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Public Officials, Privacy and ‘Off the Record’ Press Briefings

Off the record briefings to the press by public officials are a fact of modern political life but one such meeting between national newspaper journalists and a top civil servant led to a test case in which a businessman claimed £20 million in damages.

In the course of the briefing, the HM Revenue and Customs (HMRC) official had named the businessman and his company 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. Although the meeting was stated to be off the record, some of his forthright comments made their way into print.

In judicial review proceedings, the businessman argued that the official’s comments breached HMRC’s duty to maintain taxpayer confidentiality and amounted to an offence under Section 19 of the Commissioners for Revenue and Customs Act 2005. The disclosures were also said to have violated his human right to privacy.

His case was, however, dismissed by a judge who noted that the official’s limited disclosures to the apparently responsible journalists had been made with ‘measured frankness’ and that he had not expected his remarks to be published. He had wished to foster good relations with the press and there was a rational connection between what he said and HMRC’s function to efficiently collect tax.

In rejecting the businessman’s challenge to that decision, the Court of Appeal noted that there was no evidence that the official’s comments had damaged his reputation. The journalists were already well aware of his identity and the official had merely reiterated that, in HMRC’s view, the tax avoidance schemes for which his company was responsible were ineffective and would be ‘cleaned up’. It was entirely in the public interest that the public in general should be made aware of HMRC’s views on such schemes.