16 June 2019

Cy Pres

Noting the discussion of charitable purposes and the cy pres doctrine in Buckley v Barlow [2016] EWHC 3017 (Ch), a dispute about the proceeds of a church built for the controversial and now extinct UK sect the Church of the Holy Agapemony (the Agapemonites).

 The Agapemonites came into being in the 1840s under the auspices of Henry James Prince (1811-1899), a charismatic Anglican assistant curate (ultimately defrocked) who established a religious community - the Abode of Love -  in the Somerset village of Spaxton, where leading acolytes were persuaded to enter into ‘spiritual marriages’ with three wealthy spinster sisters, the Nottidges. That gave Prince control of their assets. In Nottidge v Prince (1860) 2 Giff 246 the High Court heard that a fourth sister had been kidnapped from Spaxton by her brothers and placed in a lunatic asylum to protect her from Prince’s influence. The dispute is explored in ‘Religious Fanaticism’and Wrongful Confinement in Victorian England: The Affair of Louisa Nottidge’ by Joshua John Schwieso in (1986) 9(2) Social History of Medicine 159.

In 1856 Prince, having declared himself the Holy Spirit made flesh, announced that he would impregnate a virgin who would not become physically pregnant but would give birth to the spirit of the new Messiah. The vessel for this saviour was sixteen year old Zoe Patterson, with the union taking place on top of a billiard table in front of the whole congregation, while the Agapemonites sang hymns. Uncomfortably, Zoe gave birth to a girl named Eve.

 A former Anglican clergyman, John Hugh Smyth-Pigott, replaced Prince in the late 1880s. (Prince died in 1899, contraverting one of his claimes that he had abolished death, and was buried at Spaxton, standing upright to await the final dispensation. His successor Smyth-Pigott had joined the Salvation Army but left under a cloud. Attracting new, apparently predominantly middle class, adherents, the Agapemonites built a rather splendid building, complete with stained glass to the design of Walter Crane – the Ark of the Covenant - in the 1890s.

A trust was established in 1892, with 13 trustees (modelled on Christ and his 12 disciples). Ten years later Smyth-Pigott announced that he was The Second Coming (the Son of Man, judge of all, united with the Father). Unimpressed locals subsequently rioted and stormed the Ark, leading Smyth-Pigott to retreat to Spaxton, where he entered into a ‘spiritual marriage’ that saw adherents refer to his new family as the “Holy Family”.

The last adherent apparently died at Spaxton in 1956, with membership of the Agapemites having withered after Smyth-Pigott’s death in 1927.  Puzzlingly, the church had been registered in 1965 as a charity for the purposes of a religious body. In 2004 the UK Charity Commission wrote to the trustees saying that the registration was wrong, given that the Agapemonites were “held not to be a religious body” The Ark was sold in 2011 by the trustees to the Georgian Orthodox Church for around £1 million, with the proceeds being held in a solicitor’s trust account and with HM Revenue and Customs on account of any tax that might be due.

The trustees applied to the High Court for directions on disposal of the funds. Six granddaughters of Smyth-Pigott’s spiritual marriage - Catherine Jane Barlow, Margaret Campbell, Ann Buckley, Angela Patricia Ruth Webber, Victoria Jane Dyson and Sara Rachel Smyth-Riberio - invited the court to order that the proceeds be distributed to them on the basis that they were the only people left who had a connection with the Agapemonites.

 The High Court considered whether the trusts declared in the 1892 trust deed were charitable (on the basis of the advancement of religion) and hence whether they were exclusively for charitable purposes. The doctrine of cy pres - articulated in for example Mayor of Lyons v Advocate-General of Bengal (1876) 1 AC 91, Attorney General (NSW) v Perpetual Trustee Co Ltd [1955] HCA 9, Re Goods’ Will Trust [1950] 2 All ER 653, Rechtman v AG for the State of Victoria; AG (NSW) v Perpetual Trustee (1940) 63 CLR 209 and Re British School of Archaeology [1954] 1 All ER 887  means that if the trust was exclusively for charitable purposes but continuation of those purposes was impossible the funds could be be applied for other charitable purposes as similar as possible to the original ones. If not, the funds could be distributed to others. 

Simmonds J noted that the fundamental principle of UK trust law that “the courts do not take it upon themselves to pass value judgements on different religions, or different sects within religions”, consistent with “the long tradition of religious tolerance in this country, which has persisted for most of the last three centuries, at least”. The heterodox nature of Prince’s claims, which might be considered to be “foolish and delusional” did not disqualify the trust from charitable status. It might be valid if it had been established “with a view to extend the influence of Christianity”.

