OG117-6 Investigations Work - Using Information Gathering Powers

Last reviewed:
Last updated:
1 November 2016

Policy Statement/Overview

IMPORTANT NOTE

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Summary of the guidance

Casework Guidance

Please read the IMPORTANT NOTE on the front page 

OG117 D2 - 1 November 2016

OG117 D2 Using Information Gathering Powers

 

1.  Introduction to information gathering powers

Our powers to gather information are contained in sections 47 and 52 of the Charities Act. They allow us to order or direct any person to provide information to us which is relevant to the discharge of our functions.

The choice of whether we use the powers contained at section 47 or section 52 will be influenced by a number of factors:

  • Type of case – whether it is a statutory inquiry or other regulatory case;
  • Nature of information required – original documents, copies of documents, verbal or written statements;
  • Willingness of individuals to meet us – we can require attendance at a particular time and place.

The use of section 47 will be specifically in connection with a statutory inquiry. Section 52 gives a broader power to seek information that is relevant to the discharge of any of our functions and can be used whether or not an inquiry is open. However gathering information must only be done for Charity Commission purposes and not for the purpose of providing information to any other body, person or agency; although it is possible for information gathered under section 47 and 52 powers to be passed to other agencies under the section 56 gateway. (see OG 405). Section 52 powers may be used whether or not a statutory inquiry is opened. 

Section 60 of the Act makes it an offence for any person to knowingly or recklessly provide information to us that is false or misleading.

Section 336 of the Act permits us to enforce these Orders or directions by application to the High Court. The powers contained in sections 47 and 52 are coercive powers and failure to comply with them may be a contempt of court, ultimately punishable by imprisonment. (see OG117-10).

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2.  Charities Act 2011 s.47(2)(a)(b) and (c)

Direction to provide the Commission with accounts and statements in writing with respect to the matter, return answers in writing to questions or statutory inquiries, provide copies of documents or attend at a specified time to give evidence or produce documents.

 

2.1 Using this power

What the power allows us to do

Under this section of the Act individuals may:

  • be required to provide accounts and statements in writing (s.47(2)(a));
  • return answers in writing to questions or statutory inquiries (s.47(2)(a));
  • provide copies of documents in their custody or control (s.47(2)(b)); or
  • attend at a particular time and place to give evidence (answer questions) or produce documents (s.47(2)(c)).

Initial considerations

Directions to provide information under s47(2) are limited to circumstances where a statutory inquiry has been opened under s46(1). The information or document sought must be needed in furtherance of the statutory inquiry. The purpose of retrieving it must not simply be to provide it for any other agency or regulator.

We must have a reasonable expectation that an individual has or can obtain the information in question and consideration will need to be given to who is the most appropriate person upon which to serve the direction, for instance, where holding trustees are in place but the day-to-day administration of the charity is in the hands of an executive or management committee it would be unlikely that the holding trustee has the information we require.

We need to take care about how we express what we require. The description content should be wide enough to ensure all the information required is included but not so wide and general that it would include significant amounts of information not required by the statutory inquiry. Being too precise can result in information not being produced, eg where we specify dates of documents or particular authors there will be no requirement to produce documents not written on that date or by that person. It may be better to request documents in a more general way.

Another consideration is equality and diversity. When communicating with charities caseworkers should offer to translate documents into another language, another format, e.g. Braille or Audio or to meet any other requirements needed.

Using section 47 directions in the course of a statutory inquiry

Obtaining information or documents made in the course of a statutory inquiry are almost always pursuant to our coercive information-gathering powers. There is no requirement that we should give an individual the opportunity to volunteer information or documents before we make an Order. As an inquiry has been opened the Commission will have identified serious concerns about the charity and ordinarily the use of our powers under Sections 47 and 52 will be entirely appropriate.

Our policy is that once an inquiry is open all requests for information from the trustees (or as appropriate former trustees) will be made by section 47 direction unless there are compelling reasons not to do so. This is the case even where the trustees would have provided information without the direction. This policy recognises the serious nature of an inquiry and our role in investigating serious concerns about a charity. If they are represented by a solicitor, accountant or other professional body then the direction will usually be made against and addressed to the trustees, although this may be communicated/ delivered through the advisor, who should be told to bring the letter to the attention of the trustees (even though we normally send a copy to the trustees as well). In the case of companies/ CIOs we should send the direction letter to the company and the trustees.  

Information-gathering may often be a two or three stage process using the individual sub-sections for their different purposes as evidence is uncovered. Firstly to ask specific and carefully constructed requests for information or questions, then to request the copies of documents referred to in the information obtained and then to interview the individuals concerned. Section 47 powers can be used more than once in the course of a statutory inquiry. Where we require original documents we the powers contained at section 52 of the Act.

