Bung us 40million francs and we’ll say no more about it

The hopes of millions of people across Europe, that Switzerland would join the tiny number of countries taking legal action against HSBC (Swiss) for money laundering were dashed today when Geneva’s chief prosecutor Olivier Jornot announced that a financial settlement of 40million Swiss francs (£28million) had been reached and that the Swiss authorities would be taking no further action against the bank.  The bank was under investigation for money laundering, following when UK channel 4’s dispatches program made public information that the Swiss arm of British bank HSBC had been assisting individuals to hide money from their national tax authorities. The information originally came to light when IT specialist Herve Falciani who was working at the bank in Switzerland turned whistleblower and leaked details of some 106,000 private accounts at the bank.

In the UK, HMRC received the leaked files in 2010. Following the dispatches program in February, it was revealed by HMRC they had identified three thousand six hundred British nationals from the Falciani files, when they appeared before the Public Accounts Committee. Of those, two thousand five hundred were found to have done nothing wrong, as it is not illegal to hold a private bank account in a foreign country. All but one of the remaining one thousand one hundred British citizens, were allowed to pay the outstanding tax plus a small financial penalty of 10% and that was the end of the matter. That means one thousand and ninety nine British individuals were caught red handed evading tax, which by the way is illegal in Britain and not one of them were prosecuted. HMRC claim to have collected £135million in unpaid taxes and penalties. The one individual HMRC did prosecute was found guilty of tax evasion in the amount of £387,103 and was ordered to pay an additional £469,444 in fines and legal costs. Tens of millions in tax evaded and not a single person spent even one day in jail.

It was through a tax amnesty agreement between the British tax authority and tax authority in Lichtenstein that the one thousand and ninety nine individuals were allowed to make financial settlements. The Lichtenstein agreement was set up in 2009 so that British nationals who held financial assets there could declare them to HMRC without facing prosecution. However the agreement had some strict conditions in order for the amnesty to be offered. Firstly, the assets had to be held in Lichtenstein. Secondly, the amnesty could not be used where a criminal prosecution was likely. Thirdly, the claim could only  involve assets about which HMRC were not already aware and the disclosure had to be made voluntarily, without intervention from HMRC. But none of the assets were held in Lichtenstein. All of the individuals had committee tax evasion and therefore criminal prosecution should have been likely. HMRC had found out about the assets through the Falciani files and therefore already knew about all of the assets when the individuals were approached and therefore none of the disclosures had been made voluntarily. The favourable treatment available under this tax amnesty, should never have been given to any of the one thousand and ninety nine individuals concerned.

When giving evidence before the Public Accounts Committee, HMRC chief executive Lyn Homer said that half of these individuals had asked to be given amnesty from prosecution under the Lichtenstein agreement and were advised by HMRC to move their assets to Lichtenstein in order to qualify for the amnesty. The other half knew nothing about the Lichtenstein agreement, but were advised of it by HMRC staff and told to move their assets. This is not just giving out amnesties to tax evaders, it is advising breaking the rules by advising them of the amnesty and how to qualify. It was never the intention of parliament that those caught red handed evading taxes should be given an amnesty, so clearly HMRC are ignoring the will of parliament and applying the rules how and when they see fit. HMRC do not, nor should they ever be given the power to decide if and when the laws of the land are to be applied and when they can be ignored. Their sole remit is to collect the taxes that are due as determined by parliament.

Online campaign group Avaaz who have more than 40million members worldwide, have initiated judicial review proceedings against HMRC in relation to it’s decision to offer the amnesty.  Avaaz’s campaign director, Alex Wilks, said in a statement when the legal action was launched: “If the police extended the terms of knife amnesties to criminals caught carrying weapons, the public would be outraged. Tax officials must urgently explain why they gave get out of jail free cards to so many wealthy tax dodgers.” The difficulty with financial penalties is individuals who are caught evading taxes on this scale can well afford to pay the tax owed plus a small financial penalty, in the highly unlikely event of them being caught. Therefore financial penalties provide no incentive to change behaviours or to think about the consequences of what they are doing, aside from the fact it is illegal. As with the case of HSBC bank in Switzerland and the multiple fines imposed on UK banks in the past five years, financial penalties send out completely the wrong message to those actively and anyone considering participating in illegal behaviour. It says do as you please because even in the unlikely event you get caught, the worst that will happen is you will receive a fine.

Put these individuals or businesses on trial in a court of law and if found guilty, send them to jail for a substantial period of time. Then use the proceeds of crime act to seize all of their assets and reimburse the public purse. Prosecute a few cases in this way and word will spread like wildfire that there are serious consequences for breaking the law in Britain. Such actions will have the effect of focusing the minds of anyone considering illegal activity and it will be an effective punishment for those found guilty. They will think twice before carrying on with business as usual once released. Treating wealthy tax dodgers and banks who help them exactly the same as we treat an individual who over claims benefits they are not entitled to is exactly how things work in a truly democratic society.

It is also noteworthy here that because the Swiss authorities have decided to agree a financial settlement with the Swiss arm of HSBC, information they gained on exactly what the bank had been up to will never be made public. Also, despite authorities in France, Belgium and Argentina having brought charges of money laundering and fraud against HSBC bank, no such charges have ever been lodged against the bank in Britain. Finally, HMRC had powers at the time of the Falciani files case to impose financial penalties of up to 200% of the tax evaded, but it chose not to use them. What kind of democracy is this?