DECISION OF THE CHARITY COMMISSONERS FOR ENGLAND AND WALES
MADE ON 17 TH NOVEMBER 1999
APPLICATION FOR REGISTRATION AS A CHARITY BY
THE CHURCH OF SCIENTOLOGY (ENGLAND AND WALES)
(original text, formatted in pdf: <http://www.charity-commission.gov.uk/cosfulldoc.pdf>
PLEASE NOTE THAT THE MOST INTERESTING (from my viewpoint) PASSAGES HAVE BEEN HIGHLIGHTED IN BLUE COLOR
Some few comments: This text is particularly interesting, because here, the Commissioners of the English charity commission have mostly worked on the form rather than on the basics of scientology. But working to such details led them to conclude, inexorably, that scientology was not religious nor charitable, despite the many formal attempts of scientology to make believe that it is what it is'nt. Scientology has therefore been trapped here by its own formality.
1. The issue before the Commissioners
The Board of Commissioners considered an application by the Church of Scientology
(England and Wales) (CoS) for registration as a charity pursuant to section 3(2) of the
Charities Act 1993. In reaching their determination of the application the
Commissioners considered whether CoS is charitable as being an organisation:
(i) established for the charitable purpose of the advancement of religion and/or
(ii) established for the charitable purpose of the promotion of the moral or spiritual
welfare or improvement of the community,
and if in the case of (i) or (ii) above CoS is so established for such a charitable
purpose, whether it is established for the public benefit.
The Commissioners having considered the full legal and factual case and supporting
documents (including expert evidence) which had been put to them by CoS and having
considered and reviewed the relevant law, taking into account the principles embodied
in the European Convention on Human Rights (ECHR), the Commissioners
concluded that CoS is not established as a charity and accordingly is not registrable as
such. In so determining the Commissioners concluded as follows -:
CoS is not charitable as an organisation established for the advancement of religion
because having regard to the relevant law and evidence:
(a) Scientology is not a religion for the purposes of English charity law. That
religion for the purposes of charity law constitutes belief in a supreme being
and worship of that being (section 6, pages 12 to 25). That it is accepted that
Scientology believes in a supreme being (section 6, page 25). However, the
core practices of Scientology, being auditing and training, do not constitute
worship as they do not display the essential characteristic of reverence or
veneration for a supreme being (section 6, pages 25 to 26).
(b) That even were CoS otherwise established for the advancement of religion,
public benefit should not be presumed given the relative newness of
Scientology and public and judicial concern expressed – ie the presumption of
public benefit available to religious organisations as charities was rebutted
(section 8, pages 40 to 43); and that
(c) Public benefit arising from the practice of Scientology and/or the purposes of
CoS had not been established (section 8, pages 43 to 44 and pages 47 to 48).
CoS is not charitable as an organisation established to promote the moral or spiritual
welfare or improvement of the community because having regard to the relevant law
(a) The practice of Scientology and the purposes of CoS are not analogous to the
legal authorities establishing the moral or spiritual welfare or improvement of
the community as a charitable purpose (section 7, pages 26 to 29), and in
taking a broader view of the authorities, would not be likely to achieve such a
purpose (section 7, pages 30 to 37).
(b) That even were CoS otherwise established for the promotion of the moral or
spiritual welfare or improvement of the community, public benefit arising out of
the practice of Scientology and/or the purposes of CoS had not been
established (section 8, pages 45 to 47 and page 49).
3. The Application for Registration as a charity
In September 1996 a newly incorporated body 1 called the Church of Scientology
(England and Wales) (CoS) applied to the Commission for registration as a charity for
the advancement of religion accompanied by a full legal and factual case.
In 1997 the Commissioners indicated to CoS that they would consider whether CoS
was a charity in law (not just the narrower question of whether CoS was charitable
under a particular head of charity law, as advancing religion). If necessary, this might
include other heads of charity such as the promotion of education or a purpose under
the fourth head of charity such as the promotion of the moral or spiritual welfare or
improvement of the community.
The promoters submitted further legal and factual argument that if and in so far as CoS
is not a charity for the advancement of religion, it is charitable under the fourth head of
charity as being established for the moral or spiritual welfare or improvement of the
community. That argument also dealt with public benefit issues arising under that
The application was subsequently significantly augmented by CoS by the submission of
international law argument which covered the Government’s then proposal to
incorporate the European Convention on Human Rights (ECHR) (and thus those
provisions making it unlawful to discriminate against individuals on the grounds of
their religion or other beliefs) into domestic law, and the effect of this upon the
application. Since then the Human Rights Act 1998 (HRA) has been passed although
it does not yet have legal effect. At present the Government proposes to bring the
HRA into force in October 2000.
The Church of Scientology
The Commissioners noted the following background to the application for registration
as a charity.
1 A company limited by guarantee holding minimal property.
The Church of Scientology (the Church) is an international organisation which
promotes a belief system, doctrines and practices known as Scientology. Its
international headquarters are in the USA although it is organised world-wide. Assets
owned by the Church in this country are currently held and administered by a branch of
the Church incorporated in Australia. The Church has now established a company
under the Companies Acts called the Church of Scientology (England and Wales)
(CoS) to further its work in this country.
The activities of the Church of Scientology carried on in England and Wales are based
principally at its properties at Saint Hill, East Grinstead in Sussex, although there are
other Scientology centres eg at Poole and Plymouth. There are said to be about
200,000 adherents in this country. Scientology is based on the writings of the late L
Scientology claims to be a religion both in recognising the existence of a supreme
being and in carrying out forms of worship through auditing and training.
Scientology organisations have been recognised legally as religious in character in
other countries for certain purposes. Most notably, by the Internal Revenue Service in
the USA as an exclusively religious or charitable organisation under s501(c)(3) of the
Internal Revenue Code and thus exempt from Federal Income Tax and by the High
Court of Australia (in Church of the New Faith v Commissioner of Payroll Tax
(1983) 154 CLR 120 (HC of A)) as a religious, or public benefit, institution entitled to
an exemption from paying payroll tax under the Payroll Taxes Act 1971.
The objects of CoS
The objects of CoS as set out in its Memorandum and Articles of Association are as
The advancement of the Scientology religion and in particular but not so as to limit
the generality of the foregoing:
(1) the espousal, presentation, propagation and practice of, and the ensuring and
maintaining of the purity and integrity of, the religion of Scientology;
(2) the advancement of the religious and other charitable work of Scientology
Churches and Missions in England and Wales.
(3) the maintenance of the fabric and furnishings of Scientology Churches and
Missions in England and Wales;
(4) the production, publication and dissemination of Scientology religious works;
(5) the advancement of religious education in accordance with the doctrines and
practice of Scientology..
Doctrines and Practices of Scientology
The Commissioners considered the comprehensive summary of the doctrine and core
religious practice of Scientology put to them by CoS in their submission. In relation to
Scientology doctrine they noted that:
· Scientology is based exclusively upon the research, writings and recorded lectures
of the late L. Ron Hubbard - all of which constitute the scriptures of the ‘religion’.
These encompass more than 500,000 pages of writings, nearly 3,000 recorded
lectures and more than 100 films. They include axioms that precisely define the
fundamental laws and truths of life, including who one is, what one is capable of,
and how one might realise one’s natural spiritual abilities. From these axioms
come a great number of fundamental principles individuals can use to achieve
spiritual infinity, as well as to improve their immediate lives and the lives of those
close to them. A fundamental doctrine of Scientology is that spiritual freedom can
be attained only if the path outlined in Hubbard’s works is followed without
deviation. Hubbard is the only source of Scientology, and has no successor.
· Scientology doctrine divides an individual’s existence into eight distinct divisions,
called “dynamics”, each of which represents an area of life where every individual
has an urge and determination to survive. Pursuit of survival along these dynamics
is the common denominator of all life. The eight dynamics are best conceived as
concentric circles ranging from the first dynamic in the centre, out to the eighth
dynamic in the outer parameter as follows:
(1) the first dynamic, self, is the effort to survive as an individual;
(2) the second dynamic is the urge to exist as a future generation, which
encompasses the family unit;
(3) the third dynamic is the urge to survive as a member of a group, such as a
company, a church or a social organisation;
(4) the fourth dynamic is the urge for survival of man as a species;
(5) the fifth dynamic is the urge to survive for all life forms, whether animal or
(6) the sixth dynamic is the urge for survival of the physical universe and
reflects the drive of the individual to enhance the survival of all matter,
energy, space and time;
(7) the seventh dynamic is the urge to exist as a spiritual being; and
(8) the eighth dynamic is the urge to exist as infinity, which also may be
identified as the supreme being or god.
· The goal of Scientology is to help an individual survive to the greatest level across
all dynamics from the self (the first dynamic) and ultimately to the supreme being
(the eighth dynamic). Through the application of Scientology principles and
practices an individual is able to increase his ability to improve survival across the
dynamics. As he becomes more capable and more aware, he expands from the first.
into the outer dynamics, and he becomes more able to control and influence all
dynamics to better himself and all mankind.
· CoS has no specific doctrine concerning god, although Scientology does affirm the
existence of a supreme being. The practice of Scientology is to bring an individual
to a new state where he can reach his own conclusions concerning the nature of the
supreme being. As a person becomes more aware through the practice of
Scientology, however, he attains his own certainty of every dynamic and, as he
moves from the seventh (spiritual) dynamic to the eighth, he comes to his own
awareness of infinity and god. He also understands his own relationship to eternal
salvation as a spiritual being. Salvation in Scientology is attained through personal
In relation to Scientology practices the Commissioners noted that the core practices
of Scientology were auditing and training and that:
· Scientologists increase their spiritual awareness, and expand across the eight
dynamics, by participating in auditing, which is one of the two central ‘religious’
practices of the Scientology faith. It is delivered by an auditor, from the Latin,
‘one who listens’. Auditing involves a series of gradient steps that Hubbard
developed to address past painful experiences - both in this, and in prior, lifetimes -which,
while below a person’s level of awareness, collectively cause all the fears
and psychosomatic illnesses that he currently suffers. Through auditing one can
uncover these unknown past experiences and erase their harmful effects, thereby
increasing one’s awareness and capability across all dynamics. This also directly
results in a spiritual transformation: the individual reaches a certainty that he is in
fact a spiritual being that has lived and will live through countless lifetimes.
· In auditing a ‘religious’ artefact called an E-meter is used to enable the auditor and
the individual receiving the auditing to locate areas of the past which can then be
addressed in auditing. It is not a lie detector and by itself it does nothing. It is only
used by a trained minister and is essential to auditing; that is its only application.
· The second central ‘religious’ practice consists of training - the intensive study of
Scientology Scripture. Training derives its greatest significance from the fact that
through training one learns to become an auditor.
· The broad path the Scientologist follows through auditing and the study of
Scientology materials is known as The Bridge. The Bridge embodies a route
across a chasm between man’s present state and vastly higher levels of awareness.
It is comprised of gradient steps so that gains are incremental, predictable and
apparent. There are two sides to this Bridge: on one side, by receiving auditing,
one reaches the highest states of awareness as a spiritual being; on the other, one
studies the axioms and principles of Scientology and learns to become an auditor,
ultimately advancing to the highest levels of auditor skill. The freedom available
through Scientology requires passage along both these paths. For while one
becomes free through auditing, this must be augmented by knowledge of how to
The Commissioners noted that access to the core practices of auditing and training
are normally prepaid by those members wishing to participate in them. These
payments are referred to as requested donations and account for a substantial
proportion of the revenues of the Church of Scientology. The extent of participation.
in these practices is a matter which Church of Scientology fundraising staff discuss
with members in personal consultation. Although requested donations are the normal
method of obtaining access to participation in these practices, the Commissioners
understood that auditing and training were available without a donation in certain
circumstances. The Commissioners noted that organised donations are an established
feature of some religions.
The Commissioners also noted:
· the creeds and codes of Scientology:
§ The Creed of the Church of Scientology
§ The Auditor’s Code
§ The Code of Honor
§ The Code of a Scientologist
§ The Supervisor’s Code
§ The Credo of a True Group Member
§ The Credo of a Good and Skilled Manager
· The ceremonies of Scientology:
Individual churches of Scientology conduct numerous ‘religious’ services,
including naming ceremonies for the newborn, wedding and funeral services and
weekly Sunday services. These services are open to those of any denomination.
· The symbols and apparel of Scientology
Scientology ‘religious’ symbols and artefacts are protected by Religious
Technology Centre, a California non-profit corporation which owns them and the
rights to use them. Members of the Sea Organisation wear naval uniform.
Ministers officiate wearing apparel which resembles traditional Anglican vestments.
4. Relevance to the application of the European Convention on Human Rights
The Commissioners noted that in support of their application for registration as a
charity CoS relied upon international law arguments concerning the right to freedom
of thought, conscience and religion encompassed in Article 9 ECHR; and the right not
to be discriminated against on account of thought, conscience and religion - Article 9
taken with Article 14 ECHR.
The Commissioners noted that the ECHR is to be incorporated into English law
under the Human Rights Act 1998 (HRA). That Act is likely to be fully implemented
in the UK on 2 nd October 2000 2 . Under section 6 of the HRA it will be unlawful for a
public authority to act in a way which is incompatible with ECHR rights. The
Commission will be a “public authority” for the purposes of the HRA s6(3). Once the
HRA is implemented it will therefore be unlawful for the Commission to act in a way
incompatible with ECHR rights. This would include its decisions with regard to the
registration of charities where any common law authorities would need to be
interpreted in a way compatible with such rights as interpreted by case law of the2 Latest government announcement.
European Court of Human Rights and opinions and decisions of the European
The Commissioners noted that while the ECHR is not part of English law at present
there is no obligation on the courts and therefore the Commissioners to take ECHR
into account in considering issues of charitable status. The Commissioners noted the
general rule that in the absence of implementation in domestic law, international law in
general and international agreements in particular are not binding within the UK legal
system – Rayner (Mincing Lane) Ltd v Department of Trade  2 AC 418,
and that no public authority is required as a matter of law to exercise its discretion in a
way necessarily consistent with the ECHR – R v Secretary of State for the Home
Department ex parte Brind  1 AC 696.4 This basic position has been
confirmed in R v DPP ex parte Kebilene QBD  3 WLR 175 (CA), 972 (HL).
It is also clear, that while ECHR may be referred to, there is currently no strict legal
obligation to have regard to the terms of ECHR when addressing issues of common
law, even where these issues are uncertain, Derbyshire County Council v Times
Newspapers Limited  2 WLR 449.