Importantly, the trust had been been established in 1892 under Prince’s leadership, ten years prior to Smyth-Pigott’s revelation of his divinity. The Court’s decision had to be based on Agapemonites’ belief system in 1892 (or what could be found of it) rather than subsequent years where under Smyth-Pigott the sect might be considered to have “crossed a line between eccentricity and downright blasphemy”. Bracingly, it was difficult to see why Smyth-Pigott’s claim to be the second Messiah should make the difference between charitable and non-charitable status. More importantly the Court should not allow the “delusions” and “dubious activities” of Prince and Smyth-Pigott to obscure the fact that the objects of the 1892 trust deed were to promote the religious activities of a body of people who constituted a recognisable Christian sect.

 Simmonds J stated that the six granddaughters did not claim to adhere to the Agapemonite’s religious principles. With the demise of the adherents many years ago it was no longer possible for the funds to be used for the sect’s religious purposes of the sect. Accordingly, the proceeds from the Ark of the Covenant should be applied in accordance with the doctrine of cy pres to a charitable scheme to be determined by the Charity Commission, rather than enjoyed by the sisters.

15 June 2019


'Filling Gaps and Verifying Facts: Assumptions and Credibility Assessment in the Australian Refugee Review Tribunal' by Rebecca Dowd, Jill Hunter, Belinda Liddell, Jane McAdam, Angela Nickerson, and Richard Bryant in (2018) 30(1) International Journal of Refugee Law 71–103 comments
This study investigates the assumptions made by decision makers in Australia when adju- dicating claims for refugee status and/or complementary protection. By analysing 50 randomly selected cases of the Refugee Review Tribunal, it provides a systematic evaluation of the frequency and importance of assumptions made by Australian Tribunal members, partly replicating an earlier United Kingdom study published in this journal. As a multi-disciplinary team of lawyers and psychologists, the authors investigate how Tribunal members’ assumptions about human behaviour pervade credibility assessments, and how they shape overall decision making in the asylum context. This study examines the extent to which Tribunal members take account of credibility guidelines and the psychological evidence base to give protection applicants the benefit of the doubt when their claims cannot be verified. Since asylum seekers’ futures are determined by the outcome of these decisions, it is argued that the Tribunal should provide a greater level of predictability and consistency in the approach taken in the assessment of their cases. 
 The authors argue
This study investigates the assumptions made by members of the former Refugee Review Tribunal1 when adjudicating claims for refugee status and/or complemen- tary protection in Australia. It analyses 50 randomly selected cases determined by the Refugee Review Tribunal (Tribunal) in 2015. In doing so, it responds to the call by United Kingdom (UK) researchers Herlihy, Gleeson, and Turner for further systematic evaluation of the frequency and importance of assumptions made by refugee decision makers, following their own 2010 UK study. 
The UK study explored refugee decision makers’ assumptions in 30 cases as they related to three broad themes: ‘there’ (the period prior to the applicant’s entry to the UK, focusing on how others behaved); ‘here’ (the period in which the applicant navi- gated the UK asylum process, focusing on how appellants presented themselves and their evidence, as well as their knowledge of the asylum system); and what can be termed ‘now’ (the period during the tribunal hearing itself, when the decision maker evaluated the truthfulness of an appellant’s account in light of factors such as consistency, detail, and demeanour). Decision makers’ assumptions typically fed into credibility determinations in the adjudication process. 
In replicating this important study in Australia, the ‘here’, ‘there’, and ‘now’ typ- ology has been maintained. This underscores the cross-cultural, linguistic, and related challenges that Tribunal members face when adjudicating applicants’ accounts of per- secution, their flight from apparent danger, their understanding of expectations in a new culture and society, and their ability to navigate Australian refugee determination processes. How do Tribunal members, with their own cultural norms, expectations, belief structures, and experiences, understand ‘there’, the distinctly different refugee-producing world of the applicant? ‘Here’ and ‘now’ considerations arise in contexts that are familiar to Tribunal members but unfamiliar to applicants, who are outside their comfort zone. 
This study, like the UK study, found that decision makers variously make assumptions about applicants, family members, and government officials. Inevitably, the deter- mination process requires decision makers to imagine themselves in other people’s lives and circumstances, and such assumptions are used to fill gaps in diverse ways. There is always leeway for choice, and the robustness of an assumption depends upon a decision maker’s approach and whether, and when, he or she chooses to give the applicant the benefit of the doubt. For instance, whereas there may be documentary evidence avail- able to substantiate a claim that a particular road, bridge, or checkpoint was unsafe at a particular time, issues relating to personal relationships, honour killings, and the like, cannot be verified in the same way. Given the frequent lack of corroborating evidence, it is critical to understand decision makers’ pervasive assumptions since these may be used to fill the void. As Herlihy, Gleeson, and Turner observed, in a personal injury claim, a wealth of external material, such as health and police records, is available, yet ‘[i]n asylum cases, there are often only the narratives from applicants themselves’. Even in cases where there is additional evidence to support the applicant’s account, his or her personal narrative remains pivotal. In such contexts, any rejection of the applicant’s explanation should be based on contradictory information, not just surmise. 
This study, like its UK predecessor, sits, both generally and specifically, in the context of a significant body of literature on credibility evaluation that examines credibility assessment issues in refugee status determination. Notably, the tenor of this literature has been endorsed in Federal Court of Australia judgments, and, at the time when the cases selected for this study were decided, Tribunal Guidelines on credibility matters were consistent with this body of research. This study assumes that there is a body of accepted ‘best practice’ regarding credibility assessment, and it analyses the sam- ple cases to identify the extent to which applicants’ accounts are scrutinized, and the nature of that scrutiny. In particular, it investigates the ways in which Tribunal members’ assumptions about human behaviour pervade credibility assessments, and how they shape overall decision making in the asylum context. 
The study sets out assumptions in the abstract, rather than in the context of the full decision. This does not always allow comprehensive reflection of the full logic behind the Tribunal member’s reasoning, nor consideration of the totality of the evidence pre- sented to Tribunal members. While an examination of the full Tribunal file in each case, including the evidence submitted and any records of the hearing itself, may have pro- duced a fuller picture of how decision makers analyse assumptions, such files are not publicly available and records of a third party are difficult (if not impossible) to obtain via freedom of information requests. The authors acknowledge this limitation, but stress that the goal of the study was to explore the evidence relied upon and articulated by Tribunal members in their decisions, together with their explanations and justifica- tions for their credibility findings in this context.


