Neutral Citation no. [2006] NICA 12	Ref:     	KERF5537	
			
Judgment: approved by the Court for handing down	Delivered:	04/03/06	
(subject to editorial corrections)			
 
IN HER MAJESTY’S COURT OF APPEAL IN NORTHERN IRELAND

 ________

BETWEEN:

THE NORTHERN IRELAND CERTIFICATION OFFICER 
FOR TRADE UNIONS AND EMPLOYERS ASSOCIATIONS

Complainant/Appellant
-and-

FRANK CUNNINGHAM, JANICE GAULT, ALISTAIR GOOD
AND FELIX MOONEY

Defendants/Respondents

 ________

Before Kerr LCJ, Campbell LJ and Sheil LJ

 ________

KERR LCJ

[1] This is an appeal by way of case stated from the decision of a deputy resident magistrate in proceedings brought by the Northern Ireland Certification Officer for Trades Unions and Employers’ Associations against the respondents.  They are alleged to have been involved in the setting up and administration of the Northern Ireland Hotels Federation Limited (NIHF).  It was incorporated on 26 March 1999 as a company limited by guarantee.  It was alleged in the proceedings before the deputy resident magistrate that the respondents failed to produce relevant documents or to attend before an inspector appointed by the appellant, as required by article 12B (4) of the Industrial Relations (Northern Ireland) Order 1992.  The resident magistrate concluded that a prima facie case had not been raised against the respondents principally because it had not been shown that they constituted an employers’ association for the purposes of the 1992 Order.

[2] The Certification Officer is appointed under article 69 of the Order. He is given power under article 12B to appoint members of his staff or other persons as inspectors to investigate the financial affairs of a trade union or employers' association to which article 11 applies and to report on them in such manner as he may direct.  The Certification Officer may only make such an appointment if it appears to him that there are circumstances suggesting, inter alia, that an employers' association has failed to comply with a duty imposed on it by the Order.  

[3] Where an inspector is appointed under article 12B it is the duty of all persons who are or have been officials or agents of the employers' association to comply with the requirements of the investigation in a number of respects.  These include the duty–

(a) to produce to the inspector or inspectors all relevant documents which are in their possession;

(b) to attend before the inspector or inspectors when required to do so; and

(c) otherwise to give the inspector or inspectors all assistance in connection with the investigation reasonably able to give. (article 12B (3)). 

[4] It is an offence under article 13 for an employers’ association to refuse or wilfully neglect to perform a duty imposed on it by certain provisions of article 12.  If a person (who comes within the categories outlined in article 12B (3) & (4)) contravenes any duty, or requirement imposed under article 12B he commits an offence under article 13 (5).  We will refer to this provision in greater detail later in this judgment.

[5] Ms. Kay Linnell, who is a chartered accountant, was asked by the appellant to prepare a report relating to NIHF.  On commencing her investigation into the affairs of the company she found that she was unable to report that the returns for NIHF were true and fair as further information and explanations were required.  She reported this to the appellant and on 29 June 2004 he appointed her as an inspector under article 12B of the Order.  When she approached the respondents and requested access to the books and records of NIHF this was refused on the grounds that, having taken legal advice, they did not accept that the company was an employers’ association within the meaning of the Order.

[6] In due course the appellant issued proceedings in the magistrates’ court against each of the respondents.  The summonses served on them alleged that they were persons who appeared to Ms Linnell to be in possession of information relating to NIHF and that they had refused or wilfully neglected to perform a duty imposed by article 12B(4) of the Order, namely to attend before the inspector on the date mentioned in the summons.

[7] The Deputy Resident Magistrate who heard the complaint on 10 May 2005 found the following facts (among others) proved or admitted before him;

(a)	NIHF had been on the list of employers’ associations maintained by the appellant in accordance with the provisions of article 5(1) of the Order until 30 June 2004. The removal of its name from that list followed written requests from NIHF to the appellant dated 29 April and 21 June 2004.

(b)	One of the two witnesses called at the hearing on behalf of the appellant, Kay Linnell, had been appointed as an Inspector by him.

(c)	Each of the respondents had been required in writing by Kay Linnell to attend before her or to produce documents to her or both.

(d)	Each of the respondents, through their solicitors, had declined to attend or to produce any documents.

(e)	Notwithstanding the memorandum and articles of association of NIHF [which until 21 April 2004 had included as one of the purposes of the company “to regulate the relations between the members and members and between members and their employees”] there was no evidence that NIHF had ever regulated relations between its members and workers or trade unions. 

(f)	Despite having been informed in writing by NIHF in a letter dated 18 June 2004 that it did not regulate any such relations, Mr Dermot Rafferty, a witness called on behalf of the appellant, conceded that he had not sought from NIHF any documentation, e.g. minutes of meetings which would confirm this statement or otherwise. 

(g)	Ms Linnell, who had examined the accounting records that NIHF had provided to the appellant in previous years, stated that she could not produce any evidence that NIHF had ever been an employers’ association within the meaning of article 4 (1) (a) of the Order.

