THE CHARITY TRIBUNAL RULES (NI) 2010
IN THE CHARITY TRIBUNAL FOR NORTHERN IRELAND
APPLICATION NUMBER [23/14]
THE CHARITY COMMISSION FOR NORTHERN IRELAND
1. This is a record of a decision the Tribunal has made in respect of an application brought by Mr William Allen (“the Appellant”). The issues considered at this hearing were (i) whether the Tribunal has jurisdiction to determine an application made by the Applicant for a review of the Respondent’s decision to institute a statutory inquiry into the governance and financial controls of the Disabled Police Officers Association Northern Ireland (“the Association”); and (ii) if the Tribunal does have jurisdiction, whether it should exercise its discretion to extend the time limit for making such an application.
2. As appears in greater detail below, the Appellant contended that the Tribunal does have jurisdiction to determine his application, and that the time limit should be extended. The Office of the Attorney General also contended that the Tribunal has jurisdiction, and that the discretion to extend the time limit should be exercised in the Appellant’s favour. The Respondent argued that the Tribunal does not have jurisdiction, and that, further, the time limit should not be extended.
3. Upon the hearing of this appeal, Mr Malachy Magowan of Counsel appeared on behalf of the Appellant, and Mr Frank O’Donoghue QC appeared on behalf of the Respondent. Ms Anne-Louise Livesey, Solicitor, of the Office of the Attorney General, also appeared. The Tribunal is grateful for their oral and written submissions.
4. The Association is an organisation that represents the interests of disabled police officers in Northern Ireland. It is a company limited by guarantee.
5. As hereinafter appears the Appellant gave evidence at the hearing of this application. On the basis of that evidence, the Tribunal makes the following findings with respect to the Appellant’s positions within the Association. The question of the Appellant having control or management of the Association is dealt with in detail later in this decision.
a. The Appellant had served as Chairman of the Association for a number of years up to June 2013.
b. The Appellant was elected to the position of Vice-Chairman in June 2013.
c. At that time, in addition to being Vice-Chairman, the Appellant was also Treasurer and Welfare Officer.
d. In October 2013, the Appellant was removed as Treasurer of the Association for a short period, and was then re-instated in or about November 2013.
e. In January 2014, the Appellant was elected once again to the position of Chairman of the Association.
f. At all material times, the Appellant was a Trustee of the Association.
g. By Order dated 8 August 2014, the Respondent made an order suspending the Appellant as a Trustee.
6. The Appellant has launched an appeal against that order, as well as against other, related orders.
7. The Respondent was established by Section 6 of the Charities Act (Northern Ireland) 2008 (“the 2008 Act”). Its objectives are set out in Section 7 of the 2008 Act, and its general functions are set out in Section 8(2).
8. Paragraph 3 of Section 8(2) of the 2008 Act defines one of the Respondent’s functions in the following terms:
Identifying and investigating apparent misconduct or mismanagement in the administration of charities and taking remedial or protective action in connection with misconduct or mismanagement therein.
9. Section 9(2) of the 2008 Act sets out the Respondent’s general duties. Paragraph 4 of Section 9(2) defines one of those general duties in the following terms:
In performing its functions, the Commission must, so far as relevant, have regard to the principles of best regulatory practice (including the principles under which regulatory activities should be proportionate, accountable, consistent, transparent and targeted only at cases in which action is needed).
10. Section 22(1) of the 2008 Act provides as follows:
The Commission may institute inquiries with regard to charities or a particular charity or class of charities, either generally or for particular purposes.
The right to apply for a review the decision to institute a Statutory Inquiry
11. So far as is relevant, Schedule 3 to the 2008 Act provides as follows:
(1) In this Schedule references to “reviewable matters” are to (a) decisions on which sub-paragraph (2) applies;…
(2) This sub-paragraph applies to decisions of the Commission (a)to institute an inquiry under section 22 with regard to a particular institution;…
(1) An application may be made to the Tribunal for the review of a reviewable matter.
(2) Such an application may be made by (a) the Attorney General, or (b) any person mentioned in the entry in column 2 of the Table which corresponds to the entry in column 1 which relates to the reviewable matter.
(3) The Commission shall be the respondent to such an application.
(4) In determining such an application the Tribunal shall apply the principles which would be applied by the High Court on an application for judicial review.
(5) The Tribunal may (a) dismiss the application, or (b) if it allows the application, exercise any power mentioned in the entry in column 3 of the Table which corresponds to the entry in column 1 which relates to the reviewable matter.
Decision of the Commission to institute an inquiry under section 22 with regard to a particular institution.
The persons are (a) the persons who have control or management of the institution, and (b) (if a body corporate) the institution itself.
Power to direct the Commission to end the inquiry.
Where an appellant has made a request under rule 17(8) to the Tribunal for a direction under rule 3 to allow an appeal or application to be made after the time limit for doing so has expired, the Tribunal must consider—
(a) what steps (if any) the Commission has taken to notify or publicise its final decision;
(b) when the appellant became aware of the Commission’s final decision; and
(c) when the appellant became aware of the right to make the appeal or application and of the time limit for making the appeal or application.
13. Rule 17 provides as follows, so far as is relevant:
(1) An appeal or application must be made by way of an appeal notice signed, dated and filed by an appellant.
(2) An appeal notice under paragraph (1) must be filed:
(a) if the appellant was the subject of the decision to which proceedings relate, within 42 days of the date on which notice of the Commission’s decision was sent to the appellant; or
(b) if the appellant was not the subject of the decision to which the proceedings relate, within 42 days of the date on which the Commission’s decision was published.
The Statutory Inquiry
14. On 14 February 2014, the Respondent sent a letter to the Association. As this is an important letter in the context of the Appellant’s application, the more significant aspects of the letter are set out in full below:
Decision to Institute a Section 22 Inquiry into the Governance and Finance of the Disabled Police Officers Association, Northern Ireland
As you are aware the Charity Commission for Northern Ireland has received a concern relating to the governance and financial control of the Disabled Police Officers Association Northern Ireland (DPOANI).
The Commission wrote to the DPOANI on 6 December 2013 seeking documents and information to assist us in our enquiries. Having reviewed materials received by the Commission we have concluded that not all of the information requested has been provided. Some documentation provided is incomplete; other information has been omitted entirely.
In addition, the information provided has given the Commission cause to examine further the governance and financial controls of the DPOANI.