Early use within the statutory inquiry process may be appropriate as detailed information may further our statutory inquiry by supporting or disproving the concerns expressed to us.

We use both section 47 directions and section 52 Orders (as appropriate) to obtain information from third parties, such as a bank or advisors to a charity. This approach enables them to disclose privileged information or to prevent what might otherwise be a breach of confidence on their part where information is offered otherwise on a voluntary basis.

On receipt of the information obtained we will need to consider the content for its accuracy and relevance to the circumstances of the case. Refusal by charity trustees to comply with a direction may be regarded as evidence of misconduct or mismanagement in the administration of the charity.

 

2.2 Decision points and Authorised Officer powers

Directions under section 47 can be authorised and signed by a Senior Investigator or at Head of Unit level, with the exception of directions to attend a place or taking evidence under oath, which must be authorised at Head of Unit level. Ideally the direction will be signed by the same person who authorised the decision. However, where they are not available the direction can be signed by an another Senior Investigator or a Head of Unit (with appropriate powers) on the basis of the authority already given. Whoever signs the direction must ensure that its content properly represents what has been authorised.

The decision to use these provisions will be discussed with the case officer’s Line Manager (or, in the case of a Head of Unit, a colleague of equivalent grade) and recorded on file.

It remains the case officer's responsibility to explain how the grounds for using this power have been met and why it is an appropriate action in the context of the case and the principles of best regulatory practice (eg the reasons for wanting particular information from particular people, or reasons for discounting particular information or people and why this power is appropriate). This explanation will provide evidential analysis, setting out facts that are relied upon and those that have been discounted in reaching the decision to use the power.

 

2.3 Key issues

lawyer_referIt is important that the required information or documents should be relevant to our statutory inquiry. This will be particularly important where we are seeking personal information or there is a penal notice attached to our Order. The impact of human rights issues and the use of our powers are considered at section 3 of OG117-1. Where caseworkers have uncertainties or concerns about engagement of human rights or the proportionality of our action legal advice must be taken.

  • It is not necessary to obtain specific legal advice where we use of this power in line with our policy unless the request involves human rights or particularly high risk issues due to the circumstances of the case.
  • Case officers should consider whether the information they receive as a result of a production order (ie, section 47) may have to be shared outside the Commission (ie, sharing with the trustees for the purposes of restitution). Where it appears that this is likely, case officers should consider sending, alongside any covering letter and the Order, the CC46 guidance which sets out the circumstances in which the Commission may have to share the information it receives. 
  • “Documents” may also include information stored on a computer. Section 353(2) of the Charities Act provides a detailed definition of documents.
  • Where we need to see original documents we should use the powers contained in section 52 of the Charities Act.
  • If telephone or communication records are sought, then consideration should be given as to whether such information should be obtained under the Regulation of Investigatory Powers Act 2000 (RIPA). RIPA applies in relation to the investigation of criminal offences. Where our investigation does not relate to a RIPA occasion then the information should be sought using a Direction or s.52 Order.
  • Particular consideration should be given before requiring an individual to attend to give evidence or produce documents.Considerations that may justify its use include the fact that the individual has been required to answer written questions and has given no, or incomplete, answers and there is no reasonable excuse for doing so, or it is inappropriate to require written answers (perhaps because of the urgency of the matter) and there is no reason to doubt that the individual will answer questions if directed to attend to do so.
  • In cases where we require attendance, and we are requested to do so, we should pay travel costs in advance if the person will be travelling more than 10 miles from their place of residence. Subsistence at the normal Charity Commission rates is applicable.  A person may refuse to attend where they live more than 10 miles from the meeting venue unless we make it clear in the Direction that their expenses will be paid. See Charities Act  s.47(5).
  • Consideration should be given for the amount of time required to provide the information, answer questions and take account of any public holidays, religious observances (in the case of attendance) or religious festivals.
  • The Direction must bear the penal notice and must normally be personally served if it is to be enforced. It is not necessary however to personally serve as a matter of course all directions under s.47. If the original Direction is not complied with and enforcement is considered appropriate (following legal advice) a new Direction may be issued for personal service.
  • If a process server is considered appropriate they should provide an affidavit of service. Process servers are companies that will deliver legal documents directly to the person named by the Order.
  • Directions requiring information or attendance under this section do not fall within the scope of the Tribunal, although the decision to open a Statutory Inquiry is a reviewable matter by the Tribunal.

keypoints

Failure by the trustees to comply in full and within the deadline with any Order or Direction of the Commission, without good reasons, in itself is likely to be taken as evidence of misconduct or mismanagement in the administration of the charity. This can also be used as grounds for taking further regulatory action 

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3.  Charities Act 2011 s.52(1)(a) and (b) - Order any person to provide information

 

3.1 Using this power

What this power allows us to do

Orders under this section of the Act require:

  • any person to provide information in their possession -s.52(1)(a); or
  • provide a copy of, or extract from, any document, or transmit a document to the Commission for inspection - s.52(1)(b);

which is relevant to the discharge of any of the Commission’s functions.

