The Law Commission published its report on Technical Issues in Charity Law in September 2017 following a public consultation.
A recent High Court case suggests that the Charity Commission is now more inclined to utilise its regulatory powers than ever before.
The Commission opened a statutory inquiry into the Darren Wright Foundation on 29 November 2017. As part of its inquiry, the Commission served direction orders on two former trustees requiring them to provide information and documents about the charity to the Commission to assist the inquiry. The former trustees failed to comply with the Commission’s order.
The Commission then brought legal proceedings against the former trustees. An order of the Commission carries the same weight as a court order and failure to comply may be regarded as contempt of court. If found guilty those in contempt face criminal penalties which include a custodial sentence of up to two years.
In this case, the High Court judge, Mr Justice Morgan, (hearing the case in the absence of the former trustees who failed to attend) decided that the former trustees had indeed failed to comply with most of the Commission’s directions and considered that it was appropriate for the case to proceed in their absence. However, a decision on sentencing the former trustees was adjourned to a later hearing to give them a final opportunity to comply with the Commission’s directions. Nevertheless, the judge made clear the seriousness of the offence and confirmed the court’s power to issue a warrant for the former trustees’ arrest should they fail to attend the further hearing.
This is the first time the Commission has pursued a case of this type through the courts and the decision to do so, combined with other recent examples of the Commission pursuing legal actions of other types, further supports the view that the Commission is exercising an increasingly aggressive approach to its regulatory and enforcement role. Accordingly, trustees of charities that are under any form of investigation by the Commission would seem to be well advised to fully comply with requests from the Commission for information. However, this does not mean that on occasions it will not also be appropriate to enter into robust correspondence with the Commission to defend the position of the charity and its trustees.
For more information
For advice in relation to correspondence with the Commission on any matter, contact Phil Watts.
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