Institution of a Statutory Inquiry
We follow the principles of best regulatory practice, ensuring our actions are proportionate, consistent, transparent and targeted. In this instance the Commission has identified that the concerns raised present a significant risk to the charity and the Commission’s expectations of good governance within the charitable sector.
The Commission considers the response of trustees to date in the provision of documents and information to constitute non-compliance. Furthermore the information that DPOANI have provided to the Commission has given the Commission cause to further examine the DPOANI’s governance and financial controls.
On this basis and in response to the increased risk, the Charity Commission for Northern Ireland has instituted a statutory inquiry into the governance and financial controls of the DPOANI under Section 22 of the Charities Act (Northern Ireland) 2008 (“the Act”).
The Commission may also write to trustees, officers, agents and members of the charity and other parties pursuant to this statutory inquiry. …
Right to have Decision Reviewed
If you disagree with our decision to institute a statutory inquiry under Section 22(1) of the Charities Act (Northern Ireland) 2008, you have the right to make an application for the review of this decision to the Charity Tribunal. To make application, you application must be made to the Charity Tribunal.
The letter then set out the contact details for the Charity Tribunal.
The Appellant’s appeals
15. As indicated above, the Respondent suspended the Appellant as a trustee of the Association by Order dated 8 August 2014. By appeal notice dated 4 September 2014, the Appellant issued an appeal against that decision, as well as additional matters, namely the Respondent’s appointment of three additional trustees; the Respondent’s order placing restrictions on the Association’s transactions and payments; and the Respondent’s orders in respect of suspension of other persons.
16. In his appeal notice, the Appellant also applied for a direction under Rule 3 of the Charity Tribunal Rules (Northern Ireland) 2010 (“the Rules”) that he be allowed to apply for a review the Respondent’s decision to initiate an inquiry under Section 22 of the 2008 Act, even though the time limit had expired.
17. As has been rehearsed in earlier records of directions given in this appeal and related appeals, although the Tribunal had been ready to deal with the Appellant’s application to extend time at a hearing in November 2014, the application did not proceed at that time. Instead, the application came on for hearing before the Tribunal on 12 March 2015.
18. The Appellant had prepared a witness statement in advance of the hearing. At the hearing, the Appellant gave evidence both as to the question of whether the Tribunal had jurisdiction to entertain an application from him for a review of the decision to institute a statutory inquiry, and as to why the time limit should be extended. He was cross-examined.
19. Although the entirety of the evidence in chief, the evidence under cross-examination and the points put are not herein exhaustively set out, the Tribunal has considered all the evidence. The Tribunal has also considered the contentions of the parties as made in their skeleton arguments, their submissions at the hearing, and their supplementary written submissions.
Whether the Appellant has the statutory right to bring an application for a review of the decision to institute a statutory inquiry (regardless of the time limits)
20. The Appellant said that he was the Chairman and had been the Chairman for the previous three to four years. He said that he was more or less running the Charity, attending functions, looking after the Members, arranging events and functions for the Members. He said there were monthly board meetings making decisions. These were the board meetings of the Association. As to what sort of decisions, the Appellant said that these were generally straightforward: where the next function would be, when it would take place.
21. The Appellant said he had no input whatsoever in respect of financial matters. He said that he was in the office perhaps once or twice a week assisting the CEO. He would be assisting with photocopying, run of the mill things. He drew attention to the fact that there was an Audit Committee which has been established in the interest of good governance. When asked who was in management and control of the Charity, the Appellant said, “I was the Chairman. Generally it was the Board and the CEO”. At the time of the statutory inquiry, the Appellant confirmed that he was the Chairman.
22. In cross-examination, Mr O’Donoghue, asked the Appellant whether, after his suspension as a trustee on 8 August 2014, he had any role in the management or control of the Association from that date. The Appellant answered “no”.
The issue of statutory construction
23. In its decision on a similar application by Mr Robert Crawford to extend time for the bringing of an application for a review of the Respondent’s decision to institute a statutory inquiry, the Tribunal held that Mr Crawford was not entitled to launch such an application.
24. In that case, the Tribunal drew attention to the contents of the Table in Schedule 3 to the 2008 Order, and specifically that part which makes provision as to who are the persons who may challenge a decision to institute a statutory inquiry:
The persons are (a) the persons who have control or management of the institution, and (b) (if a body corporate) the institution itself.
25. In its decision in Mr Crawford’s case, the Tribunal noted that the application is to be brought by the “persons who have control or management of the institution” (emphasis added). The Tribunal stated that the reference to “persons” meant the persons, plural, who for the time being, comprised the governing body of the institution – be it a committee or a board of trustees – and were duly authorised to take decisions about the affairs of the institution. If those persons decided, in accordance with the rules of the institution, to bring an application for a review, then they might do so. The Tribunal noted that, unlike other parts of the Table, the right to apply for a review does not extend to “any other person who may be affected by the order”. That omission was significant. The Tribunal said that it was clear that the right to apply for a review had not been extended to an individual member or trustee who has been affected by the order.
26. In response to the Tribunal’s decision in the Crawford case, the Attorney General represented that the reference to “persons” in the Table should be construed with regard to Section 37(2) of the Interpretation Act (Northern Ireland) 1954 (“the 1954 Act”) which provides as follows:
In an enactment (a) words in the singular shall include the plural; and (b) words in the plural shall include the singular.
27. Ms Livesey drew attention to that provision in her submissions to the Tribunal at the hearing and in writing thereafter, in support of her contention that the Tribunal does have jurisdiction to determine a claim for one person who has control or management of the institution.
28. In his closing written submissions to the Tribunal, Mr O’Donoghue addressed the practical implications of the construction contended for by the Appellant and the Attorney General. He in turn drew attention to Section 2(2) of the 1954 Act, as follows:
In addition, any provision of this Act which refers to statutory provisions shall, unless the contrary intention appears in the statutory provisions, have, in relation to those provisions, such effect as is stated in that provision of this Act.
29. In that regard, the Tribunal also notes that regard Section 2(1) of the 1954 Act:
Every provision of this Act shall extend and apply to every enactment, whether passed or made before or after the passing of this Act, unless a contrary intention appears in this Act or in the enactment.