In essence section 52 provides us with a power to inspect records and take copies. We have a right to be provided with the information in legible form. 

Section 52 cannot require a person to attend a meeting or to give answers in writing but it is wider than section 47 insofar as it extends to information relevant to the discharge of any of our statutory functions and not merely that which gives rise to a statutory inquiry. Therefore a statutory inquiry need not be open before an Order under section 52 can be made. Nevertheless, such an Order may be used as part of a section 46 statutory inquiry where, for example, we need to see original documents.

Initial considerations

We must have a reasonable expectation that the individual or organisation has or is able to reasonably obtain the information in question, ie we should not ask for information from a particular source where there is no real likelihood that they will have it. However, we might ask for such information as the individual or organisation has about a particular issue.

Another consideration is equality and diversity. When communicating with charities caseworkers should offer to translate documents into another language, another format, e.g. Braille or Audio or to meet any other requirements needed.

Using section 52 Orders in the course of casework

Section 52 Orders are used to obtain information helping us to dispel or confirm allegations or complaints made to us. They may be used by Investigations, Monitoring and Enforcement in inquiries, monitoring and pre investigation assessment cases as well as being used in other regulatory cases.  

As with directions under section 47 we need to take care about how we express what we require. The description content should be wide enough to ensure all the information required is included but not so wide and general that it would include significant amounts of information not required by the statutory inquiry or other regulatory cases. Being too precise can result in information not being produced, eg where we specify dates of documents or particular authors there will be no requirement to produce documents not written on that date or by that person. It may be better to request documents in a more general way.  

 

3.2 Decision Points and Authorised Officer powers

An Order under section 52 to banks can be authorised by an Investigator, Senior Investigator or a Head of Unit with the exceptions of requests for information unrelated to the charity's bank accounts which must be authorised at the Head of Unit level. For all other section 52 Orders they can be authorised by a Senior Investigator or Head of Unit. Ideally the Order will be signed by the same person who authorised the decision. However, where they are not available the Order can be signed by another Senior Investigator or a Head of Unit (with appropriate powers) on the basis of the authority already given.

The signing of s.52 Orders (but not their authorisation) made on Permissions and Compliance operational cases may be delegated by the Head of Function. The person signing the Order must have appropriate experience and ensure that the Order's content properly represents what has been authorised.

The decision to use these provisions will be discussed with the case officer’s Line Manager (or, in the case of a Head of Unit, a colleague of equivalent grade) and recorded on file.

It remains the case officer's responsibility to explain how the grounds for using this power have been met and why it is a proportionate action in the context of the case (eg the reasons for wanting particular information from particular people, or reasons for discounting particular information or people and why this power is appropriate).This explanation will provide evidential analysis, setting out facts that are relied upon and those that have been discounted in reaching the decision to use the power.

 

3.3 Key issues

lawyer_referIt is important that the decisions behind the Order should be clearly recorded and we must ensure that our actions are compliant with our obligations under the Human Rights Act. This will be particularly important where we are seeking personal information or there is a penal notice attached to our Order. The impact of human rights issues and the use of our powers are considered at section 3 of OG117-1.  Case officers must take into account the Desk guidance on the 'Use of Powers: Human Rights Considerations'.

