Peter Ball – legislation, then and now (II)

This three-part post concerns the public hearing of the Independent Inquiry Child Sexual Abuse (IICSA) into the Peter Ball case study which took place 23 – 27 July 2018; the IICSA investigated inter alia whether there were inappropriate attempts by people of prominence to interfere in the criminal justice process after he was first accused of child sexual offences. The transcripts of the proceedings and other documents are available here.

Part I of the post considered the issues surrounding the appointment of Peter Ball as a diocesan bishop, and his subsequent Permission to Officiate (PTO). This post looks at: the issue of a police caution and its implications; the sanctions applicable to bishops; misconduct in public office; and mandatory reporting. A summary of the timeline of events was included in Part I. Part III considers the closing statements, and the work which is currently on-going.

Implications of a police caution

Two issues related to a police caution were raised during the IICSA hearing: the understanding by those involved of its implications; and the omissions by the police themselves in the issue of a police caution to Peter Ball. The former is exemplified by the written statement from HRH Prince Charles [Day 5, 27 July, page 40, line 16]. The situation was further complicated as the decision to caution Peter Ball in 1993 was made even though not all of the necessary conditions for a caution were met, most importantly a “full and unequivocal” admission to the gross indecency offence.

Gregor McGill, director of legal services at the CPS, admitted that the decision, eventually handed down by Gloucester police on advice from the CPS, was “wrong”. Explaining present-day cautioning procedures by the Sussex and Surrey Police, Detective Superintendent Carwyn stated that standards are now considerably higher than in the 1990s, [Day 3, 25 July, page 179, line 8].

Comment

The government website Police cautions, warnings and penalty notices states: “[t]he police or Crown Prosecution Service can give you a caution (warning) or a penalty notice if you commit a minor crime, and explains: “…A caution is not a criminal conviction, but it could be used as evidence of bad character if you go to court for another crime. Cautions can show on standard and enhanced Disclosure and Barring Service (DBS) checks.” A more detailed explanation is given by the Crown Prosecution Service (CPS) and the Ministry of Justice Guidance Simple Caution for Adult Offenders (14 November 2013).

However, the important point, then as now, is that the issue of a caution is dependent upon the admission of guilt.

Sanctions applicable to bishops

In her opening statement to the Chichester Inquiry, Ms Scolding said (Day 1, 5 March, page 30, line 14) [emphasis added]:

“As the current incumbent of the post [of Archbishop of Canterbury], the Most Reverend Justin Welby, explains within his witness statement, whilst individual bishops have to swear an oath of obedience to the archbishop, he has no legal powers to direct that bishops take specific action and has no power, absent disciplinary proceedings, to dismiss a bishop. The power of the archbishop is, therefore, primarily one of influence.

The only mechanism for an archbishop to intervene if he considers that matters within a diocese are going substantially awry, for whatever reason, is to carry out what is known as an Archepiscopal Visitation is identified, he cannot direct a diocese as a result of this, but is entitled to suspend aspects of its working while the visitation is being undertaken.”

“… such a visitation took place in at the behest of the then Archbishop of Canterbury, Dr Rowan Williams, within the Diocese of Chichester because of safeguarding concerns. This was the first such occasion upon which a visitation was used in over 100 years”.

This was echoed by Lord Carey in the Ball inquiry when he was asked about the exercise of his “role of influence but not power”. Ms Scolding said [Day 2, July 24, page 8, line 3]:

“our understanding is that at that time you couldn’t suspend a bishop, even if, as in Peter Ball’s case, he had in fact been arrested. That’s right, isn’t it?”

In response to this “closed question”, Lord Carey said “I believe so. I’m not a canon lawyer, so I have to accept that that is the fact”.

Comment

This needs a little unpicking for there are a number of issues at play; a bishop owes canonical obedience to the archbishop under Canon C 1(3), and under Canon C 17 Of archbishops [emphasis added]:

“2. The archbishop has throughout his province at all times metropolitical jurisdiction, as superintendent of all ecclesiastical matters therein, to correct and supply the defects of other bishops, and, during the time of his metropolitical visitation, jurisdiction as Ordinary, except in places and over persons exempt by law or custom.”

Visitations fall within Canon G 5 Of Visitations, which states:

“[1]. Every archbishop, bishop, and archdeacon has the right to visit, at times and places limited by law or custom, the province, diocese, or archdeaconry committed to his charge, in a more solemn manner, and in such visitation to perform all such acts as by law and custom are assigned to his charge in that behalf for the edifying and well-governing of Christ’s flock, that means may be taken thereby for the supply of such things as are lacking and the correction of such things as are amiss.

[2]. During the time of such visitation the jurisdiction of all inferior Ordinaries shall be suspended save in places which by law or custom are exempt.”

