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The dangers of going “off the record”

 - 20/10/2016

HMRC has been sent to sit on the naughty step, after the Supreme Court yesterday ruled against it in a four-year battle with financial adviser Ingenious Media.

Ingenious is a promoter of controversial film investment schemes. In 2012, HMRC’s permanent secretary for tax, David Hartnett, gave an “off the record” briefing to two Times journalists on Ingenious and its founder. He said he understood “off the record” to mean that nothing from the meeting would be published. However, some comments he made in this briefing appeared in a Times article a week later as having come from a “senior Revenue official”. The article included statements such as Ingenious’ founder had “never left my radar”, and that “he’s a big risk for us”.


Ingenious brought a judicial review of the taxman’s action, which was rejected in 2013. The Court of Appeal rejected it in 2015, but after appealing to the Supreme Court, the ruling went Ingenious’ way. The judges ruled that Mr Hartnett’s “desire to foster good relations with the media and to publicise HMRC’s view about tax avoidance schemes” did not provide sufficient justification for disclosure.

This leaves taxpayers facing a multimillion-pound legal bill, with Ingenious having been awarded costs which could run to £5m. And Ingenious is currently deciding whether it also wants to seek compensation.

So what does this mean for those heading into an interview with a journalist? We always advise clients that if they don’t want to see what they’ve said in print (or online of course), then they shouldn’t say it. Pretty simple really. And, as highlighted in this case, “off the record” can mean different things to different people. For some it means that they’re happy for their comments to be used, as long as they’re not attributed to them. For others, as with Mr Hartnett, it means this is background only and not for sharing in any way, shape or form.

Journalists can also find switching between on and off the record tricky. One mentioned to me once that he doesn’t like it when interviews start on the record and then go off the record as, when he’s writing up a piece, it can be tricky to keep track of what he agreed to keep under his hat. So to keep it straightforward, it’s really much safer to stick with what you’re comfortable sharing.

Over time, it is perfectly possible to build up a trusting relationship with a journalist and off the record background briefings can be very useful for both parties. However expectations must be established and agreed upon before the interview starts. It’s too late when you’re part way through, or just as you’re finishing, to remark: “This is just between us though isn’t it?” If you’re standing between a journalist and a good story, you might find yourself on the wrong side.

To find out more about how Tungtree Communications could help you in dealing with media, please contact us.