.5 Where a policy issue arises in a particular case, HMRC Investigators will contact the HMRC Policy and Strategy SPOC who will decide whether to contact the RCPO Policy and Strategy SPOC. The RCPO Policy and Strategy SPOC will advise on RCPO’s view of the matter.

2.6 Where an RCPO Prosecutor believes that a case contravenes HMRC policy on criminal investigations or does not meet the tests in the Code for Crown Prosecutors, he will contact the RCPO Policy and Strategy SPOC who will consult with HMRC.

2.7 Where HMRC holds sensitive material in relation to a particular case, the decision whether to confirm or deny the existence of that material to the defence will be made by the Commissioners. Any such decision will only be made after consulting the Director.

2.8 Where the Commissioners are considering a compounded settlement as an alternative to prosecution before criminal proceedings have been instituted, the Commissioners will follow their own Departmental guidance. If they have any doubt about the sufficiency of evidence, they will first seek advice from the Director as to the sufficiency of evidence and public interest criteria in the case and the possible effect on other prosecutions.

2.9 Where criminal proceedings have been instituted, the Commissioners will not compound proceedings without the agreement of the Director.

2.10 Whenever the question of offering a witness immunity from prosecution or an undertaking not to use specific evidence against him arises, the Commissioners will seek the advice of the Director.

2.11 Where the Director advises the Commissioners that a witness immunity or undertaking is appropriate, the Director will refer the matter to the Attorney prior to an immunity being granted.

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3. Operational Policy Issues

3.1 The Commissioners and the Director recognise the need to take a strategic approach to policy issues arising from investigation work and prosecution cases.

3.2 The Commissioners and the Director will establish groups representing operational and policy staff from both HMRC and RCPO with the aim of:

Sharing case experience;
Contributing to the development of each other’s operational policies and strategies;
Identifying issues in ongoing cases at an early stage where they could have a wider impact on HMRC and RCPO;
Assessing the exposure of HMRC and RCPO to risk on current casework; and
Developing coherent and consistent plans for managing any such risk.

Decisions on case handling in individual cases will take account of any strategic/cross-cutting case handling issues and decisions thereon taken by any case management groups as may be established from time to time for that purpose, and the outcome of any policy/strategic discussions between the Commissioners and the Director under this agreement.

3.3 The Commissioners and the Director will review the work of these groups every year.

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4. Costs and liability to account for revenues

4.1 Subject to paragraph 4.2 below, RCPO will bear the costs of conducting prosecutions, including related restraint and confiscation proceedings.

4.2 In any case where the costs of conducting a prosecution are likely to be exceptionally high, the Director and the Commissioners will consult in order to agree how those costs will be met.

4.3 HMRC will meet the costs of all witnesses in RCPO prosecutions except for those witnesses who are instructed by RCPO in order to establish whether it is in the public interest to commence or continue the prosecution case. The costs of such witnesses will be met by RCPO.

4.4 RCPO will be liable for any order for costs made against the prosecution arising from RCPO’s conduct of the case.

4.5 HMRC will be liable for any order for costs made against the prosecution arising from HMRC’s act or omission. HMRC will also be responsible for any costs incurred as a result of an application under regulation 7 of the Orders for the Delivery of Documents (Procedure) Regulations 2000 (which deal with the resolution of disputes about legally privileged material).

4.6 Where there is a connection between the subject matter of an RCPO prosecution and an HMRC civil case, the RCPO prosecutor and the HMRC lawyer will co-operate and co-ordinate their activities as far as it is lawful and consistent with their respective duties to do so.

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5. Exchange of Information

5.1 All exchanges of management information between HMRC and RCPO will be dealt with in accordance with the law.

5.2 Every month, HMRC will provide RCPO with management information on the volumes and types of cases being investigated by HMRC in order to assist RCPO with its forward planning and resourcing.

5.3 Every month, RCPO will provide HMRC with management information on the volumes and types of cases being prosecuted and their progress in order to assist HMRC in developing its strategies and to help in the monitoring and improvement of case progression.

5.4 Pursuant to paragraphs 5.1-5.3 above, HMRC and RCPO will consult in order to develop compatible policies for the exchange of information between them.

5.5 HMRC will provide RCPO with access to non-sensitive HMRC guidance where it may assist RCPO to understand investigation processes or where it may assist a prosecution case.

5.6 Where a Prosecutor needs access to sensitive HMRC guidance in order to fulfil his statutory duties or other professional obligations, HMRC will provide access to that material subject to it being handled appropriately.

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6. International Work

6.1 HMRC is responsible for responding to incoming requests for Mutual Legal Assistance (MLA), Mutual Administrative Assistance (MAA) and for policy issues relating to such requests.

6.2 HMRC is responsible for making outgoing requests for MAA and for policy issues relating to such requests.

6.3 RCPO is responsible for making outgoing requests for MLA and for policy issues relating to such requests.

6.4 HMRC and RCPO will discuss any extradition policy issues which may arise at the earliest opportunity.

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7. Ministerial or Parliamentary Correspondence

7.1 Where HMRC receive Ministerial or Parliamentary Correspondence, they will consider whether RCPO should be consulted before a reply is sent. If such consultation is necessary, they will contact the RCPO Private Office within two working days.

7.2 Where RCPO receives Ministerial or Parliamentary Correspondence, they will consider whether HMRC should be consulted before a reply is sent. If such consultation is necessary, they will contact the HMRC Parliamentary and Correspondence Units within two working days for Ministerial or Parliamentary Correspondence.

7.3 HMRC will reply to Ministerial or Parliamentary Correspondence within the time limits set by HM Treasury.

7.4 RCPO will reply to Ministerial or Parliamentary Correspondence within the time limits set by the Office of the Attorney General.

7.5 If either HMRC or RCPO receive Ministerial or Parliamentary Correspondence, which is more appropriately handled by being transferred to the other, they will arrange for it to be passed on to the other within one working day.

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8. Parliamentary Questions

8.1 HM Treasury and the Office of the Attorney General will decide whether Treasury Ministers or the Law Officers should answer particular Parliamentary questions, consulting HMRC and RCPO when appropriate. HMRC and RCPO will draft answers to Parliamentary Questions by the deadlines set by the Treasury or the Office of the Attorney General, as appropriate, and where necessary after discussion with HMRC and RCPO.

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9. Complaints against HMRC and RCPO

9.1 Subject to the work of external scrutiny bodies (such as the Independent Police Complaints Commission), HMRC will handle complaints in relation to HMRC.

9.2 RCPO will handle complaints in relation to RCPO.

9.3 Wherever, in the opinion of HMRC and RCPO, a complaint requires their joint consideration, they will consult each other before replying.

9.4 If either HMRC or RCPO receive a complaint intended for the other, they will pass it to the other within one working day.

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10. Requests from the Press

10.1 All dealings with the press will be conducted in accordance with the Press Agreement between the Commissioners and the Director.

10.2 Wherever, in the opinion of HMRC or RCPO, a request from the press requires their joint consideration, they will consult each other before replying.

10.3 If either HMRC or RCPO receive a request from the press intended for the other, they will pass it to the other’s press correspondence unit at the earliest opportunity.

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11. Requests for information from the public

11.1 If either HMRC or RCPO receive a Freedom of Information Act or Data Protection Act request for information which they do not “hold”, but which they believe may be held by the other, or where they believe the request may be more appropriately answered by the other, they will respond to the applicant within two working days informing them that the other Department may hold the information/be the appropriate authority, and providing appropriate contact details.