  •  Where caseworkers have uncertainties or concerns about engagement of human rights or the proportionality of our action legal advice must be taken. This is unlikely to be necessary when exercising the power against organisations. If in doubt, advice should be taken from the Head of Unit.
  • Case officers should consider whether the information they receive as a result of a production order (ie, section 52) may have to be shared outside the Commission (ie, sharing with the trustees for the purposes of restitution). Where it appears that this is likely, case officers should consider sending, alongside any covering letter and the Order, the CC46 guidance which sets out the circumstances in which the Commission may have to share the information it receives. 
  • If telephone or communication records are sought, then consideration should be given as to whether such information should be obtained under the Regulation of Investigatory Powers Act 2000 (RIPA). RIPA applies in relation to the investigation of criminal offences. Where our investigation does not relate to a RIPA occasion then the information should be sought by virtue of an Order or s.47 Direction.
  •  An Order to an individual must bear the appropriate penal notice and must normally be personally served if it is to be enforced. It is not necessary to personally serve all Orders under s.52. If the original Order is not complied with and enforcement is considered appropriate (following legal advice) a new Order must be issued for personal service.  Any process server should be asked to provide an affidavit of service.
  • An Order to a body corporate including a bank must bear the appropriate penal notice and be sent by post to its registered office.
  • A reasonable time limit may be specified in the Order. What is reasonable depends on the circumstances; if in doubt, consult a senior officer or a lawyer. Consideration should be given for the amount of time required to obtain the information and take account of any public holidays or religious festivals.
  • Banks are usually allowed up to 28 days to comply with an Order to provide documents; however, staff may impose a shorter response deadline at their discretion. Before doing so it may be useful to discuss this in advance with the bank’s representative to determine whether the bank will be able to respond as required. Orders to banks should be sent to the registered office and not the branch.
  • Banks should be made aware that the banker-client relationship does not give them a duty to resist an order or direction. It also doesn't give the bank a duty to inform the client especially where this could impede our investigation. If questioned by the bank you should draw their attention to the Court of Appeal in Barclay’s Bank plc v Taylor {1998} 1 WLR 1066.
  • Orders under section 52 can be appealed to the First-tier Tribunal (Charity) by any person required to supply the information. Not to consider the decision to make the Order but whether the information required relates to the charity and is relevant to the functions of the Charity Commission or the Official Custodian for Charities. The person named will have 42 days in which to make the appeal to the Tribunal from the date on which it was sent. Weekends and bank holidays are included in the 42 days.

keypoints

Failure by the trustees to comply in full and within the deadline with any Order or Direction of the Commission, without good reasons, in itself is likely to be taken as evidence of misconduct or mismanagement in the administration of the charity. This can also be used as grounds for taking further regulatory action 

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4.  Charities Act 2011 s.48 - Power to enter premises and seize documents etc.

bewareThis section of the guidance remains in draft until use of this power is clarified with the Court and systems for retention of evidence are properly in place.

 

By its very nature the power is intrusive and we may only use it under authority of a warrant issued by a magistrate. It should be used only where we consider that the issues of misconduct or mismanagement or risks to beneficiaries or charity assets are so serious that they would justify such an intrusion.  

 

4.1 What this power allows us to do and what it says we must do

This power allows us, during the course of a statutory inquiry and with a warrant from a magistrate, to enter premises and obtain documents, electronic storage devices or information relevant to our statutory inquiry. It should be noted that entry to premises does not mean by force. The warrant will allow a named person to: 

  • Enter and search premises named in the warrant and take possession of documents relevant to a statutory inquiry under section 46 of the Charities Act ;
  • Take any such other person with them as the Commission considers are needed to assist them in doing anything that is authorised by the warrant;
  • Take steps to preserve or prevent interference with or destruction of documents specified in the warrant;
  • Take possession of any computer disk or other electronic storage device which appears to contain information relevant to a statutory inquiry under section 46 of the Charities Act;
  • Take steps to preserve or prevent interference with or the destruction of any such information contained in any computer disk or electronic storage device;
  • Take copies of, or extracts from, documents, information on computer disk or electronic storage devices;
  • Require persons on the premises to provide an explanation of any such document or information or to state where any such documents or information may be found;
  • Require any persons on the premises to give such assistance as may be reasonably required for the taking of copies or extracts of documents or information relevant to a statutory inquiry under section 46 of the Charities Act.

Conditions that need to be in place before an application for a warrant can be made

The legal requirements for an application are:

  • A statutory inquiry under section 46 must have been instituted;
  • Where we believe that the documents or information we require are at the premises they must be specified in the warrant;
  • The nature of the documents or information required is such that we could request it to be provided under section 52(1) of the Charities Act;
  • That if the Commission were to make an Order under section 52(1) of the Charities Act that Order would not be complied with or the documents or information required would be removed, tampered with, concealed or destroyed.

Legal conditions in relation to the execution of the warrant and retention of documents or devices are:

A warrant will be issued on the basis of the following:

