AH0720 - Commissioners’ Hearings: Evidence: Legal position

The rules for evidence at Commissioners hearings are contained in Regulation 15 of the General Commissioners (Jurisdiction and Procedure) Regulations SI 1994/1812 and Regulation 17 of the Special Commissioners (Jurisdiction and Procedure) Regulations SI 1994/1811.

The Commissioners are not limited to hearing only evidence that would be admissible in proceedings before a court of law in that part of the United Kingdom. The procedural rules allow them to receive evidence of any fact which appears to them to be relevant to the subject matter of the appeal even if that evidence would be inadmissible in such court proceedings. However, it should be remembered that there may be occasions when the Commissioners consider it appropriate to adopt a stricter approach to evidence and choose to admit only evidence which would be admissible in proceedings before a court of law.

Evidence may be given orally or, if the Commissioners so direct, in documentary form or in the form of an affidavit. In assessing the truth of and weight to be attached to any evidence the Commissioners may take account of its nature and source and how it was presented to them (see AH0705).

However, there are a number of qualifications about these general propositions as regards evidence:

1. Commissioners cannot refuse to admit evidence which would be admissible in court proceedings. However, where the Commissioners uphold a claim to privilege in respect of such evidence then, even though it is lawful evidence, they must refuse to admit it. Instances of privilege in this context are

• legal, professional privilege, for example any communication between lawyer and client, and
• the non-disclosure of documents on the grounds that it is against the public interest (Public Interest Immunity).

2. If evidence is to be presented in the form of an affidavit or as statements made or recorded in a document, then the Commissioners can require the personal attendance of the maker of the affidavit or statement or, where the evidence consists of an oral statement recorded in a document, the person by whom the statement was recorded can be required to attend. Personal attendance under this paragraph can be sought by the parties or the Commissioners can require it.
3. The ability to require a witness to give evidence on oath or affirmation remains. However, unless it is the practice of particular Commissioners to only hear evidence given under oath or affirmation, you should not normally take the initiative to suggest that this is done.
4. There will be differences as to what is or is not admissible in a court of law according to whether the proceedings fall to be determined by reference to Scots or English law. For example, where Scots law applies, claims for privilege include claims for protection from disclosure by virtue of any rule of law relating to the confidentiality of communications (see AH0910 regarding expert evidence before Commissioners in Scotland).

You should consult Central Policy: Tax Administration Policy, in any case where you are unsure about evidence or other problems or questions are raised regarding the evidence to be put before the Commissioners.