Long ReadJan 31 2023

Does your client have a right to privacy over tax investigations?

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Does your client have a right to privacy over tax investigations?
While the overall trend is to strengthen the position of keeping information private, there are also powerful forces advocating transparency. (Ink drop creative/Dreamstime.com)
ByHanna Basha and Nick Grant

The financial and tax affairs of high-profile politicians, businessmen and celebrities have always been of huge interest to the media.  

There is a constant tension between individuals wanting to keep their financial information private and the media wanting to publish how much the wealthy and powerful earn and how little tax they pay. 

The recent media interest in the tax returns of Rishi Sunak, Nadhim Zahawi and Donald Trump has bought renewed focus on the interesting question as to what information the media can publish.  

Right to privacy

The position has changed in recent years as the law has developed. The Human Rights Act 1998 has had a particular impact, establishing that everyone has a right to respect for their private life. 

Subsequent case law has recognised that respect for a private life includes respect for financial information. There have also been developments in the law surrounding breach of confidence, data protection and misuse of private information that have strengthened the rights of those individuals hoping to keep their financial affairs, including tax, private.

It can be difficult to determine whether there has been tax evasion.

The courts have also confirmed that information that is sent to HMRC in order for it to exercise its legal powers should be kept confidential by HMRC and should not be leaked to the media, even “off the record”, which further strengthens the rights of individuals. 

HMRC now even has its own personal information charter agreeing to protect privacy, unless information needs to be sent to other organisations such as the police. In addition, litigation (either with HMRC or in other courts, such as the family division) could bring otherwise private information into the public domain.

The law in this jurisdiction is now currently reasonably settled around tax and financial affairs. The starting point is that an individual has a reasonable expectation of privacy in relation to their financial information. 

Public interest

However, there are circumstances in which the public interest in publication of private financial information overrides the public and personal interest in individuals being able to keep the information private, such that publication would be lawful.  

The public interest justification will often depend (in these circumstances) on whether an individual has done anything wrong or dishonest, but this is not always a straightforward distinction. 

Publication of private tax and financial information in circumstances where an individual has evaded tax or committed some other offence is likely to be justified on the basis that there can be no expectation of privacy in covering up an unlawful act. 

There has also been a move towards transparency of certain types of financial and tax information.