Charities Regulatory Authority v Ellard
| Jurisdiction | Ireland |
| Judge | Ms. Justice Hyland |
| Judgment Date | 26 April 2024 |
| Neutral Citation | [2024] IEHC 251 |
| Court | High Court |
| Docket Number | RECORD NO. 2023/1420 SS |
In the Matter of Section 2 of the Summary Jurisdiction Act, 1857, As Extended by Section 51 of the Courts (Supplemental Provisions) Act, 1961
[2024] IEHC 251
RECORD NO. 2023/1420 SS
THE HIGH COURT
JUDGMENT of Ms. Justice Hyland delivered on 26 April 2024
This is an appeal from the District Court by way of case stated (attached to this judgment as Appendix A). It arose following the decision of District Judge Halpin (the “District Judge”) to acquit the respondent on 27 July 2023 by way of directed acquittal where he had been charged with failure to comply with a requirement under s. 65(2)(a) of the Charities Act 2009 as amended (the “2009 Act”) in that on or about 30 August 2022 he failed to produce the books, documents or other records required of him by way of letter of 9 August 2022.
At the request of the applicant, the District Judge stated a case to the High Court on the following question of law:
“Was I correct in my interpretation and application of Section 65(2) of the Charities Act, 2009 (as amended)?”
The answer to the case stated is “No”.
Section 2 of the Summary Jurisdiction Act 1857, as amended by s.51 of the Courts (Supplemental Provisions) Act 1961, provides that any party to any proceedings heard and determined in the District Court can request a district judge, if dissatisfied with such determination as being erroneous, after he has heard and determined a matter, to state a case to the High Court on a point of law.
Section 6 of the Summary Jurisdiction Act 1857 provides that the High Court shall hear and determine the question or questions of law arising, and shall “reverse, affirm, or amend” the determination of the District Court, or remit the matter to the Judge of the District Court, or may make such other order as to the Court may seem fit.
It is clear that a case stated is confined to determining questions of law. As Finlay P stated in Director of Public Prosecutions v Nangle [1984] ILRM 171, 173 the case stated procedure is “ exclusively confined to correcting errors of law by an inferior court in the determination of proceedings before it”.
In Proes v Revenue Commissioners [1998] 4 IR 174, Costello P summarised the principles to be applied in appeals which come to the court by way of case stated:
“(1) Findings of primary fact by the judge should not be disturbed unless there is no evidence to support them.
(2) Inferences from primary facts are mixed questions of fact and law.
(3) If the judge's conclusions show that he has adopted a wrong view of the law, they should be set aside …”
The appellant was established by the 2009 Act. It is the statutory registrar for charities and regulates charities to ensure their compliance with the statutory scheme. Part 4 of the Act deals with the protection of charitable organisations. Section 64 provides that the appellant may appoint a person, referred to as an “inspector”, to investigate the affairs of a charitable organisation and to prepare a report in such manner as the appellant shall direct. At the conclusion of the investigation, the inspector shall make a final report to the appellant. Section 65 of the Act provides such appointed inspectors with certain powers. Section 65(1) provides powers to seek from charity trustees or a charity's agents:
-
• The production of documents;
-
• A person's attendance before the inspector; • Assistance in connection with the investigation.
Section 65(2) of the Charities Act 2009 provides:
“(2) If an inspector considers that a person (other than a charity trustee or agent of a charitable organisation) is or may be in possession of information concerning its affairs, he or she may require that person to—
(a) produce to him or her any books, documents or other records in his or her possession, under his or her control or within his or her procurement relating to the charitable organisation,
(b) attend before him or her, and
(c) give to him or her all such other assistance in connection with the investigation as he or she is reasonably capable of giving.”
Section 65(5) of the 2009 provides:
“(5) A person who contravenes this section or who fails to comply with a requirement under this section shall be guilty of an offence.”
Section 10(1) of the 2009 identifies the penalties for persons guilty of an offence under the Act as follows:
“10.—(1) A person guilty of an offence under this Act shall be liable—(a) on summary conviction, to a fine not exceeding €5,000 or to imprisonment for a term not exceeding 12 months or to both, or
(b) on conviction on indictment, to a fine not exceeding €300,000 or to imprisonment for a term not exceeding 10 years or to both.”