However, the courts are prepared to consider the international obligations of the
United Kingdom where there is ambiguity in statutory language: Salomon v
Commissioners of Customs and Excise  2 QB 116. In R v Radio Authority
ex parte Bull  4 All ER 481, this general principle was applied in the specific
context of the ECHR.
Whilst it seemed clear to the Commissioners from the case law that where statutory
provisions were ambiguous reference may be made to the ECHR so as to interpret the
relevant statutes consistently with the ECHR, the extent to which there is any similar
legal obligation in relation to the common law, and the extent to which a public
authority may be obliged to act consistently with ECHR generally prior to
implementation of the HRA was unclear 5 .
The Commissioners considered that it would be prudent to take account of the fact
that where an application for registration is dealt with pre HRA and subsequently
subject to an appeal under section 4(3) Charities Act 1993, the appeal would be likely
to reach court after the HRA had been brought into effect, when the court would be
obliged to deal with the matter consistently with ECHR, and to ensure that all case
law is interpreted compatibly with ECHR principles. In addition, given the lack of
clarity in English law about the extent to which a public authority may already be
obliged to exercise its functions in a way taking account of the HRA being in force in
the near future (R v DPP ex parte Kebilene), the Commissioners regarded it as
prudent to seek to act consistently with ECHR in advance of implementation of the
HRA where they were free to do so to the extent that ECHR may be relevant to the
registration of charities.
The Commissioners considered that good administrative practice would suggest that
applications for registration pre and post HRA should be dealt with consistently. It
would not be good practice to consider applications received pre-implementation3 Section 2 HRA 4 In that case the House of Lords unanimously held that the Home Secretary did not need to act consistently with ECHR in the exercise of a power he enjoyed under both statute and the BBC’s Charter to control the content of television and radio transmissions. 5 R v DPP Ex parte Kebiline (QBD  3 WLR 175 (CA), 972 (HL).
without any reference to ECHR considerations, but to apply such considerations to
applications received post implementation. To do so could result in similar
applications being deal with differently simply on the basis of the date on which they
were received and considered.
Further it seemed to the Commissioners that they may already be under an indirect
legal obligation to take account of ECHR principles, given that once the HRA is
brought fully into force, there will be an element of retrospectivity which will benefit
individuals who are able to demonstrate that they were victims of human rights
violations before the HRA was in force. Essentially the combined effect of section
22(4) and section 7(1)(b) of the HRA seemed to the Commissioners to be that where
a public authority brings or initiatives legal proceedings after implementation of the
HRA, the persons who are the defendants in such proceedings would be able to rely
upon their ECHR rights in the action which follows. The Commissioners were for
example able to envisage a situation in which an association may seek to resist
proceedings for recover of taxation on the basis that the refusal to register it as a
charity had infringed its ECHR rights.
The Commissioners concluded that as a matter of prudence, good practice and
indirect legal obligation any discretion which the Commissioners may have in applying
the existing law should be exercised in accordance with and not contrary to the
principles of the ECHR where those principles might be relevant to the registration of
charities. Such discretion might arise for example where the provisions of the common
law were ambiguous, or where English cases or other legal authorities (for example
case law from other jurisdictions) were not binding on the Commission, but of
The Commissioners then proceeded to consider the potential relevance of ECHR to
CoS’ s application for registration as a charity.
The relevant articles of ECHR
The Commissioners considered the relevant articles of ECHR to be
§ Article 9 taken on its own (right to freedom of thought, conscience and
§ Article 9 taken together with Article 14 (right to enjoyment of ECHR rights
free from discrimination).
Article 9(1) provides that:
“everyone has the right to freedom of thought, conscience and religion; this right
includes freedom to change his religion or belief and freedom either alone or in
community with others and in public or private to manifest his religion or belief, in
worship, teaching, practice and observance.”
Article 9 includes the right to manifest one’s belief in worship, teaching, practice and
observance and therefore includes in principle the right to convince other people, for
example through “teaching”6 .
The Commissioners considered that the protection offered by Article 9(1) extends to
the whole range of individual beliefs including both religious and other belief systems.
Both organisations which, in charity law terms, would appear to promote the moral or
spiritual welfare or improvement of the community (a fourth head purpose), and those
which promote religion (a third head purpose), would in the Commissioners view
therefore fall within the protection of Article 9(1).
The Commissioners noted that Article 9(1) may be qualified in terms of the provision
of Article 9(2). Any limitation of the freedom protected by Article 9(1) may be
justified on the grounds set out in Article 9(2).
Article 9(2) provides that:
“Freedom to manifest one’ s religion or beliefs shall be subject only to such
limitations as are prescribed by law and are necessary in a democratic society in the
interests of public safety, for the protection of public order, health or morals, or for
the protection of the rights or freedoms of others.”
Article 9 and Article 14 together
Article 14 provides that:
“The enjoyment of the rights and freedoms set forth in this Convention shall be
secured without discrimination on any ground such as sex, race, colour, language,
religion, political or other opinion, national or social origin, association with a
national minority, property, birth or other status”
The Commissioners noted that Article 14 is not an independent right to non-discrimination
but may be used in conjunction with another article. The other article
relied upon does not necessarily have to be breached by the alleged discriminatory act,
rather the act has to fall within the ambit or scope of a right protected by the ECHR.
Therefore, it was in the Commissioners’ view arguable that the registration of
charities which advance religion, and the exclusion of other beliefs for example, is
potentially within the ambit of Article 9 (right to freedom of thought, conscience and
Not all discrimination will be in breach of Article 14. An action or distinction will not
be discriminatory if it has an objective and reasonable justification ie it is:
§ made in pursuant of a legitimate aim; or
§ there is a reasonable relationship of proportionality between the means
employed and the aims sought to be realised.7
The Commissioners analysed the extent to which Article 9, and Articles 9 and 14
together may potentially apply to applications for registration of organisations6 Kokkinakis v Greece (1993) 17 EHRR 397 7 Tsirlis and Kouloumpas v Greece (1997) 25 EHRR 198 at paragraph 116.
established for the advancement of religion or to promote the moral or spiritual
welfare or improvement of the community.
The Commissioners noted that Article 9 is principally concerned with protecting the
manifestation of a person’s religion or belief. To recognise or not recognise charitable
status by registration did not in the Commissioners view appear to interfere with the
manifestation of a person’s belief. Although in certain circumstances an organisation is
declined registration and the benefits of charitable status 8 are not bestowed, the Article
9 freedoms did not in the Commissioners’ view seem to be restricted by this. In the
cases which have come before the European Court the impairment of the Article 9
freedom has been much clearer 9 and it seemed to the Commissioners that it could be
argued that Article 9 is not breached when for a particular belief system the State
declines to confer a privilege.
Nevertheless, the Commissioners noted that it may be possible to argue that the
decision to decline to register an institution as a charity amounts to a limitation of
Article 9(1) freedoms. Article 9 protects the right to manifest one’s religion or belief
“in worship , teaching, practice and observance”. The European Court has said that
this includes the right to convince one’s neighbours through teaching, without which
the “freedom to change religion or belief” protected by Article 9 would be
redundant.10 The Commissioners considered that it is possible that both the European
Court and the English courts would regard the fiscal benefits which flow from charity
registration as relevant to an organisation’s ability to teach and pass on its beliefs. A
court could conclude that to decline registration of a charity impairs Article 9
freedoms as it limits the organisation’s ability to manifest its beliefs through teaching
and “evangelising” activities.
The Commissioners further noted that any limitation of an Article 9 freedom which
might arise can be justified on the basis of Article 9(2).
In that context the Commissioners noted that the registration power of the
Commission is “prescribed by law”11 and that the recognition of charitable purposes8 These benefits are identified as common law, statutory and fiscal § The potential for being established in perpetuity; a lesser need for certainty than is required for private trusts; protection by the Crown; the ability to be the beneficiary of an existing charity with comparable objects. § Protection from failure of the charity’s purposes and administrative difficulties through the scheme making jurisdiction of the courts and the Charity Commission; protection from the effects of misconduct or maladministration by staff or trustees through Charity Commission’s investigative and remedial powers; to be advised on trustees’ duties, interpretation of governing document and guidance on charity law and good practice from the Charity Commission; protection of official sanction by the Charity Commission’s order for transactions expedient in the charity’s interest; protection of charity’s assets through a requirement that charity proceedings require consent of the Charity Commission or of the High Court; routine monitoring and review of registered charities by the Charity Commission. § Tax relief on voluntary and investment income and capital gains; tax relief on the profits of primary purpose trading; relief from non domestic rates for land and buildings used for charitable purposes; relief available to those who give to charity. 9 Manoussakis v Greece (1996) 23 EHRR 387; Kokkinakis v Greece supra and Christian Association of Jehovah’s Witnesses v Bulgaria (1997) 24 EHRR (C.D.) 52 10 Kokkinakis v Greece supra 11 It has a duty to keep a register of charities and power to do so provided by s.3 Charities Act 1993.
has developed through the case law, by a reasonable predictable and incremental
The Commissioners noted that States are allowed a certain amount of scope for
deciding what limitations upon ECHR rights are necessary in a democratic society (the
“margin of appreciation”) in their particular context, subject to certain guiding
principles apparent from the European cases in particular:
§ the need to secure true religious pluralism as an inherent feature of the notion
of a democratic society.12
§ that the measures taken at a national level must be justified in principle and be
§ that the state has no discretion to determine whether religious beliefs or the
means used to express them are legitimate 14 .
In the light of the possibility of the potential for ECHR to apply and of these
principles, the Commissioners considered that where they were free to do so
(predominately where the English legal authorities were ambiguous) they would seek
to interpret the relevant authorities consistently with ECHR.
Articles 9 and 14 together
In relation to a charge of discrimination under Articles 9 and 14 together, the
Commissioners noted the possibility of an argument that a religious or other belief
system might be discriminated against if declined the charitable status afforded to
others. They also noted that the law is clear that a distinction or difference in
treatment within the ambit of an ECHR right will be discriminatory if it has “no
objective and reasonable justification”.15
Given the potential application of Articles 9 and 14 taken together, the relevant
English case law concerning charitable status should in the Commissioners view,
where ambiguous, be interpreted in a way compatible with ECHR.
The Commissioners went on to note the distinction between the tests of public benefit
under the third and fourth heads of charity.16 It is presumed (although evidence may
rebut the presumption) that a religious organisation is beneficial to the public. A belief
system which seeks to be charitable under the fourth head must show that it is for the
public benefit in a way recognised by charity law.17 The Commissioners noted that
the different tests of public benefit were “prescribed by law” and that there did not
seem to be any ambiguity in the cases concerning the test of public benefit in charity
law, which the Commissioners considered was an entirely flexible rule applied to
individual cases to establish the public benefit which is a requirement of all
organisations which profess to be charitable.12 Manoussakis v Greece supra paragraph 44 13 supra 14 supra 15 Tsirlis & Kouloumpas v Greece, supra; Belgian Linguistic Case (1968) (No 2) 1 EHRR 252 paras 9- 10 16 National Anti-Vivisection Society v IRC  AC 31 17 Re Price  Ch 42; Re Hood  1 Ch 240.
In these circumstances and in the light of the potential impact of ECHR once the
HRA is in force they decided to consider the application by applying the English legal
authorities as they have traditionally been interpreted and understood unless these
authorities were ambiguous. In those circumstances (ie of ambiguity in the decided
cases) the Commissioners would exercise their discretion so as to construe those
decided cases in a way complying with ECHR principles and otherwise in a generous
and constructive manner consistent with the Commission’s approach to determining
the charitability of novel purposes. Where it was concluded that such an approach
should be adopted, CoS’s application and relevant legal authorities would be
considered in that manner.
5. The Commissioners’ approach to determining CoS’s application
The Commissioners approached the question of CoS’s registration as a charity by
considering first whether it is established for a charitable purpose recognised in English
law, and secondly by addressing the question of whether CoS is established for the
public benefit. In relation to the first issue, the charitable purpose, the Commissioners
considered whether CoS is established for the advancement of religion or in the
alternative whether it was established for the promotion of the moral or spiritual
welfare or improvement of the community.
6. Whether CoS is established for the charitable purpose of advancing religion.
The legal framework
The Commissioners noted that English charity law has developed empirically, within
the context of the traditional Western monotheistic religions, although it has long
embraced monotheistic religions other than Christianity and Judaism 18 . Within that
context, the following general principles are firmly established:
(i) Trusts for the advancement of religion take effect as charities without
assessment by the court of the worth or value of the beliefs in question, unless
the tenets of a particular sect inculcate doctrines adverse to the very
foundations of all religion and/or subversive of all morality 19 .
(ii) The law does not prefer one religion to another 20 and as between religions the
law stands neutral, but it assumes that any religion is at least likely to be better
than none 21 .
(iii) In deciding whether a gift is for the advancement of religion, the court does not
concern itself with the truth of the religion, a matter which is not susceptible of
proof. This does not mean that the court will recognise as a religion everything
that chooses to call itself a religion. But when once the religion is recognised
by the court as a religion, the beneficial nature of a gift for its advancement will
prima facie be assumed.2218 Bowman v. Secular Society  AC 406 19 Thornton v. Howe (1862) 31 Beav 14; Re Watson  1 WLR 1472 20 Thornton v. Howe, supra; Gilmour v. Coats  AC 426 21 Neville Estates v. Madden  Ch. 832 22 Re Coats’ Trusts, Coats v Gilmour  Ch 340 (CA) @ 346 and 347 Lord Greene MR.
(iv) In addition, in order to be charitable, the trust must not only be for the
advancement of religion, it must also be of public benefit. This is a question of fact
which must be answered by the court in the same manner as any other question of
fact, ie by means of evidence cognizable by the court.23 In the absence of evidence
to the contrary, public benefit is presumed.
Given these judicial principles, the Commissioners found it understandable that the
English courts have resisted closely defining what it is that makes some belief systems
religious and others not. However, the Commissioners accepted that there are some
characteristics of religion which can be discerned from the legal authorities:-1.