  • The entry and search must be at a reasonable hour and within one month of the issue of the warrant;
  • The person authorised by the warrant must, if required to do so, produce for inspection the warrant and documentary evidence that they are a Charity Commission officer to the occupier of the premises or anyone acting on their behalf;
  • The person authorised by the warrant must make a written record of:
    • the date and time of his/her entry on the premises;
    • the number of persons (if any) that accompanied him/her on to the premises and the names of those persons;
    • the period for which he/she or any other persons remained on the premises;
    • what they did whilst on the premises; and
    • any document or device of which possession was taken whilst there.
  • If required to do so the person named in the warrant must give a copy of the record to the occupier of the premises or someone acting on their behalf;
  • Unless it is not practical the written record must be made and a copy given to the occupier (if required) before leaving the premises;
  • Where any document (rather than a copy of a document) is taken under the terms of the warrant  it may be retained for so long as the Commission considers it is required for the purposes of the relevant section 46 statutory inquiry;
  • Where a device is taken under the terms of the warrant it may be retained for so long as the Commission considers it is required for the purposes of the relevant section 46 statutory inquiry;
  • Once it appears to the Commission that the retention of any document or device has ceased to be necessary it will arrange for the document or device to be returned as soon as reasonably practical to:
    • the person from whom it was taken; or
    • any of the charity trustees of the charity to which it belonged or is related;
  • A person intentionally obstructing the execution of the rights conferred by the warrant is guilty of an offence and liable on summary conviction to:
    • imprisonment for a term not exceeding 51 weeks; or
    • a fine not exceeding level 5 on the standard scale, or to both.

Additional provisions under the Criminal Justice and Police Act 2001

This power of seizure is subject to the additional provisions contained in section 50 of the Criminal Justice and Police Act 2001, which provides:

  • Where those authorised by the warrant find anything that they have reasonable grounds to believe contains documents or information relevant to the section 46 statutory inquiry but cannot determine the extent of the relevant material whilst on the premises, they may seize as much of the material as is necessary to make that determination.
  • Where it is not reasonably practical to make the separation of evidence on the premises of material which is relevant to our statutory inquiry from that which we have no entitled to seize, the powers of seizure will include the non-seizable element.

In determining what is reasonably practical in the circumstances we must consider:

  • How long it would take to carry out the separation on those premises;
  • The number of people required to carry out the separation;
  • Whether the separation would (or would if carried out on those premises) involve damage to property;
  • The apparatus or equipment that would be necessary or appropriate to use for carrying out the separation; and
  • Whether the separation would be likely to prejudice the use of some or all of the separated seizable property.
  • The powers of seizure do not include anything that we have reasonable grounds for believing contain legally privileged information.  

 

4.2  How we use this power

lawyer_referThis is an intrusive power which would allow us under the authority of a warrant to enter property (which might be business or private property) and seize documents or devices. As such this is not a power that we will use lightly and our concerns must be serious enough and our evidence sufficiently reliable to support such action. The impact of human rights issues and the use of our powers are considered at section 3 of OG117-1. Legal advice must be taken on the impact of our action on human rights issues.

Evidence will be examined and a decision will be taken on use of the power based on the balance of probabilities. The evidence will need to indicate that the relevant material is to be found on specific premises, and:

  • that it will be withheld, damaged or destroyed if we ask for it by Order(s); or
  • an earlier request by Order has been ignored without our further action and our belief remains that it is to be found on specific premises;

And

  • the information is absolutely necessary for our case and cannot be obtained from any other source or it was important to show that it was obtained from this source.

Initial considerations for obtaining a warrant

Before we take steps to apply for a warrant we need to be satisfied about:

  • what information we require;
  • why we believe it can be found at these specific premises;
  • why we believe that the Order requesting information will not be complied with or information will be removed, tampered with, concealed or destroyed without use of this power;

These details, along with other information, will be required by the magistrate.

Another consideration is equality and diversity. When communicating with charities caseworkers should offer to translate documents into another language, another format, e.g. Braille or Audio or to meet any other requirements needed.

Using this power in the course of a Statutory Inquiry

This power must only be used as part of a section 46 statutory inquiry where our concerns are so serious as to support its use. It must only be used in conjunction with the safeguards and provisions set out in this guidance.

When contemplating use of this power a risk assessment should be carried out in relation to risks to Commission staff.  

 

4.3 Decision points and Authorised Officer Powers

lawyer_referUse of this power must be authorised by the Head of Function or in his or her absence the Head of Legal Services or the Chief Executive. Requests for use of this power must be referred via Heads of Unit. Written legal advice must be taken when considering use of this power.

 

4.4 Key issues

  • this action can only be used as part of a section 46 statutory inquiry;
  • the action must be expedient in the interests of the charity and to this end must show:
    • the reasons and evidence to support why it is expedient to take this action;
    • the nature and extent to which a risk arises to charity property, beneficiaries or the charity's reputation;
    • the action is proportionate to the nature of the problem and the extent of risk involved;
  • early consultation with Heads of Unit and the Head of Function is important
  • there is no recourse to the Tribunal about use of this power. If someone wishes to complain about us and the way we have handled the case then any complaint should be made in line with our complaints procedures set out on our complaints procedure set out on our website.

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