As already identified, the case in the District Court relates to a prosecution brought against the respondent under s.65(5) of the 2009 Act for failure to comply with s.65(2) of the 2009 Act. The appellant had appointed an inspector (“the inspector”) to investigate the Irish Society for the Prevention of Cruelty to Animals (the “ISPCA”) under s.64 of the 2009 Act. During his investigation, the inspector noticed that an invoice had been issued from the company Apollo Square Limited to the ISPCA, and sought further information relating to that invoice and their business relationship. The respondent is the company secretary of Apollo Square Limited, although he was not the company secretary at the time of the events giving rise to the investigation.
On 9 August 2022, the inspector made a statutory demand of the respondent under s.65 of the 2009 Act, requesting of the respondent in his capacity as company secretary to produce the following documents:
“1. All correspondence and emails (including attachments), between Apollo Square Limited and the following:
a) the ISPCA
b) the staff of the ISPCA
2. All correspondence and emails (including attachments), relating to the ISPCA, between Apollo Square Limited and the following:
a) Charity trustee of the ISPCA Marie O'Byrne
b) Charity trustee of the ISPCA Fiona Squibb
c) Charity trustee of the ISPCA Carmel Rooney
d) Charity trustee of the ISPCA Noel O'Donoghue
e) Charity trustee of the ISPCA Kerry Pollock
f) Charity trustee of the ISPCA Michele Quinlivan
3. Copy of the full signed contract between the ISPCA and Apollo Square Limited.
4. Copy all invoices issued by Apollo Square Limited to the ISPCA
5. Any documents evidencing payments received by Apollo Square Limited from the ISPCA.
6. Any documents evidencing work carried out by Apollo Square Limited for the ISPCA.
7. Copy all advices provided to the Board of the ISPCA by Apollo Square Limited.
8. Copy all regulator compliance and correspondence and charity compliance documents provided by Apollo Square Limited in relation to the ISPCA
9. Any documents relating to any meetings between Apollo Square Limited and the ISPCA.
10. Any documents relating to any meetings, in any relation to the ISPCA, between Apollo Square Limited and any of the charity trustees of the ISPCA.”
These documents related to the invoice issued by Apollo Square Limited to ISPCA and the relationship between the two parties. The inspector further set out in that letter his powers under s.65(2) of the 2009 Act, that failure to comply with his request was an offence under s.65(5), and the penalties under s.10(2). The inspector specified that should the respondent not produce the documents by 30 August 2022, the inspector would inform the Charities Regulatory Authority of that failure to comply with the direction under section 65 of the Act. The respondent did not reply to the letter sent by the inspector and was accordingly charged by the Charities Regulatory Authority with a failure to comply with a requirement under s. 65(2)(a) contrary to s.65(5) of the 2009 Act.
The matter came before the District Judge on 27 July 2023 and having heard the case, the District Judge gave judgment later that day. He made the following findings of fact:
-
a) Mr Mouton was appointed as an inspector in accordance with Section 64 of the Charities Act 2009 on 7 February 2022;
-
b) Mr Mouton was appointed as an inspector to investigate the affairs of the ISPCA;
-
c) the Respondent was the company secretary of a company named Apollo Square Limited;
-
d) During the course of the investigation, it was identified that an invoice had issued from Apollo Square Limited to the ISPCA;
-
e) Mr Mouton had queried this invoice in relation to whether there was any actual work carried out and whether there was a contract in place between the ISPCA and Apollo Square Limited;
-
f) Given that the information he had received from the ISPCA was not complete, he decided to make a statutory request of the Respondent who was then the company secretary of Apollo Square Limited;
-
g) Mr Mouton then issued a letter of request on 9 August 2022 pursuant to Section 65(2) of the Charities Act 2009, as amended, to Mr Ellard;
-
h) no issue of service arose, and the certificate of postage and receipts were produced;
-
i) No reply was received; and
-
j) the investigation remained opened.
He then dismissed the prosecution, as, he found that implicit in s.65(2) was a requirement that any third party be made aware of the possibility of the requirement to submit to a request under s.65, that they should be on notice of the requirement and be given an opportunity to decline relations in the event that they are not so bound. The District Judge also considered that the nature of a criminal offence may not be immediately apparent to a layperson. The District Judge concluded that the Charities Regulator ought to inform all charities that if contracts are entered into with...
To continue reading
Request your trial