Belief in a god or a deity or supreme being – R v Registrar General ex parte
Segerdal (Lord Denning).24
2. Reverence and recognition of the dominant power and control of any entity or
being outside their own body and life (i.e. outside the body and life of the
follower of that religion) - Segerdal (Winn L J).25
3. Two of the essential attributes of religion are faith and worship: faith in a god
and worship of that god - South Place Ethical Society (Dillon J).26 The
Commissioners noted that Hubert Picarda QC writes that religion involves not
merely faith of a particular kind, but also worship, and states that the essential
ingredient of worship is found in the definition of Webster’s New International
dictionary which defines religion as “service and adoration of God or a god as
expressed in a form of worship.”27
4. A trust for the purpose of any kind of monotheistic theism would be a good
charitable trust - Bowman v Secular Society 28 (Lord Parker of
5. Worship must have at least some of the following characteristics: submission to
the object worshipped, veneration of that object, praise, thanksgiving, prayer or
intercession - Segerdal (Buckley LJ).29
6. It would not seem to be possible to worship in this way (ie with reverence) a
mere ethical or philosophical ideal - South Place Ethical Society (Dillon J)30
7. Promotion of religion includes “the observances that serve to promote and
manifest it.” - Keren Kayemeth Le Jisroel v IRC (Lord Hanworth MR).31
8. There must be a promotion of the religion, meaning “the promotion of spiritual
teaching in a wide sense, and the maintenance of the doctrines on which it
rests, and the observances that serve to promote and manifest it.” - Keren
Kayemeth Le Jisroel v IRC (Lord Hanworth MR). This would include23 Re Coats’ Trusts supra @ 347 24 R v Registrar General ex parte Segerdal  2 QB 697 25 R v Registrar General ex parte Segerdal supra 26  1 WLR 1565 at 1572D-E 27 “The Law and Practice relating to Charities” by Hubert Picarda, 2 nd Ed. page 64 (3 rd Ed. page 74). 28  AC 406 at 448 - 450 29 supra page 709 F-G 30 supra page 1573A 31  2 KB 465, 477 (affd.  AC 650).
observance of particular common standards, practices or codes of conduct as
stipulated in particular scriptures or teachings.32
9. To advance religion means “to promote it, to spread the message ever wider
among mankind; to take some positive steps to sustain and increase religious
belief and these things are done in a variety of ways which may be
comprehensively described as pastoral and missionary” - United Grand Lodge
v Holborn BC 33 (Donovan J).
10. Promotion of religion includes a missionary element or other charitable work
through which the beliefs of the religion are advanced - United Grand Lodge
v Holborn BC (Donovan J).
11. Public benefit is a necessary element in religious trusts as it is in other
charitable trusts - Coats v Gilmour 34 (Lord Greene MR).
Having considered these characteristics, the Commissioners concluded that the
definition of a religion in English charity law was characterised by a belief in a supreme
being and an expression of that belief through worship. The cases also make clear that
there must be advancement or promotion of the religion.
CoS’ s argument that CoS is established to advance religion.
The Commissioners noted the arguments put forward by CoS that CoS is established
for the advancement of religion, the religion in question being Scientology. In
particular they considered that the relevant arguments could be summarised as follows:
(1) That neither Segerdal nor South Place Ethical Society is binding or
persuasive authority as to the criteria of a “religion” in English charity law:
(2) That belief in a god or gods is not an essential characteristic of religion and a
set of beliefs can constitute a religion if it affirms the existence of the spiritual
or supernatural even though it does not recognise a supreme being or god, for
the following reasons:
§ The views of theologians and leading scholars in comparative religion
as to the meaning of “religion”: in particular sets of beliefs widely
recognised as religions do not affirm the existence of a supreme being;
§ Decisions of courts abroad that non-theistic beliefs may constitute a
§ The general principles of international law and the European
Convention on Human Rights;
§ The adverse consequences of confining “religion” to theistic beliefs.
(3) Alternatively, if belief in a god and worship are essential characteristics of
religion, that either:
§ Scientology possesses those characteristics, or32 The Church of the New Faith v Commissioner for Payroll Tax, supra, which is a persuasive authority being an Australian case, also supported this notion. 33  1 WLR 1080 34 Re Coats’s trusts, Coats v Gilmour  Ch 340 at 344 (Court of Appeal).
§ Scientology should be recognised as an exception
(4) That the Charity Commission has accepted that it must act constructively and
imaginatively 35 when reviewing its own past decisions and those of the courts,
and it is therefore appropriate in this case for the Commission to adopt “a
generous as opposed to a restrictive view” 36
The Commissioners considered these arguments in the light of the English legal
The Commissioners noted that the Segerdal and South Place Ethical Society cases
in particular, referring to the requirement of a god or deity have traditionally been
regarded as decisive of the principle that theism (belief in a god) is a necessary
criterion of religion for the purposes of charity law. Both cases suggest that religion in
charity law is characterised by
§ faith in the personal, creator god of the traditional monotheistic religions,
having existence outside the body and life of the votary, and
§ worship of that deity in the form of formalised expressions of supplication,
veneration, praise and intercession, as traditionally practised in monotheistic
Against those criteria, the Commissioners noted that Scientology claims to
acknowledge a supreme being which may have created the world. This supreme being
(“infinity”, the Eighth dynamic, the “allness of all”), is according to the expert opinion
submitted by CoS in support of its application, a thoroughly impersonal abstract
conception, more analogous to eastern enlightenment and realisation, which
Scientologists recognise as the ultimate ground of being but of which they are reluctant
to claim complete understanding.37
Whilst the Commissioners noted that CoS’s application stated that Scientology
acknowledges a supreme being, the Commissioners concluded that the supreme being
did not appear to be of the kind indicated by the decided cases.
The Commissioners also noted CoS’s submission that the activities of auditing and
training constitute its worship, this argument being supported by the expert opinion
submitted by CoS. However, the Commissioners were unable to accept that the
practices of auditing and training were akin to or comparable with the acts of worship
indicated by the English cases – praise, veneration, prayer, thanksgiving, intercession,
submission to the object worshipped.35 The Report of the Charity Commissioners 1985 paras. 24-25 36 The Report of the Charity Commissioners 1985 supra 37 for example the Opinion of Dr Wilson (Paras 8.07, 11.03(a) and 8.11); and of Dr Bryant (section IV.7.c-IV.7.d).
Ambiguity in the English legal authorities
However, the Commissioners noted that the English legal authorities concerning the
concept of religion in English charity law might not be entirely clear and unambiguous
and may be of persuasive value rather than binding authority.
Analysis of English legal authorities concerning the definition of ‘ religion’ in English
The Commissioners therefore considered the extent to which ambiguity existed in the
English legal authorities and reviewed these as follows.
(i) Segerdal (Court of Appeal)
The case of Segerdal was not concerned with charity law but it did concern a Church
of Scientology chapel. The issue in Segerdal was not whether Scientology was a
religion for the purposes of charity law. The question, rather, was whether a Church
of Scientology chapel was a “place of meeting for religious worship” within the
meaning of the Places of Worship Registration Act 1855. The court did not decide
whether a non-theistic set of beliefs can constitute a religion for the purposes of charity
law or whether Scientology is a religion for such purposes (Winn LJ expressly stated
that he was not concerned to decide “whether Scientology is or is not a religion”); it
merely interpreted “place of religious worship” for the purposes of the Act as meaning
“a place where people come together to do reverence with prayer, humility and
thanksgiving to a Supreme Being”, Lord Denning MR concluding: “I am sure that
would be the meaning attached by those who framed this legislation of 1855”.
Accordingly, the Church of Scientology’s chapel did not (and still would not) qualify
for registration as a place of worship under the Places of Worship Registration Act
The Commissioners considered that interpreted in a charity law context, the decision
is not binding authority as to the criteria of a “religion” in charity law. The dicta of the
judges are of persuasive value, and arguably strongly so, because the court did
consider the question of the nature of religious worship, although it did not consider
the nature of the Scientology practices of auditing and training (which CoS argues
constitutes the worship of Scientologists), that not being a matter before the court.
(ii) Bowman v Secular Society (House of Lords)38
This concerned the validity of a gift to the Secular Society, one of whose objects was
to promote the principle that “human conduct should be based upon natural knowledge
and not upon supernatural belief, and that human welfare in this world is the proper
end of all thought”.
The issue was whether this object denied Christianity and, if so, thereby involved the
criminal offence of blasphemy; if so, the gift to the Society would not be enforceable.
There was some consideration of a side issue of whether the gift, if given to the
Society as trustee for the purposes set out in that object, would be charitable. Lord38  AC 406.
Parker of Waddington said “It is not a religious trust, for it relegates religion to a
region in which it is to have no influence on human conduct”.39
The Commissioners considered that the dicta here in relation to charity law were
therefore neutral in relation to the characteristics or nature of religion.
(iii) South Place Ethical Society ( High Court)40
This case did concern charity law and religion. The issue before the court was whether
the Society, which professed a belief in "“ethical principles"” that is, “the belief in the
excellence of truth, love and beauty, but not belief in anything supernatural”, was a
religion or otherwise charitable.
Dillon J began by referring to the Bowman case and the United Grand Lodge case in
which the court had held, without defining the term religion to exclude non-theistic
beliefs, that the organisations in question were not established for the advancement of
religion, In relation to Bowman v Secular Society,41 Dillon J said:
“That comment [in Bowman] seems to me to be equally applicable to the objects of
the society in the present case… Lord Parker of Waddington has used the word
[religion] ‘in its natural and accustomed sense’”.
In relation to the second case,42 in which Donovan J, after commenting that
freemasonry held out certain characteristics including reverence, honesty, compassion,
loyalty, temperance, benevolence and chastity, said –
“Admirable though these objects are it seems to us impossible to say that they add up
to the advancement of religion”.43
Dillon J considered that the society had not made out a case to be charitable on the
grounds that its objects were for the advancement of religion.
The Commissioners considered that it may not have been necessary to the decision of
the case to go on, as the judge did, to define “religion” with particularity, by reference
to criteria of a god and worship of that god, nor necessarily to interpolate into charity
law for that purpose, as he did, the decision in Segerdal.
However, given that this judgement was concerned with charitable status and religion,
the Commissioners concluded that they would be able to give the statement due
weight in considering the characteristics of a religion for the purposes of charity law.39 Idem, at 445 40  1 WLR 1565 41 Bowman v Secular Society  AC 406 42 United Grand Lodge of Ancient Free and Accepted Masons of England v. Holborn Borough Council  1 WLR 1080 43 Idem, at 1090.
(iv) Keren Kayemeth Le Jisroel v IRC (Court of Appeal)44
The Keren Kayemeth case was decided by the Court of Appeal in 1931. It was
concerned with the charitable status of a company with objects to acquire land in
Palestine, Syria and other countries for the purposes of settling Jews there. It had been
argued that such a purpose might be religious because it is a religious purpose of the
Jewish community to return to the Holy Land. The Court found that the company was
not charitable and, in fact, there was very little discussion about the purported religious
purpose. Lord Hanworth MR said:45
“Turning now to the problem whether either of the four characteristics [of charity] can
be found in the Association, it is sufficient to say that as to “religion” I agree with the
observations with Rowlatt J on that head. The promotion of religion means the
promotion of spiritual teaching in a wide sense, and the maintenance of the doctrines
on which it rests, and the observances that serve to promote and manifest it – not
merely a foundation or cause to which it can be related. Religion as such finds no
place in the Memorandum of the Association.”
It was apparent to the Commissioners from the full context of this paragraph in the
judgement that Lord Hanworth did not mean to give a definition of religion but was
concerned with what the promotion of religion means. In effect, all that Lord
Hanworth was saying was that promoting an organisation which is related to a religion
(in this case Judaism) is not the same as promoting a religion. It was not an issue at all
whether Judaism was a religion.
Lord Hanworth’s comments could not, in the Commissioners’ view, be taken as
providing a definition of religion which is binding. They could, though, be regarded as
a proper indicator of the meaning of the promotion of religion.
(v) United Grand Lodge of Ancient Free and Accepted Masons of England v
Holborn Borough Council (Court of Appeal) 46
In this case the United Grand Lodge claimed to be entitled to rating relief on the basis
that the organisation’s objects were “charitable or otherwise concerned with the
advancement of religion” within the meaning of section 8(1)(a) of the Rating and
Valuation (Misc. Provisions) Act 1955.
Donovan J commented that the organisation urged freemasons to be reverent, honest,
compassionate, loyal, temperate, benevolent and chaste; but he found that this did not
amount to the advancement of religion.
The court went on per curiam 47 to identify what is meant by the advancement of
religion (as opposed to defining religion itself) - to promote it by spreading its message
ever wider by pastoral and missionary means.
The Commissioners agreed that they would be able to rely on this case as identifying
the ways in which a religion may be advanced.44  2KB 465 45 supra page 477 46  1 WLR 1080 47 statements given per curiam indicate that they have been decided on by the court and have authority as such.
(vi) Coats v Gilmour (Court of Appeal and House of Lords)48
This case directly concerned religious charitable trusts and public benefit in relation to
a closed order of nuns. The Court of Appeal judgements contain a more detailed
analysis of the nature of public benefit enuring from a religious trust. Although the
case was appealed to the House of Lords, the Lords did not disturb the findings of the
Court of Appeal.
The judgements here are therefore binding on the Commissioners in considering
public benefit and religious charities.
The Commissioners concluded that the English legal authorities are neither clear nor
unambiguous as to the definition of religion in English charity law, and at best the
cases are of persuasive value with the result that a positive and constructive approach
and one which conforms to ECHR principles, to identifying what is a religion in
charity law could and should be adopted.
In order to interpret the decided English cases in a manner which is both constructive
and consistent with ECHR principles, the Commissioners considered that they could
properly take account of how the question of what is “a religion” has been addressed
elsewhere. In particular the Commissioners considered that they may take account
§ Court decisions in other jurisdictions, principally Australia, the USA and India
although it was noted that these cases were of persuasive value only for the
Commission, and to a lesser degree than the English cases.
§ Expert Opinion– submitted by CoS from scholars expert in the study of religion
(principally from Dr Wilson, Dr Bryant and Dr Kliever).
§ Indications of whether the public at large would view a belief system as a
religion including decisions of other ‘public bodies’, and the common English
meanings of religion and worship, as found, for example, in the English
dictionaries.4948  Ch 340 &  AC 426 49 CoS has yet to be accepted by the Home Office Immigration and Nationality Directorate of the religion for the purposes of the immigration rules. CoS has been recognised as an acceptable religious advertiser on British television by the ITC (R v ITC ex parte New Era Publications Aps and Church of Scientology Religious Education College  (unreported) CO/227/96). This case did not reach court (except for the determination of costs). There is no formal “ruling” available; the ITC’s decision is reflected in the form of a press release dated 24 April 1996. The ITC advertising rules on “religious advertising” apply to advertising bodies with objects of a religious nature or which is directed towards a religious end and are also applicable to “advertising having a similar connection to systems of belief or philosophies of life which do not involve the recognition of a deity but can reasonably be regarded as equivalent or alternative to those which do”. It is not known whether CoS was regarded as a religion or belief system in this connection. The Ministry of Defence has confirmed by letter to CoS that Scientology is “an officially recognised religion in the Royal Navy”. The Commissioners noted that having regard to the way in which other English bodies had determined whether or not a belief system is religious would not provide them with indicators as to how to determine whether a belief system is religious for the purposes of charity law. However, the decisions of other bodies may provide evidence as to whether the public at large would view the belief.