30. In his closing written submissions to the Tribunal, Mr Magowan contended that to confine the potential challengers to the institution and the “persons (plural) who have control or management” effectively allows the Respondent to institute an inquiry, to remove unsympathetic trustees, to appoint other sympathetic trustees and thereby to prevent a challenge to the initial decision to institute an inquiry. Mr Magowan contended that such an interpretation offended against a number of rules of statutory interpretation, quite apart from Section 37(2): statutes should be interpreted so as to serve the public interest; statutes should be interpreted in a manner that is just and fair; and no-one should be a judge in their own cause. Mr Magowan went further and contended that not only should the concept of “persons” include a person singular who has control or management of the charity, it should also include persons who formerly enjoyed, but no longer enjoy, say by reason of suspension, such control or management.
31. The question to be decided therefore is whether or not there appears in the 2008 Act an intention contrary to the effect of Section 37(2) of the 1954 Act.
32. Having considered this question of statutory construction afresh, the Tribunal concludes that there are a number of aspects of the 2008 Act which do indeed militate against the relevant entry in Column 2 being interpreted so as to allow a “person” singular to launch an application for a review of a decision to instigate a statutory inquiry, as follows:
a. The starting point must be the entry in Column 2 of the Table in Schedule 3, corresponding to section 22 statutory inquiries. It says that “the persons are (a) the persons who have control or management of the institution; and (b) (if a body corporate) the institution itself”.
The relevant entry in sub-paragraph (a) does not say “any person or persons having control or management of the institution”; nor does it say “a person who has control or management of the institution”; nor does it say “any person who has control or management of the institution”; nor does it say “the person who has or persons who have control or management of the institution”.
The Tribunal also considers that the reference to “institution” in both sub-paragraph (a) and (b) of the relevant serves to emphasise that the concept of “the persons who have control or management” should be construed with an eye to the fact that the Act is providing redress for the institution, rather than individuals. In that regard, the Tribunal notes that in Section 180(1) of the 2008 (the “general interpretation” section) “institution” is defined as meaning “any institution whether incorporated or not and includes a trust or undertaking”.
b. The next point is the remainder of Column 2 of the Table in Schedule 3. Column 2 provides that almost every decision or act of the Respondent, in addition to being subject to challenge by “trustees” and “persons” and the institution itself, is also subject to challenge by “any other person affected.” However, the legislature did not extend the right to apply for a review of a decision to institute a statutory inquiry to “any other person who is or may be affected by that decision”. This is indicative of an intention to limit, to some extent, the range of applicants who might launch an application for a review.
c. As appears from Section 22 of the 2008 Act, a decision by the Respondent to institute a statutory inquiry into a charity is an intervention against the charity, that is, as against the charity as a collective whole. Accordingly, it is consonant with the nature of the inquiry that the right to challenge the decision to institute such a statutory inquiry should be vested in the charity acting as a collective whole. That might mean that, in the case of a corporation, the challenge would be brought by the corporation, and that otherwise it will brought by and with the support of the governing body (in whatever form) of the charity, being “the persons who have control or management of the institution”.
d. A further indicator of the legislature’s intention may also be derived from Sections 36(3), 37(2), 59(2), 74, 83(7) and 84(4)(b)(ii) of the 2008 Act. In each of those instances, the legislature deployed the phraseology “person or persons”. However, it did not do so in the relevant entry in Column 2 of the Table in Schedule 3. Again, the Tribunal considers this distinction to be significant when divining the intention of the legislature as to the ambit of the relevant entry in the Table.
e. As appears from paragraph 4 of Schedule 3 to the 2008 Act, the right to apply for a review of a decision to institute a statutory inquiry is extended to the Attorney General. Accordingly, any possible abuse by the Respondent of its powers to instigate a statutory inquiry, coupled with the subsequent suspension of unsympathetic trustees, would not go unchallenged, given the role of the Attorney General. (This is commented upon further below.) There is thus no lacuna in the 2008 Act which requires to be filled by extending the right to apply for a review to every “person” (singular) having control or management of the charity.
33. The Tribunal therefore considers that all of these aspects of the 2008 Act point towards the legislature not having intended to extend the right to apply for a review of a decision to institute a statutory inquiry to a “person” singular who has control or management of the subject charity.
34. None of the parties drew the Tribunal’s attention to any decided cases on this issue of constructions. However, in the course preparing this decision, the Tribunal has found a decision of the English equivalent of the Northern Ireland Charity Tribunal, namely the First Tier Tribunal (Charity) General Regulatory Chamber, in the case of David Jennings v The Charity Commission for England and Wales, 16 December 2014. That decision is, needless to say, not binding on the Tribunal, but it is of interest. This was an application by a Mr Jennings for an extension of time to bring an application for a review of a decision to institute a statutory inquiry in respect of a charitable trust. The Tribunal Judge commented as follows at paragraph  (emphasis added):
9. It seems to me that, if there were a right to appeal to the Tribunal as a “person affected” by the Charity Commission’s decision to open the inquiry, as there is in relation to many of the other decisions in column one of Schedule 6 to the 2011 Act, then it would be arguable that Mr Jennings’ appeal should be allowed to proceed out of time in these circumstances. However, the categories of person who can apply to the Tribunal were more narrowly drawn by Parliament in relation to a decision to open an inquiry, and so I conclude that I have no discretion to extend the right of appeal to Mr Jennings because he was not, at the time the inquiry was opened, a person with control or management of the relevant institution. Whilst I accept that the inquiry may have looked back over a time when Mr Jennings was more closely involved with the charity, I conclude that, as it is the decision to open the inquiry which generates the right of appeal to the Tribunal, the question of standing is linked to Mr Jennings’ position in relation to the charity as of that date. In the circumstances, I agree with the Charity Commission that Mr Jennings does not have a right of appeal to the Tribunal.
35. The comment underlined does support the Tribunal’s apprehension that the jurisdiction to challenge the opening of reviews is narrower than other jurisdictions under the 2008 Act, and deliberately so.
36. On the other hand, the English Tribunal appears to have proceeded on the basis – apparently without argument – that Mr Jennings, as a person singular, in principle could have invoked the jurisdiction, but for the fact that he was not a trustee at the time when the statutory inquiry was opened. In contrast, and as appears from this decision, this Tribunal has had full argument on the meaning of “the persons” and accordingly does not feel constrained by the Jennings decision in that respect.