In addition to the Archbishop’s Visitation, within the diocese there was also a Diocesan Visitation, 2013-2015, and a Cathedral Visitation in 2016; these were reviewed in our post The 2016 Chichester Visitation.

With regard to disciplinary proceedings, although it was technically possible to impose legal sanctions on bishops (including suspension) in the 1990s, prior to the Clergy Discipline Measure 2003 it was practically impossible under the legislation then applicable, the Ecclesiastical Jurisdiction Measure 1963; no disciplinary cases ever reached the Court of Ecclesiastical Causes Reserved.

The situation was acknowledged in Under Authority: Report on Clergy Discipline, 1996, Church House Publishing, in its review of the sanctions which could be imposed on clergy. It noted at [8.45] that the authors: “…do not believe that there is any justification for retaining a procedure for the trial of bishops which is so cumbersome that it will never be used”.

Misconduct in public office

An issue which also received attention, but relatively little media comment during this IICSA hearing, was that of “misconduct in public office”; this was one of the offences to which Peter Ball admitted and involved offences against 13 different individuals. It was also considered (and rejected) by the CPS in relation to the conduct of Lord Carey, as Archbishop of Canterbury in relation to his handling of the complaints from victims.

In the Peter Ball case study, it was stated that it had never been used before in relation to a member of the clergy [Day 1 23 July, page 105, line 9]; it was “not on the radar in 1992” and the offence had “fallen into disuse”. [Day 3, 25 July, page 135 line 25].

Detective Superintendent Carwyn Hughes was commissioned by Operation Hydrant and the Crown Prosecution Service to write a report on his understanding of what had happened in 1993, based on what he had gleaned from being the senior investigating officer on Operation Dunhill. The actual decision was to be owned by the Metropolitan Police, who were taking complaints of misconduct in public office against Lord Carey. [Day 3, 25 July, page 201 line 22 & seq.]. When asked whether there were any criminal offences committed by Lord Carey, DS Hughes stated that it did not meet the criminal threshold [Day 3, 25 July, page 202, line 24 & seq.] for a number of complex reasons:

“…I think there was incompetence within the Church of England, Lambeth Palace at that time; I think there was misguided loyalties; I think there was — I think the head of any organisation, when allegations are made against somebody, should take a position of neutrality, whereby I would suggest that the Archbishop of Canterbury at the time was — became somewhat of a supporter; there was — the advice given to George Carey by, in particular, Eric Kemp and John Yates was, in my view, extremely poor.”

Comment

Following the publication of Dame Moira Gibb’s report, An Abuse of Faith, we posted ‘Misconduct in Public Office’ revisited” in which we observed [emphasis added]:

“Since Ball pleaded guilty to the misconduct charge, the precise reach of the criminal law in this area was not tested – though it should be noted that his sentence on the misconduct charge was heavier that his sentence for the separate counts of indecent assault. The case does, however, raise an issue about the precise scope of the offence, given that the impugned conduct need not be criminal in order to attract the charge.”

We also considered the concept of “public office” in the context of bishops in the Church of England in an earlier post on 10 November 2014; a much-extended version was published in the Ecclesiastical Law Journal with a more specific focus on the prosecution of former bishop Peter Ball, (reference 1).

The Law Commission is currently undertaking a consultation on Misconduct in a Public Office: it launched a second public consultation on the law of misconduct in public office on 5 September 2016, to which the Ecclesiastical Law Society made a response which included inter alia comment on the Peter Ball case and the issues for the Church of England. This and other responses are now being analysed by the Law Commission and its final recommendations are expected later this year.

Mandatory reporting of safeguarding

Mandatory reporting is a theme common to all IICSA hearings, and groups such as Mandate Now are seeking the introduction of legislation which would require staff who work in ‘Regulated Activities’, as defined in the Safeguarding Vulnerable Groups Act 2006, to report concerns about the welfare of children and vulnerable adults to the Local Authority. With regard to the Church of England, there is the further issue of its “in house” legislative procedures under which it investigates and disciplines clergy, including the confidentiality associated with confession. It is this aspect that has raised the question as to whether the Church should continue to “mark its own homework”.

On 21 July 2016, the government launched the consultation Reporting and acting on child abuse and neglect in which it sought inter alia views on new statutory measures including: a mandatory reporting duty, which would require certain practitioners or organisations to report child abuse or neglect if they knew or had reasonable cause to suspect it was taking place; or a duty to act, which would require certain practitioners or organisations to take appropriate action (which could include reporting) in relation to child abuse or neglect if they knew or had reasonable cause to suspect it was taking place.

The Government published its response on 5 March 2018 which outlined “strengthened plans to tackle child abuse“. This concluded “the evidence received does not demonstrate that either of the proposals would sufficiently improve outcomes for children”; the responses suggested that these additional measures could risk creating unnecessary burdens, divert attention from the most serious cases, hamper professional judgement, and potentially jeopardise the vital relationships between social workers and vulnerable families in their care.