Belief in a supreme being
The Commissioners considered how the question of a belief in a supreme being was
addressed both in the opinions of experts, by the foreign legal authorities and in
common definitions of religion
All three of the major experts relied upon by CoS conclude that Scientology believes in
a supreme being, although the place and nature of that being is not the same as that of
God in Christianity or Judaism for example. The place of the supreme being in
Scientology is dealt with at section 8.11 and 11.03a of the Opinion of Dr Wilson. Dr
Wilson writes that “Scientology does acknowledge a Supreme Being, but conceives of
that entity as something which cannot be easily apprehended and with which
communication, at this stage of human enlightenment, is a rare thing”. Section IV.7C-IV.
7D of the Opinion of Dr Bryant 50 and section 13 and 33 of the Opinion of Dr
Kliever 51 in particular, also concern Scientology’s belief in a Supreme Being.
Foreign Legal Authorities
The Commissioners noted that foreign courts have taken a broad approach to the
question of a supreme being. In The Church of the New Faith v the Commissioner
for Payroll Tax supra, a case on appeal to the High Court of Australia two of the five
Judges indicated that religion had two essential criteria - belief in a “supernatural being
or thing or principle” and conduct giving effect to that belief. Two other judges
concluded that a single formula could not determine whether a set of beliefs
constituted a religion. However, they identified various indicia for answering that
question as follows: - that the ideas in question reflect the ultimate concerns of human
existence; an element of comprehensiveness; forms and ceremonies. The one
remaining judge in that case appears to have taken the view that “any body which
claims to be religious and offers a way to find meaning and purpose in life, is
religious”. It seems that only two of the judges there adopted what could broadly be
described as a ‘theistic’ approach, referring to the criterion of a ‘supernatural being,
thing or principle’.
The Indian Courts have concluded that religion is not necessarily theistic 52 , but
undoubtedly has as its basis a system of beliefs or doctrines which are regarded by
those who profess that religion as conducive to their spiritual well-being.
In Fellowship of Humanity v County of Alameda the California State Court of
Appeal holding that facilities used by humanist groups for weekly meetings qualified as
system as a religion. Further, reference to the dictionary definitions may further provide an indication
of what is commonly understood by the terms ‘religion’ and ‘worship’ in the English language.50 “The Eighth Dynamic is “the urge toward existence as Infinity”, or what others call “a Supreme Being or Creator”. 51 “Scientology’s Eighth Dynamic affirms a spiritual context of life that radically transcends the empirical self and the physical universe. Scientologists are reluctant to claim complete technological control and philosophical understanding of this highest level of spirituality” and @ section33 “though the Church of Scientology resolutely affirms the existence of God, it has no dogma concerning the nature of God. For the most part… they think of God less as a personal Being who commands personal devotion and obedience than as a spiritual force that invites individual exploration and discovery…” 52 The Commissioner Hindu Religious Endowment Madras v Sri Lakshmindra Thirtha Swamiar Of Sri Shirur Mutt (1954) – Indian Supreme Court  SCR 1005.
a place of worship for property tax exemption purposes identified four characteristics
of religion, the first being “a belief not necessarily referring to supernatural power”.53
The Shorter Oxford English Dictionary indicates that religion means “belief in or
sensing of some superhuman controlling power or powers entitled to obedience,
reverence and worship, or in a system defining a code of living, especially as a means
to achieve spiritual or material improvement; acceptance of such belief (especially if
represented by an organised church) as the standard of spiritual and practical life; the
expression of this in worship.”
In taking account of, and looking at the English cases in the light of, these sources, the
Commissioners concluded that belief in a supreme being remains a necessary
characteristic of religion for the purposes of English charity law. It would not,
however, in their view, be proper to specify the nature of that supreme being or to
require it to be analogous to the deity or supreme being of a particular religion.
However, the Commissioners did not find it necessary to conclude that the
requirement of a supreme being is no longer necessary at all to the concept of religion
in English charity law – the Commissioners did not find themselves compelled to
reject “theism” altogether (as in the Indian case), nor to dilute the concept to the
extent of the Australian case 54 (so as to refer to belief in a ‘supernatural… principle’;
In relation to the question of worship it was apparent to the Commissioners from the
papers submitted to them by CoS that auditing and training are regarded as worship in
Scientology. The Commissioners noted the nature of these “core religious services”, a
detailed description of which were found in the text book “What is Scientology?”
supplied by CoS.55 It was clear that these activities (auditing and training) form the
essential religious activities of Scientology – for example the “Enrolment Form for
religious services of Scientology at Saint Hill in Sussex” [the Enrolment Form] states
that “the core religious services of the Scientology religion are auditing and training”.
Auditing is described as a very unique form of personal counselling 56 which helps an
individual look at his own existence and improves his ability to confront what and
where he is, and is conducted at auditing sessions during which an auditor 57 audits an
individual. Auditing uses exact sets of questions asked or directions given by an
auditor to help an individual find out things about himself and improve his condition
and locate areas of spiritual distress and travail. Auditing is assisted by use of an E-53 153 Cal. App. 2d 673, 315 P.2d 394 (1957) The other three characteristics were - a cult involving a gregarious association openly expressing the belief; a system of moral practice resulting from adherence to the belief; an organisation within the cult designed to observe the tenets of the belief 54 Church of the New Faith supra 55 At pages 80ff and 88ff. 56 The Commissioners noted that it is described as such by Scientologists on the Video Presentation to the Charity Commission, and also item 3 Enrolment Form. 57 person trained and qualified in applying auditing to individuals for their betterment. Pg. 80“What is Scientology?”.
meter. As a result of auditing an individual discovers things about himself and his life,
a realisation which results in a higher degree of awareness and a greater ability to
succeed. Auditing sessions are conducted “in a quiet comfortable place where it will
not be disturbed”. Those present are the auditor and person being audited with an E-meter
set up for the auditor’s use.
Training in Scientology involves the study of the works of L Ron Hubbard, listening
to his recorded lectures and drilling of the principles of application. Training sessions
are supervised by a course supervisor who moves from student to student monitoring
progress, and a course administrator who provides any needed materials. There is no
formal teaching. Training is based solely upon study of the course materials and works
of Mr Hubbard. Check sheets set out the sequence of study and the practical
application drills to be followed. The materials of a Scientology course consist of
books, other publications, films and recorded lectures by L Ron Hubbard. The
Scientology course is said to be solely for the benefit of the student, whose own
advancement in knowledge determines progress. Completion of a course is marked by
the award of a certificate signifying attainment of a particular level of knowledge or
The Commissioners noted that participation in both auditing and training is generally,
although not exclusively, dependant upon payment of what was described to the
Commissioners by CoS as “a requested donation”. In this respect it was also noted
that the Enrolment Form refers to “requested donations with respect to… participation
in auditing and religious services”, and that it set out a procedure for seeking a refund
if dissatisfied with the results of the service, provided the individual relinquishes
membership of CoS. Thereafter it appears that the individual is no longer qualified to
receive further auditing and training.58 However, the Commissioners noted that
impecuniosity is not according to CoS, a bar to an individual’s progress in
Scientology, there being other ways in which an individual can participate in auditing
and training without making monetary contributions. They also noted that payment in
respect of participation in auditing and training is said by CoS to be necessary because
these are labour intensive activities from CoS’s point of view requiring a large number
of trained auditors and supervisors.
The Commissioners then turned to the question of how the concept of worship had
been addressed elsewhere particularly in expert opinion, foreign legal authorities and in
common definitions, as follows:
The central practices of Scientology – auditing and training – constitute religious
worship in the three main expert opinions relied upon by CoS, in particular the Opinion
of Dr Kliever p.19 section 34-42; the Opinion of Dr Byrant, Section V pages 22-27;
the Opinion of Dr Wilson Ch8 p59-70.
Dr Wilson, for example states that the definition of worship should not be confined to
the assumptions of one specific tradition and that the forms traditional to Christianity
do not exhaust all the various modes in which worship can occur. He argues that the
universal aim of worship is to establish a rapport between the individual and the
supernatural ultimate (being, object, law, principle, dimension, ground of being, or
concern) in whatever way that ultimate is conceived by the religious body to which the58 Item 5 Enrolment Form.
individual belongs, with a view to his ultimate attainment of salvation or enlightenment
– section 8.06 of Dr Wilson’s Opinion. He writes that the essence of Scientology is
understanding through communication which is through auditing - private
communication by the individual with his past; and training - communication with the
fundamental truths and grounds of existence. In Scientology communication with
spiritual reality is sought and ultimately achieved through auditing and training which
thus constitute worship.
Foreign legal authorities
In Fellowship of Humanity v County of Alameda 59 the California State Court of
Appeal (in holding that facilities used by Humanist groups at their weekly meetings
qualified as a place of worship for property tax redemption purposes) indicated that
any lawful means of formally observing the tenets of the cult (defined as a gregarious
association openly expressing the beliefs in question) constituted “worship”.
In Church of the New Faith v Commissioner for Payroll Tax the High Court of
Australia in adopting a two-fold test to religion chose not to identify ‘worship’ as one
of the two characteristics of religion. Rather, the second limb of the Court’s test refers
to “the acceptance of canons of conduct in order to give effect to that belief [in a
supernatural being, thing or principle – the first limb of the test] provided that the
canons of conduct do not offend against the ordinary laws.” However the
Commissioners noted that the decision itself in that case seemed to turn upon whether
the group of Scientologists involved were genuine in their belief, rather than upon any
objective criteria identifying an organisation as “religious”.
The Commissioners agreed that dictionary definition of “worship” may provide an
indication of how the public generally would understand that term, and noted that the
Shorter Oxford English Dictionary defines worship as “acknowledgement of worth,
homage; respectful recognition or honour shown to a person or thing; religious
reverence, adoration or homage paid to a being of higher regard or treated as
supernatural or divine; the expression of this in acts, ritual, ceremony or prayer,
especially of a public or formal nature; veneration or devotion similar to religious
homage shown to a person or principle.”
Reverence is defined there as “deep respect or veneration especially on account of the
object’s sacred or exalted character” and veneration as “a feeling of deep respect or
reverence for a person or thing. The action or act of showing this.”60
The Commissioners indicated that it is perhaps significant that Hubert Picarda QC 61
refers to the requirement of “worship as the manifestation of faith”. He states that
there must be an expression of faith and refers to the definition of religion in Webster’s
New International Dictionary – “Service and adoration of God or a god as expressed
in the form of worship”.59 153 Cal.App.2d673,315P.2d394(1957) 60 Other definitions are:- “reverence: to regard or treat with reverence, respect, honour or veneration: honour or respect felt or manifested, deference paid or expressed” and “veneration: a feeling of respect mingled with awe excited by the dignity, wisdom, superiority of a person, by sacredness of character, their consecrated state; the act of admiring humbly and respectfully” – Webster’s 3 rd New International Dictionary. 61 ‘The Law and Practice Relating to Charities’ H Picarda 2 nd Ed. p. 64 (3 rd Ed. p. 74).
In approaching the question of worship the Commissioners recognised that the
advancement of religion is regarded as a distinct (third) head of charity law accepted
(on the basis of experience) as conferring public benefit subject to evidence to the
contrary. There was therefore a need to maintain clear criteria to differentiate those
purposes falling within the third head and those which did not. The Commissioners
considered that the concept of worship had the potential to provide such clear and
objective criteria. The Commissioners considered it proper that the distinction in
English charity law between religious and non-religious belief systems be maintained.
At the same time the Commissioners noted the need to avoid discrimination between
Approaching the concept of worship in the light of these considerations the
Commissioners identified in the English legal authorities a concept of worship which
exhibited defining characteristics of reverence and recognition of a supreme being
outside the body and life of the follower of the religion- ex parte Segerdal. Further in
South Place Ethical Society, the court indicated that it did not seem possible to
worship an ethical or philosophical ideal “with reverence”. The identifying feature of
worship in English charity law appeared therefore to be that of reverence for or
veneration of a supreme being. The Commissioners further noted that the dictionary
definitions indicate that worship is characterised by reverence and veneration.
The Commissioners thus concluded that the English legal authorities indicated that
the criterion of worship would be met where belief in a supreme being found its
expression in conduct indicative of reverence or veneration for that supreme being.
The Commissioners noted and welcomed the fact that the concept of worship so
understood, distilled from the decided English cases was reflected in the common
English definition of the word “worship”. The Commissioners also noted that the
concept of worship so understood provided objective criteria by which worship can be
identified for the purposes of recognising an organisation to be charitable as advancing
religion and so falling within a distinct third head of English charity, at the same time
as being sufficiently broad to allow recognition of a range of belief systems commonly
recognised as religions.
In reaching this conclusion the Commissioners did not feel themselves constrained to
adopt either an understanding of “worship” as put forward in the expert opinions
submitted by CoS, nor to adopt the approach taken in the foreign legal authorities. To
adopt the approach of the expert Dr Wilson for example would in the Commissioners’
view effectively mean redefining worship as “the means by which communication with
spiritual reality is sought and ultimately achieved”. Alternatively following the foreign
legal authorities “worship” could be redefined as for example “any lawful means of
formally observing the tenets of the religion” - Fellowship of Humanity v County of
Alameda; or as “canons of conduct giving effect to the belief in question” - Church
of the New Faith v Commissioner for Payroll Tax. The Commissioners concluded
that it was not appropriate to adopt either of these approaches since to do so would
mean redefining the concept of “worship” as a criterion of religion in English charity
law, so as to give to the term “worship” a meaning different from that suggested by the
English legal authorities, and one which the word does not, in ordinary English,
The Commissioners approach applied to Scientology.
Belief in a Supreme Being
The Commissioners concluded that it could be accepted that Scientology claims to
profess belief in a supreme being. The nature of this being is not fully developed but it
is not similar to the god of the Judeo Christian tradition, for example. The
Commissioners noted that different religions have different understandings of what is
meant by the term “supreme being”, further, the nature of that being, and the extent to
which differing religions exhibit a developed theology also varies. However, since it is
clear that English law does not enquire into the nature, worth or value of religious
beliefs 62 , nor concern itself with the truth of the religious beliefs in question 63 , the
Commissioners concluded it to be sufficient for the purposes of English charity law
that Scientology professes a belief in a supreme being.
