In Tayo & Ors (Trustees of Manchester New Moston Congregation of Jehovah’s Witnesses) v Charity Commission for England and Wales  UKUT 134 (TCC), the trustees of Manchester New Moston Congregation of Jehovah’s Witnesses lost their appeal against the First Tier Tribunal’s refusal in 2015 – which we noted at the time – to review the Charity Commission’s decision to open a statutory inquiry into the charity under s 46 Charities Act 2011.
The Commission had become initially involved when, in 2012, it was informed that a former trustee, Mr Jonathan Rose, was awaiting trial for sexual offences. 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 similar complaints about him in 1995 that had not been disclosed to the Commission during the original operational case. Moreover, 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” which his victims – now adults – had been forced to attend and answer questions (including from Rose himself). 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 . As a result, the Commission opened a second operational case in December 2013.
As part of its investigations, the Commission had issued a separate Production Order requiring the Watch Tower Bible & Tract Society to disclose certain documents. The charity sought judical review of the decision to initiate the inquiry and the order for production of documents. As we noted at the time, in Watch Tower Bible & Tract Society of Britain & Ors v The Charity Commission  EWCA Civ 154 the Court of Appeal held that the Society might apply for judicial review of the Commission’s Production Order but refused to quash the Inquiry Decision. After the Commission had “obtained additional information from the charity and other sources” it withdrew the Production Order and the Watch Tower Bible & Tract Society withdrew its application for judicial review.
However, the New Moston Congregation persisted in its appeal against the finding of the FTT, arguing inter alia that the investigation breached its Article 9 rights and that the decision to open the inquiry was discriminatiory because the Commission had investigated safeguarding at other charities without holding a full statutory inquiry.
Asplin J held that the FTT had erred in law when, at , it had
“applied the wrong legal test in relation to the operation of Article 14, or that at least, it used the wrong terminology to describe it. It is settled law that in order to bring article 14 into play it is necessary merely to be within the ‘ambit’ of another substantive right and not to have breached another right” .
However, her conclusion was that the error was not fatal to the FTT’s overall conclusion:
“the FTT was perfectly entitled to come to the decision it did both at  and  respectively based on the evidence before it. Therefore … the error of law at  is of academic interest only … On the basis of the unchallenged evidence before it, the FTT was entitled to decide that the difference in treatment was because of the conduct of the ‘dis-fellowshipping’ meeting and not religious beliefs .
Equally.., the FTT was entitled to come to the conclusions set out in  based on the facts before it and it cannot be said that it erred in law in doing so. The FTT was entitled to decide on the evidence that the Charity was unable to show a factually similar case in which an inquiry had not been opened … none of the other cases shared the fact that a person convicted of sex offences against children had been permitted to question his victims in an apparently intrusive way. In my judgment, therefore, the FTT did not err in law in finding that there was no discrimination… 
Furthermore, in the light of the permissible finding that there was no interference with article 9 rights and no direct discrimination, it was not necessary to consider whether the conduct could be justified .
In conclusion therefore, in my judgment, the FTT did not err in law in its conclusions at  and  and therefore, the error at  is of no practical consequence. It was entitled to decide that there was no direct discrimination on the grounds of religion, the inquiry having been opened on the basis of unusual and distinctive factual reasons … and that there were no other comparable cases from which to infer discrimination on the grounds of religious beliefs” .