Consideration by the ecclesiastical courts
This month, the Church of England issued new guidance, Crematorium funerals and the payment to, and receipt of fees by, the clergy, which seeks to clarify the legal position in relation to crematorium funerals and the payment to, and receipt of fees by, the clergy. A particular issues it addresses is that of clergy who do not hold office (whether because they are retired or otherwise) and who purport to conduct funerals on a “freelance basis”.
Not entirely unconnected with this new guidance was a complaint under the Clergy Discipline Measure 2003 brought by The Venerable Peter Rouch against The Reverend Dr Andrew Hawthorne, primarily in relation to his retention of parochial fees for services at which he has officiated, viz.
(1) fees totalling £287 for three funerals at St George’s Church, Jumpers Road, Christchurch in September and October 2010, which he should have duly remitted to the Winchester Diocesan Board of Finance or Christchurch Parochial Church Council as appropriate;
(2) fees estimated to total in excess of £23,000 in respect of approximately 227 cremations at Bournemouth Crematorium from November 2010 to April 2012. In these cases the deceased was not a parishioner and was not on the electoral roll of the benefice of Christchurch, and he should duly have remitted the fees to the appropriate incumbent or Diocesan Board of Finance;
(3) fees estimated to total £3,360 in respect of approximately 33 cremations in Bournemouth Crematorium from November 2010 to April 2012, where the deceased was a parishioner or was on the electoral roll of the benefice of Christchurch, and which he should have duly remitted to the incumbent of Christchurch or the Winchester Diocesan Board of Finance.
The Judgment of the Bishop’s Disciplinary Tribunal for the Diocese of Winchester was handed down on 26 November 2014 and the Penalty on 16 January 2015. Whereas the disciplinary hearing focused on the behaviour or a single priest who subsequently joined the Ordinariate, the new guidance has a broader application; it is directed towards those currently within the Church of England who are permitted to conduct the occasional offices. Although there is some overlap, this post will consider the Tribunal decisions and a later post will address the issues within the guidance.
The disciplinary process
The Church of England’s disciplinary process is governed by the Clergy Discipline Measure 2003, (“the CDM”); and the progressive stages within the procedure are summarized here and here. More detailed consideration is given in an article by Adrian Isles and Chapter 6 of Mark Hill’s book ; and an overview of recent cases is given in Professor Hill’s web site Ecclesiastical Law. Although the Church deals with around 70 cases per year, the majority of complaints made under the CDM are resolved by the bishop, archbishop or President of Tribunals without having to convene a tribunal.
The CofE’s description states :
“In the small minority of cases where the Designated Officer is asked to investigate, a report will be produced for the President of Tribunals, who will then decide whether there is a case to answer before a bishop’s disciplinary tribunal. Tribunals consist of two members in Holy Orders and two communicant lay members, plus an experienced lawyer in the chair. If a complaint is proved, the tribunal can impose the same range of penalties that a bishop can impose by consent, ranging from a rebuke to lifelong prohibition from exercising any ministerial functions.”
Since it came into effect on 1 January 2006, tribunals have only considered complaints against 16 clergy , here, and there have been only two appellate hearings; but where the alleged conduct has been admitted, tribunals have only met to consider the appropriate penalty.
Issues raised in the tribunal hearing on parochial fees
The tribunal concluded that the Designated Officer had made out the case against the Respondent on each of the three grounds alleged against him and found him to be dishonest in relation to his retention of the various fees for funerals and cremations for parishioners both of Christchurch and St George’s. It was also satisfied that the Respondent was sufficiently experienced and trained to make him aware that, just as at Christchurch, incumbents of other parishes were likely to have assigned their fees to the Diocesan Board of Finance.
Respondent’s membership of the Ordinariate
The Respondent challenged the jurisdiction of the tribunal on a number of grounds [1, 4], one of which was that he was now
“… a member of the Personal Ordinariate of Our Lady of Walsingham established by Pope Benedict XVI in 2011 and … therefore argues that he is no longer a member of the Church of England and is no longer under its authority”.
However, the Tribunal observed  that when he was ordained within the Church of England, the Respondent became subject to the ecclesiastical law of that Church.
“The ecclesiastical law is as much part of the law of the land as any other part of the law (see Edes v Bishop of Oxford (1667) Vaugh 18 at 21; Mackonochie v Lord Penzance (1881) 6 App Cas 424 at 446) whereas the Roman Catholic canon law is technically a foreign law although no doubt consensually binding amongst its members.”
The tribunal Chair then made reference to the provisions in the Clerical Disabilities Act 1870 which relate to the formal deed of relinquishment available to a person to the office of minister in the Church of England, after having resigned any and every preferment held by him. He further explained the present somewhat complex application of this provision, :
“The Church Discipline Act 1840 (one of the enactments mentioned in the first Schedule of the 1870 Act) has been repealed and the Ecclesiastical Jurisdiction Measure 1963 has been included within the Schedule of the 1870 Act: Ecclesiastical Jurisdiction Measure 1963, ss 86 and 87, Schs 4 & 5. The Clergy Discipline Measure 2003 has not been included within that Schedule but its provisions clearly fall within the words ‘or of any other law’ in section 4(3).”
