The power of charity trustee disqualification

This article was originally published in Charity Finance.

Liz Brownsell, Partner and Head of Charities at Birketts, reviews the Gary Mond ruling and asks whether freedom of expression is a trump card.

On 6 February 2025, Gary Mond became the first person to successfully appeal his disqualification as a trustee at the First-tier Tribunal (FTT). The timing of the decision might have provided Naomi Campbell with a glimmer of hope, in her appeal against her own high-profile trustee disqualification, the result of which we do not yet know.

The Charity Commission’s discretionary trustee disqualification power is still relatively new, and appeals are rare. Mond’s success is particularly insightful, as it sheds some light on the extent of the commission’s powers in the context of a trustee’s fundamental human rights.

The disqualification

On 18 April 2024, the Charity Commission made an order to disqualify Mond from being a trustee and from holding a senior management position in charities for a period of two and a half years.

The discretionary disqualification power is set out in section 181A of the Charities Act 2011 and requires that: (a) one or more of six conditions applies; (b) the individual is deemed “unfit” to be a charity trustee; and (c) it is desirable in the public interest to disqualify them.

In this case, the commission concluded that condition F was satisfied, namely “that any other past or continuing conduct by the person, whether or not relating to a charity, is damaging or likely to be damaging to public trust and confidence in charities generally or in the charities or classes of charity specified or described in the order”.

Mond appealed against the order, and was successful in quashing it, which means the order has never taken effect.

The relevant conduct

Mond was a trustee of various Jewish charities between 2011 and 2023, including JNF UK and the Board of Deputies of British Jews (where he was appointed as senior vice president in May 2021).

On 29 December 2021, the commission opened a regulatory compliance case into JNF UK following media reports relating to Mond’s social media activity.

In response to a post in September 2014 suggesting that if British parliament were to comprise a greater number of Muslim MPs “Britain would be hamstrung in trying to protect its essential security interests”, Mond commented that if this were to happen “the Britain that we knew will have gone forever”.

Mond posted a comment in 2016 that “all civilisation” is “at war with these evil bastards, and I have to say it, at war with Islam”.

Mond liked two comments in 2017 by an individual banned from entering the UK who was widely known as an outspoken critic of Islam, one of which was a comment on the results of the French presidential election, that they “voted for submission over freedom”.

On 15 October 2021, Mond commented on a Conservative MP’s post relating to the murder of Sir David Amess MP that “Angela Rayner has still not apologised for her ‘Tory scum’ remarks. It’s comments like that help provoke these heinous crimes.”

Following his 2021 comment, various Jewish newspapers published articles about Mond’s social media activity, which included references to his trustee roles and calls for action to be taken against him for bringing the charities into disrepute. It was after this media attention that the commission became involved.

The commission’s decision to disqualify Mond was taken on the basis that his social media activity was Islamophobic, intolerant and likely to be damaging to public trust or confidence in charities.

The commission’s view was that Mond “should have foreseen that his conduct on social media was likely to adversely impact the charities he represented, especially considering his prominence and profile within the Jewish community”. His conduct resulted in negative media attention focused on his charity roles, and Mond took no steps to address his past social media conduct.

The appeal

The grounds upon which Mond appealed his disqualification order were lengthy and detailed. The main grounds can be summarised as follows. There was no connection between the conduct of Mond andany of the charities with which he was involved; the commission had misunderstood the context; and it was wrong to conclude that the comments were Islamophobic.

Three posts and two likes over a seven-year period “is not concerted activity”, and the commission was holding Mond to “an unreasonably high standard in finding him to have been reckless”.

Mond had already resigned from all his charity trusteeships, which was sufficient and proportionate response.

Disqualifying Mond based on his social media comments and likes was an unjustified interference with his right to freedom of expression.

The decision

The tribunal concluded that: the 2014 comment was “inaccurate andobjectionable” in that it presented “all members of a large religious group in the UK as having the same political views and goals and of being a threat to the country’s interests”; the 2016 post, as written, was Islamophobic; and the 2017 likes were “unobjectionable in themselves”, likely to be regarded as insignificant by Facebook readers, and there was insufficient evidence that most people who saw them would regard him as generally being in support of that person’s views.

However, taken together, the tribunal found that the 2014 comment, 2016 comment and 2017 likes were capable of damaging the charities of which Mond was a trustee, “given the anti- Islam views he expressed and that Mond was a trustee of charities with a religious basis and in some cases, of charities with an express object of promoting religious tolerance”.

As such, the tribunal found that thefirst limb of the statutory test for disqualification had been satisfied.