The Commissioners concluded that auditing appears in essence very much akin to
counselling, conducted on a one to one basis, in private, and addressed to the needs of
the individual receiving auditing. Scientologists themselves describe auditing as
counselling (for example in the video presentation to the Charity Commissioners for
England and Wales). On the whole they do not appear to describe auditing in terms of
The Commissioners further concluded that training in Scientology, involving the
detailed study of the works of L Ron Hubbard, according to particular set formulae or
methods of study, similarly lacks the elements of reverence or veneration necessary if it
is to constitute worship. Scientology training appears more like an educational activity
(the acquisition of knowledge and practical skills in the application of Scientology
theory and technology) than a religious activity or worship in the sense identified by
The Commissioners noted that it was a feature of auditing and training that it is
normal practice (although not exclusively so) to require payment in advance, these
payments being referred to as “requested donations” by CoS, as a prerequisite for
participation in these activities. This practice was noted but the Commissioners did
not consider it to have an impact upon whether the activities of auditing and training
themselves constituted worship in English charity law.
Having considered the core religious services of Scientology, namely auditing and
training which CoS submits constitutes worship, the Commissioners concluded that
they could not find, in auditing and training whether taken separately or together, the
reverence and veneration for a supreme being which they considered is necessary to
constitute worship in English charity law.
The Commissioners therefore concluded that Scientology is not a religion for the
purposes of English charity law, and that CoS is not charitable as being established for
the charitable purpose of the advancement of religion.
Whether CoS promotes and advances Scientology62 Thornton v Howe supra 63 Gilmour v Coats supra.
Turning to the question of whether CoS promotes and advances Scientology – it was
noted that this question was now hypothetical, the Commissioners having concluded
that Scientology was not a religion in English charity law. However, CoS had supplied
argument and evidence that it did promote and advance Scientology and the
Commissioners considered this, although it was not strictly necessary to do so in view
of the conclusion that Scientology was not a religion. The Commissioners accepted
that on the basis of the evidence put to them by CoS, the organisation did promote and
advance Scientology as its system of belief, seeking to spread its message ever wider
and exhibiting a missionary element in a manner identified by the relevant legal
authorities. The Commissioners noted that it was not necessary in reaching this
conclusion to consider the extent to which CoS is engaged in activities which may in
themselves be charitable in their own right whether pursued by CoS or some other
body, for example activities which may be charitable as relieving poverty or other
need, or advancing education.
7. Whether CoS is established for the purpose of promoting the moral or spiritual
welfare or improvement of the community
The Commissioners considered whether CoS is established for the purpose of
promoting the moral or spiritual welfare or improvement of the community under the
fourth head of charity law.
CoS argue that if Scientology is not a religion, then the advancement of Scientology is
nevertheless charitable under the fourth head of charity 64 by analogy with decided
cases where the institutions concerned were established for the moral or spiritual
welfare or improvement of the community. The Commissioners therefore considered
whether CoS is in fact established under the fourth head as promoting the moral or
spiritual welfare or improvement of the community, being a purpose which is beneficial
to the community, and already recognised in charity law.
The Commissioners indicated that it would be necessary for them to consider firstly
the legal basis upon which the promotion of the moral or spiritual welfare or
improvement of the community is regarded as a charitable purpose as set out in the
cases of Re Scowcroft, Re Hood, Re Price and Re South Place Ethical Society;
secondly whether Scientology is analogous to those cases and if so thirdly whether the
test of public benefit under the fourth head has been satisfied.
The Commissioners noted that it is clear from the case law 65 that it may be charitable
under the fourth head of charity to promote the moral or spiritual welfare or
improvement of the community.
The Commissioners noted that in order to decide whether a novel purpose is
charitable under the fourth head of charity, the courts and the Commission will
consider whether the purpose is analogous to those found in the Preamble to the
Statute of Elizabeth or to a purpose already found to be charitable by the courts or the
Commission. The Commission has publicly stated its approach to determining such64 under the classification of charities by Lord MacNaghten in Income Tax Special Purposes, Commissioners v Pemsel  AC 531‘other purposes beneficial to the community not falling under any of the preceding heads’ 65 Re Scowcroft  2 Ch 638, Re Hood  1 Ch 240, Re Price  Ch 422, Re South Place Ethical Society supra.
cases in its Annual Report of 1985 66 and will act constructively and imaginatively in
seeking an analogy, its general approach being to favour charity.67
In addition, public benefit must be shown to flow from the activities of the particular
organisation in question. Tangible or objective benefits are generally required but
intangible benefits are acceptable 68 . Those benefits must also be available to the public
at large or to a sufficiently important section of the public.69
CoS’ s arguments that it is established for such a purpose
The Commissioners took note of CoS’s arguments in support of its application for
registration as a charity under this head that Scientology regards itself as a religion
whose principal concern is “to lead man to salvation”70 , but which is also concerned
with human wellbeing. Scientology makes clear that its long term goal is the benefit of
all mankind – by promoting its spiritual practices it seeks to eliminate destructive and
hostile tendencies amongst men.71 The teachings of Scientology are translated into
practical activity by its adherents (aimed at achieving Scientology’s stated aim 72 ), for
example in the field of rehabilitation of drug addicts and criminals.
Dr Wilson (one of the experts in the study of religion relied upon by CoS) concludes
that the teachings and intentions embraced in Scientology “do not materially differ
from those in most other religious organisations, namely the moral and spiritual
improvement of mankind and the creation of a safer and happier society”73 . In
consequence CoS argues that there are clear parallels between the aims of the
teachings of Scientology and the teachings of Rudolf Steiner considered in the case of
Re Price. It is argued by CoS that Scientology’s teachings are all directed towards the
promotion of moral or spiritual welfare or improvement of the community.
CoS argues that many of Mr Hubbard’s teachings are already recognised as charitable
and applied by existing charities. For example Mr Hubbard’s teachings on drug abuse,
how drugs and toxic residues impede spiritual improvement and about how to rid
people of the adverse long term effect of drugs have general application in the field of
drug rehabilitation, and are used particularly by the drug rehabilitation charity
Narconon. Mr Hubbard’s methods developed to assist people in religious study are, it
is argued, taught and used by educational charities both in this country and around the
world. It is argued that other teachings based on the Scientology belief that moral and
ethical living are necessary for true happiness and spiritual growth have been used in
courses and to rehabilitate criminals by charities here and abroad. CoS therefore
conclude that a large part of the teachings which promote moral, mental and spiritual
improvement within Scientology are already recognised as charitable in purpose and
taught and used by existing charities.66 AR 1985 Pages 11 & 12 paras 24-27. 67 AR 1985 para 27 68 If such benefits would be regarded as valuable ‘by the common understanding of enlightened opinion’ -– National Anti-Vivisection Society v IRC  AC 31. 69 Verge v Sommerville  AC496 70 Opinion of Dr Bryan Wilson October 1997 “Scientology and the Public Benefit” 71 Opinion of Dr Bryan Wilson October 1997 supra 72 “A civilisation without insanity, without criminals and without war, where the able can prosper and honest beings can have rights, and where Man is free to rise to greater heights, are the aims of Scientology” L. Ron Hubbard – ‘The Aims of Scientology’ 73 Opinion of Bryan Wilson October 1997 supra.
Examination of the legal authorities
The Commissioners considered the relevant decided English cases and noted that the
promotion of the moral or spiritual welfare or improvement of the community as a
charitable purpose has developed over the course of several cases decided by the
courts. The most recent case is Re South Place Ethical Society where the court
considered that the Society in question was analogous to the three cases which had
gone before - Re Scowcroft; Re Hood; Re Price.
It was clear to the Commissioners that the promotion of the moral or spiritual welfare
or improvement of the community is a recognised category of charity falling within the
fourth head of Lord MacNaghten’s classification 74 , and they considered whether CoS
was established for a purpose analogous to those found in the case law.
Re Scowcroft and Re Hood were both cases concerned with the promotion of
temperance primarily as a means of advancing Christian principles, but also on its own
account. On the facts, the Commissioners found little analogy between those cases
The Commissioners considered that the cases of Re Price and Re South Place
Ethical Society however, might provide a basis for an analogy. Re Price was
concerned with advancing the teachings of Rudolf Steiner and these may have some
similarity in their nature with the teachings of L Ron Hubbard promoted by CoS.
Steiner taught, amongst a range of other things, a theory of knowledge and a method
of mental and moral discipline and the application of this to a wide range of studies
(eg to religion and education generally). L Ron Hubbard developed Scientology as the
Science of Knowledge which, once learnt by a student of Scientology can be applied to
many aspects of life.
However, there seemed to the Commissioners to be a fundamental difference
between the case of Re Price and that of CoS.
The Steiner teachings were a broad range of teachings which included “a method of
mental and moral discipline designed to train the imaginative, creative and devotional
faculties of the mind…”. However, these did not constitute a formal system of
doctrines, practices and beliefs and the Society in Re Price was not concerned with
advancing a belief system whether religious or secular. Steiner’s principles were of
general application to different aspects of life (“in other books and lectures Steiner
taught and developed the application of [his theory of] knowledge to religion and
It seemed to the Commissioners that CoS on the other hand is concerned with
advancing a set of doctrines, practices and beliefs which constitute a highly structured
and formal belief system, which its practitioners regard as a religion. Its adherents
share beliefs which are unique to Scientology. Further it is necessary to receive
Scientology services – principally auditing and training – in order to apply Scientology
doctrines and practices to life. Progress across the Eight Dynamics is achieved
through auditing with a trained Scientology auditor and participation in training. This
necessitates membership of a particular organisation because of the need to engage in
auditing and training - the Scientology services available through CoS. It was not74 Income Tax Special Purposes Commissioners v Pemsel, supra 75 Re Price supra @ p. 431.
therefore clear to the Commissioners that the doctrines, practices and beliefs of
Scientology can be accepted and applied by the public at large as a broad philosophy
for living their daily lives or as a way of achieving spiritual awareness. Nor was it clear
that the public does so accept and apply those doctrines, practices and beliefs.
For similar reasons CoS is distinguishable in the Commissioners’ view from the case
of Re South Place Ethical Society. That Society was, as the Judge said, concerned
with rational thought. A member of the public could share the views propounded by
the Society and live by them (or not) from time to time as he might choose, because
they were general views. An individual did not have to be a member of the South
Place Ethical Society in order to understand or adopt the philosophy and principles
that it advanced. Further the Society was not advancing a religion or other belief
In conclusion, the institutions found to be charitable in the Re Price and South Place
Ethical Society cases were disseminating ideas which were broadly philosophical and
which were generally accessible to and could be applied within the community and
which could be adopted freely from time to time, according to individual choice or
judgement, by members of the public at large.
In neither the Re Price nor the South Place Ethical Society cases was a belief system
promulgated, nor was membership of the organisation concerned necessary for an
individual to follow the principles of Steiner or those promulgated by the South Place
CoS on the other hand was, in the Commissioners’ opinion distinct from these two
cases because it regards itself as promoting a religion, and unarguably promotes a
formal belief system (whether accepted as religious or not). Its doctrines, practices
and beliefs are not such as to be available generally to the public at large as they may
choose from time to time. Rather, the nature of Scientology’s doctrines, practices and
beliefs is such that they constitute a highly structured system and such that membership
of the organisation is necessary for participation.
The Commissioners did not find Scientology to be strictly analogous to the cases
previously decided by the Court.
Ambiguity in the English legal authorities
However, the Commissioners noted that the English legal authorities concerning the
moral or spiritual welfare or improvement of the community might not be entirely clear
and unambiguous and may be of persuasive value rather than binding authority.
Analysis of English legal authorities concerning the moral or spiritual welfare or
improvement of the community.
The Commissioners therefore considered the extent to which ambiguity existed in the
relevant legal authorities and reviewed these as follows:
(i) Re Scowcroft
In this case a vicar left by will a building used as a village hall and reading room “to be
maintained for the furtherance of Conservative principles and religious and mental
improvement and to be kept free of intoxicants and dancing”.
The judge, Stirling J, found that the true reading was that it was either a gift for the
furtherance of Conservative principles in such a way as to further religious and mental
principles or it was a gift for the furtherance of religious and mental improvement in
accordance with Conservative principles. In either case, the furtherance of religious
and mental improvement was found to be an essential part of the gift. Stirling J held
that therefore it was a gift for that purpose and a good charitable gift. He thought that
the limitation of having to combine that gift with the advancement of Conservative
principles did not defeat its charitable status.
The Commissioners noted that the judgement has been criticised for finding that the
reference to Conservative principles did not prevent the gift from being charitable but
there seems to have been little challenge to the proposition that furthering mental and
religious improvement is a good charitable purpose. The judgement gives scant
justification for this, though the judge said that this construction of the gift was aided
by the direction that the building is to be kept free from intoxicants and dancing.
The Commissioners concluded that Re Scowcroft gives no reasons for the basis of
mental or religious improvement as a charitable purpose.
(ii) Re Hood
In this case, a testator expressed his belief that “the remedy for all the unrest and
disorders of the body politic will be found in the application of Christian principles to
all human relationships” and that drink was preventing the effective application of
Christian principles. His gift was therefore to be used to spread Christian principles and
to take steps to extinguish the drink traffic. It was being argued that these were two
separate objects and that the second - concerning drink traffic - was not charitable. The
court therefore had to consider whether promoting temperance was a charitable
Lord Hanworth MR concluded that this meant the advancement of Christian principles
by the extinguishment of drink traffic. But after that, he went on to say obiter that “It
will not be necessary for the present purposes, but I should have no hesitation in saying
that ..... the object of reducing intemperance .. is also beneficial to society at large...” .
Lawrence LJ thought that the second object could either be a means of furthering the
first or could be an object in its own right. He said that the second object was
charitable in any case: “temperance itself is undoubtedly a charitable object. It comes
within the fourth class...because many people regard temperance as contributing to the
moral improvement of mankind.”
Romer LJ agreed that promoting temperance was charitable for the reasons given by
the other judges and he referred to Re Scowcroft as providing a basis upon which to
construe the gift.
None of the judges examined the reasoning behind the Re Scowcroft decision in any
detail in relation to the moral or spiritual welfare or improvement of the community as
a charitable purpose. Rather, it was used as a basis for construing the Re Hood gift as
a charitable one.
