Bottles of Captain Sir Tom branded gin were being sold for £100 on Otterbeck Distillery’s website since April last year, with “All profits” donated to the Captain Tom Foundation.
Despite legislation stating that the actual amount going to charity from a commercial partnership must be specified, the limited edition 50cl barrel aged bottles were being sold without meeting this requirement. After The Independent raised a series of questions, the gin was quietly removed from sale.
In another development, it can be disclosed that the Captain Tom Foundation – already at the centre of an ongoing Charity Commission regulatory compliance case started in March last year – is subject to “regulatory enquiries” by the Fundraising Regulator. The regulator has declined to detail what the enquiries are about but revealed that the enquiry began on 7 March this year.
In reference to the sale of the £100 Captain Sir Tom gin, Shivaji Shiva – a charity lawyer – told The Independent it “does appear to represent a breach of charity law”. The solicitor, a charities partner at law firm VWV who formerly served as secretary of the Charity Law Association, said that there are questions to answer for the charity.
Both the distillery and the charity failed to clarify whether or not the Ingram-Moore family, relatives of the late Captain Sir Tom – who raised nearly £39m, including gift aid, for NHS Charities Together – have, or are set to, receive any payment from the sale of the £100 bottles or another cheaper gin sold in the late veteran’s name.
Accounts published in February showed that the Captain Tom Foundation had paid tens of thousands of pounds to firms run by the veteran’s daughter, Hannah Ingram-Moore, and son-in-law, Colin. The accounts described the transactions as reimbursements.
The Independent also reported how it had been told part of the watchdog’s compliance case related to a request from the foundation to appoint Ms Ingram-Moore as CEO on a six-figure salary. It is understood that the Charity Commission blocked the appointment last summer. The foundation’s chair of the board of trustees said Ms Ingram-Moore “took the decision that the CEO role was not something she wished to pursue”, although she was appointed on an interim basis.
The Otterbeck Distillery – which has described Captain Sir Tom as a “family friend” – announced it would be selling Captain Sir Tom gin in November 2020, only months after the business launched. The 70cl gin has been sold at £35.95 a bottle.
The distillery said “proceeds” would go to the Captain Tom Foundation. A screenshot of the distillery’s website tweeted by Mr Shiva showed it said: “A delicate and herbaceous London dry gin with soft hints of citrus, rosemary and thyme.” They added, “Proceeds go to The Captain Tom Foundation.”
However, writing on Twitter in November 2020, Mr Shiva highlighted the Charities Act 1992. The legislation states: “Where any representation is made by a commercial participator to the effect that charitable contributions are to be given to or applied for the benefit of one or more particular charitable institutions, the representation shall be accompanied by a statement clearly indicating… the notifiable amount of whichever of the following sums is applicable in the circumstances… the sum of the donations by him in connection with the sale or supply of any such goods or services which are to be so given or supplied.”
The legislation states that the “reference to the ‘notifiable amount’ of any remuneration or other sum is a reference… to the actual amount of the remuneration or sum, if that is known at the time when the statement is made; and… otherwise to the estimated amount of the remuneration or sum, calculated as accurately as is reasonably possible in the circumstances.”
In December 2020, Civil Society News reported that when asked how much money would go to Captain Tom’s charity for every bottle of gin sold at £35.95, the company initially repeated that the foundation would receive “proceeds” from sales. The publication reported that three days later the wording was removed from the website and replaced with the statement: “By supporting The Captain Tom Foundation a donation will be made.” However, it said the wording was also later deleted from the website, which at the time of the report made no reference to the charity.
It is not clear precisely when the distillery webpage for the £35.95 Captain Sir Tom gin was changed but it now reads: “We are proud to support the Captain Tom Foundation by donating £1 from every bottle sold.”
