Charity application for permission to appeal - refused

IN THE UPPER TRIBUNAL

TAX AND CHANCERY CHAMBER
UT/2016/0149
BETWEEN

JONATHAN BISHOP ON BEHALF OF CROCELS

COMMUNITY MEDIA GROUP
Appellant
and

THE CHARITY COMMISSION FOR ENGLAND AND WALES

Respondent

THE TRIBUNAL:

The Chamber President, the Hon Mrs Justice Rose

DATE: 18 November 2016

UPON the application of the Appellant for permission to appeal and
UPON reading the papers before the tribunal
The application IS DISMISSED

REASONS

1. The Appellant seeks permission to appeal against the decision of the First-tier
Tribunal (General Regulatory Chamber) (Charity jurisdiction) issued on 29 June
2016. The First-tier Tribunal comprised Principal Judge McKenna with Ms
Elizabeth and Ms Park. They issued their decision after considering the matter on
the papers. The background to the application is as follows. On 20 July 2015
Crocels Community Media Group (Crocels) applied for constitution as a
Charitable Incorporated Organisation and registration as a charity under s 207 of
the Charities Act 2011 (the Act). Crocels objects clause reads
The object[s] of the CIO are, for the public benefit,
Improving fraternity between nations, including through:
The advancement of citizenship and community development
The advancement of the arts, culture, heritage and science
The advancement of amateur sport
The advancement of environmental protection and improvement
The prevention or relief of poverty
Advancing the understanding and promoting the cause of peace through:
The advancement of education
The advancement of conflict resolution and reconciliation
The advancement of equality and diversity
The promotion of religious and racial harmony
Innovating for the abolition or reduction of standing armies, including
through:
The advancement of health and saving of lives
The advancement of human rights
The promotion of the efficiency of the armed forces of the crown
The promotion of the efficiency of the police, fire and rescue services
and/or ambulance services
It will achieve these aims by
facilitating the publication of academic research
facilitating the holding of academic and other conferences
facilitating debate and discussion
facilitating the creation and management of information sources, including
libraries and search engines
facilitating the development of hardware and software
facilitating news gathering and reporting
facilitating community regeneration
multimedia education
by attempting to persuade politicians and other decision-makers to adopt
the charities values and policies.

2. The Charity Commission decided on 7 October 2015 to refuse to constitute the

proposed CIO and refused further to enter it onto the register of charities. The
stated reason for refusing was that Crocels did not appear to be established for
exclusively charitable purposes for public benefit. In particular, the proposed
objects of improving fraternity between nations, advancing the understanding and
promoting the cause of peace, and innovating for the abolition and reduction of
standing armies were not recognised charitable purposes and the fact that in each
case these objects were intended to be furthered by means which consisted of the
descriptions of charitable purposes in the Act did not thereby make the objects
themselves charitable.
3. The Tribunal noted at the outset of its decision that its role was to consider
afresh the Charity Commissions decision (see section 319 (4) (a) of the Act) and
therefore effectively to re-determine the registration application. It followed that
the Tribunal was not concerned to establish whether the Charity Commission
acted unreasonably in public law terms in refusing Crocels application.
4. The Tribunal summarised the statutory framework for the registration of charities
focusing on the definition in section 2(1) of the Act of a charitable purpose as
one which falls within section 3(1) of the Act and is for the public benefit. The
Tribunal considered the issue in the case was a point of law and that the evidence
filed by the Appellant did not assist it in coming to its conclusion.
5. The Tribunal considered each of the objects in turn. As to the first, improving
fraternity between nations the Tribunal held that they were bound by the decision
of Rowlatt J in Anglo Swedish Society v IRC (1931) 47 TLR 295 which held that
promoting international friendship or understanding is not a charitable purpose.
The Tribunal rejected the contention that that case had been superseded by
subsequent legislation and held that it was still good law. As to the second object,
advancing the understanding and promoting the cause of peace, the Tribunal
considered this was a purpose quite distinct from advancing conflict resolution,
one of the charitable purposes in the Act. The Tribunal referred to the decision of
Slade J in McGovern v Attorney General [1982] Ch 321 and held that the purpose
expressed in Crocels constitution would appear to meld a potentially charitable
purpose (advancing education on the subject of peace) with a political purpose,
within the meaning given to that term by Slade J in McGovern, namely seeking to
change Government policy by promoting a cause. It was not therefore only a
charitable purpose.
6. As to the third object, innovating for the abolition or reduction of standing armies,
the Tribunal held that it was clearly a political purpose because it necessarily
involves seeking to change Government policy. The Tribunal added:
21. As noted above, [Crocels] has an express power, albeit within the objects

clause, to attempt to persuade politicians and other decision-makers to adopt

the charities (sic) values and policies. This provision would inevitably raise
concerns even if the objects were exclusively charitable. As we have
concluded that they are not, it would appear to permit [Crocels] to operate as a
non-charitable pressure group rather than to undertake ancillary political
activities as a means of furthering a charitable purpose.