The Commissioners concluded that the Re Hood case is therefore of little value in
understanding the principles behind mental and moral improvement as a charitable
(iii) Re Price
This case concerned the trust of a fund which was left by will to the Anthroposophical
Society of Great Britain. The Society was carrying on the teachings of Dr Rudolf
Steiner, whose writings ranged from philosophy and religion through sociology,
natural science, medicine, architecture, music and other arts. There was evidence to the
effect that the teachings were:
“directed to the extension of knowledge of the spiritual in man and in the
universe generally and of the interaction of the spiritual and the physical. He
sought to show both how this knowledge could be acquired and how it could
be applied for the benefit of man in a wide range of activities....He expounded a
theory of knowledge....Steiner taught a method of mental and moral discipline
designed to train the imaginative, creative and devotional faculties of the mind
and so to develop the faculties of spiritual intuition and perception. This
teaching is to be found in such a book as Steiner’s “Knowledge of Higher
Worlds and its Attainment”.
“In other books and lectures Steiner taught and developed the application of
this knowledge to religion and education generally.”
The evidence before the Court was not challenged and the judge held that the gift to
the Society was a valid one because the terms of the gift were not so uncertain that the
Court could not take over the administration of the gift if that became necessary. The
judge found that the gift did not tend to a perpetuity. Having decided this, he went on
to say that it was not strictly necessary for him to decide whether it was charitable but
he nevertheless went on to do so because the charitable nature of the gift had been
argued before him. Nevertheless what the judge then had to say on the charitable status
of the trust was obiter dicta.
Cohen J’s views on the charitability of the Steiner gift being directed towards the
moral or spiritual welfare or improvement of the community were as follows:
“I agree ... that (a) On the evidence the teachings of Rudolf Steiner are directed
to the mental or moral improvement of man; (b) that provided this teaching is
not contra bonos mores the court is not concerned to decide whether it will
result in mental or moral improvement of anyone, but only whether on the
evidence before the court it may have that result”.
Cohen J then referred to what was said by Romilly MR in Thornton v Howe on the
question of religious trusts to the effect that provided a sect did not have doctrines
adverse to religion or subversive of morality the court would draw no distinction
between one religion or another or enquire into the worth or value of religion.76 He76 “In this respect, I am of the opinion that the court makes no distinction between one sort of reli- gion and another. They are equally bequests which are included in the general term of charitable bequests.Neither does the court, in this respect, make any distinction between one sect and another. It may be that the tenets of a particular sect inculcate doctrines adverse to the very foundations of all religion and subversive of all morality. In such a case, if it should arise, the court will not assist the execution of the bequest but will declare it void; but the character of the bequest would notbe altered by this circumstance. The general immoral tendency would make it void whether it was to be paid out of purepersonality or out of real estate. But if the tendency were not immoral, and although the court might consider the opinions to be propagated foolish or even devoid of foundation, it would not on that account declare it void or take it out of the class of legacies which are included in the general terms charitable bequests.”
then said: “What is said there of religion would apply also I think to philosophy” and
he went on to say the Steiner gift would be charitable.
However, it was not clear to the Commissioners why Cohen J thought it appropriate
to apply the Thornton v Howe principles concerning religion to philosophy or
promotion of moral or spiritual welfare or improvement; he gave no explanation.
The judgement of Cohen J is in the Commissioners’ view unclear on the following
a) What was said about the charitability of the gift was strictly obiter.77
b) The principles which the judge applied had previous judicial authority only in
relation to religion and charity law. Applying the same principles to a different
head of charity, where a different test of public benefit arises,78 may not be
The Commissioners concluded that Re Price does not provide a comprehensive
rationale underpinning the moral or spiritual welfare or improvement of the community
as a charitable purpose.
(iv) Re South Place Ethical Society
The court decided that the Society concerned was not charitable by way of advancing
religion but that it was charitable by way of advancing education or, alternatively, by
analogy with Re Price, Re Hood, and Re Scowcroft, it was charitable under the
fourth head as promoting the moral or spiritual welfare or improvement of the
The Society had as its object “the study and dissemination of ethical principles and the
cultivation of a rational religious sentiment.” Dillon J noted that the members were
sincere people of the highest integrity, who were not atheists but were agnostic about
the existence of God. Dillon J said the following of the Society’s activities:
“The objects refer to the dissemination as well as the study of ethical principles,
and I should briefly mention the activities of the society.
It holds Sunday meetings, which are open to the public. At these meetings
lectures are given, often by visiting lecturers, who may be persons of very
considerable distinction, on subjects of serious and mainly intellectual interest,
and the lectures are followed by discussions. There are other lectures on
special occasions, such as the Conway Memorial Lectures, in memory of
Moncure Conway. These are also open to the public. The society publishes a
monthly magazine called the Ethical Record, which is available to the public,
and others of its lectures are published and widely disseminated. In addition, in77 Picarda, The Law and Practice of Charities 2 nd Ed. Pg 149 78 Under the advancement of religion head, public benefit is presumed although the presumption may be rebutted on the evidence. Under the fourth head, public benefit must be demonstrated.
pursuit of the ideal of beauty and the appreciation of it, since the turn of the
century, chamber music concerts have been given on Sunday nights in winter,
first at the South Place chapel, and, since 1930, in the Conway Hall. These are
open to the public. Performers of high repute and quality take part and the
performances at these concerts are regarded by music experts as of a very high
standard indeed. There are also, and not unexpectedly, social activities, which
are broadly similar to the social activities of the congregation of a parish
church, but these social activities are, in my judgement, ancillary to the other
activities of the society. At the highest it can be said that they serve, as with
the parish church, to further the esprit de corps of the congregation, and this in
turn helps to further the cultivation of the rational religious sentiment.”
Dillon J said of the objects:79
“I turn therefore to the objects of this society, as set out in its rules. The first
part of the objects is the study and dissemination of ethical principles.
Dissemination, I think, includes dissemination of the fruits of the study, and I
have no doubt that that part of the objects satisfies the criterion of charity as
being for the advancement of education. The second part, the cultivation of a
rational religious sentiment, is considerably more difficult. As I have already
said, I do not think that the cultivation is limited to cultivation of the requisite
sentiment in the members of the society and in no one else. In the context the
society is outward looking, and the cultivation would extend to all members of
the public whom the society’s teachings may reach. The sentiment or state of
mind is to be rational, that is to say founded in reason. As I see it, a sentiment
or attitude of mind founded in reason can only be cultivated or encouraged to
grow by educational methods, including music, and the development of the
appreciation of music by performance of high quality. The difficulty in this part
of the society’s objects lies in expressing a very lofty and possibly unattainable
ideal in a very few words, and the difficulty is compounded by the choice of the
word ‘religious’, which, while giving the flavour of what is in mind, is not in
my view used in its correct sense. Despite this, however, I do not see that the
court would have any difficulty in controlling the administration of the society’s
On the evidence before him, therefore, Dillon J was satisfied that the Society’s
activities - whether lectures, musical performances or otherwise - were of a very high
calibre and he referred on several occasions to the “rationality” of the sentiment which
the Society wished to advance. It seems to be for these reasons that he found the gift
to the Society to be for charitable educational purposes, saying that the authorities
show that the courts have construed the term “educational” widely.
Having so decided, there was no need for the judge to provide an alternative means by
which the gift to the Society could be held to be charitable. Nevertheless, Dillon J did
so, identifying the available analogies of Re Price, Re Hood, and Re Scowcroft, and
concluding by reference to them that the gift to the Society would be charitable within
the fourth head as well. Unfortunately, Dillon J did not examine the reasoning behind
the previously decided cases or offer any explanation as to why the circumstances of
the Society should be analogous to them.79  1 WLR Pg 1565.
The Commissioners concluded that whilst the South Place Ethical Society case is
cited by the text books 80 as laying to rest any doubt that promotion of the moral or
spiritual welfare or improvement of the community is a charitable purpose, Dillon J’s
comments may nevertheless be obiter dicta and, since the judge gave no reason for his
alternative view of the objects, the decision is actually of limited value in determining
the charitable status of institutions which may be established for that purpose.
The Commissioners noted that the development by court decisions of the promotion
of the moral or spiritual welfare or improvement of the community as a charitable
purpose seems to have come about with little judicial explanation as to the reasoning
or principles involved. It seems to have arisen because the court has attempted to find
a way to justify the cases before them as charitable. In fact, the only real reasoning for
this purpose occurred in Re Price where the judge simply adopted the principles
involved under another head of charity, although without explaining why he did so.
The Commissioners agreed that the cases about the charitability of this purpose are
ambiguous. There are no clear principles about what constitutes moral or spiritual
welfare or improvement, and a distinct lack of judicial reasoning about the basis upon
which this purpose is regarded as charitable. They also noted that they had used the
moral or spiritual welfare or improvement analogy on several occasions (eg Public
Concern at Work 81 and Promotion of Racial Harmony 82 ) in order to apply the law
in changing social and economic circumstances, having identified a benefit to the public
of a kind that is charitable by analogy with the spirit and intendment of the preamble 83
and previously decided cases. It is difficult to draw an analogy between CoS and
those cases decided by the Commission but it is clear that the Commission has
regarded the concept of moral or spiritual welfare or improvement as a flexible basis
upon which a wide range of purposes beneficial to the public may by analogy be
recognised as charitable, particularly where it was apparent that the benefit flowing
from the organisations’ purposes and activities is readily and easily accessible to the
public and likely to achieve such a purpose.
The Commissioners noted that a traditional interpretation of the decided cases
suggests that only those sets of principles which do not constitute a formal system of
belief, which may be adopted by the public at large according to individual choice and
which do not necessitate membership of a particular organisation for their application
by individuals could potentially be charitable by analogy with the cases on moral or
spiritual welfare or improvement. However, given the ambiguity in the decided cases
and the lack of judicial explanation or reasoning as to the principles involved in the
development of the courts decisions concerning the moral or spiritual welfare or
improvement of the community as a charitable purpose, the Commissioners accepted
that the cases should be construed broadly and flexibly in a way that is compatible with
Adopting such an approach to the legal authorities the Commissioners concluded that
the following features would not defeat charitable status:80 H Picarda The Law and Practice Relating to Charities 2 nd Ed. Pg. 149 (3 rd Ed. Pg. 164) and Tudor Charities 8 th Ed. Pgs 115-117 81 Decisions of the Charity Commission Vol 2 pages 5 to 10 82 Report of the Charity Commissioners 1983 paras 15 to 20 83 The Statute of Elizabeth I, 43 Eliz I,c4.
§ The fact that an organisation promoted a belief system;
§ The fact that this belief system was not a religion in terms of English charity
§ The fact that membership of or adherence to a particular organisation which
promoted the belief system was necessary.
Such legal authorities as there are suggest that the key aspects of a purpose of
promoting the moral or spiritual welfare or improvement of the community would be
that the doctrines, beliefs and practices of the organisation are accessible to the public
and capable of being applied by members of the public according to individual
judgement or choice from time to time in such a way that the moral or spiritual welfare
or improvement of the community may result.84
It would therefore still be necessary to consider the extent to which Scientology beliefs
and practices exhibited those key aspects.
Applied to Scientology
The Commissioners considered whether the doctrines and practices of CoS were
accessible to the public and capable of being applied by members of the public
according to individual judgement and choice such that such a charitable purpose
might result. A number of factors indicated that this may be so, a number suggested
they could not. An analogy with previously decided cases could be found in that:
§ Scientology principles are arguably available to the public. Scientology has its
own publishing house which publishes L Ron Hubbard’s works. Tape
recordings of his lectures are available and Scientology resources are placed in
§ Scientology promotes a moral code particularly through the “Way to
Happiness” campaign. Scientology publishes a booklet called “The Way to
Happiness” described as “the first moral code based wholly on common sense”
and which “is entirely non-religious in nature”85 Scientology claims that the
Way to Happiness contains 21 separate precepts each constituting a rule for
living with relevance for anyone. The booklet is provided to interested people
and distributed, according to CoS, to youth groups, schools, clubs, social
service agencies, military organisations, etc.86
§ In addition CoS argues that it is established for the moral or spiritual welfare or
improvement of the community because Scientology’s principle concern is “to84 Cohen J in In Re Price at p. 432 – provided the teaching is not contra bonos mores, the Court is not concerned to decided whether it will result in the mental or moral improvement of anyone but only whether on the evidence before the Court it may have that result. Dillon J in In re South Place Ethical Society at p. 1576 G… I do not think that the cultivation is limited to cultivation of the requisite sentiment in the members of the society and in no one else. In the context the society is outward looking, and the cultivation would extend to all members of the public whom the society’s teachings may reach. 85 What is Scientology, p. 340 86 It was not clear to the Commissioners to what extent CoS itself promulgates the Way to Happiness campaign in this country. In any event this is not a central practice of CoS (it is not auditing and training) and the extent to which the code may tend to the moral or spiritual welfare or improvement is not in the Commissioners view easily established.
lead man to salvation” and that in addition it is concerned with human
wellbeing – its long-term goal being the benefit of all mankind.
§ CoS’s argument that many Scientology teachings are actually applied in other
areas for example teachings on drug abuse and the use of Scientology
principles in fields of drug rehabilitation; education; and the rehabilitation of
criminals may indicate that Scientology principles are accessible to the public
generally and of more general application.
However, other features indicated a lack of any analogy:
§ Not all Scientology material is publicly available. The Commissioners
understood that the “higher-level” materials are regarded as confidential and
available only to those who have progressed a considerable way in
Scientology.87 In addition, much Scientology material, including basic texts
such as “What is Scientology” normally is paid for.
§ The resources of Scientology are specialist in nature. Scientology has its own
terminology, which is arguably not easily understood by the ordinary reader.
For example a glossary of terms is supplied in the “What is Scientology” book.
§ Formal participation in auditing is said to be necessary both to progress in and
to a proper understanding of Scientology. That is to say that an individual
generally needs to have access to a qualified auditor in order to be able to
participate in and benefit from Scientology.
§ Similarly participation in Scientology training, the other core practice by which
Scientology is advanced, requires participation in training courses and access to
specialist materials and to a course supervisor and course administrator.
§ Access to both auditing and training is gained predominantly only upon
payment of the relevant requested donation.
Balancing those factors indicating an analogy and those suggesting that none may be
found, the Commissioners emphasised that the principal activities of CoS are the
auditing and training of individuals. Whilst there is an argument that the principles of
Scientology may be accessible to the public at large for example through the
availability of Scientology literature and potentially through the apparent use of
Scientology and its techniques in other fields, the Commissioners did not find those
arguments convincing. Rather on balance the factors indicating that Scientology is not
accessible to or applicable by the public generally in a way that may be capable of
resulting in the mental and moral improvement of the community carried greater
Accordingly, and although the courts and Commissioners are concerned only to
establish whether the advancement of Scientology may result in the mental and moral
improvement of mankind, there were insufficient arguments that this may be the case
when CoS is compared with the promotion of temperance, the application of the87 The Commissioners noted that Dr Wilson states that there is nothing unusual in a religion restricting access to its more detailed teachings to those who are particularly committed to or advanced in understanding of the belief system, and distinguishing those materials from the basic materials available.
teaching of Rudolf Steiner (for example to education), and the ethical aspirations 88
expressed by the South Place Ethical Society. The Commissioners were satisfied that
it had not been demonstrated to them that CoS would be likely to promote the moral
or spiritual improvement of the community, such that CoS was not charitable under
this head of charity law.