Nevertheless, on 27 September 2018 the IICSA is holding a one-day seminar which will look at existing obligations to report child sexual abuse in England and Wales, and explore how these differ across professions and institutions; it will also consider how mandatory reporting legislation operates in other countries, and the impact such provisions may have had on preventing and responding to child sexual abuse. A second seminar in May 2019 will consider the arguments for and against the introduction of mandatory reporting legislation in England and Wales, and the practical considerations involved in introducing such a law.

Seal of the confessional

On 5 June 2018, The Times (£) published a letter from HH Rupert Bursell QC, the nub of which was as follows:

“[T]he legal situation remains unclear as to whether there is a ‘seal of the confessional’ recognised by English law of which Anglican (as opposed to Roman Catholic) canon law is part. For the sake of all those who are, or may in the future be, abused this needs urgently to be clarified. In particular, if the law does indeed recognise such a privilege (akin to that of a lawyer and client) it should be made entirely clear that no such privilege arises if the abuser has not handed himself or herself in to the police or to social services and absolution has been given. If the church will not pass such legislation then parliament should, as I stated in my evidence to the Independent Inquiry into Child Sexual Abuse.”

In his presentation to the earlier IICSA hearing, Dr Bursell gave evidence inter alia on the seal of the confessional, Day 7, 13 March, pages 76 to 81 inclusive, and in his Witness Statement, ACE025279He indicated that he had written a paper for the commission appointed by the House of Bishops to look into the doctrinal and legal aspects of the seal of the confessional, (reference 2).

Dr Bursell explained that the Church’s Legal Advisory Commission had been asked to advise the House of Bishops about the position and “it couldn’t actually come to a common mind”. Consequently, he forwarded his communication to that commission. At the time, he indicated that the House of Bishops’ report was “fairly imminent”; it now appears as though it will not be discussed until December 2018.

Comment

The first two parts of this post considered various aspects of the Peter Ball case study examined by the IICSA in July 2018. As we noted in Part I, the preliminary hearing on 6 June 2018 sought to ascertain the answers to two questions:

[10]. Why Peter Ball was granted permission to officiate in various forms and was permitted to return to ministry, albeit in a partial and incomplete manner after his resignation, given his offending, and to explain and understand the circumstances in which such permission to officiate was granted; and

[12]. Whether or not a similar senior figure within the church would be treated in the same manner today and for similar reasons and, if not, why not.

Answers to the first question were sought inter alia through the questioning of Lord Carey, [Day 2, July 24]; his views appear to have been underpinned by the approach he described at page 165 [emphasis added]:

“[7]. … But hindsight being what it is, yes, I should have acted more decisively, and we should have actually imposed a total ban on him. But theologically, I saw the possibility of a fresh start for him in a very limited fashion, and, Counsel, if I can remind you, I have already said that events proved that he never re-offended, and I felt that he would never so because we had removed him from a power base where he could exploit vulnerable people“.

However, this did not remove Ball from his power base of influential people or account for his “manipulative, status-ridden and hypocritical” nature, as described by Colin Fletcher [Day 2, July 24, page 167 and ACE000839 001 004].

With regard to the second question, our  posts have identified a number of changes in the legislation and procedures since the early 1992, including: the Prime Minister’s role in appointment of bishops; use of DBS checks on clergy appointments; new Bishops’ Policy on Permission to Officiate; New Measure and Canon on safeguarding; standards on issue of a police caution, and understanding of its implications; sanctions applicable to clergy; use of legislation on misconduct in public office.

Nevertheless, although these indicate an improvement in the situation since the 1990s, the fact that there is further work to be done is acknowledged by both the Church and the representatives of the victims; contrasting views of the extent to which this is deemed necessary were expressed in the closing statements on Day 5, 27 July, principally those of:

  • Mr Ian O’Donnell, counsel for the complainants, victims and survivors represented by Slater & Gordon, [page 138/5 to page 148/1]; and
  • Mr Nigel Giffin QC, leading counsel for the Archbishops’ Council, [page 148/2 to 156/8]

Part III of this post reviews the closing statements and summarize the work which is currently on-going.


References

[1]. Frank Cranmer and David Pocklington, “Peter Ball and Misconduct in Public Office”, [2016], 18 Ecc L J (2) 188-195. The primary focus was the status of bishops under the Equality Act 2010, although we also considered this in relation to the criminal law.

[2]. This is not to be confused with Dr Bursell’s paper “The Seal of the Confessional”, Ecclesiastical Law Journal [1990] 2, (7), 84-109].


David Pocklington

Cite this article as: David Pocklington, "Peter Ball – legislation, then and now (II)" in Law & Religion UK, 14 August 2018, https://lawandreligionuk.com/2018/08/14/peter-ball-legislation-then-and-now-ii/

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