7. Having reached those conclusions on the issue of charitable purpose, the Tribunal
did not need to consider the question of public benefit or the various other issues
raised by the Appellant although they addressed some of them briefly.
8. On 3 August 2016 Judge McKenna refused permission to appeal.
9. In the Notice of Appeal to the Upper Tribunal dated 9 August 2016 Crocels
submits that the Charity Commission and the First-Tier Tribunal did not
understand the way Crocels works. Its mission does not require any changes in
government policy regardless of the political complexion of the Government.
Crocels contends that its objects cannot be compared to those of the AngloSwedish Society. This is because, it argues, the aim of Crocels is not to prevent
war but to provide debate on how war can be conducted so as to reduce its impact
on human life and how it can more efficiently be carried out. Since all
Governments want to carry out their military operations in a way that is more cost
effective and results in fewer human casualties whether military or civilian, there
is no need to change Government policy in order to achieve Crocels objects.
10. The Appellant has also served Additional Submissions dated 14 September 2016.
In those submissions, Crocels asserts that in deciding whether the objects of
Crocels are charitable the Commission is required to look at the actual activities of
Crocels as have been carried out for the last 11 years and not simply the wording
of the objects: What the organisation does should count for more than what it
says it is going to do. It argues that it should not be assumed that non-charitable
activities will be pursued just because the wording of the objects leaves open this
possibility.
11. The Appellant then analyses in detail the objects of the Anglo-Swedish Society as
set out in the judgment in 1931. It compares the implications of the words used in
those objects with the way the words are used in Crocels objects. It argues that
the aim of Anglo-Swedish Society was to change the opinions of journalists,
whereas Crocels is not seeking to change opinions of its service users, simply to
provide greater opportunity for discussion and debate around them. The
submissions also seek to compare how the Anglo-Swedish Society used its capital
and allocated travelling allowances with how Crocels uses its funds. The
Appellant further asserts that the Commission failed to consider how a CIO
operates differently from the Anglo-Swedish Society of the 1930s. The AngloSwedish Society was, Crocels submits, a group of people trying to dodge income
tax as the organisations bank account was in the name of the trustees. By
contrast, if Crocels is allowed to form as a CIO its aim is not to avoid paying tax
but to create an entity that is used solely for charitable purposes and legally
distinct from its for-profit activities.
12. In my judgment, these Grounds of Appeal do not have any prospect of success.
As to the test to be applied, it is clear from the Upper Tribunals decision in The
Independent School Council v The Charity Commission [2011] UKUT 421 (TCC)
that the question whether an institution is established for charitable purposes
only as required by section 1(1) of the Act must be determined by looking at the
bodys constitution and not how it has operated in practice. Thus in paragraphs
187 onwards the Upper Tribunal held that a school which as a matter of its
constitution can admit students whatever their ability to pay, but as a matter of

fact does not do so would still be considered as established for charitable purposes
only. This is because, the Upper Tribunal there held, under the law prior to the
2006 Act, that whether a trust or institution which had a written constitution
was a charity was to be ascertained by reference to that constitution. It was
not permissible to look at the subsequent activities of the institution to
ascertain its status. The Upper Tribunal went on to hold that the position under
the Charities Act 2006 was no different.
188. the question whether an institution is established for charitable
purposes only is to be answered by deciding, as a matter of construction,
whether its purposes (a) fall within one of the description of purposes listed in
section 2(2) and (b) satisfy the public benefit test. The ordinary meaning, and
we would suggest generally the most natural meaning, of the word
established is directed to what it is that the institution was set up to do, not
to how it would achieve its objects or whether its subsequent activities are in
accordance with what it was set up to do.
13. I agree with the Tribunal in this case that the same must apply to the 2011 Act.
The Tribunal did not therefore err in focusing on the wording of Crocels objects
rather than on its activities in deciding whether the body was established for
charitable purposes only.
14. I do not consider that the close contextual comparison of the wording of the
objects of the Anglo-Swedish Society assists Crocels. The Tribunal also decided
that the second and third objects were wholly or partly political and hence
precluded registration of Crocels. Slade J held in McGovern that where the object
of the trust was to procure the abolition of torture or inhuman and degrading
treatment, that had to be construed in its context as a trust of which one of the
purposes was to procure the passing of appropriate legislation and thus it was a
trust for a political purpose. A purpose was political in nature according to
Slade J where it sought to persuade a countrys government to alter its policies or
administrative decisions. Similarly here, even though Crocels may be right in
assuming that all Governments want to reduce the cost of war in financial and
human terms, the achievement of that goal depends on persuading Governments to
take different decisions giving this priority. Crocels may argue that their intention
is only to bring this about by education and research the objects of the body as
drafted go much further than that.
15. If Crocels is dissatisfied with this decision, he has the right under the Upper
Tribunal Rules (se Rule 22(4)) to apply for my decision to be reconsidered at a
hearing.

Mrs Justice Rose

RELEASE DATE; 24 November 2016