Re: the consultation paper on a proposed strict liability offence for non-disclosure of offshore income and gains.

It does not require much searching examination to see how ill thought-out this proposal is. The creation of a strict liability offence flies in the face of most legal principles, which, in the vast majority of cases, require someone to know that they had done a wrongful act before being convicted. In particular, are people convicted of the proposed offence to be prevented from working with children, the sick or old people, because of a Criminal Records Bureau record?

The idiocy – and there is no better word for it – of the proposal can be seen by some examples: likewise for the proposal that it should be within HM Revenue & Custom’s discretion whether to prosecute (see, for example, Walton J’s reasoning in Vestey, approved by the House of Lords [1980] AC 1148).

Example one: X dies abroad leaving his entire estate to Y, resident and domiciled in the UK, but Y does not know. The income from the estate may well be Y’s for tax purposes (for example, Archer-Shee v Baker 11 TC 749). Y ex hypothesi would not be guilty of an offence requiring mens rea.

Example two: someone with avowedly malicious intent creates an ‘Archer-Shee’ trust for the benefit of (in extremis) every member of the cabinet, parliament and senior court judge on the day of execution, all of whom are ignorant of the trust’s creation.

Example three: example one, but arising from a foreign intestacy.

I admit to a certain personal bias, having been convicted of offences where the Revenue failed ever to raise assessments, probably, in the words of an article of 2001, because it thought that it would lose a civil appeal. Thus I have been convicted of two offences of tax evasion, where mens rea is an ingredient, where, absent assessments, no tax is due. It does not require much imagination, therefore, to see the mischief in the new proposals.

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