Criminal allegations against the dead

House of Lords debate on issues relating to George Bell

On 22 January 2018, the House of Lords debated the naming of deceased individuals against whom criminal allegations have been made, for which specific reference was made to the Carlile Report on the handling of the Bishop George Bell issue. This was particularly timely in view of the controversy that has arisen relating to the Church of England’s position relating to confidentiality.


On 15 December 2017, the Church of England’s National Safeguarding Team (NST) published the key findings and recommendations, along with the full report (“the Review”) and Annexes, of Lord Carlile’s independent review into the processes used in the Bishop George Bell case. The important recommendations not adopted by the Church were:

“32. In cases where, following a proper and adequate investigation, they are settled with admission of liability, there should be a presumption that the perpetrator’s name will be published together with a description of the conduct concerned (unless the complainant objects on reasonable grounds).

33. Where as in this case the settlement is without admission of liability, the settlement generally should be with a confidentiality provision: there should be a presumption that the name of the alleged perpetrator should not be published, unless the alleged perpetrator agrees that it should be, or the circumstances are held to be wholly exceptional (on reasonable grounds).”

In the Church’s Press Release on the publication of the Review, the Archbishop of Canterbury stated [emphasis added]:

“Bishop George Bell is one of the great Anglican heroes of the 20th century. The decision to publish his name was taken with immense reluctance, and all involved recognised the deep tragedy involved. However we have to differ from Lord Carlile’s point that ‘where as in this case the settlement is without admission of liability, the settlement generally should be with a confidentiality provision”. The C of E is committed to transparency and therefore we would take a different approach.

Subsequent developments

Archbishop Justin’s response to the Carlile Report attracted media criticism, perhaps the most considered of which was a letter in the Daily Telegraph on 17 January from a group of academic historians led by Professor Charmian Brinson. As we have already noted, that letter  prompted a further statement by the Archbishop, also on 22 January, in which he said that he could not “with integrity” rescind his earlier statement:

“I wrote my response with the support of both Bishop Peter Hancock, the lead bishop for safeguarding, and Bishop Martin Warner, the Bishop of Chichester. We are clear that we accept all but part of one of the recommendations Lord Carlile makes and we are extremely grateful to him for what he has done and the help he has given the Church.

He indicates that, in his judgement, a better way to have handled the allegation would have been for the Church to offer money on condition of confidentiality. We disagree with this suggestion. The confidentiality would have been exposed through the IICSA process, and the first question we would have faced, both about Bishop Bell and more widely, would have been “so what else are you concealing?”. The letter from the historians does not take into account any of these realities, nor the past failures of the Church. But we will go on considering how we can make our processes better and more robust, as pointed out by Lord Carlile.”

The Lords debate

The Lords debate on 22 January was on a question from Lord Lexden:

“To ask Her Majesty’s Government whether they intend to review the law governing the naming of deceased individuals against whom criminal allegations have been made” [HL Hansard, 22 January 2018 Vol 788 Col 833].

to which the Minister of State, Home Office (Baroness Williams of Trafford) (Con) replied:

“My Lords, any decision to name an individual where that is considered to be in the public interest will necessarily be specific to the circumstances of an individual case. Accordingly, the Government do not have plans to review the law in relation to this matter”.

Referring to paragraph 29 from the Review [Col 834], Lord Lexden asked Baroness Williams to consider the recommendation that

“alleged perpetrators, living or dead, should not be identified publicly unless or until the Core Group has … made adverse findings of fact, and … it has also been decided that making the identity public is required in the public interest”.

and said

“Should there not be a legal requirement in all cases to ensure that that is met before anyone, alive or dead, is named publicly? Does my noble friend agree that institutions of both Church and state must uphold the cardinal principle that an individual is innocent until proved guilty?”

Baroness Williams would not be drawn into commenting on the approach of the Church of England, although she tacitly agreed with the point.

“The report [the Review] itself was commissioned by the Church of England and the recommendations within it are for the Church, so it would not be appropriate for me to comment. However, as my noble friend says, there is a presumption of anonymity. People should not be named unless there is a legal reason for doing so. Of course the principle of innocence until proven guilty is a key tenet of English law, and it is not for me to tell the Church what to do.”