A separate page on the distillery’s website showcased another Captain Sir Tom branded tipple, a £100 “Limited Edition Barrel Aged Gin”. However, rather than stating precisely how much will go to the charity, it stated only: “All profits will be donated to the Captain Tom Foundation, which supports causes close to his heart.” A Twitter post by the distillery on 30 April last year promoting the £100 gin said: “Available to pre order on our website.” The post added: “Don’t miss out… All profits go to the Captain Tom foundation”.
After being contacted by The Independent, the distillery removed the £100 gin from sale. The webpage where the bottles were featured now reads, “No products left to show”. The £35.95 Captain Sir Tom gin is still available.
Commenting before the £100 bottles were removed from sale, Mr Shiva told The Independent: “Is there a problem here from the perspective of charity law? The answer is yes.
“It appears that on the same website you have two bottles of gin sold: The first provides a really clear example of how to meet the requirements of charity law in that it says we’re going to sell this bottle and the Captain Tom Foundation will benefit and they will get £1 from each bottle sold. It’s crystal clear. There may be a variety of views on whether £1 is enough but we’ve been told enough to make a decision – whether you buy or don’t buy, you know what’s going on.
“The other refers to ‘all profits’ being donated to the Foundation. We don’t know what that means. There might not be a profit at all, there might be a wonderful profit – no one has any idea, really.”
In reference to the sale of the £100 Captain Tom gin, he said: “It does appear to represent a breach of charity law. There are questions to answer [for the charity].”
Mr Shiva added: “There are duties for the trustees of the Foundation and for Otterbeck as the commercial participator. It appears that there have been failures on the part of each party.”
Asked whether both the Captain Tom Foundation and the Otterbeck Distillery appear to be in breach of charity law, Mr Shiva said: “To know for sure we need to know if there was an agreement in place and, if so, what it said.”
However, he added that “the trustees should have negotiated a suitable agreement with the commercial participator: one that is in the best interests of the charity and includes the prescribed requirements, and… the distillery should not be saying funds from gin sales would go to the charity except in accordance with a suitable agreement with the charity.”
A statement issued on Thursday on behalf of the Otterbeck Distillery and the Ingram-Moore family said: “Otterbeck Distillery has agreed to share 100 per cent of profits for the Captain Sir Tom 100 gin – a limited edition of only 100 bottles – with the Captain Tom Foundation. The team at the small family-run Yorkshire business met Captain Sir Tom because of a mutual passion for the Yorkshire Dales and vintage motorcycles and have kindly agreed to give their time and expertise after he expressed an interest in having a gin named after him. Payment will be made after Otterbeck’s year end accounts are finalised in two months’ time.
“For the avoidance of doubt, Otterbeck expect after duty and production costs around £30 from each bottle sold to go to the Captain Tom Foundation. Not all of the bottles of the limited edition of 100 have so far been sold.”
The distillery did not comment about the £100 gin subsequently being removed from sale when approached again by The Independent. However, it confirmed that Ms Ingram-Moore has stepped down as interim CEO. A comment from the Board of Trustees at The Captain Tom Foundation said: “Hannah Ingram-Moore stepped down from her role as interim CEO at The Captain Tom Foundation as planned at the end of April 2022 after an agreed period of nine months.
“During her time as interim CEO, Hannah established the Foundation as a voice against ageism, oversaw generous donations to 10 charities close to her father’s heart and brought awareness to many more great causes. The Trustees would like to thank Hannah for her commitment and hard work driving The Captain Tom Foundation forward to make meaningful positive change in society.
“The Captain Tom Foundation Trustees are currently in the process of onboarding a new CEO and will announce this in due course.”
The Fundraising Regulator said: “We are currently making regulatory enquiries of the charity and therefore we are unable to comment further on this case. We continue to work with the Charity Commission to resolve matters related to the charity.” A spokesperson said that the enquiry began on 7 March this year – however, they would not disclose the nature of it. It was not prompted by a complaint, they said.
A Charity Commission spokesperson said: “Our case is ongoing and as such we cannot comment further. We work closely with the Fundraising Regulator to ensure charities are fundraising honestly and transparently.”