Charities and inquests: When things go badly wrong

What matters

What matters next

In February 2024 a jury inquest concluded that that the death of 16-year-old Benjamin Leonard during a three-day Scout trip in 2018 was due to “unlawful killing” by the Explorer Scout Leader and Assistant Explorer Scout Leader and was contributed to by the neglect of The Scouts Association.

The Assistant Coroner has published a prevention of future deaths report (the second one in the Inquest) and concluded there is a risk that future deaths will occur unless action is taken. He also recorded concern that there is not a culture of candour with The Scouts Association, the impact this has on safety and safeguarding and that, while the Charity Commission has regulatory oversight, there is no robust regulator who independently and periodically audits and inspects the systems, processes or training of The Scouts Association or the granting of permits for adventurous activities, hill walking or Nights Away permits.    

The Scouts Association, along with a number of other organisations, has been provided with the Assistant Coroner’s report and has a duty to respond to it by 18 April 2024 to provide details of action taken or proposed to be taken. The Association has already announced that it will closely review the report and adopt all further changes it can and do everything in its power to stop such a tragic event happening again.

A full inquest is always a difficult exercise in the aftermath of such tragic circumstances. But it is also a valuable exercise conducted on behalf of society at large, in circumstances of a ‘non-natural death’, where the State quite rightly conducts a thorough investigation into that death, to establish how it came to occur, and importantly, the lessons which might be learnt. We are not aware of the full background here and therefore do not comment on the detail of this tragic case. Instead, we consider some of the wider lessons to be learned by charities. 

The importance of regulatory compliance

The Charity Commission has recently published its new strategy for the next five years, underpinned by five key priorities, the second of which is to support charities to get it right but to take robust action where it sees wrongdoing and harm. The Commission will place equal emphasis on being a source of support to trustees, but also a tough enforcer. 
So, compliance is key and how charities go about their work is as important as what they do. Many charities are focusing on their own ESG (environmental, social and governance) issues, as well as on that of their corporate partners. 

The latest iteration of the annual return, that registered charities are required to complete and file after the end of each financial year, presents them with a list of 14 policies and procedures, and asks them to confirm which ones they have in place: New Annual Return question set for registered charities. In an increasingly complex regulatory environment, it is critical for charities not only to have appropriate policies on paper, but for all staff and volunteers to be properly trained in them, for those policies to be implemented in practice and their proper implementation monitored.

In The Scouts Association Prevention of Future Deaths Report the Assistant Coroner effectively called for the Association to conduct a root and branch review of virtually every aspect of the way it plans, implements and manages health and safety.

One particular observation made by the Assistant Coroner in this case was that safety training by The Scouts was predominantly done online and he expressed concern that the course was superficial at best, fundamentally basic and able to be completed in 12 minutes, when it was meant to serve as an introductory module required to equip thousands of leaders with an understanding of how to complete a risk assessment in order to keep Scouts safe. In his view, this was not adequate to embed the fundamental principles of safety and safe scouting. 

Another key observation made by the Assistant Coroner related to potential issues with effective management of health and safety which appeared to be inbuilt into the structure of the organisation itself. The Association is at the apex of a federated structure of many smaller scout groups (themselves also charities) around the UK. Sections are organised into groups, which in turn are organised into districts, all managed within counties. All of these sit within overarching regional and national structures that make up The Association. Each group, district and county is a separate charity each with their own trustee board, but within a federation of charities operating under the auspices of a Royal Charter. All groups must follow The Association’s Policy, Organisation and Rules (POR) - which we understand are in the process of being amended. 

In his report, the Assistant Coroner observed that The Association was distant from its membership through its federated branches of 8,000 charities and layers and hierarchy, meaning that it cannot in reality know how health and safety is executed at ground level, and that the centralised safeguarding team and safety team are not on a par with each other in terms of resources and reach to local level.

While most charities are not part of a federated structure, nevertheless there are hierarchies of authority within all but the smallest of charities, with boards of trustees retaining responsibility for oversight of their charity’s work even if they delegate its day-to-day operation to paid staff and volunteers, and so the principle remains the same, that all connected with a charity (or a group of charities) have their part to play in ensuring a compliant culture. 

The purpose of The Association is to actively engage and support young people in their personal development, empowering them to make a positive contribution to society. The POR states that The Association aim to provide opportunities for young people and adult volunteers to develop and appreciate what risk is and how it is managed, always acknowledging that life, including scouting, is not risk-free, and that The Association endeavours to manage these risks to wellbeing and safety to be as low as is reasonably practicable: “Identifying and proportionately managing risk is a skill for life that we wish to kindle, develop and enhance in all of our members.”

Nevertheless, the Coroner’s opinion is that safeguarding has been reacted to more quickly than safety by The Association, and that therefore much more needs to be done to ensure that the Association can deliver what it clearly aims and wishes to.

Prevention is better than cure

Questions of civil or criminal liability cannot be determined at an inquest and at its completion a verdict will be returned in relation to how death occurred. However civil, criminal and other potential consequences may follow in due course (and noting that the Assistant Coroner has provided his report to the relevant Minister and conveyed the request of Ben Leonard’s family for the establishment of a Public Inquiry). 

It is therefore essential that charities, charity trustees and charity staff have clarity on what duties they are required to discharge under the law, whether in relation to health and safety or other legislation; what the potential consequences are for failure to discharge those duties; how understanding those duties can enable them to assess the risks the organisation and those it interacts with face; and consequently how those risks can and should be planned for and managed to discharge those legal duties. The Benjamin Leonard Inquest, and the tragic events which gave rise to the need for the inquest, should properly be seen as a very important reminder to many charities to make certain that focus on legal compliance is uppermost in their minds as part of what they do on a daily basis, and ultimately, culturally embedded at all levels of the organisation through effective and positive leadership. 

Recently we delivered a webinar on the potential criminal liability for trustees and their incorporated charities and highlighted how charities and trustees can limit their exposure to criminal investigation and prosecution which you can watch here: The spectre of personal criminal liability for charity trustees.

This is important for public policy reasons, as much as for individual trustees and their charities. In launching the Commission’s new five-year strategy in February 2024, its Chair referred to trustees as the bedrock of the charity sector, and to whom society owes a great debt. But he acknowledged that the trustee pool must be widened, as there are many charities whose work is hampered by board vacancies and recognised the part the Commission has to play to ensure the voluntary principle and model for charity trustees is protected into the future, by attracting people who are currently underrepresented into the fold of trusteeship. 

Charities exist to do good and to avoid harm. They and those ultimately responsible for them should focus on the everyday detail to properly managing risk so they continue to make a positive difference. But they should do so very much with their eyes open as to the legal duties they are required to discharge and potential consequences of failing to do so. Embracing this aspect properly shouldn’t necessarily be seen as a burden, but as simply another way to make that positive difference and be a force for good.

Disclaimer

This information is for educational purposes only and does not constitute legal advice. It is recommended that specific professional advice is sought before acting on any of the information given. © Shoosmiths LLP 2024.

Insights

Read the latest articles and commentary from Shoosmiths or you can explore our full insights library.