The short 'Informed Consent Requires Understanding: Complete Disclosure Is Not Enough' by Thaddeus Mason Pope in (2019) 19(5) American Journal of Bioethics 27 comments
Beskow and Weinfurt tackle one of the most important yet under-examined issues in bioethics: the relationship between clinician disclosure and non-clinician understanding. They explore this relationship in the research ethics context, addressing four key questions. First, do research subjects understand basic aspects of the studies in which they are enrolled? Second, should we set minimum thresholds for research subject comprehension? Third, how and where should we set those minimum thresholds? Fourth, what consequences should we impose when subjects do not meet the minimum thresholds? 
These are important inquiries for research ethics and human rights. But they are even more critical in the treatment context. Remarkably, we are not yet asking, much less answering, these questions about patients making decisions among treatment options. For example, a member of Beskow and Weinfurt’s multidisciplinary expert panel observes: “We don’t do comprehension testing anywhere else in medicine, so I don’t know why we’d do it here.” The panelist is right. There should be symmetry and harmony in how we treat understanding in the research and treatment contexts. In the following, I extend Beskow and Weinfurt’s four questions to address the proper role of comprehension in clinical informed consent.


'The British Tradition of Legal Positivism' by Gerald J. Postema in Torben Spaak and Patricia Mindus (eds) A Companion to Legal Positivism (Cambridge University Press, forthcoming) comments
 This essay traces a thematic thread through broadly Anglophone legal philosophy since the seventeenth century. Ownership of the title “positivism” is contested in contemporary Anglophone jurisprudence. If we to take the core theses embraced by contemporary legal positivists to identify the key figures in their tradition the story would be very brief, starting, perhaps, with Hart. Hence, rather than tracing a line of development of a coherent jurisprudential tradition, this essay sketches in broad outlines the transformation of Anglophone legal philosophy since Hobbes. However, it begins with a brief discussion of the headwaters of Anglophone positivist tradition in the “thetic” tradition of legal theory in late medieval jurisprudence and in the practice and theory of English common law and ends with a discussion of Salmond and other twentieth-century jurists who paved the way for Hart’s contemporary version of legal positivism.
Postema's 'Trust, Distrust, and the Rule of Law' in Paul B. Miller and Matthew Harding (eds.) Fiduciaries and Trust: Ethics, Politics, Economics and Law (Cambridge University Press, forthcoming) comments
 The rule of law is about the law’s ruling. Law rules when it provides protection and recourse against the arbitrary exercise of power through the distinctive instrumentalities, powers and capacities of law; but law can rule in a political community only when its members, official and lay members alike, take responsibility for holding each other accountable under the law. An ethos of fidelity is fundamental to the vitality of the rule of law. However, it is often argued that a culture of accountability generates a culture of suspicion and distrust. Accountability, they say, drives out trust. The demand for accountability stems from and publicly expresses distrust. But, then, if accountability is at the heart of the rule of law, and distrust is the condition and consequence of accountability, we cannot look to the rule of law to underwrite a robust program of controlling the exercise of ruling power. This the “trust challenge” to the rule of law. In this paper, I argue that the trust challenge can be met, that accountability does not depend on or express distrust. On the contrary, I argue, accountability is a key component of trust-supporting moral and social relationships. Fidelity and trust are compatible and mutually supporting.