37. A notable further aspect of the Jennings decision is the statement that, provided a person had control or management of the institution at the time when the statutory inquiry was opened, he may bring an application for a review even though at the time of the application he was no longer enjoying such control or management. That supports entirely the contention advanced by Mr Magowan in his written submissions. The Tribunal does not consider it necessary to set out a concluded view on that point, given the conclusion it has drawn on the arguably more fundamental issue of whether a person singular may apply for a review. However it goes some way to mitigate the concern that the Respondent might open an inquiry and then seek to stymie an application for a review by removing opposing trustees or (in the words of the submission on behalf of the Office of the Attorney General) by “decapitating” the charity. On this construction, provided the persons who had control or management of the charity did so at the time the inquiry was opened, they would have standing to bring an application for a review – presumptively within the time limit – regardless of whether they were later suspended or removed from their positions.
38. Accordingly, having considered the 2008 Act, the Tribunal does not consider that an individual in the Appellant’s position may launch a challenge to the decision to institute a statutory inquiry. Apart from the Attorney General, such challenges are the preserve of the charity itself – acting by itself if it is incorporated, and by the persons with control or management of the charity.
39. Having considered the matter within the “four corners of the statute”, the Tribunal has also considered the practical outworkings of the constructions contended for by the parties. The Tribunal has concluded that these practical considerations support the construction referred to at paragraph 36 above. The facts of this case illustrate this point, in two respects. First, a letter dated 28 February 2014 and written by the Association’s Solicitors to the Respondent in response to the 14 February 2014 letter advising of the statutory inquiry, included the following:
We refer to the above matter and confirm we act on behalf of DPOANI. We note the Charities Commission has instituted a statutory enquiry (sic) and we can confirm that our clients will comply fully with the documents and investigations required… Again, we reiterate the DPOANI’s willingness to co-operate…
40. There was no suggestion made to the Tribunal that that letter represented anything other than the instructions of the Association not to challenge the decision to institute the statutory inquiry, and the Tribunal concludes that that letter was written on the basis of the Associations’ instructions. Yet, were every “person [singular] who [has] control or management” to have the right to launch an application for a review, they could do so, regardless of the prevailing collective view of the charity. Such a result seems incongruous.
41. Second, in the course of cross-examination, the Appellant confirmed that at a later stage the Board of the Association did decide to apply for a review. Again, were every “person who [has] control or management” to have the right to launch an application for a review, they could do so, in parallel to the application brought by the charity itself, this would lead to a potential multiplicity of proceedings.
42. A further but hypothetical example also suggests that “person” should not in this instance be construed as person singular. One might imagine another situation where the charity employed a manager. The charity governing body welcomed the inquiry or was not opposed to it. It decided not to launch an application for a review. Yet the office manager, being a person “with management” of the institution could apply for a review. It is difficult to imagine that that is what the legislature intended.
Conclusion on whether the Appellant is entitled to bring an application for a review of the decision to institute a statutory inquiry
43. In these circumstances, the Tribunal has concluded that it does not have jurisdiction to determine an application by the Appellant for a review of the Respondent’s decision to institute a statutory inquiry into the Association.
Application to extend time
44. Having regard to the Tribunal’s decision set out immediately above, it is strictly unnecessary to decide whether the time limit should be extended. However, given that the Tribunal heard evidence and full argument on the point, it will nonetheless set out its decision on this issue as well.
The evidence on the application to extend time
45. As already indicated, the Appellant submitted a detailed witness statement. This was supplemented by additional evidence in chief and cross-examination. In his witness statement, the Appellant drew attention to a comment made on behalf of the Respondent by Mr Neil Henry that an investigation by the Respondent would be a “god-send”. The Appellant also said as follows:
 I have received numerous demands for Statutory Declarations from CCNI and have responded to them all. At no stage did CCNI inform me of the state of their investigation. Their letters normally contained the heading “Decision to institute a Section 22 Inquiry into Governance and Finance of the Disabled Police Officers Association Northern Ireland.” I understand that the Charity’s Solicitor Stephen Mearns had on numerous occasions enquired as to the nature of the allegations against the individuals concerned without any response from CCNI other than that they were contained within our board minutes. We were unaware of what the allegations were, or what was in fact being investigated.
 When I was first informed of the Statutory Inquiry it was like being hit with a bolt out of the blue as I was totally adamant that we had not done anything wrong and we had nothing to hide. To say that I was dumbstruck is something of an understatement. Having served 30 years in the police of which the last 15 was of Inspector Rank I would not knowingly do anything which would possibly cast a dark shadow over me or my family or my reputation. I was unaware of the fact that you could appeal the Statutory Inquiry and of time limit for doing so.
 I first sought legal advice immediately after having received notification of the Statutory Inquiry. Around the 20th February I met with our Solicitor Mr Stephen Mearns and he advised to submit everything they (CCNI) requested and we would probably hear nothing more about it, which we did.
 The first occasion I became aware of allegations of a personal nature was when I was first suspended in August 2014. I was first suspended as a Trustee by the Charity Commission on 8 August 2014 for a period of three months pending consideration of my removal as a Trustee. This was the first time I had been advised that there had been allegations against me personally.
46. By way of further evidence in chief, the Appellant referred to the Respondent’s letter of 14 February 2014, which had advised of the statutory inquiry. The Appellant said that he took great exception to the contents of the letter; he said they had never been made aware of the issues of concern to the Respondent.
47. The Appellant also referred to a letter dated 4 March 2014 from the Respondent to the Trustees of the Association which contained a reference to concern on the part of the Respondent in respect of the Association spending money on legal representation. The Appellant said that he thought this was very odd. When asked how he had perceived that, the Appellant said he saw it as saying “don’t do anything until it is sorted out”. The Appellant said he was just looking for a level playing field. He said that he took it as a threat, rightly or wrongly. When asked him what he meant by a threat, the Appellant said “don’t do it and we will look after you”.
48. The Appellant referred to a letter which the Association had received from the Respondent dated 6 December 2013. He said that no documents had been requested in that letter. The Appellant contrasted that fact with the Respondent’s letter of 14 February 2014, advising of the institution of the statutory inquiry, which gave as one of the reasons for that decision an alleged failure to provide documents. The Appellant also said that as far as he was concerned, the Association had supplied all documents. When asked what documents had been omitted, the Appellant said he had no idea; they had supplied everything requested of them. On the question of apparent bias and pre-judgment, the Appellant said that said he began to consider that when the new trustees were imposed. The Appellant gave evidence that he had been told by the Respondent that there were no allegations of serious fraud, and that the inquiry would be over quickly.
