Tayo and Others (Trustees of Manchester New Moston Congregation of Jehovah's Witnesses) v The Charity Commission for England and Wales
| Jurisdiction | UK Non-devolved |
| Judge | Mrs Justice Asplin |
| Neutral Citation | [2017] UKUT 0134 (TCC) |
| Court | Upper Tribunal (Tax and Chancery Chamber) |
| Subject Matter | Charity,4 April 2017 |
| Date | 04 April 2017 |
| Published date | 04 April 2017 |
[2017] UKUT 0134 (TCC)
UT/2015/0011&0178
Charity Commission - Appeal from FTT decision – review of decision to open statutory
inquiry – section 46 Charities Act 2011 - Article 14 of Schedule 1 to the Human Rights Act
1998. Appeal from case management decisions in relation to cross examination and
disclosure for the purposes of the review.
IN THE UPPER TRIBUNAL
(TAX AND CHANCERY)
ON APPEAL FROM THE FIRST-TIER
TRIBUNAL (CHARITY)
B E T W E E N :
TAYO, BAILEY, HALLS, JONES, ROWARTH & FLANAGAN
(TRUSTEES OF MANCHESTER NEW MOSTON
CONGREGATION OF JEHOVAH’S WITNESSES)
Appellants
- and –
THE CHARITY COMMISSION FOR ENGLAND AND
WALES
Respondent
TRIBUNAL: MRS JUSTICE ASPLIN
Sitting in public at Royal Courts of Justice, Rolls Building, London EC4A 1NL
on 2 and 3 March 2017
Richard Clayton QC and Lee Parkhill (instructed by Watch Tower Bible and
Tract Society) on behalf of the Appellants
Iain Steele (instructed by the Charity Commission) on behalf of the Respondent
© CROWN COPYRIGHT 2017
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DECISION
1. The Appellants are the charity trustees of a registered charity, Manchester New
Moston Congregation of Jehovah’s Witnesses (“the Charity”). The Charity is an
unincorporated association. The Respondent, the Charity Commission for
England and Wales (“the Commission”) is the statutory regulator and registrar
of charities in England and Wales under the Charities Act 2011 (“the 2011
Act”).
2. On 30 May 2014, the Commission decided to open a statutory inquiry into the
Charity pursuant to its power under section 46 of the 2011 Act. The Charity
applied to the First-tier Tribunal (the “FTT”) for a review of that decision
pursuant to section 321 of the 2011 Act. By its decision of 9 April 2015,
amended on 22 April 2015, the FTT dismissed the application for a review (the
“Substantive Decision”).
3. There are three appeals before the Upper Tribunal (the “UT”): one is in relation
to one aspect of the Substantive Decision; and two are in relation to related
case management decisions made by the FTT in relation to the hearing on 10
March 2015 which led to the Substantive Decision (the “Substantive
Hearing”).
4. Permission to appeal was granted in relation to the Substantive Decision on
two grounds namely that the FTT erred in law in holding that: Article 14
ECHR was not engaged because the FTT was not satisfied that the Appellants’
rights under Article 9 and 11 were infringed; and in failing to find that the
treatment of the Charity could not be justified (the “Substantive Appeal”).
5. The first case management decision which is appealed is contained in the
FTT’s ruling at paragraph 2 of Directions made on 15 December 2014 (the
“December Directions”). The FTT directed that certain documents need not be
disclosed in un-redacted form and put before the FTT at the Substantive
Hearing. Permission to appeal was granted by the UT on 18 February 2015 on
the grounds that the FTT’s decision as to relevance at paragraph 2 of the
Directions was unsustainable, it having been conceded that the documents were
relevant, the documents were before the decision maker and therefore, were
necessary to the review, and the onus was not on the Charity to demand sight
of the documents and should only have been withheld if Rule 14(2) was
satisfied (the “Disclosure Appeal”).
6. The second case management decision which is appealed was made on 4
February 2015 limiting cross examination at the Substantive Hearing (the
“Cross Examination Decision”). Permission to appeal was granted by the UT
on 14 October 2015 on the grounds that the FTT was wrong: to regard issues
which had been numbered 1 - 6 in submissions to the FTT as “technical legal
issues” rather than giving rise to a factual enquiry; to characterise the
Charity’s complaints as challenges to reasonableness rather than lawfulness;
and to hold that references to “advancing” the Charity’s case through cross
examination meant Counsel putting his client’s case to the witness as if he
were in court (the “Cross Examination Appeal”).
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Relevant Background
7. It is not in dispute that the decision to initiate a statutory inquiry arose from
reports of the Charity’s handling of a convicted sex offender, Mr Rose, who
was also a former trustee of the Charity. It is also not in dispute that following
Mr Rose’s release from prison in about February 2014, the Commission heard
from various sources that Mr Rose had been accepted back into the Charity and
that there had been a “dis-fellowshipping” hearing which Mr Rose’s victims
(now adults) had been required to attend and to answer questions, including
from Mr Rose, about the offences for which he had been convicted. The
purpose of the hearing was to decide whether Mr Rose could remain as one of
Jehovah’s Witnesses. As recorded at [6] to [10] of the FTT Decision, having
been made aware of the circumstances, the Commission held a meeting with
the Charity and correspondence ensued.
8. In early May 2014, the Commission’s case officer, Ms Seatle referred the case
to its Pre-investigation Assessment and Monitoring Team. On 30 May 2014,
Mr Sladen completed a “Decision Log” setting out his assessment of whether
there were grounds to open a statutory inquiry. He concluded that in his view it
was “reasonable to conclude that the regulatory concerns in this charity are
“most serious” and that the most suitable regulatory response for the
Commission to adopt is to open a formal inquiry.” He stated that he had
considered the information in the “incoming referral and in the case file” and
that it was clear that certain “headline facts” had emerged, namely:
An individual by the name of Jonathan Rose was
convicted of child sex offences in October 2013 and
was sentenced to nine months imprisonment for those
offences;
As a member of the Manchester New Moston
Congregation of Jehovah’s Witnesses, this criminal
offence did not automatically bar him from being a
member – either under the charity’s internal procedures
or the wider law;
On his release from prison, the elders of the charity
took steps to determine whether this individual should
remain a member of the congregation – effectively an
internal disciplinary process which can result in what is
called “dis-fellowshipping”;
This process would appear to have involved the elders
of the charity (its trustees) and Mr Rose interviewing
his victims, in an apparently intrusive way.”
Mr Sladen’s decision was reviewed and approved by his senior officer, Dave
Walker also on 30 May 2014 and the decision to open the inquiry was made on
that date.
9. As the FTT records at [12] of the Substantive Decision, after the opening of the
inquiry, by a letter dated 10 July 2014 from Mr Cook of Watch Tower Bible
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