8. Whether CoS is established for the public benefit.
The Commissioners noted that in the light of their conclusion that CoS is charitable
under neither the third nor fourth head of charity, the question of whether CoS is
established for the public benefit did not strictly arise. However, the question of public
benefit had been fully argued by the applicants and the Commissioners therefore
considered it appropriate to consider those arguments and form a view upon whether
CoS, if otherwise charitable, was established for the public benefit.
Public benefit in charity law
The Commissioners noted that the essential criteria relating to public benefit were as
follows:88 These being “the belief that the object of human existence was the discovery of truth by reason and not by revelation by supernatural power, and a belief in the excellence of truth, love and beauty as opposed to belief in any supernatural power and the cultivation of a rational religious sentiment, the word religious being used in a sense eschewing all supernatural belief.”
1. Public benefit is an essential element of charity law.
The general rule is that a purpose on its face expressed in charitable form is not
charitable unless it is also directed to the public benefit.89 There are two
aspects to this: there must be a benefit and it must be a benefit to the public 90 .
In deciding whether a particular purpose is charitable, the court has always
applied this overriding test of public benefit. However, the nature of the test
varies between the first three heads of charity and the fourth head 91 ; and may
vary between heads of charity 92 and over time 93
2. Under the first three heads public benefit is presumed. However, this
presumption may be readily rebutted – and if it is, public benefit must be
proved 91+94 .
3. Under the fourth head of charity public benefit must be proven - National
Anti-Vivisection Society v IRC.95 This may not be a difficult task if the
benefit is self evident. In general the benefit to the public under the fourth head
should be a tangible one, although an intangible benefit may suffice if there is
“approval by the common understanding of enlightened opinion for the time
being” that there is benefit to the public.96
The Commissioners noted the difference between the tests of public benefit between
the third and fourth heads of charity.89 Oppenheim v Tobacco Securities Trust  AC 297; AG v National Provincial Bank  AC 262 90 H. Picarda The Law and Practice relating to Charities 2 nd Ed. at Pg. 16 (3 rd Ed. Pg. 20) 91 The question of public benefit was considered by the House of Lords in National Anti-Vivisection Society v IRC  AC 31, where Lord Simmons said that “if the purpose is one within one of the heads of charity forming the first three classes, the court will easily conclude that it is a charitable purpose, still their remains the overriding question: is it pro bono publico?… when a purpose appears broadly to fall within one of the familiar categories of charity, the court will assume it to be for the benefit of the community and therefore charitable, unless the contrary is shown.” 92 In Gilmour v Coats  AC 426 at page 449 Lord Simmons said “that it would not be surprising to find that, while in every category of legal charity some element of public benefit must be present, the courts… have accepted one standard in regard to those gifts which are alleged to be for the advancement of education and another for those which are alleged to be for the advancement of religion and it may be yet another in regard to the relief of poverty”. 93 In 1895 the Court of Appeal upheld an anti-vivisection trust in Re Foveaux  2 Ch 501 but in National Anti-Vivisection Society v IRC (supra) (decided in 1948) the House of Lords denied that antivivisection was a charitable purpose. In that case Lord Wright said that the test of public benefit may vary from generation to generation for example “eleemosynary trusts may, as economic ideas and conditions and ideas of social service change, cease to be regarded as being for the benefit of the community”. 94 This is clear again from National Anti-vivisection Society v IRC supra where Lord Wright said at page 42 that “a trust for the advancement of learning or education may fail to secure a place as charities, if it seems that the learning or education is not of public value”. In the same case Lord Simonds said at page 69 that “if today, a testator made a bequest for the relief of the poor, and required that it should be carried out in one way only, and the court was satisfied by evidence that that way was injurious to the community, I should say that it was not a charitable gift though three hundred years ago the court might upon different evidence, or in the absence of any evidence, have come to a different conclusion.” 95 supra 96 In National Anti-Vivisection Society v IRC supra , Lord Wright said at p. 49 that: “I think the whole tendency of the concept of charity in a legal sense under the fourth head is towards tangible and objective benefits, and at least, that approval by the common understanding of enlightened opinion for the time being, is necessary before an intangible benefit can be taken to constitute a sufficient benefit to the community to justify admission of the object into the fourth class.”
The Commissioners concluded that the requirement of public benefit is an essential
element in determining what is and what is not charitable. Whilst the law in this area is
clear and unambiguous, the Commissioners nevertheless considered it appropriate to
consider the question of public benefit in the light of ECHR principles, on the basis
that the HRA is likely to come into force next year, and as a result the Commission
should now begin to have regard to ECHR principles. To the extent that Articles 9,
and 9 & 14 together, are applicable, the different tests of public benefit for religious
and non religious organisations are in the Commissioners view compatible with
ECHR principles. In particular:
Article 9 – freedom of thought, conscience and religion
In the Commissioners view the different tests of public benefit are “prescribed by
law”97 , so satisfying the first requirement of Article 9(2) and are justified as being
necessary in a democratic society in pursuit of one of the legitimate aims identified in
Article 9(2) – “for the protection of the rights and freedom of others”. The different
treatment is justified because English law is concerned with protecting and
encouraging the concept of charity, the central characteristic of which is public benefit.
Declining registration of those organisations which do not exhibit the characteristics of
charity protects the position of those which do fulfil the criteria, and ensures that tax
relief is available only to those organisations which are of public benefit of a charitable
kind, and is a means of ensuring that those organisations exempted from tax are those
which provide benefit to the public in some way (ie through their charitable purpose
Article 9 and Article 14 – prohibition of discrimination
In addition, the difference in the tests of public benefit is in the Commissioners’ view
both objective and reasonable and does not fall foul of Articles 9 and 14 taken
together. That is because the test of public benefit acts as a filter by which the
charitable and non-charitable organisations are distinguished. An essential element of
charity is its public dimension. It is rational to state that where this element is lacking,
an organisation will not be charitable. This applies to all organisations seeking
acceptance as being charitable. The legal presumption of public benefit under the first
three heads of charity is based on the accepted certainty established in case law based
on experience that these purposes will lead to public benefit unless there is evidence to
the contrary. Whereas this is not so for the broad category of fourth head purposes.
The Commissioners noted that the relevant legal authorities on this point were clear
and there was no ambiguity. Nevertheless, they considered that the fact that the public
benefit test varies between heads will not compromise ECHR principles provided that
the application of the test to individual cases falling within the different heads of
charity is rationally based on the need to establish public benefit in the individual case
under consideration. Under the first three heads of charity public benefit is recognised
as established and self evident and therefore it need not be demonstrated unless any
doubt arises. Under the fourth head it must be proved because such purposes are
novel and public benefit needs be made out to justify charitable status. However, there
may be cases where it is self evident.97 National Anti-Vivisection Society v IRC supra.
Consequently, the public benefit test, although differing between different heads of
charity, is an entirely flexible rule applied by the Courts (and the Commission) to
individual cases to establish the public benefit which is a requirement of all
organisations which profess to be charitable.
The presumption of public benefit and the advancement of religion as a
The Commissioners considered the legal basis for the presumption of public benefit in
relation to religious organisations.
A bequest for a religious institution or for religious purposes is prima facie a gift for a
charitable purpose unless the contrary is shown 98 . It also clear that in the case of the
third head of charity public benefit is presumed unless the contrary is shown –
National Anti-Vivisection Society v IRC 99 .
The presumption arises because the law assumes it is good for man to have and to
practise a religion and because a religion can be regarded as beneficial without it being
necessary to assume that all its beliefs are true 100 . However, it is also clear that benefit
to the public must actually be present as a matter of fact 101 if a gift for the advancement
of religion is to be charitable - public benefit is as necessary an element in a religious as
in other charitable trusts. Coats v Gilmour Lord Greene MR.102
However, the presumption may be rebutted in individual cases.
The Commissioners concluded that the presumption may be rebutted in a number of
circumstances (including, but not limited to, those identified in Re Watson  1
WLR 1472 per Plowman J at page 1482 103 ). The Commissioners would take a wide
view of the question of public benefit and would take into account a number of factors
in this connection. These would include whether there was evidence that the
organisation’s purposes were adverse to religion, were subversive of morality, failed to
confer recognisable charitable benefits, focused too narrowly upon its adherents or
extended to too limited a beneficial class.98 In Re Wright  2 Ch 41; Re Ward  1 Ch 308 99 Supra per Lord Simonds and Lord Wright 100 Gilmour v Coats  AC 426 per Lord Reid at page 459 101 When the question is of whether a particular gift for the advancement of religion satisfies the requirement of public benefit a question of fact arises which must be answered by the court… by means of evidence cognisable by the court. Gilmour v Coats  Ch 340 C.A. Ld Greene MR at page 347 102 Supra at page 344 103 It was suggested in that case that the presumption of public benefit may be rebutted only by evidence that the doctrines promulgated by the organisation in question are "adverse to the very foundations of all religion and subversive of all morality” – Re Watson per Plowman J at page 1482, allegedly following the decision in Thornton v Howe (1862) 31 Beav 14. However the Commission has concluded that it is not bound to rely upon Re Watson and the interpretation of Thornton v Howe there. The statements in Thornton v Howe were made in the context of whether it was appropriate for the court to consider whether the religion in question had any intrinsic value and was not about the wider question of public benefit generally.
Those factors were in the Commissioners’ view not exhaustive, and the
Commissioners confirmed that it was therefore their practice to take a broad
approach to the question of whether public benefit may be presumed to be present in
the case of a religious organisation seeking registration as a charity.
This approach finds support in dicta of Lord Greene MR in Coats v Gilmour who
specifically disagreed with the argument that in order to displace the prima facie
assumption [of public benefit] it must be shown that the gift is detrimental to the
community. Lord Greene MR commented that ‘“the contrary of beneficial to the
public” is not “detrimental to the public” but “non-beneficial to the public”’. A gift
could be beneficial and may tend to the advancement of religion but if it appeared that
the benefit was private and not public, the gift would fail to be a valid charitable gift.104
This appears to be the approach taken by the court in In re Hetherington decd.105 .
Consideration of CoS’ s arguments in relation to the presumption of public benefit
The Commissioners noted CoS’s argument that it was entitled to the presumption of
public benefit enjoyed by religious charities because CoS operates for a religious
purpose which does not limit the ambit of the church’s religious activities in any way
and that these are freely accessible to members of the public. CoS argues that the
issue of lack of public benefit, for example, as in Gilmour v Coats 106 does not
therefore arise. Further the presumption of public benefit is confirmed by the actual
religious teaching of Scientology in particular the aim of enabling an individual to
attain religious salvation through personal spiritual enlightenment. This is particularly
so because an individual’s progress across the eight dynamics requires the individual to
strive and increase spiritual awareness as a member of a community such that
Scientology is “by its very nature an outward looking, community embracing religious
philosophy”. CoS argues that its services are unquestionably religious and hence the
presumption of public benefit is applicable.
Whether presumption of public benefit rebutted in the case of CoS
The Commissioners then went on to consider whether the presumption of public
benefit was rebutted in the case of CoS. The Commissioners identified a number of
factors which indicated that the presumption was in fact rebutted.
A new ‘ religion’
The Commissioners noted firstly that Scientology is a new belief system seeking
recognition as a religion. In that context the Commissioners noted that the
presumption of public benefit has arisen historically, in the context of established
religions which on the whole conform to a particular pattern involving a theistic belief
and a worshipping practice. Scientology did not in the Commissioners’ view neatly fit
that model. The Scientology movement is newly established. Scientology emerged in
1950 with the publication of L Ron Hubbard’s book “Dianetics: the Modern Science of104  Ch 340 Lord Greene MR at page 345 105  Ch 1. Sir Nicholas Browne-Wilkinson V.C at p. 12 “a trust for the advancement of education, the relief of poverty or the advancement of religion is prima facie charitable and assumed to be for the public benefit (citing National Anti-Vivisection Society v IRC]. This assumption of public benefit can be rebutted by showing that in fact the particular trust in question cannot operate so as to confer a legally recognised benefit upon the public as in Gilmour v Coats”. 106 supra.
Mental Health” and was at first described as a philosophy.107 In about 1954
practitioners of Scientology began to regard and describe it as a religion, establishing
the first Church of Scientology In Los Angeles. However it seemed to the
Commissioners that Scientology does not consistently describe itself as a religion 108
and it was not self-evident that Scientology institutions are “religious institutions”.
Further, Scientology seemed to the Commissioners very different in form from other
existing religions and is not simply an offshoot of another recognised religion. The fact
that something is new rather than centuries old does not necessarily render a new
organisation less beneficial than one derived from antiquity. However, in the case of a
new belief system and a new organisation there is little basis upon which the
Commissioners could form any judgement of whether the organisation and the belief
system promoted through its activities is likely to be beneficial to the community or
not, nor to presume that public benefit flows from the purposes and work of the
It appeared to the Commissioners that the essential “religious practices” (auditing and
training) of Scientology were not easily recognisable as religious in the way that word
is ordinarily understood. The auditing carried out by Scientology appears akin to
counselling and seems therapeutic rather than religious in nature. It is acknowledged
as and described as counselling by Scientologists themselves and is focused upon the
needs of individual adherents to Scientology. These factors indicated to the
Commissioners that it may be questionable whether CoS’s activities actually confer
recognisable benefit on a sufficiently broad beneficial class. The Commissioners will
therefore need to be satisfied that CoS’s core activities are beneficial to the public
The Commissioners considered that a further distinguishing characteristic from
established religions is that Scientology’s normal practices require prepayment in the
form of requested donations for participation in its central practices of auditing and
training. Although organised donations are a feature of some religions, it was not clear
that such donations extended to access to the core or central religious practices of such
religions. It is a feature which suggested to the Commissioners a possible marked
difference to established religions and which might suggest that to the extent that
Scientology might otherwise be regarded as a religion, public benefit should be
Secondly the Commissioners noted a degree of public concern about Scientology
generally and about registration of CoS as a charity in particular. They considered it
not insignificant in this context that the Commission had received a number of
unsolicited objections, about Scientology generally and to the registration of CoS as a
charity in particular. Whilst the truth of the claims made in these letters was not
susceptible to proof, on their face they indicated a concern in some sectors of the
public about the practices of Scientology.107 page 49 “What is Scientology” 108 “What is Scientology” introductory pages - “Scientology is an applied religious philosophy” (Foreword page xii) cf the introduction to that book entitled Chapter 1 “Introduction to the Scientology Religion”; the front page of the Scientology website describes Scientology as “an applied religious philosophy”. Some of its promotional literature is expressed in entirely non religious terms, whilst other literature does refer to the spiritual or ‘religious’.
