In September 2010, the Government pledged to make funding available to HM Revenue & Customs ("HMRC") to ensure that there was a five-fold increase in criminal prosecutions for tax evasion. In January 2013, a seven-fold increase in the number of prosecutions for non-organised tax crime was proposed. Despite reservations expressed by the National Audit Office (in December 2015), about the cost-effectiveness of this strategy, further funding in respect of criminal tax investigations was announced in Budget 2015; this time, the aim was that HMRC triple the number. The focus on more investigations and prosecutions has been maintained, notwithstanding the political maelstrom.
Whether HMRC have met properly the 2010 target yet is difficult to ascertain (for reasons that I explain below). But it is undoubtedly true that more resources are being expended, on an ongoing basis, on pursuing people criminally for tax evasion. The CPS and HMRC have had to work closely together with the aim of meeting these targets. The decision has been to push beyond what have previously been seen as the 'safe boundaries' (i.e. cases with an extremely high chance of conviction) and to investigate new categories of persons (such as investors in tax avoidance schemes). It does seem that there may have been a paradigm shift: HMRC will criminally investigate, and the CPS will proceed to charge, and juries will be prepared to convict, for tax offences much more frequently than was the case, say, fifteen years ago- or even five years ago.
This means that you - and/or your clients, if you are a professional adviser - are at much greater risk of criminal investigation, prosecution, and conviction.
In previous posts on this blog about HMRC’s criminal investigations activity, I have explained that there are a number of figures that Fieldfisher track that reveal the extent of HMRC’s criminal investigations activity, and the extent of its success (or failure):
warrants executed by HMRC (“raids”);
decisions by the CPS to charge for tax offences (“decisions to prosecute”);
individuals prosecuted ("prosecutions"); and
convictions for tax offences in the courts (“convictions”).
All four are tracked because each arises at a different stage in the prosecution cycle. It often takes a year or more between a raid and a decision to prosecute, and often more than that between a decision to prosecute and trial. If a first trial leads to no result, and a retrial is required (not uncommon) the whole process can take four or five years.
We have obtained by way of a request under the Freedom of Information Act the complete figures for the four tax years from 2011/12 to 2015/16 using these definitions (these figures exclude tax credits offences).
Year Raids Decisions Prosecutions Convictions
2011/12 657 430 364 333
2012/13 787 664 471 439
2013/14 784 874 713 674
2014/15 759 1247 681 617
2015/16 761 1065 843 773
The number of raids has remained fairly steady over the last four years, perhaps because the HMRC criminal investigations team has reached maximum capacity. It may be that, with the new money for staff announced in Budget 2015, the raids figure increases for 2016/17 and 2017/18.
However, while the number of prosecutions continues to rise (it lags 'decisions to prosecute' by as much as 18 months) the number of 'decisions to prosecute' has fallen by nearly 200 since 2014, bucking the trend of dramatic increases in the preceding four years.
I have previously alluded to a concern that, absent a significant expansion in the numbers of properly trained HMRC criminal investigations staff, the drive to prosecute more people for tax fraud would (in reality) lead to the CPS taking more risks on prosecutions. The figures for 2014/15 appeared to bear out that previously-expressed concern. But, in 2015/16 conviction rates appear to have risen above 90% again. This is unquestionably an impressive achievement for HMRC and the CPS, and they are to be congratulated on 'maintaining quality' in this way.
From the taxpayer point of view it is clear that if you are arrested on suspicion of having committed a tax offence, it is much likely than before that you will be charged, prosecuted and convicted. And the sentence will not be a slap on the wrist. The maximum sentence for cheating the public revenue, the often-charged common law offence, is life imprisonment. Custodial sentences of four to six years are now being seen fairly frequently.
Even if you avoid that, if you are a regulated (SRA, FCA, ICAEW or the like) professional and are charged with a criminal tax offence, because these are dishonesty offences, you will have your licence to practise suspended, and thus will lose your means of earning a living, for at least a year. This is regardless of whether, in due course, a jury acquits you. If the alleged offence relates to a complex conspiracy to defraud, with lots of co-defendants, it may take three years for the case to come to trial after your arrest. If you are acquitted, even if your previous professional firm will have you back again, getting back the money that you could have earned in the meantime, and getting back all the money that you have spent on legal fees, will be all but impossible.
So: being charged with a criminal tax offence can mean virtual financial ruin even if you are acquitted. If HMRC show an interest in you, and you have a concern that something is, or might be perceived to be, open to question or to an adverse interpretation, talk to us, under the protection of legal professional privilege, at the earliest possible opportunity.
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