“It follows that, if the Respondent had wished no longer to have been subject to the provisions of the 2003 Measure, he should have followed the procedures laid down in the 1870 Act. This he has not done and this tribunal therefore still has jurisdiction in relation to this complaint.”
This reasoning would apply to any clergy leaving the Church of England for the Ordinariate or elsewhere. However, the 1870 Act addresses ministers, which Section 2 defines as meaning “a priest or a deacon”, and not a lay person who is licensed or granted permission to officiate at specified services.
Whilst the cavalier approach of Dr Hawthorne – “You can’t touch me I’m part of the Ordinariate – did not cut any ice with the legal deliberations of the tribunal, the penalty imposed, infra, certainly reflects the limited ecclesiastical sanctions that can be imposed.
“Conduct unbecoming” and neglect
Two matters were referred by the President of Tribunals for the decision of the tribunal :
- That the conduct of the Respondent was unbecoming or inappropriate to the office and work of a clerk in Holy Orders within section 8(1)(d) of the CDM in that he has dishonestly retained fees payable under the Parochial Fees Orders for services at which he has officiated; and
- That as well as, and in the alternative to, the above, the said acts or omissions … amounted to neglect in the performance of the duties of the said office held by the Respondent and were contrary to section 8(2)(c) of the CDM.
The tribunal considered the law in relation to these two issues :
“As to these allegations we accept that, if proved, such allegations of dishonesty contained in the first referred matter [i.e. dishonestly retained fees] would indeed amount to conduct unbecoming or inappropriate to the office and work of a clergyman. If any support for such a view is necessary it is to be found in Canon 26, paragraph 2, of the Revised Canons Ecclesiastical:
‘A clerk in Holy Orders … at all times shall be diligent to frame and fashion his life and that of his family according to the doctrine of Christ, and to make himself and them, as much as in him lies, wholesome examples and patterns to the flock of Christ’.”
With regard to the second matter the Tribunal noted that no reliance was placed upon any alleged “inefficiency in the performance of the duties of [the Respondent’s] office” (s. 8(1)(c) CDM); “neglect” is different from “negligence” in the civil law; the Code of Practice guidance at paragraph 27 states “generally neglect or inefficiency will amount to misconduct only if they occur over a period of time”.
The phrase “in the performance of the duties of his office” was interpreted broadly, as in the disciplinary case of Re Robinson , in which the tribunal cited with approval an article by Chancellor Bursell : that article notes that the Code of Practice gives an example of a cleric who, on a single occasion, takes money belonging to the church, intending to repay it, and suggests [our emphasis] that
“… even if the money is repaid quickly and without prompting, the cleric’s behaviour is a breach of trust; indeed, disciplinary proceedings could be brought even if the cleric has been acquitted of theft. Such behaviour would seem to be a neglect of duty, as would the failure to declare appropriate fees received…”.
In the instant case, parochial fees in relation to burials and cremations are prescribed under the powers given to the Archbishops’ Council by the Ecclesiastical Fees Measure 1986; and by section 2(4) any Parochial Fees Order is treated as if it is a statutory instrument.
“The Complainant’s case having been found proved by the Tribunal for the reasons set out in their Judgment and the Tribunal having considered the submission before it with regard to the appropriate penalty, ordered that: the Respondent be prohibited for life from the exercise of any of the functions of his Orders in accordance with S24(1)(a) of the Measure; and his name be entered on the Archbishops’ List in accordance with Section 38 of the Measure.”
Proceedings in secular courts
One of the Respondent’s arguments in relation to the tribunal’s jurisdiction was that the police had investigated the complaint against him and decided to take no action. However, whilst any prosecution under the criminal law must be proved to the criminal standard of proof, i.e. so that the judge or jury is “satisfied so that it is sure”, the standard of proof to be applied by a Clergy Discipline tribunal is the civil standard of proof, i.e. “on a balance of probabilities”. The tribunal therefore held that the decision not to prosecute under the criminal law could not be determinative of the matter as far as a complaint under the Measure was concerned.
Although not applicable here, the CDM provides a separate procedure under which a member of the clergy who commits a criminal offence may be liable to a penalty of removal from office or prohibition from exercising any functions .
Chancel Repair Liability and other issues
One of the arguments put forward by the Respondent [5(f)] was that the motive behind the bringing of the complaint against him was his opposition to the enforcement of any chancel repair liability. However, the tribunal noted :
“In his Responses to the claim of misconduct … the Respondent details problems that arose, or are alleged to have arisen, in relation to finance, clergy housing, titles, the separation of St George’s, non-attendance at meetings and chancel repair liability. We have carefully considered these arguments but are satisfied that, other than in giving a context to the Respondent’s concern about monies, they are of no relevance in relation to the entirely separate issues of whether the Respondent was entitled to keep funeral fees for himself and any dishonesty in so keeping them.”