The Commissioners also noted that there has been coverage of Scientology
organisations and activities generally in the press. A proportion of that coverage had
been adverse. The Commissioners noted that whilst the accuracy of press coverage
may be questionable, that coverage, (across the spectrum of newspapers), did at least
indicate general concern about Scientology in the public domain, such concern
indicating at least that it is not clear that Scientology confers recognisable benefit upon
Thirdly the Commissioners were aware that there had been concern about
Scientology expressed judicially. There had been a not insignificant degree of judicial
comment upon Scientology, principally abroad but also in this country. Some of this
comment had been unfavourable. The Commissioners considered that few of the
cases considered the nature and activities of Scientology itself or the practices of the
Church of Scientology and that where those matters were considered they may not
have been fully argued nor evidence about Scientology and the Church made fully
available to the court.
The Commissioners considered that they could not wholly disregard any adverse
comment when they were considering whether the presumption of public benefit
should be concluded in favour of CoS for the purposes of the application.
The Commissioners therefore concluded that even were CoS otherwise charitable as
established for the advancement of religion, the presumption of public benefit would be
rebutted such that the Commissioners should consider whether CoS demonstrated
public benefit in fact.
The legal test of public benefit under the third head of charity
The Commissioners noted that it is clear (from the dicta of Lord Greene MR in Coats
v Gilmour 109 ) that the burden is upon the religious organisation in question to
demonstrate both its impact upon the community and that the impact is beneficial, if
public benefit is to be demonstrated.
Some clear principles emerge from the decided cases:
§ a gift for the advancement of religion must be beneficial to the public (or a
sufficient section of the public)110 and not simply for the benefit of the
adherents of the particular religion themselves 111 .
§ It is settled law that the question whether a particular gift satisfies the
requirement of public benefit must be determined by the court and the opinion
of the donor or testator is irrelevant 112 .
§ The court must decide whether or not there is a benefit to the community in the
light of evidence of a kind cognisable by the court 113109 supra 110 National Anti-Vivisection Society v IRC supra per Lord Simmons 111 Holmes v Attorney General The Times February 12 th 1981 112 Re Hummeltenberg  1 Ch 237 and National Anti-Vivisection Society v IRC supra 113 Gilmour v Coats supra.
The presence or absence of the necessary element of public benefit has also been
considered in a number of cases. The essential distinguishing feature seems to be
whether or not the practice of the religion is essentially public. The case In re
Hetherington decd.  Ch. 1 focused on the question of public benefit in relation
to religion. In that case the Judge summarised the principles established by the legal
authorities. In concluding that a gift for the celebration of masses (assumed to be in
public) was charitable he drew upon cases concerning a variety of religious practices
and concluded as follows:
1. A trust for the advancement of education, the relief of poverty or the
advancement of religion is charitable and assumed to be for the public benefit.
The assumption can be rebutted by showing that in fact the particular trust in
question cannot operate so as to confer a legally recognised benefit on the
public – as in Gilmour v Coats;
2. The celebration of a religious rite in public does confer sufficient public benefit
because of the edifying and improving effect of such celebration on the
members of the public who attend; and
3. The celebration of a religious rite in private does not contain the necessary
element of public benefit since any benefit of prayer or example is incapable of
proof in the legal sense and any element of edification is limited to a private not
public class of those present at the celebration. Following Gilmour v Coats 114 ,
Yeap Cheah Neo v Ong Cheng Neo 115 and Hoare v Hoare 116 ; and
4. Where there is a gift for a religious purpose which could be carried out in a
way which is beneficial to the public (ie by public masses) but could also be
carried out in a way which would not have a sufficient element of public
element (ie by private masses) the gift is to be construed as a gift to be carried
out by methods that are charitable, all non charitable methods being excluded.
It is clear from In re Hetherington decd.117 and the cases cited there that it is the
public nature of the religious practice which is essential to the gift being charitable.
The Commissioners concluded that the decided cases indicated that where the
practice of the religion is essentially private or is limited to a private class of individuals
not extending to the public generally, the element of public benefit will not be
established.118114 supra 115  LR 6PC 381 116  56 LT 147 117 supra 118 In re Hetherington decd., supra Coats v Gilmour  Ch 340 Lord Evershed at page 357.
The legal test of public benefit under the fourth head
The Commissioners turned next to the legal test of public benefit under the fourth
head of charity and considered the test to be that set out by Lord Wright in National
Anti-Vivisection Society v IRC.119 Lord Wright said that:
“I think the whole tendency of the concept of charity in a legal sense under the fourth
head is towards tangible and objective benefits, and at least, that approval by the
common understanding of enlightened opinion for the time being, is necessary before
an intangible benefit can be taken to constitute a sufficient benefit to the community to
justify admission of the object into the fourth class.”.
It seemed to the Commissioners that the benefit that arises from the moral or spiritual
welfare or improvement of the community is likely to be an intangible rather than a
tangible one. The Commissioners considered the test in respect of an intangible
benefit to mean a common consensus of opinion amongst people who were fair minded
and free from prejudice or bias.
The Commissioners considered in particular whether the representations which it had
received about Scientology generally and CoS in particular, both favourable and
unfavourable amounted to such “common understanding” and concluded that they did
not. The representations were not easily substantiated and in effect represented
opposing ends of the spectrum of opinion about CoS or Scientology generally.
The Commissioners further indicated that a key factor in assessing whether the test in
that case was met (ie whether there was a common understanding of enlightened
opinion that public benefit flowed from the advancement of Scientology by CoS), was
the extent to which the core practices of Scientology were readily accessible by the
Accordingly, the Commissioners would need to consider whether there was approval
by the common understanding of enlightened opinion that pursuit of Scientology
doctrines and practices is beneficial to the community such that CoS may be regarded
as charitable under the fourth head.
Consideration of CoS’ s arguments as to public benefit under the fourth head of charity
The Commissioners noted CoS’s arguments in this respect. One interpretation of
CoS’s legal arguments was to the effect that public benefit under the fourth head of
charity does not have to be proved, but that it is only necessary to show that the
organisation’s activities may have that result.
The Commissioners considered CoS’s argument apparently based upon Berry v St
Marylebone Corporation  Ch 406 concerning the Theosophical Society in
England seeking relief from paying rates under section 8 of the Ratings and Valuation
(Miscellaneous Provisions) Act 1955. The Commissioners noted that CoS appeared
to rely on dicta of Romer LJ in that case as support for the proposition that public
benefit under the fourth head of charity need not be proven but should only be shown.
The Commissioners did not accept this argument, as it was not clear to them that the119 supra at page 49.
case cited - Berry v St Marylebone Corporation - was authority for this
proposition, rather it seemed to the Commissioners that it was authority for the
proposition that it was necessary to show that the purpose (in that case the
advancement of religion) may be likely to be advanced. This they had considered
above (footnote 84). In any event the case related specifically to the requirements of
section 8 of the Ratings and Valuation (Miscellaneous Provisions) Act 1955 and was
not a discussion about charitable status such that the judge’s comments were not
directly applicable to charity law.
In relation to the question of public benefit it seemed clear to the Commissioners from
the dicta of Lord Wright in National Anti-vivisection Society v IRC that public
benefit must positively be shown under the fourth head of charity. Lord Wright's
comments in that case that the whole tendency of the concept of charity under the
fourth head is towards tangible and objective benefits, seemed to the Commissioners
to indicate quite clearly that the benefits must be identifiable and demonstrable, and
that a common consensus of approval is necessary before an intangible benefit can be
regarded as sufficient to satisfy the requirement of public benefit.
Whether CoS is established for the public benefit, whether under the third or fourth heads of charity
The Commissioners next sought to address the question of whether CoS had shown
itself to be established for the public benefit. The Commissioners considered the
considerable volume of evidence supplied by CoS in support of its arguments that CoS
was established for the public benefit whether under the third or fourth heads of charity
§ Individual churches of Scientology conduct numerous religious services
freely accessible by members of the public.
§ CoS sufficiently benefits the public through extensive charitable and
public benefit programmes including anti drug campaigns, eradicating
illiteracy, disaster relief and raising public morality.
§ The Company (CoS) is limited by guarantee and its members make no
§ It is of the essence of Scientology “like most other religions” to seek to
make itself available to all.
§ Many of Mr Hubbard’s teachings are already recognised as charitable
and applied by existing registered charities.
§ The Scientology movement engages in other activities which could
potentially give rise to public benefit eg volunteer and relief
programmes; rituals and practices such as “assists” (described as a form
of healing); work in the field of criminal rehabilitation; observance of a
moral code by individual Scientologists and promulgation of that moral
code through the “ Way to Happiness Foundation”.
The Commissioners considered that the evidence and arguments supplied by CoS
may indicate ways in which Scientology organisations, and individual Scientologists,
seek to benefit the wider community. They noted that in terms of English charity law
some of that work may potentially be charitable in its own right, albeit not as
promoting the moral or spiritual welfare or improvement of the community nor as
advancing religion.120 However, the Commissioners noted that the evidence and
argument put to them by CoS did not address the central question of whether the
advancement of Scientology (whether as a religion or as a non-religious belief system)
confers recognisable benefit upon the public in English charity law. CoS states that its
principal activities are auditing and training and that it is through these core activities
that Scientology is advanced. In the Commissioners view it therefore had to be
demonstrated that the advancement of Scientology through auditing and training is
beneficial to the public. The Commissioners considered that it is to the central
activities of auditing and training that the question of public benefit should be
The Commissioners went on to consider whether it was demonstrated that public
benefit flowed from the core practices of Scientology. The Commissioners again
noted that the test of public benefit was slightly different in relation to the third and
fourth heads of charity. In relation to the third head the decided cases indicated that
the public or private nature of the “religious practice” of the organisation in question
was central to determining the presence or absence of public benefit. In relation to the
purpose of promoting the moral or spiritual welfare or improvement of the community
under the fourth head of charity the legal test was that set out by Lord Wright in the
National Vivisection Society v IRC case.
In relation to the test of public benefit for the advancement of religion the
Commissioners concluded that
(1) The central “religious” practices of Scientology are conducted in private
and not in public.
The “religious practices” of Scientology are auditing and training.
Scientologists regard these as worship. Auditing is conducted in private on a
one to one basis. It appears akin to a form of counselling and is described by
Scientologists as such.121 Training is essentially a private activity requiring the
study of specialist material and access to specialist trainers. Whilst members of
the public may sign up for a course of auditing and training, generally upon
payment of the appropriate requested donation, these activities are not carried
out “in public”. Further, progression beyond introductory or initial levels of
auditing and training necessitated membership of the Church.
Attendance at a session of auditing or training by members of the public
generally does not appear to be a possibility. The Commissioners found it
difficult therefore to see how any edifying and improving effects upon the
public generally might flow from the “religious” practices of Scientology.
In relation to the fourth proposition in In re Hetherington decd., there was no
suggestion that auditing and training could be carried out in a way that was
public rather than private. It did not seem possible to construe auditing and
training as religious rites which could be conducted in public rather than in
private such as to render them charitable.120 much Scientology activity appeared to the Commissioners to be in the fields of education and what might broadly be termed ‘relief in need’ 121 Video presentation “The Church of Scientology at Saint Hill – A Special presentation to the Charity Commission of England and Wales”.
(2) Auditing and training are in their nature private rather than public
The Commissioners considered that even if a member of the public could
attend an auditing and/or training session other than as a participant but rather
as an observer, these Scientology services are by their very nature directed to
the particular individual receiving them. Auditing appears akin to a form of
counselling and is described by Scientologists who receive it as “counselling”.
It is directed to the private needs of the individual receiving it. The
Commissioners found it difficult to see how the public could be edified or
otherwise benefited by attending and observing at such a session.
Both the above factors – that Scientology services are conducted in private,
and are in their nature private being directed to the needs of the private
individual in receipt of them seemed to the Commissioners to indicate that
these actual activities are of a private rather than a public kind. In any event it
seemed to the Commissioners that any benefit to the public that may flow
from auditing and training is incapable of proof, any edification or improving
effect being limited to the private individual engaging in the auditing or
training. Accordingly, the Commissioners concluded that these activities
conferred no legally recognised benefit on the public.
In addition the Commissioners noted that the apparent dependence of participation in
those activities upon payment of the requested donation referred to by CoS
strengthened their perception that these activities were of a private rather than a public
kind. Whilst CoS states that there are ways in which adherents can and do participate
in auditing and training without making any form of monetary contribution, so that a
lack of financial means is no bar to a member’s progress in Scientology, access to
auditing and training through requested donations is the norm. The Commissioners
noted that the fact that a practice existed of requesting and making these payments
strengthened the Commissioners in their perception that the activities were of a
private rather than a public kind.
The Commissioners further noted that in its published and promotional literature,
including the book “What is Scientology?”, Scientology on balance presented its
benefits in private rather than public terms.
In addition the Commissioners noted that a not insignificant number of individual
Scientologists described the benefits of Scientology in private and personal terms this
being borne out both by a number of the statements printed in Scientology’s published
literature and by a significant proportion of the letters of support for CoS received
from individual Scientologists.
The fact that Scientology describes its benefits in private rather than public terms in its
published and promotional literature, and that individual Scientologists described the
benefits of Scientology to them in private and personal terms confirmed the
Commissioners conclusion that CoS is not established for the public benefit.
In relation to the test of public benefit under the fourth head of charity law for the
moral or spiritual welfare or improvement of the community the Commissioners
The question of accessibility by the public was key to the existence of public benefit.
As indicated above, the Commissioners had already concluded that the central
practices of Scientology (auditing and training) were conducted in private rather than
in public, and were in their nature private rather than public activities. In addition
there was the practice of requesting donations in advance of receipt of those services.
This led the Commissioners to conclude that the restricted access to those practices
meant that any benefit flowing from Scientology as advanced by CoS is of a private
rather than a public kind. In addition the description of the benefits of Scientology,
both in Scientology published and promotional literature and by individual
Scientologists, as already acknowledged by the Commissioners, confirmed them in
The Commissioners concluded that it could not be said that CoS had demonstrated
that it was established for the public benefit so as to satisfy the legal test of public
benefit of a charitable purpose for the advancement of religion or for the moral or
spiritual welfare or improvement of the community.
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