'Sex Wars as Proxy Wars' by Aya Gruber in (2019) 6 Critical Analysis of Law comments
The clash between feminists and queer theorists over the meaning of sex — danger versus pleasure — is well-trodden academic territory. Less discussed is what the theories have in common. There is an important presumption uniting many feminist and queer accounts of sexuality: sex, relative to all other human activities, is something of great, or grave, importance. The theories reflect Gayle Rubin’s postulation that “everything pertaining to sex has been a ‘special case’ in our culture.” In the #MeToo era, we can see all too clearly how sex has an outsized influence in public debate. Raging against sexual harm has become the preferred weapon of those attacking heterogenous power differentials. Focusing on sex, advocates wage proxy wars for other values, from equality in professor-grad student relationships to gender diversity on corporate boards. However, when we have our sex blinders on, it is difficult to seek remedies to — or even see — the problems for which sexual harm stood in as a proxy. In this essay, I make the case that combining queer-theoretical methods with a distinctly sex-indifferent stance brings a useful perspective to some of the thornier aspects of the contemporary debate over sex regulation.

Prediction Machine?

dentification of practitioners at high risk of complaints to health profession regulators' by Matthew J. Spittal, Marie M. Bismark and David M. Studdert in (2019) 19 BMC Health Services Research 380 comments
Some health practitioners pose substantial threats to patient safety, yet early identification of them is notoriously difficult. We aimed to develop an algorithm for use by regulators in prospectively identifying practitioners at high risk of attracting formal complaints about health, conduct or performance issues. 
Using 2011—2016 data from the national regulator of health practitioners in Australia, we conducted a retrospective cohort study of 14 registered health professions. We used recurrent-event survival analysis to estimate the risk of a complaint and used the results of this analysis to develop an algorithm for identifying practitioners at high risk of complaints. We evaluated the algorithm’s discrimination, calibration and predictive properties. 
Participants were 715,415 registered health practitioners (55% nurses, 15% doctors, 6% midwives, 5% psychologists, 4% pharmacists, 15% other). The algorithm, PRONE-HP (Predicted Risk of New Event for Health Practitioners), incorporated predictors for sex, age, profession and specialty, number of prior complaints and complaint issue. Discrimination was good (C-index = 0·77, 95% CI 0·76–0·77). PRONE-HP’s score values were closely calibrated with risk of a future complaint: practitioners with a score ≤ 4 had a 1% chance of a complaint within 24 months and those with a score ≥ 35 had a higher than 85% chance. Using the 90th percentile of scores within each profession to define “high risk”, the predictive accuracy of PRONE-HP was good for doctors and dentists (PPV = 93·1% and 91·6%, respectively); moderate for chiropractors (PPV = 71·1%), psychologists (PPV = 54·9%), pharmacists (PPV = 39·9%) and podiatrists (PPV = 34·0%); and poor for other professions. 
The performance of PRONE-HP in predicting complaint risks varied substantially across professions. It showed particular promise for flagging doctors and dentists at high risk of accruing further complaints. Close review of available information on flagged practitioners may help to identify troubling patterns and imminent risks to patients.


"Neurobionic Revenge Porn and the Criminal Law: Brain-Computer Interfaces and Intimate Image Abuse' by Allan McCay in Nicole Vincent, Thomas Nadelhoffer and Allan McCay (eds), Neurointerventions and the Law: Regulating Human Mental Capacity (Oxford University Press, Forthcoming) comments
 Brain computer interfaces make possible a form of neurobionic agency in which people interact with the internet by mental action, without the need for a bodily movement. In this paper I consider the possibility of someone uploading intimate images of another person, without their consent, onto social media by way of brain-computer interface. I do this in order to highlight the novel, and perhaps problematic nature, of the options for response to such offending (given current doctrine) that are available to the criminal law. I use the example of revenge porn as a case study, in order to very tentatively consider the criminal law’s response to neurobionic offending more generally. 
Methodologically, my paper is somewhat different to much of the work that has been done on criminal responsibility in the context of brain computer-interfaces, insofar as the paper significantly engages with legislation, and to some extent case law, with reference to a hypothetical scenario. Previous work has generally considered the issues in more abstract terms and I argue there are some advantages to my more applied approach. 
Whilst the law has criminalized bodily actions, omissions and certain kinds of status, neurobionic agency falls into none of these traditional categories, and some issues flow from this failure. I will argue that neurobionic revenge porn would present a challenge to the criminal law relating to the determination of the conduct which constitutes the actus reus. Thus, I argue that if the courts are required to respond to this kind of offending; it will raise questions about a concept that is currently central to the criminal law.