However, the Bishop of Peterborough appeared to stray off-message vis-à-vis the Church’s stated position, and echoing recommendations 32 and 33, supra, stated [Col 835: emphasis added]:

“My Lords, this has been a very difficult case, but Bishop Bell is not the only person whose reputation has been severely damaged by such accusations—some are dead and some still alive. I urge the Minister and the Government to take very seriously the call for a major review of anonymity. In all cases where the complainant has a right to be anonymous, there seems to be a case for the respondent also to be anonymous, and in cases until there is overwhelming evidence to suggest guilt, it seems reasonable for people’s reputations not to be damaged in this public way.”

Evidential standards

Underpinning the discussion and recommendations in the Review was the criminal nature of the alleged conduct, and how this should be addressed. Relevant paragraphs include:

[24]. The whole Core Group must see all relevant material. This must include all items which have the potential materially to support complaints or to undermine them. This is consistent with the legal requirements of disclosure in criminal cases.

[26]. …it should be made clear to complainants that their complaints are not considered to be proved until findings of fact have been made by the Core Group.

[30]. A Core Group considering posthumous allegations of sexual abuse by the clergy should include someone with legal experience which must include practical and up-to-date knowledge of criminal law and procedure as it pertains to the investigation and determination of allegations of sexual assault. Whilst the standard of proof for civil claims is the balance of probabilities, where the allegations are of serious criminal offences a full understanding and estimation of the criminal process is an essential piece of information for a case: for example, if there is the clear conclusion that there would have been a criminal conviction, that would simplify the assessment of a civil claim.

[31]. It is unavoidable that, in the case of posthumous allegations, the Core Group will be required to make findings of fact. Determination of the truth or otherwise of such allegations is particularly difficult. The Church is likely to regard a requirement to find such allegations proved to the criminal standard (beyond reasonable doubt) as placing too heavy a burden on complainants. However, the rights of the dead should not be ignored. Irrespective of whether proceedings have been commenced, the reasonable compromise would be that the case must be proved to the civil standard – which of course is appropriate by definition when there are civil proceedings under consideration. The civil standard requires that the complainant must satisfy the Core Group that, on the balance of probabilities, the allegation is made out: in other words, that it is more likely than not that the alleged perpetrator behaved in the way the complainant alleges. [emphasis added]


As one commentator observed, “[t]he question over whether transparency trumps the presumption of innocence until proven guilty is at the heart of this case”. Whilst, currently, the focus is on the treatment of George Bell, there is the issue of the application of recommendations 32 and 33 to future allegations. The George Bell Group, of which Lord Lexden is a “Core Member”, is unlikely to be satisfied with the present response from the Church, except perhaps from the comments made by the Bishop of Peterborough in the House of Lords.

On the future application of the Review’s recommendations, Lord Carlile commented:

“[34]. The Church is currently developing Practice Guidance; I urge early production of the promised addendum to deal with posthumous allegations. It should state that there is a duty to disclose sufficient information to the representatives of the alleged perpetrator so that they know the case they have to meet.”

It is perhaps pertinent to reiterate the final comments of the Review, in which Lord Carlile said:

“[267]. I am sure that The Archbishop does not think it appropriate to support the publication of what may be an unjustified and probably irreparable criticism of anyone, whether a celebrated bishop or not.

[268]. I regard this as a case, perhaps a relatively rare one, in which steps should and could have been taken to retain full confidentiality, with a clear underlying basis for explaining why it was done. For Bishop Bell’s reputation to be catastrophically affected in the way that occurred was just wrong.”

But that is not to say that the Archbishop and his colleagues are wrong to take the view that they have done about confidentiality. Their assertion that IICSA would be certain to ask, “so what else are you concealing?” is very difficult to rebut.

David Pocklington and Frank Cranmer

Cite this article as: David Pocklington and Frank Cranmer, “Criminal allegations against the dead” in Law & Religion UK, 24 January 2018,

3 thoughts on “Criminal allegations against the dead

  1. On the standard of proof to be applied when a criminal allegation, such as that of child sexual abuse, is made in civil proceedings, Mr Justice Teare made some interesting comments in a judgment on 18 January 2018 in a case concerning a claim by an insurance company alleging a fraudulent representation that a car had been involved in a genuine road traffic accident:

    “19. The Claimant has brought this claim for damages for deceit and therefore bears the burden of proving that Mr. Gentry dishonestly represented to the Claimant that his car had been struck by Mr. Miller’s car on 17 March 2013 in a genuine collision at the junction between Folly Farm and the A399. That burden must be discharged on the balance of probabilities but since the allegation against Mr. Gentry is of criminal behaviour, which is inherently unlikely, particularly cogent evidence is required before the court can properly be satisfied on the balance of probabilities that he acted in the manner alleged. The need for cogent evidence in this context is apparent from other cases where a party alleges criminal conduct in a civil case; see for example Parker v National Farmers Union Mutual Insurance Society [2012] EWHC Comm at paragraph 6 and 103 (where an insurance company alleged arson by its assured) and The Atlantik Confidence [2016] 2 Lloyd’s Reports 525 at paragraphs 6-7 and 9 (where a cargo owner alleged that a shipowner had scuttled his ship in order to make an insurance claim for the loss of the ship).
    20. The standard of proof required in care proceedings (where a parent is alleged to have assaulted his or her child) has been considered by the House of Lords. Lord Hoffman and Lady Hale have observed that the probabilities must be borne in mind “to whatever extent is appropriate in the particular case” and that where it is clear that a child has been assaulted and that one of the two parents looking after the child must have been responsible the improbability that a parent had assaulted his or her child ceases to be of relevance; see In re B [2009] 1 AC 11 at paragraphs 14-14 per Lord Hoffman and at paragraphs 62 and 68-73 per Lady Hale.
    21. By contrast the present case is one where there is a dispute as to whether a fraudulent misrepresentation was made. It is therefore appropriate to bear in mind the improbability of a person acting fraudulently in the manner alleged of Mr. Gentry. It follows that particularly cogent evidence is required in order to discharge the burden of proof. In short the nature of the allegation makes it appropriate to apply a standard not far short of the criminal standard. In In Re B Lord Hoffman accepted that that can be so in some circumstances (see paragraph 13), as did Lady Hale (see paragraph 69). Thus, in order to discharge the burden of proof the Claimant must be able to exclude any substantial, as opposed to fanciful or remote, possibility that the collision was genuine. The court must have a very high level of confidence that the Claimant’s allegation is true; see The Atlantik Confidence at paragraph 9.”: UK Insurance Ltd v Gentry [2018] EWHC 37 (QB)

    Teare J found, on the whole of the evidence, that the accident was ‘staged’. He said (para 74): “In cases of this nature it is necessary to stand back and have regard to the whole of the evidence. I have sought to do so and to take the story as a whole. Having done so I am persuaded that the accident was staged. I have asked myself whether there is a real or substantial possibility that the collision was genuine which the Claimant has been unable to exclude. Having considered all the circumstances of this case I do not consider there is. The only credible explanation for the steps both drivers took to hide their friendship from the Claimant is that they knew that it was a staged collision and that to reveal that they were friends would give the game away. Also, if the collision had been genuine Mr. Gentry would surely have told Mr. Voller at the time. Mr. Voller’s denial that Mr. Gentry did so is a cogent indication that he was part of the conspiracy.”

    Clearly, applying this test and the words used by Bishop Donald Allister in the HL, requiring ‘overwhelming evidence to suggest guilt’, the Church should not have ‘trashed’ Bishop George Bell’s name in a public statement (the statement of 22 October 2015). it was equally ‘inherently unlikely’ that Bell was guilty of the child sexual abuse alleged against him. The conclusions in para 254 of Lord Carlile’s report amount to a devastating finding that the Core Group’s investigation was so fundamentally flawed that its conclusion (applying any standard of proof) that Bell was guilty as charged in a single uncorroborated allegation cannot stand.

    The suggestion that the Bishop of Peterborough ‘strayed off message’ in his contribution in the House of Lords assumes that there is a collective position of the House of Bishops, as opposed to that of the Archbishop and the National Safeguarding Team: that may well not be the case.

    It is difficult to reconcile Archbishop Welby’s latest statement with para 267 of the Carlile report (quoted above). The archbishop will be under continuing pressure to withdraw his ‘significant cloud’ statement, and there are likely to be questions about it at General Synod on 8 February 2018, as well as the tabling of a private member’s motion.

    • Thank you for your observation on U K Insurance Ltd v Gentry [2018] EWHC 37 (QB) in relation to relating to the burden of proof &c. Had the judgment been available to the Core Group, one wonders how it would have been taken into consideration, given Lord Carlile’s scathing comment “[41]. … I have been told, and have to accept, that several members of the Core Group ‘had considerable experience of the criminal justice system’. Unfortunately, there is no evidence that they shared, let alone harnessed that experience – which is surprising and disappointing.”

      With regard to the Bishop of Peterborough’s speech in the House, I indicated that he “appeared to stray off-message vis-à-vis the Church’s stated position”, implying that no-one else had publically put his or her mitre above the parapet.

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