Cryonics UK Wins Appeal to Retain Charitable Status

By Tim Gibson


This journey began in the summer of 2016 when Cryonics UK were approached on behalf of a teenager with terminal cancer who wished to be cryopreserved. Several obstacles stood in her way, any one of which would have stopped most people in their tracks. However, she was unusually determined and won a High Court judgement to ensure that her wishes could be followed.

The case brought immense media attention and became the lead story around the globe upon release in November 2016. Coverage was largely positive with a scattering of negativity in the gutter press. This prompted a single complaint to the charity regulator about Cryonics UK's charity status.

The Charity Commission made enquiries about Cryonics UK's finances and operations lasting almost a year, finally announcing that CUK would be removed from the charity register as the Commission did not accept that "the promotion and facilitation of cryonics and cryopreservation" was a charitable activity.

Cryonics UK could certainly operate without being a charity and received minimal tax benefits from its charity status. However, the loss of charity status produced a negative message. It was therefore decided not to take this regulatory action lying down. The motivation was to stand up for the field of cryonics as a priority and hopefully retain CUK's individual charity registration along the way. There was always the possibility that cryonics could be deemed generally to be a charitable pursuit but that a technicality of CUK’s operating model could still result in removal from the register.

An appeal against the Charity Commission's decision was filed with the court in December 2017. There followed formal exchanges of statements of each party’s position and arguments, preparation of witness statements, compilation of scientific references and assessment of previous potentially relevant judgements. The intense workload continued right up to the hearing which took place over two days in July 2018.

Cryonics UK's appeal was handled by two part time volunteers. If this had been carried out by even the most basically qualified legal professionals, CUK's costs would have likely been a six figure sum and consequently prohibitive.

The obvious question that the public seem to be asking is "How did you win?" So if you’re also wondering this, here's the legal stuff:

One of the central principles that the Charity Commission relied upon was that they had not appreciated the cryonicsoriented nature of CUK’s proposed activities at the time of registration, arguing that insufficient or misunderstood information had led to registration in error.

Charities are formed with particular objectives laid down in a governing document. These are commonly written in broad terms so as not to limit the scope of charitable activity in the long term. CUK’s objectives are described in terms of research into organ preservation, transplantation and anti-aging. During initial submissions for the appeal, the Commission stepped up their previous argument, suggesting that the broad objectives were a deliberate misrepresentation, disguising noncharitable cryonics-centric objectives.

The flaw in the Commission's position was that they had destroyed all historic records so could only guess as to the circumstances around registration. The only contemporaneous evidence was two letters from CUK's lawyer. These referred to widely drawn objectives, freezing and storing bodies, an association with Alcor, and the submission of draft documents and a thorough explanation of proposed activities to the Commission. The judge agreed with CUK that cryonics fell within the wording of the objectives, and that the letters indicated the Commission were fully briefed and were involved in the drafting process.

At the start of the hearing, the Commission had to withdraw their argument of a deliberate misrepresentation. If their lawyer had pursued this angle in court, effectively accusing the charity trustees of fraud without any evidence, he could have faced disciplinary action for professional misconduct. The appeal judgement subsequently remarked that there was "absolutely no evidence" to support the accusation.

The next parts of the legal puzzle are the tests for charitable status. Firstly, the objectives must fall under one or more of the charitable purposes laid down in the Charities Act. Secondly, the objectives must be for the public benefit. This second criterion requires a benefit that adequately outweighs any consequential detriment and that the benefit favours a sufficient section of the public. All criteria must be met. For example, a school for criminal skills would fall under the charitable purpose of education but would not pass the public benefit test so could not be a charity.

The Charities Act does not precisely define the above criteria but instead relies on legal precedents from individual cases to create the definitions. This principle made the case particularly interesting for both CUK and the Commission as by coming at the law with a new set of issues, the case would create influential precedent no matter what the outcome.

Cryonics UK argued that it qualified under four charitable purposes: (1) the advancement of education including the subcategory of research, (2) the advancement of health, particularly the subcategory of the relief of suffering, (3) the advancement of science, and (4) purposes analogous to existing charitable purposes.

Most of CUK's time and resources are spent on providing information, emergency protocol training, legal and technical research, and development of emergency infrastructure. The Charity Commission argued that the preservation of individuals, which in its opinion was not charitable, was CUK's primary purpose. They further argued that the research, education and development were ancillary to this primary, supposedly non-charitable, purpose. However, case law had previously established that the actual use of resources dictate the primary purpose, consequently the preservation of individuals is the ancillary element. In any case, the court was not persuaded that one part of the field, the preservation of individuals, was not charitable, particularly as the Commission had accepted that cryonics research, education and development could be charitable.

The judge's decision details CUK's qualification as a charity under the advancement of education and briefly includes the relief of suffering. Once charitable status had been confirmed under the first two purposes, there was no need for the judge to decide on the remaining purposes. This was mildly disappointing from CUK's perspective as there was no case law defining the advancement of science and CUK had proposed revised criteria for charitable research by placing it in the context of science rather than education.

The Charity Commission suggested that the cost of cryonics meant that it wasn’t sufficiently accessible to meet the public benefit requirement. This subject is where charity law surprises people. Third party costs such as cryonics storage fees are irrelevant as they are not charges for the provision of the charity’s resources. Most of CUK's services are provided free of charge or at cost, so the only cost that is relevant is the £5,000 fixed charge for deployment of an emergency team. As mechanisms are in place to reduce this cost, such as CUK membership, life insurance or simply making concessions in appropriate circumstances, this satisfied the court that CUK’s resources are accessible to a sufficient section of the public.

An extensive list of previous cases were presented for their precedent value. In particular, a New Zealand high court judgement ruled that the regulator was wrong to refuse charity registration for two cryonics research bodies. These charities and their legal team provided valuable support for CUK's appeal by supplying extensive case documentation. The UK high court judgement referred to in the first paragraph of this article provided legal authority for the lawful status of cryonics in the UK and also evidenced the relief of suffering.

Perhaps the most unexpected case law came from a dispute over a charitable gift in a will. The purpose of the gift was to search for undiscovered manuscripts attributed to William Shakespeare but written by Francis Bacon. The expert witnesses in that case advised that the search was unlikely to yield any results but could not say it was impossible. The judge also considered the potential value of a successful outcome, citing the search for Tutankhamun as a comparable quest. The charitable gift was upheld. The Shakespeare case proved the perfect counter to the Charity Commission’s position that cryonics was too speculative to be charitable research. The evidence suggested a "credible possibility" of success for cryonics and the value of such success would clearly be huge. In CUK's appeal, the judge confirmed that CUK "comfortably" passed the threshold for educational value in charitable research.

At the close of the hearing and in the final decision, the judge introduced the subject of protecting the interests of vulnerable people. In dealing with terminal patients and their relatives, the charity provides assistance to vulnerable people. It initially seemed that Cryonics UK was going to pick up a little criticism. However, the judge then suggested that the Commission should have considered and catered for the uncertainty faced by those vulnerable beneficiaries resulting from regulatory action against a 27 year old charity on which those people may rely.

In the concluding remarks of the judgement, the court gave particular weight to the opinions of Dr João Pedro de Magalhaes of Liverpool University and Dr Ville Salmensuu, formerly of St George's Hospital in London when reaching a decision. Cryonics UK would like to express its appreciation to the many experts, volunteers and members who provided input and support during this lengthy process.

SOURCE: CRYONICS magazine, November/December 2018, pages 6-7