(h)	In relation to the respondent Felix Mooney, Ms. Linnell stated that there was no evidence to show that he was an auditor, or that he had signed any NIHF accounts, or that he was on the committee or that he had been a signatory to the formation of the company.  She could not provide any basis for her contention that Mr Mooney appeared to her to be a person in possession of information relating to a matter which she considered to be relevant to her investigation.

(i)	The appellant in a letter dated 13 January 2005 accepted that NIHF, with effect from 21 April 2004, was no longer subject to the statutory obligations applicable to employers’ associations. This acceptance was based solely on the fact that on 21 April 2004 NIHF had amended its memorandum and articles of association.

[8] At the conclusion of the case for the prosecution the deputy resident magistrate acceded to an application that that respondents had no case to answer.  He did so having found as follows:

(a)	That NIHF had been, until 21 April 2004, on the list of employers’ associations.

(b)	That until 21 April 2004 the memorandum and articles of association of NIHF contained a power similar to the definition of an employers’ association as specified in the Order.

(c)	That NIHF had made annual returns to the appellant until 2004.

(d)	That, with the exception of the respondent Felix Mooney, each of the respondents fell into the categories of persons specified in article  12B (3) and (4) of the Order.

(e)	That, despite his findings at (a) (b) and (c) above, NIHF had never been an employers’ association within the meaning of the Order.

(f)	That it followed that none of the respondents was obliged to attend before the inspector or to produce any documentation to the inspector.

(g)	That the appellant had failed to provide an explanation to the respondents for the appointment of the inspector.

(h)	That following correspondence from the inspector each of the respondents had sought and obtained legal advice and that their refusal to attend before the inspector or to produce documentation did not constitute “wilful neglect” within the meaning of the Order.

[9] The questions posed by the deputy resident magistrate for this court are:

1.	Was I correct in law in holding that NIHF had not at any time been an employers’ association within the meaning of article 4 (1) (a) of the Order?

2.	Was I correct in law in holding that the respondents had no case to answer even though I had [made the findings set out at paragraph [8] (a) (b) and (c) above]?

3.	Was I correct in law in holding that none of the respondents had wilfully neglected to attend before the inspector or to produce documentation to her?

[10] Article 4 (1) (a) of the Order provides that an "employers' association" means an organisation (whether permanent or temporary) which consists wholly or mainly of employers or individual proprietors of one or more descriptions and is an organisation whose principal purposes include the regulation of relations between employers of that description or those descriptions and workers or trade unions.

[11] Article 5 (10) of the Order provides that;

“The fact that the name of an organisation is included in the list of …employers’ associations maintained under this article shall be evidence that the organisation is …an employers’ association…”

[12] For the appellant Miss McGrenera QC relied on this provision and the fact that one of the stated objects of the company was “to regulate the relations between the members and members and between members and their employees” in support of her argument that there was clear prima facie evidence that NIHF was at the material time an employers’ association.  In this contention she is inescapably correct.  The trilogy of findings made by the resident magistrate that NIHF had been on the list of employers’ associations; that its memorandum of association had included a purpose similar to the definition of an employers’ association contained in the Order; and that, with the exception of the respondent Felix Mooney, each of the respondents fell into the categories of persons specified in article  12B (3) and (4) of the Order disposed immediately of any suggestion that there was not a prima facie case against those respondents other than Mr Mooney. 

[13] The magistrate appears to have concluded that evidence of actual regulation of relations between employers or between them and workers or trade unions was required.  Even if that were so, we are satisfied that it would have been supplied (to a prima facie level at least) by the statement in the memorandum of association of the company that this was one of its purposes.  But it is clear that no such evidence is required.  Article 5 (10) puts the matter beyond plausible argument.  This creates a rebuttable presumption at least that presence of the name of a company on the list is evidence of the company being an employers’ association.  The indisputable conclusion from this is that there was evidence which, if uncontradicted, was sufficient to establish that NIHF was an employers’ association and we shall therefore answer the first question posed in the case stated, ‘No’.

[14] All the respondents apart from Mr Mooney were found by the magistrate to have belonged to the categories set out in article 12B (3) or (4) of the Order.  Article 12B (3) provides: -

“(3) Where an inspector is, or inspectors are, appointed under this Article it is the duty of all persons who are or have been officials or agents of the trade union or employers' association— 

(a) to produce to the inspector or inspectors all relevant documents which are in their possession,
(b) to attend before the inspector or inspectors when required to do so, and
(c) otherwise to give the inspector or inspectors all assistance in connection with the investigation which they are reasonably able to give.”