The regime under which the retention of these fees by the Respondent occurred has changed as a result of the Ecclesiastical Fees (Amendment) Measure 2011 , although even prior to this, it was acknowledged that the practice whereby “significant (even if perhaps small) number of clergy … enter into “private arrangements” with funeral directors and receive and retain fees for themselves rather than accounting for them to the relevant incumbent/DBF … [was] already unlawful . We discussed these changes in our post Church weddings, increased fees and “extras” and indicated that the Measure addressed: the level and scope of the fees; what may be charged as “extras”; and the recipient of the fees. In addition to the scale fees for 2014, the Church published a comprehensive guide covering the new provisions and responses to some Frequently Asked Questions. Q8 indicates what happens if a retired or self-supporting minister takes the service and Q11 outlines the position of chaplains and throughout the guidance, “minister” is used to refer to the officiant:
“but [it] has a narrower definition in relation to a service performed in a crematorium or unconsecrated cemetery under the provisions of s2 of the Church of England (Miscellaneous Provisions) Measure 1992.”
Nevertheless, it has been necessary for the Church to issue further clarification with regard to crematorium funerals through its new guidance; and this will be considered in a future post.
[Update 25/06/19: On 24 June 2019, the BBC reported Ex-priest Andrew Hawthorne sentenced for fraud. The issues raised by this subsequent civil trial will be covered in a further post].
 Formal complaint to bishop complaint; Bishop’s decision on advice of registrar; Bishop’s disciplinary tribunal; Archbishops’ list; and Proceedings in secular courts.
 Adrian Iles, “The Clergy Discipline Measure 2003: A Canter Through its Provisions and Procedures”, (2007) 9 Ecc LJ, 10; and “The Clergy Discipline Measure 2003: A Progress Report”, (2014) 16 Ecc LJ, 3; M Hill, Ecclesiastical Law (3rd edition, Oxford University Press, 2007), Chapter 6.
 Under section 3(3)(c) of the CDM, the Clergy Discipline Commission is required to make an annual report to the General Synod, through the House of Bishops, on the exercise of its functions during the previous year. GS Misc 1081 is the CDC’s 10th annual report and covers its work in the year to 31st December 2013. The House of Bishops received this report in May 2014.
 One of these hearings considered two clergy jointly.
 It is apparent from the Decision that Dr Hawthorne was in fact supported by the Union.
 R Bursell, “Turbulent Priests: Clerical Misconduct Under the Clergy Discipline Measure 2003” (2007) 9 Ecc LJ 250, 259.
 A similar procedure is available if a respondent has had a decree of divorce or an order of judicial separation made against him or her and has committed adultery, behaved unreasonably or deserted the former spouse.
 Although it came into force in 2011, did not become effective until 1 January 2013 under the Parochial Fees and Scheduled Matters Amending Order 2012.
 Parochial Fees GS 1703, A supplementary report from the Deployment, Remuneration and Conditions of Service Committee, paragraph 8, page 9, footnote 17.
And the sentence of the Tribunal was? Is it not a somewhat redundant exercise to pursue a CDM complaint against a minister who is no longer a member of the Church of England? He may still be legally a “Clerk in Holy Orders” if he has not relinquished his Orders, but if the only penalties available to the Tribunal consist of imposing limitations on his ministry as a Clerk in Holy Orders, it becomes a pretty fruitless and expensive exercise.
The Penalty was prohibition for life from the exercise of any of the functions of his Orders.
Whether there was any point in the exercise was a matter raised by Dr Hawthorne himself; however, the Tribunal took the view that that argument:
“… ignores the fact that there is a wider picture in the administration of discipline than the effect upon the individual member of the clergy as is set out in paragraph 4 of the Code of Practice” .
Surely the case underlines the general point that parochial fees are payable to the diocesan board of finance and to the parochial church council. In its recent guidance, Crematorium funerals and parochial fees, the Legal Office of the National Church Institutions says this:
“6. Unless the diocesan board of finance has expressly agreed that retired or other clergy who undertake occasional duties may keep the fee that is payable to the board (or part of the fee), it is not lawful for a member of the clergy to retain any fee which is payable to the diocesan board of finance under the 1986 Measure. To do so in the absence of an agreement with the board would amount to the appropriation of property belonging to another for the purposes of the Theft Act 1968.
7. It is not legally open to the clergy of the Church of England to operate on what amounts to a ‘freelance’ basis. The 1986 Measure – like all Measures – is not merely an internal church rule; it has the same force and effect as an Act of Parliament. Its provisions are part of the law of the land and compliance with them is not optional or voluntary.”
At the very least, persisting with the tribunal sends out a signal to anyone else tempted to retain fees to which s/he is not entitled that the Church won’t simply say, “Naughty, naughty” and administer the administrative equivalent of a light slap on the wrist.
Why not sue in a civil court for the recovery of the fees retained by Dr Hawthorne? It would send a signal to the “crem cowboys” and instead of costing a substantial amount which a diocese can ill-afford, in mounting a CDM Tribunal, would result in the return of a substantial sum to the DBF. With costs, one would hope.
Who knows? Perhaps they will.
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