49. During the course of his cross-examination, the Appellant said that he was first aware about the decision to institute a statutory inquiry on foot of an e-mail dated 12 February 2014, sent by the Respondent to him before the formal letter. The Appellant was asked about the reference in that letter to the Respondent having been approached by one of the Association’s funders, with concerns. The Appellant was asked was this to do with the Northern Ireland Police Fund. The Appellant said he believed so and that they had received a complaint.
50. The Appellant said he had received the letter of 14 February 2014 in all likelihood on 15 February 2014. The Appellant confirmed that he had opened the letter and read it; and he agreed that the wording was very clear. He confirmed he had read and understood the letter, including the part referring to the right to have the decision reviewed.
51. The Appellant said that he probably was present at the board meeting in January 2014 when the decision was made to instruct John Ross & Sons to advise. The Appellant said he believed that John Ross & Son were instructed after 14 February 2014. The Appellant confirmed that he had consulted with Mr Mearns before he wrote the letter of 28 February 2014. When asked whether he was fully familiar with the decision of the Respondent and the legal advice, the Appellant confirmed that he was.
52. As regards paragraph 18 of the Appellant’s Witness Statement, the Appellant confirmed that he met Mr Mearns in his office on 20 February 2014 to discuss the implications of the decision. Mr O’Donoghue asked the Appellant whether the Tribunal could proceed on the basis that the entirety of the letter was available to the Solicitor; the Appellant confirmed that was correct.
53. Time was spent both during the cross-examination and re-examination addressing what was clearly a central theme in the Appellant’s case as to why he had not made his application for a review at an earlier stage, and therefore as to why the time limit should be extended. This theme was that the Respondent had failed to tell the members of the Association generally, and the Appellant in particular, what allegations they faced. The Appellant said that he did not know what he was accused of. He was not told what allegations were going to be made and what questions he was going to be asked at suggested meetings with the Respondent. The Appellant said he did not believe he could answer all the questions. He said it was like an ambush situation. The Appellant said he had suggested that Respondent meet him, Mr Crawford and Ms Hampton together, but the Respondent rejected that approach.
54. In response to that evidence, Mr O’Donoghue suggested to the Appellant that he had an email from Mr Henry of the Respondent, dated 9 June 2014, setting out eleven areas that were to be on the agenda at a meeting with him. The Appellant said that that email set out the issues, but it did not set out the allegations, or the evidence. The Appellant reiterated that he thought that the statutory inquiry would have informed he and his colleagues of the allegations. When asked why the Appellant did not seek a review at an earlier stage, said that there was nothing forthcoming until 7 August 2014; there was nothing to appeal against.
55. As regards his knowledge of time limits for an appeal, the Appellant said he was not aware until later on, in May or June. The Appellant said he believed that it was a Solicitor who told him about the time limit. When asked why, although the suspension had taken place on 6 August 2014 and the appeal was not launched until 4 September 2014, the Appellant said that a Solicitor was dealing with it.
56. In re-examination, the Appellant re-iterated that he had no idea what the allegations against him were. He was not aware of financial grievances. He was not aware of governance grievances. He was not aware of the allegations against him or anyone else. He was not aware of a complaint from the Northern Ireland Police Fund. He had no idea what the evidence against him was. The Appellant said that there was a factual dispute about the circumstances in which the former chairman left. The Appellant confirmed that there were financial allegations concerning another person. He said he became aware that other persons were being treated differently from him, prior to his suspension.
57. The Tribunal then asked the Appellant to look at some documents which had been exhibited to his witness statement. The first of these comprised board minutes. A board minute of 13 November 2013 referred to issues that had been “going on for months”; to the fact, that in the past two years, five directors had resigned; to the former chairman’s views that he did not know what his duties were and that he had filed a form of concern with the Respondent; and that in his view “there’s a concern where … money went.” A further board minute of a meeting on 3 January 2014 referred to issues of an alleged unlawfully convened meeting and an alleged lack of transparency in the operation of the organisation.
58. The Tribunal also asked the Appellant to look at a letter from the Northern Ireland Police Fund to the Appellant dated 31 January 2014. That letter included the following comments:
You will know that when [DB] (who at that time was still chair of the DPOANI) raised concerns with the Charities Commission and informed my CEO of those concerns that the Fund regarded this as a whistleblowing situation and took formal action to notify the DoJ in accordance with the Fund’s Anti-Fraud and Anti-Bribery policy…
You also requested copies of documentation that the Fund may have generated in respect of the ‘Form of Concern’ to the NI Charities Commission. The Fund considers that the release of this information, at this time, may compromise the whistleblower and be prejudicial to any investigation or other action that the Charities Commission may wish to carry out or any other investigation which might be necessary.
I would remind you that, at this stage, the Fund still considers that the concerns raised remain matters for action by the Chair and Board of Directors of the DPOANI. However, I reiterate that I, as Chair, my Directors and my CEO as Accounting Officer, of the Northern Ireland Police Fund which provides the DPOANI with funding from the public purse, need to be reassured that internal controls within the DPOANI are fit for purpose and working effectively. The Fund made the DoJ aware of the Form of Concern on 8 Nov including that the Fund would be requiring assurances from the DPOANI in respect of issues raised. I am disappointed that to date the Fund has not received any of the assurances it requires.
Findings of fact
59. Having regard to the evidence presented to the Tribunal, the Tribunal makes the following findings of fact about these matters:
a. The Respondent notified the Association of its decision to institute a statutory inquiry by sending a letter dated 14 February 2014 to the Trustees of the Association.
b. The Appellant became aware of the Respondent’s decision to institute a statutory inquiry on or about 15 February 2014.
c. The Appellant became aware of the right to make an application for a review when he received the letter of 14 February 2014, on or about 15 February 2015.
d. At the time when he received the letter of 14 February 2014, the Appellant had, as per the contents of that letter, a clear statement of the reasons as to why the Respondent decided to institute a statutory inquiry. The reasons were expressed in general terms, and details were not given, but the reasons were no less clear for that: (i) the expression of a concern; (ii) alleged non-compliance with requests for information; (iii) risk to the charity; and (iv) a wish to examine further the governance and financial controls of the Association.
e. The letter correctly referred to the means by which the decision to institute a statutory inquiry might be challenged: i.e. by an application for a review, rather than an appeal. The letter referred to the 2008 statute.
