Supreme Court Retires to Consider the Issue of the Burden of Proof in Tax Penalty Appeals and the Severance of Article 6 ECHR

4 November 2026

Ben Hayhurst Criminal Defence and Prosecution Barrister

The Supreme Court yesterday retired to consider its decision in the case of Sintra Global and another.

Ben Hayhurst (187 Chambers) leading Sam Way (Devereux Chambers) appeared for HMRC against Alistair Webster KC and Simon Gurney KC (Lincoln House Chambers) on behalf of the taxpayer.

The main issue in the case is when a taxpayer appeals against an HMRC penalty on the basis that the underlying tax claimed is not owed, does the burden rest on the taxpayer (or HMRC) to prove that he or she is not liable to pay the underlying tax?

Does the fact that civil tax penalty proceedings in the UK are treated as giving rise to “criminal charges” within the autonomous meaning of Article 6(1) ECHR, and the presumption of innocence under Article 6(2), require the conclusion that the legal burden rests

on HMRC to establish the correctness of the underlying liability to tax in penalty proceedings?

HMRC had successfully argued before the Court of Appeal that whilst penalty assessments amount to “criminal” proceedings within the (autonomous) meaning of Article 6 ECHR, Article 6 does not apply to the whole of the proceedings if it is possible to sever those parts of the proceedings which determined a “criminal charge” from those parts which do not (Jussila v Finland (73053/01) [2009] STC 29 (“Jussila”) [45]); and as regards the penalties the subject of this appeal, it was possible to easily separate the underlying tax liability components which do not engage Article 6 (Ferrazzini v Italy (44759/98) [2001] STC 1314 (“Ferrazzini”) [29]) from the bespoke penalty conditions that do.

The Appellant taxpayer challenged this finding, arguing that Article 6 applies to the whole of the proceedings and thus the burden of proof should be on HMRC as regards the issue of underlying liability to tax.

The Supreme Court hearing was conducted over 2 days and a decision is pending.

News & EventsView all

When will Russell Brand be Released?

10 November 2026 Articles

Supreme Court Retires to Consider the Issue of the Burden of Proof in Tax Penalty Appeals and the Severance of Article 6 ECHR

4 November 2026 Cases

Angelina Nurse has Joined 187 Chambers

2 November 2026 News