Jehovah’s Witnesses, and judicial review being a last resort

by David Hart QC

R (o.t.a WATCH TOWER BIBLE & TRACT SOCIETY OF BRITAIN) v CHARITY COMMISSION, 12 December 2014, Dove J, no transcript yet available, summary on Lawtel (£)

Judicial review is an excellent and flexible remedy, filling the gaps when statutory and other appeals do not provide a remedy for unlawful administrative acts or omissions.

But there is a flip side, well exemplified by this extempore decision refusing permission for a judicial review – save in exceptional circumstances, you can only seek judicial review when there is no other available remedy.

In this case, Dove J decided that the Court had no jurisdiction to seek judicial review of the Charity Commission’s decision to launch an inquiry and make a production order concerning the Jehovah’s Witnesses charity because the Charities Act 2011 provided for appropriate statutory remedies that the charity should pursue first.

The summary gives only the shortest account of the underlying facts, but it appears as if there are two particular congregations of concern being investigated by the Charity Commission.

The background

It is said (here) that in 2013 at the congregation of Moston in Manchester (see pic), church elder and convicted paedophile Jonathan Rose was allowed in a series of a public meetings to cross-examine the children he had molested. Rose was finally ‘disfellowshipped’ after complaints to the police and the Charity Commission. See the Commission’s statement here announcing the inquiry.

The second case is noted here, and press reports imply that this may have been subsumed into the above inquiry. In June 2014 of Mark Sewell, an elder of the congregation in Barry,Wales was convicted of rape and sexual assault, and sentenced to 14 years in prison. Prior to this, it appears that the church conducted an internal investigation of the allegations, where the women and children had to face their alleged abuser in “judicial committee” hearings organised by their church. Sewell’s fellow elders provided limited or no assistance to police and prosecutors in their investigation, despite “dis-fellowshipping” Sewell 20 years previously, and, it is said, destroyed evidence showing claims against Sewell dating back more than 20 years: see here.

These proceedings

The charity applied for permission to apply for judicial review of the Commission’s decision to launch an inquiry under section 46, and make a production order under section 52 of the Charities Act 2011

The charity said both decisions were disproportionate and too wide.

But, said the Commission, there were other suitable statutory remedies under the 2011 Act to which the charity should have recourse instead.

The charity argued that complying with the production order would be likely to breach data protection legislation and the human rights of the people to whom the documents pertained. It also said that the remedy sought on judicial review, namely a partial quashing order or a declaration narrowing its scope, was not possible under the statutory scheme which could only direct that the inquiry be brought to an end. Accordingly, there were exceptional circumstances making judicial review appropriate.

The judgment

The judge disagreed, and refused permission.

Judicial review was a remedy of last resort. Where there was an appropriate statutory remedy the High Court should decline jurisdiction. Determining what was the most expedient remedy was not enough; there was a presumption that the statutory regime would be followed unless there were exceptional reasons for judicial review: see e.g. R. (on the application of C) v Financial Services Authority, – which contains a good summary of the authorities.

As to the scope of the charity’s remedies under the Act, it could appeal against the making of a production order under s.320 of the 2011 Act, and under Schedule 6, the First-Tier Tribunal could quash the production order or substitute another order. The FTT thus had jurisdiction to deal with the charity’s complaints, and could assess the human rights and data protection claims. An inquiry could be reviewed by the FTT under s.321, under which it had to apply the principles that would be applied by the High Court in a judicial review. It also had the power to direct the commission to end the inquiry. However, if it concluded that the Commission had made an error of law and the inquiry was too wide, it would have to explain its reasons for doing so. That would allow the Commission to bring an inquiry with a narrower scope. As a public body, the Commission would have to respect the tribunal’s decision, but if it did not, the Court would then have jurisdiction by way of judicial review.

Conclusion

A salutary reminder of j.r.’s limits – and it can be seen that the exercise of comparing remedies under the statute with those by way of judicial review may not be all that straightforward.

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