[15] Thus any person who is or has been an official or agent of the employers’ association must fulfil each of the requirements set out in this paragraph.  The category of persons required to provide information to the inspector is extended by paragraph (4) of the article as follows: -

“(4) Where any person (whether or not within paragraph (3)) appears to the inspector or inspectors to be in possession of information relating to a matter which he considers, or they consider, to be relevant to the investigation, the inspector or inspectors may require him— 

(a) to produce to the inspector or inspectors any relevant documents relating to that matter,
(b) to attend before the inspector or inspectors, and
(c) otherwise to give the inspector or inspectors all assistance in connection with the investigation which he is reasonably able to give;

and it is the duty of the person to comply with the requirement.”

[16] The inspector gave evidence that she was unable to provide any basis for contending that Mr Mooney should appear to her to be a person possessed of information relating to a matter relevant to her investigation.  In light of that evidence (and in the absence of any suggestion that he was an official or agent of NIHF) the question of him being under a duty to attend before the inspector or to provide her with information, documents or assistance does not arise.  As to the other respondents since they were found by the magistrate to come within either the group of persons set out in paragraph (3) or the category described in paragraph (4) they were under a duty to provide the assistance and documents referred to in those paragraphs.  Their refusal to do so rendered them in breach of that duty and therefore liable to conviction of an offence under article 13.  We shall therefore answer the second question posed in the case stated, ‘Yes, in relation to Felix Mooney but No in relation to the other respondents.’

[17] Article 13 (1) of the Order provides: -

“13. — (1) If a trade union or an employers' association refuses or wilfully neglects to perform a duty imposed on it by or under any of the provisions of Articles 10 to 12 or Schedule 1 the trade union or employers' association shall be guilty of an offence.”

[18] As Mr O’Reilly (who appeared for the respondents) pointed out, this provision relates to the employers’ association itself rather than the persons referred to in paragraphs (3) and (4) of article 12B.  He suggested that this provision could not be prayed in aid to sustain the case against the respondents.  This is unquestionably right but article 13 (5) provides: -

“(5) If a person contravenes any duty, or requirement imposed, under Article 12A or 12B he commits an offence.”

[19] The text of paragraph (5) suggested that breach of article 12A or 12B exposed the person guilty of the breach to an offence of strict liability, Mr O’Reilly argued and the summonses in this case did not so allege.  Rather they charged the respondents with having refused or wilfully neglected to perform the duty under article 12B, employing the language of article 13 (1).  The summonses were therefore null and void, he claimed.  This argument was not raised before the resident magistrate and does not feature in the case stated.  It does not arise from the third question posed; the resident magistrate had reached the conclusion therein set out because he considered that the respondents could not be said to have wilfully refused to attend the inspector or produce documentation to her because they were acting under legal advice that they were not under a duty to do so.

[20] Since the issue does not arise on the case stated it is not strictly necessary for us to express a view on it but we consider that it is appropriate that we should deal with the argument made on this question in case it should arise on the further hearing of this case or in future proceedings.

[21] We are satisfied that the inclusion of the words ‘refused or wilfully neglected’ in the summonses do not render them void.  As Miss McGrenera pointed out, articles154 and 155 of the Magistrates’ Courts (Northern Ireland) Order contain provisions that would either prohibit objection being taken to the form of the summons or permit an amendment.  Article 154 (1) provides: -

“154. - (1) No objection shall be allowed in any proceedings before a magistrates' court to any complaint, summons, warrant, process, notice of application or appeal or other document for any alleged defect in substance or in form or for variation between any complaint, summons, warrant, process notice or other document and the evidence adduced on the part of the complainant, plaintiff, applicant or appellant at the hearing, unless the defect or variance appears to have misled the other party to the proceeding.”

[22] There is no suggestion in the present case that the respondents were misled by the inclusion of the words now impugned.  Even if they were, we are satisfied that an amendment of the summonses would be permitted under article 155 which provides: -

“155. A magistrates' court may during any proceeding upon such terms as it thinks fit, make any amendment in any complaint, summons, warrant, process, notice of application or appeal or other document which is necessary for the purpose of raising the real questions at issue and arriving at a just decision.”

[23] As to whether article 13 (5) imposes strict liability on those charged with the performance of a duty under article 12A or 12B we express no opinion.  This may well arise on the resumed hearing of this case before the resident magistrate; for our part we consider that the matter was not sufficiently developed before us to allow this court to reach a concluded view on the issue and we would prefer to deal with the question if it arises in a future case.

[24] We are in any event satisfied that the magistrate was wrong in his conclusion that because the respondents had received legal advice that they were not required to respond to the inspector’s requests that they could not be said to have wilfully neglected to do so.  In this context to wilfully neglect connotes no more than to deliberately refrain from acting as requested.  There can be no doubt that the respondents deliberately and consciously chose not to perform the duty that we are satisfied they were under by virtue of article 12B.  We shall answer the third question posed, ‘No’. 

[25] The appeal is therefore allowed in respect of all respondents other than Mr Mooney.  As regards those respondents the matter will be remitted to the magistrates’ court with a direction that the resident magistrate should proceed with the case according to law and the guidance provided by this judgment.