Notwithstanding the above conclusion, the tribunal did acceptthat, while not obvious from the language used, Mond intended to comment on Islamic fundamentalism. It was acknowledged that his posts were spontaneous and that if he held strong Islamophobic views “it might be expected that other evidence of such views would have emerged over a seven-year period given Mond’s profile and his willingness to comment on social media and speak in public”.

In respect of the second and third limbs of the statutory test, namely that the person must be unfit to be a charity trustee and that it must be in the public interest to disqualify them, the tribunal commented as follows: “In considering whether the conduct of Mond establishes that he is unfit to be a charity trustee and whether it is desirable in the public interest that he be disqualified as a trustee in circumstances where the conduct solely relates to the expression of views or opinions in a public forum, the tribunal has taken into account the Convention [European Convention of Human Rights (ECHR)] rights, in particular the right to freedom of expression, and the general legal principle of proportionality. The tribunal considers that any legal analysis of what is unfit or desirable in the public interest under the act must take account of the Convention rights of Mond and of any other individual or charity affected by this decision. We have reached a decision on this basis.”

The tribunal commented on the importance of diversity among charity trustees, and that, while there are obvious risks where charity trustees hold strong views on political and religious matters, it would not be appropriate to require all charity trustees to always express themselves publicly in considered and measured terms, as this “could deprive the charity sector of committed and effective trustees with a passion for particular charitable goals and an ability to communicate that passion spontaneously”. The tribunal also commented that the constraints of charity law “must permit people with different personalities and attributes to become trustees”.

Recognising Mond’s right to freedom of expression, and the importance of
ensuring that any restrictions on his freedom “must be a proportionate means of achieving the aim of supporting the provision of public benefit by protecting public trust and confidence in charities”, the tribunal concluded that Mond’s conduct did not amount to conduct of someone unfit to be a charity trustee. The conduct was limited, historic, lowprofile, and did not “present any obvious connection with any charity or charities generally”. Additionally, Mond had “acted responsibly” in resigning as a charity trustee when asked to do so. As such, it was not in the public interest to disqualify him.

Conclusion

The tribunal was influenced by Mond’s right to freedom of expression and the low level of social media activity. While the conduct was found to be Islamophobic, he made public apologies and resigned as a charity trustee when requested. The tribunal commented that: “If such conduct is found to be a basis for a disqualification order, and is applied more generally in the charity sector, it risks setting too high a bar for charity trustees and adversely affecting public trust and confidence in the charity sector by putting off individuals who may be effective trustees in pursuing some part of the full range of charitable objectives permitted by charity law. Individuals with a history of social media use, who may now, or in the future, have the capability and integrity to be effective and responsible charity trustees, but who have a very limited history of spontaneous, low-profile comments on social media that might be perceived by the broader public to be offensive when viewed later and in aggregate should not always be deterred from taking up trustee roles.”

The tribunal considered whether to make an alternative order to disqualify Mond from being a trustee of charities with religious or social cohesion objects but concluded that it was neither necessary nor proportionate.

The tribunal appears to have been influenced in this decision by the fact that Mond accepted that his posts had the potential to be damaging, he was at pains to explain that what he meant to say was different from what he wrote, and there was no evidence of any subsequent offensive public statements or acts.

While the tribunal stated that its decision was made on the specific facts of this case and that “no broader conclusion about social media use by charity trustees is intended”, there was clearly a desire not to deter people from considering becoming trustees by setting an unreasonably high bar in respect of social media activity. The tribunal also made it clear that “great weight” had been placed on the “limited and spontaneous” nature of the particular social media activity in question.

It therefore appears that Mond’s arguments based on his right to freedom of expression under Article 10 of the ECHR carried significant weight in the tribunal’s decision.

During the hearing, counsel for Mond pointed to case law establishing that “a more indulgent approach” should be adopted in respect of spontaneous expression, and argued that Mond’s disqualification was disproportionate because his conduct was spontaneous rather than considered.

Finally, it is interesting to note that the commission said it had issued the disqualification order “as it was the only sanction, or the minimum sanction, that it could apply in the circumstances”. However, it appears to have more recently found other solutions to this problem. Less than a month after the tribunal’s decision in Mond’s case, the commission published its statutory inquiry report into the Sikh Channel Community Broadcasting Company Limited. While it found misconduct and/or mismanagement in the administration of the charity, instead of making a disqualification order the commission obtained a formal undertaking from a former trustee that he would not act, be appointed, or accept a position as trustee or senior manager of any charity for a period of 10 years without the express written permission.

Over recent years, there has been a significant increase in trustee disqualifications. However, it is possible that Mond’s successful appeal in this case might herald a more cautious approach to trustee disqualification in future.