In January we noted that the Watch Tower Bible and Tract Society, governing body of the Jehovah’s Witnesses, had appealed to the First-tier Tribunal (Charity) against the Charity Commission’s decision in June 2014 to open a statutory inquiry into various issues within the denomination, including the administration, governance and management of the charity and its safeguarding policies. The Commission also opened a statutory inquiry into the Manchester congregation; and the congregation’s trustees lodged an appeal against that inquiry also. The Tribunal has now handed down judgments rejecting both appeals.

In Watchtower Bible and Tract Society of Britain v Charity Commission for England and Wales [2015] FtT(C) CRR/2015/0001 TJ McKenna refused leave to appeal her ruling of 16 February that the charity’s original appeal had been out of time. The charity had sent its Notice of Appeal to the Tribunal on 22 December 2014, beyond the 42-day time limit for applications to the Tribunal, but had made an application for an extension of time, as required by rule 26 (5) of The Tribunal Procedure (First-tier Tribunal) (General Regulatory Chamber) Rules 2009. It had delayed its application to the Tribunal pending the determination of its application for judicial review of the Commission’s decisions to open the inquiry. In the event, the Administrative Court had refused the judicial review application.

On 3 March 2015, TJ McKenna had refused to extend time to allow the charity’s applications to the Tribunal to proceed. The charity’s further application for permission to appeal was also refused because she was not satisfied that there was any error of law in her earlier ruling.

In Tayo & Ors (Trustees of Manchester New Moston Congregation of Jehovah’s Witnesses) v Charity Commission for England and Wales [2015] FtT(C) CRR/2014/0005 a three-person tribunal presided over by TJ McKenna rejected the trustees’ application for a review of the Commission’s decision to begin a statutory inquiry into their charity.

S 46(1) of the Charities Act 2011 provides that:

“The Charity Commission may from time to time institute inquiries with regard to charities or a particular charity or class of charities, either generally or for particular purposes”.

The Commission had become initially engaged with the charity when, in 2012, it was informed that a former trustee, Mr Jonathan Rose, was awaiting trial for sexual offences against children: it closed the first operational case when it was informed that Rose had resigned as a trustee and that the New Moston Congregation had adopted a safeguarding policy prepared by the denomination’s umbrella charity, the Watchtower Bible and Tract Society of Britain [3].

In October 2013, Rose was convicted of sexual offences against children – who, at the time of the offences some ten years previously, had been associated with the New Moston Congregation – and sentenced to nine months in prison. In November 2013, however, it came to light that it had been alleged during Rose’s trial that the New Moston Congregation’s elders had been aware of complaints of a similar nature made about him in 1995 – which had not been mentioned to the Commission during the original operational case. As a result, the Commission opened a second operational case in December 2013 [4].

Following Rose’s release from prison in 2014, the Commission heard that he had been accepted back into the Congregation and that there had been a “disfellowshipping hearing”. His victims (now adults) had been forced to attend that hearing and answer questions (including from Rose himself) about the offences for which he had been convicted. The Commission was informed that the hearing’s purpose was to allow the elders/charity trustees to decide whether Rose could remain a member of the Congregation [5]. A subsequent meeting between the charity and the Commission was inconclusive, with conflicting minutes being produced by both sides [6].

The trustees of the New Moston Congregation duly challenged the decision to open the second operational case. At the Tribunal hearing they argued the following:

• that the decision to initiate the inquiry had been disproportionate and/or disproportionately interfered with the trustees’ rights of religion and of association in accordance with Articles 9 and 11 of Schedule 1 to the Human Rights Act;
• that the Commission had erred in law in its approach to the duties of trustees; and
• that the Commission had breached the trustees’ right not to be discriminated against contrary to Article 14 of Schedule 1 HRA [29].

The tribunal accepted that Articles 9 and 11 ECHR protected the associative rights of religious groups and that the state had no role in determining the legitimacy of religious practices such as “disfellowshipping”: however,

“Article 9 ECHR is not a ‘trump card’ which prevents the State from inquiring into potentially harmful activities by religious groups” [54] .

The tribunal therefore held:

• that there had been significant grounds for concern about the charity on the basis of the information held by the Commission on 30 May 2014 and that the charity’s religious nature by itself did not presented a bar to the opening of a statutory inquiry to consider those concerns in more detail [54];
• that absent any breach of the applicants’ human rights by the Commission’s decision, it followed that there had been no actual or proposed unlawful conduct so as to infringe s 6 (1) or s 7 (1) Human Rights Act 1998 [63];
• that, in deciding to open the inquiry, the Commission had not misunderstood the duties of charity trustees in relation to safeguarding [64]; and
• that given that applicants’ rights under Articles 9 and 11 ECHR had not been infringed by the opening of the inquiry, Article 14 ECHR (discrimination) was not engaged [67].

Moreover:

“We consider that there would be strong grounds for opening an inquiry into any charity which had allowed, in a charity setting, a vulnerable beneficiary or former beneficiary to come into contact with a person who had been convicted of abusing her, regardless of any religious connotations” [68].

Quite so.