The High Court has ruled that a District Court judge was wrong to read an advance-notice requirement into the Charities Act 2009, in a case about a company secretary who was acquitted of failing to provide documents to a charities inspector.
In a judgment delivered on 26 April 2024, Ms Justice Hyland answered “No” to the legal question referred by the District Court: whether it had correctly interpreted and applied section 65(2) of the Act. The matter came before the High Court by way of case stated, a procedure confined to questions of law.
The prosecution arose from an investigation into the affairs of the Irish Society for the Prevention of Cruelty to Animals. An inspector appointed by the Charities Regulatory Authority sought records from David Ellard, then company secretary of Apollo Square Limited, after identifying an invoice from the company to the ISPCA and seeking information about their business relationship. The inspector’s letter of 9 August 2022 requested correspondence, a contract, invoices, payment records and other documents relating to the ISPCA. Ellard did not reply.
The District Court acquitted Ellard on 27 July 2023. The judge considered that a third party must be told about section 65(2) before entering a contract with a charity and given the chance to decline the relationship. He also concluded that Ellard could not release the documents without company board approval.
Justice Hyland held that the statute did not impose the advance-notice condition. It allows an inspector to require information from a person whom the inspector considers is or may be in possession of information about a charity’s affairs. The judgment said the District Court’s interpretation could let a charity neutralise the statutory power simply by not telling a third party about it in advance.
The High Court accepted that a person must be told that failure to comply with a statutory requirement may lead to criminal liability. In this case, the inspector’s letter set out the relevant power, warned of prosecution and included the statutory penalties. That notice did not have to be given before a third party contracted with a charity.
The judgment also rejected a possible interpretation that an inspector must first be satisfied that the recipient can access the specific documents before making a request. But it drew a limit: a person who establishes that they cannot comply because they do not have or cannot access or procure the documents has not committed an offence under section 65(5) on that basis.
The High Court answered the legal question against the District Court’s interpretation. The judgment does not find that Ellard had access to the requested records or determine his guilt. The source does not state what further order, if any, followed the answer in the case stated.