f. The Appellant was informed by the Respondent that the investigation would be a god-send; that it would be over quickly; and that there were no allegations of serious fraud.
g. The Appellant had access to legal advice very soon after he received the letter of 14 February 2014.
h. As of early March 2014, the Appellant believed that the Respondent was making a threat to the Association.
i. The Appellant became aware of the time limit for making an application for a review in May or June 2014.
j. As shown by the Association’s letter to the Respondent of 28 February 2014, the Association did not raise any challenge or objection to the instigation of the statutory inquiry. On the contrary, it confirmed that it would be co-operating fully with the inquiry. The Appellant was aware of that stance. Indeed, he attended with the Association’s solicitors, who then sent a letter to that effect.
k. There were disputes within the Association. Concerns had been raised about financial controls and how the Association was being governed. These matters were raised at meetings at which the Appellant was present. They were also raised in correspondence between a funder and the Appellant.
l. The Appellant did not take steps to challenge the Respondent’s decision to institute an inquiry until he had been suspended as a trustee.
60. Rule 4 of the Rules provides three matters which the Tribunal must consider when presented with an application to extend time, namely what steps (if any) the Respondent has taken to notify or publicise its final decision; when the appellant became aware of the Commission’s final decision; and when the appellant became aware of the right to make the appeal or application and of the time limit for making the appeal or application.
61. However, the matters set out in Rule 4 are not exhaustive as to what the Tribunal is to consider when exercising its discretion under Rule 17(3). The parties drew the Tribunal’s attention to a number of authorities, all of which have been considered by the Tribunal.
62. In Davis v Northern Ireland Carriers  NI 19 Lowry LCJ set out the relevant applicable principles in relation to an application to extend time for an appeal. At 20A-D he stated:
Where a time limit is imposed by statue it cannot be extended unless that or another statute contains a dispensing power. Where the time is imposed by rules of court which embody a dispensing power such as is that found in Order 64 r 7 the court must exercise its discretion in each case and for that purpose the relevant principles are:
(1) whether the time is sped: a court will, where the reason is a good one, look more favourably on an application made before the time is up;
(2) when the time-limit has expired, the extent to which the party applying is in default;
(3) the effect on the opposite party of granting the application and, in particular, whether he can be compensated by costs;
(4) whether a hearing on the merits has taken place or would be denied by refusing an extension
(5) whether there is a point of substance (which in effect means a legal point of substance when dealing with cases stated) which could not otherwise be put forward; and
(6) whether the point is of general and not merely particular, significance.
To these I add the important principle;
(7) that the rules of court are there to be observed'.
63. In the Hegarty v EJO  NICA 56 Morgan LCJ, giving the judgment of the Court of Appeal, gave the following further guidance with respect to the Davis principles:
 The temptation to analyse the application to extend time by reference to the evaluation of each of these issues should, however, be resisted. The broad nature of the exercise required in considering whether to accede to such an application was captured in the conclusion of the [Davis] judgment.
If we had left the case here my view would undoubtedly have been that the delay had not been satisfactorily explained and, that all the more so because there had been a hearing on the merits (which must, judged by the very exhaustive and obviously careful written decision, have been both full and painstaking), the application should be refused.
We decided, however, that in order to do justice it would be better to find out the strength of the appellant's case, so far as it was founded on points of law and therefore remained capable of being pursued by way of case stated. We therefore discussed the legal merits of the case in some detail …..It is not, however, necessary to expatiate on this branch of the case, if only because it may come before this court in another guise. I am content to say that nothing emerged to make me feel that justice demanded an extension of time in face of the principles to which I have already adverted.
64. In Benson v Morrow Retail  NIQB 14, Gillen J held that the principles in Davis should not be viewed as a “series of hurdles to be negotiated in succession by an appellant with loss of the right to obtain an extension if he cannot pass any one or more of them.” Gillen J also held that the Court should look at the substance of the application focusing on the “central underlying question”: whether in the particular circumstances and in accordance with an overall desire to achieve justice, the discretion ought to be exercised in favour of the appellant. Deeny J referred with approval to with Gillen J’s approach in his decision in Ulster Bank v Dynes & Others  NICh 29 at . Deeny J considered a similar application for an appeal in Bank of Scotland v Doherty & Doherty  NIQB 135 confirming the Court’s general “…dispensing power with regard to the Rules…”
65. Two decisions of the equivalent Tribunal in England, namely UTURN UK CIC v The Charity Commission for England & Wales (Appeal No CA/2011/006) and McKay v The Charity Commission for England & Wales (Appeal No CA/2013/0010) are of interest.
66. In the UTURN case, the Tribunal referred to guidance given by the Upper Tribunal (Administrative Appeal Chamber) in the case of Information Commissioner v PS  UKUT 94 (AAC) at paragraph 17, as to what should be taken into account in considering an application to extend the period for making an application under the Rules. This included:
a. The lateness of the application;
b. The extent to which the application has complied with Article [26(5)(a)];
c. The date the applicant received the decision notice;
d. Whether the reason for the delay was due to holiday, ill-health or other causes largely beyond the control of the appellant;
e. The complexity of the decision appealed;
f. The fact that an appellant is unrepresented and unfamiliar with the appeal process;
g. The fact that the appellant had made enquiries about appealing before the deadline.
67. In the McKay case, reference was made to the decision of the Upper Tribunal (Tax and Chancery Tribunal) in the case of Data Select v HMRC  UKUT 197 (TCC), in which Morgan J said as follows:
Applications for extensions of time limits of various kinds are common place and the approach to be adopted is well established. As a general rule, when a court or tribunal is asked to extend a relevant time limit, the court or tribunal asks itself the following questions: (1) what is the purpose of the time limit? (2) How long was the delay? (3) Is there a good explanation for the delay? (4) What will be the consequences for the parties of an extension of time? and (5) What will be the consequences for the parties of a refusal to extend time? The court or tribunal must make its decision in the light of the answers to those questions.
68. Mr Magowan in his comprehensive written closing submissions, drew attention to a number of authorities from the field of judicial review, including Corbo Properties Application  NIQB 107 and the comment of Horner J therein that, when considering delay, “What the court should be seeking to achieve is, in the words of Elias J, "the least injustice" and the parties appear to agree that that is the correct approach.” He also referred to the comments of Sedley LJ in Corbett v Restormel Borough Council  EWCA Civ 330, as follows:
“How, one wonders, is good administration ever assisted by upholding an unlawful decision? If there are reasons for not interfering with an unlawful decision, as there are here, they operate not in the interests of good administration but in defiance of it.”
69. Further, Mr Magowan said that it was notable that the expense of an investigation that had proceeded for over a year did not prevent the Privy Council in Mitchell v Georges  UKPC 43 from considering subsequent events in determining whether there had been apparent bias in an earlier decision.
70. The Tribunal has come to the following conclusions with respect to the various factors to be considered in the exercise of its discretion:
a. The purpose of the time limit
As the Tribunal said in its decision in the Crawford case, if a challenge is made to a decision of the Respondent to institute a statutory inquiry, that challenge may be heard and determined, by way of an application for a review, before the Respondent applies time and resources to the implementation of the inquiry. There is therefore considerable value in having challenges to such decisions brought at an early opportunity. Hence the 42 day time limit, albeit that might be extended in an appropriate case.
There is an echo of this reasoning in the recent decision of the equivalent English Tribunal in the case of Watchtower Bible and Tract Society of Great Britain v The Charity Commission for England Wales (3 March 2015)
18. The purpose of the time limit for initiating proceedings in charity cases is to allow charities a reasonably generous amount of time in which to decide whether to make an application to the Tribunal, whilst balancing against that consideration the Respondent’s wish to carry out its statutory duties as swiftly as possible. The statutory framework provided by Parliament takes account of the fact that charities may wish to challenge the Respondent’s decisions and that the Respondent may be delayed whilst the charity’s application to the Tribunal is heard.
b. The lateness of the application
The letter advising of the decision to institute a statutory inquiry was sent to the Appellant on 14 February 2014. On that basis, the 42-day time limit for making an application expired on 28 March 2014. The Appellant was personally aware of the decision on or about 15 February 2014.
However the Appellant did not make an application for a review until 4 September 2014.
On any reading of the chronology, there has been considerable delay in pursuing a challenge to the decision to institute the statutory inquiry: around 23 weeks between the expiry of the time limit and the filing of the appeal notice. That is to be contrasted with the initial 6-week application period.
c. The reason for the delay in making an application for a review
(i) Whilst the time limit was extant
The Tribunal has considered in this context the actions of the Appellant, and the reason for that inaction, whilst the time limit was still extant.
The Appellant put before the Tribunal four broad reasons why he did not make an application for a review while the time limit was extant.
The first reason given was that, despite his efforts, and those of his colleagues and solicitors over the months, he was unable to elicit from the Respondent any detail as to the allegations which the Respondent was making against the Appellant. The Appellant said that he did not receive those details, or appreciate that he was the personal focus of allegations, until he was suspended as a trustee in August 2014. As indicated earlier this was a major theme pursued by the Appellant in his evidence and on his behalf in the submissions of Mr Magowan.
As stated earlier in this decision, the decision on the part of the Respondent to instigate a statutory into the Association was an intervention against the Association as a collective whole. The lack of specific allegations against the Appellant was not, in the Tribunal’s view, a reason not to launch an appeal during the time limit.
The second reason given by the Appellant is related to the first, in that it concerns an alleged lack of detail in the grounds for instigating the statutory inquiry, as set out in the letter of 14 February 2014.
The Tribunal does not accept that as a satisfactory reason for not applying within the time limit. The letter set out plainly a number of reasons for the institution of the inquiry. They were readily comprehensible. If the Appellant thought that there was no substance to the reasons, he could have easily made an application for a review, making that very point.
The third reason given by the Appellant was that he was unaware of the time limit for launching an appeal until after it had expired. In the final analysis, the Tribunal does not accept that as a valid reason for not launching an appeal during the time limit because the Appellant had ready access to a Solicitor. Indeed he attended with the Solicitor on 20 February 2014, on foot of which meeting a letter was sent on behalf of the Association on 28 February 2014, confirming that it would co-operate with the statutory inquiry.
The fourth reason given by the Appellant was that he had been led to believe by the Respondent that the statutory inquiry would be a god-send, that it would be over quickly and that there were no allegations of serious fraud. On the other hand, Tribunal has noted that, as appears in his witness statement, the Appellant was shocked and dumbstruck when he found out about the inquiry, as he had done nothing wrong. Further, when the Appellant received the Respondent’s letter of 4 March 2014, he perceived it as a threat. In the circumstances, the comfort which the Appellant might have taken from these comments might well have been reduced at a time within the time limit for making an application for a review.
Whilst these reasons are clearly relevant, the Tribunal is of the view that in focusing upon them there is a danger that a more significant fact might be overlooked.
That fact is that the reason that the Appellant did not bring an application for a review of the inquiry both initially and for some considerable time thereafter, is that the Appellant did not intend to challenge that decision. Indeed, as appears from paragraphs 39 and 40 above, the Appellant attended the meeting with the Association’s solicitors at which they were instructed to write to the Respondent saying that the Association would comply fully and confirming its willingness to co-operate.
Some months later, the Appellant had a change of heart. The timing of that change of heart is at or about when the Appellant was suspended as a trustee.
The Tribunal does not consider that a change of heart in these circumstances is a satisfactory explanation for the failure to launch an application for a review at an earlier stage.
For these reasons, the Tribunal considers that there was nothing to prevent the Appellant from making an application for a review, while the time limit was still extant.
(ii) After the time limit expired
The reasons given by the Appellant for a failure to launch an appeal after the expiry of the time limit are primarily the same reasons he failed to act during the currency of the time limit, save that the Appellant also suggests that there was some delay on the part of the Solicitor in launching the appeal.
For the same reasons set out above, the Tribunal considers that there was nothing to prevent the Appellant from making an application for a review at any time in the period after the expiry of the time limit. As regards the role of the Solicitor, as of May/June 2014, the Appellant had been aware of the time limit, and its expiry. The Appellant could have impressed the Solicitor with the urgency of the matter.
(iii) The reason for the delay - conclusion
The Tribunal considers that the delay in making an application for a review has not been satisfactorily explained. That is not say that the Appellant has not provided explanations for his ongoing failure to make an application. He clearly has done so. But the explanations are not satisfactory, in the sense that they do not provide justification to depart from rule that the application should have been made on or before the end of March 2014.
d. Whether a hearing on the merits has taken place; the effect of extending time; the effect of not extending time
It is important to appreciate that an application for a review of a decision to institute a statutory inquiry is strictly not a hearing on the merits of that decision: it is rather a review of the decision according to the principles of the law of judicial review.
However, more significantly, even if the Appellant is denied the opportunity to challenge the decision to institute the review, he nonetheless will still have the right to challenge the merits of the decisions taken about him personally, and the decisions taken about other persons and by which he claims to have been affected.
In the course of the Appellant’s appeals, the actions, motives, evidence, conclusions, practices and procedures of the Respondent will be the subject of robust analysis by the Tribunal. In line with the factors considered in Davis the Appellant, in the course of his appeals, will be able to advance all his complaints and all the points of substance about how the Respondent has conducted itself since the inquiry was instigated, regardless of the fact that he will not be able to challenge the decision to institute the inquiry itself.
On the other hand, if time were to be extended to allow a challenge to the decision to institute the inquiry, the progress of an inquiry which had been underway some six to seven months before the challenge was brought, would be delayed.
The point is made that if the Appellant does not have the opportunity to challenge the decision to institute an inquiry, and thus to attack the Respondent’s right to make the orders which it subsequently made (e.g. as to suspension of trustees etc) then the Tribunal will be lending itself to a situation where a potentially unlawful decision is upheld (see Corbett v Restormel, above).
The Tribunal has considered that point carefully. But what it seems to amount to is an argument that there should always be a right to launch an application for a review against a decision to institute an inquiry, as a supplementary challenge in the context of (for example) an appeal against removal as a trustee. However that does not appear to be provided for in the 2008. Rather, the presumptive time limit for challenging an inquiry decision is the same as every other applicable time limit – 42 days subject to possible extension.
e. The merits of the putative application for a review of the decision to institute the statutory inquiry
In comprehensive and detailed submissions on behalf of the Appellant, Mr Magowan set out what the Appellant contends would be the strong and cogent grounds upon which would be based an application for a review of the decision to institute an inquiry. Without (it is hoped) in any way doing injustice to the clear and comprehensive statement of those grounds, they may be summarised under the following headings: a failure to give adequate reasons for the decision to institute the statutory inquiry; the existence of clear inaccuracies in the statement of reasons in the 14 February 2014 letter; pre-judgment and apparent bias; and inconsistency and regulatory unfairness.
The hearing of an application to extend a time limit was not the opportunity to conduct a full-scale analysis of those grounds. Nor should this decision be the place where any definitive findings as to the strength of the grounds which might be advanced.
Suffice it say, however, that the Tribunal has already expressed the view that the letter of 14 February 2014 did set out the grounds upon which the decision to institute the inquiry had been made. If the Appellant considered that they were inadequate or wrong, then he could have applied to the Tribunal forthwith. Yet he did not do so. As to the substantive point about the lack of information as to the detail of the grounds mentioned, the Tribunal has set out above the context in which the letter of 14 February 2014 was sent – i.e. the Board minutes and the correspondence from a funder. As to the substantive point that the Respondent was wrong to criticise the Association for not delivering up documents, as no request for documents was made, the Tribunal notes that the Appellant gave evidence that documents had been requested and delivered up. As to the suggestion that there was bias and prejudgment, the Tribunal notes that the Appellant relies on matters which occurred in August 2014 to impeach a decision made in February 2014.
In short, the Tribunal is not satisfied that the merits of the putative application for a review are such as to outweigh the other considerations set out above.
f. Public interest considerations; point of general importance
The submission from Ms Livesey on behalf of the Attorney General made the points that it is important that the reasons for instigating the inquiry be investigated, in their own terms, and also as a means of allowing the Tribunal to address how the Respondent should go about taking and communicating such decisions more generally. The Appellant made similar points.
The Tribunal agrees that these are important issues. However, the Tribunal refers to the analysis above of the facts of this case as to the circumstances in which the decision was made, communicated, and as to the Association and the Appellant’s initial and maintained response to the inquiry.
There will be cases where the Tribunal is called upon to give guidance as to the decision making processes of the Respondent. However, in the context of all the other factors set out above, the Tribunal does not consider that this should be such a case.
There is one further discrete point relevant to this issue, which Ms Livesey for Attorney General referred to in her submissions. The Tribunal had directed that the papers in these cases be sent to the Attorney General, as a result of concerns raised about the circumstances in which funding of a challenge by the Association had, it is alleged, been interfered with by the Respondent. The Tribunal remains of the view that such a matter is something that the Attorney General may wish to consider. But in and of itself, taking account of all the other factors outlined above, the Tribunal does not consider that it should lead to the time limit being extended in this case.
Conclusion on application to extend time
71. The Tribunal considers that the time limit for bringing a challenge to the decision to institute a statutory inquiry serves an important purpose: it allows the Respondent to know at a relatively early stage whether the inquiry is to proceed. On any reading of the chronology, the Appellant has been late in raising the prospect of a challenge to the review and even more so in making his application. The Appellant has provided explanation, but not satisfactory explanations, for his delay. He had to hand the knowledge upon the basis of which he could have made an application for a review at any time from shortly after February 2014 onwards. But he did not do so. The primary reason given is that he did not know the allegations that were being made against him personally. The Tribunal considers that that is ultimately beside the point. The statutory inquiry was into the Association generally. Any lack of clarity as to what was being alleged against him was not a reason for him to defer launching an appeal with respect to the Respondent’s intervention in the charity.
72. Further, even if the Appellant cannot challenge the decision to institute the inquiry, the Appellant will still be able to challenge, before the Tribunal, the orders made in respect of himself and others. Given that the Appellant’s other appeals will proceed, the merits of any challenge to the decision to institute the inquiry do not require that challenge to proceed.
73. For the foregoing reasons, the Appellant’s application to extend time to allow him to make an application for a review of the decision to institute a statutory inquiry is dismissed.
74. Pursuant to Rule 32(2) of the Rules, a right of appeal lies from this decision of the Tribunal to the High Court of Justice in Northern Ireland. Any party, or the Attorney General, seeking permission to appeal must make a written application to the Tribunal for permission to appeal, to be received by the Tribunal no later than 28 days from the date on which the Tribunal sent notification of this decision to the person seeking permission to appeal. Such application must identify the alleged error(s) in the decision and state the grounds on which the person applying intends to rely before the High Court.
NI Charity Tribunal
24th March 2015