Peter Ball – legislation, then and now (III)

What next after the IICSA Peter Ball Inquiry?

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). Part II looked 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. This post will consider the closing statements, and work which is currently on-going.


IICSA Final Report

The public hearings in the Diocese of Chichester and the Peter Ball case studies have now concluded and the report will be published in due course; a preliminary hearing in this investigation will take place on Tuesday 15 January 2019. Nevertheless, other aspects of the on-going work of the IICSA are of relevance to the Church of England, including the seminars on mandatory reporting. There will also be lessons to be learned from the investigations into other religious groups.

Closing Statements of Peter Ball Inquiry

Although some of the evidence presented suggests that there is an improvement in the situation since the 1990s, there is clearly further work to be done. This was acknowledged, to different degrees, by the Church and the representatives of the victims and survivors; the 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]

Mr O’Donnell said (page 145/17 & seq.) [emphasis added]:

“So what about the Anglican Church in the modern era rather than 1992/93. The current head of the Anglican Church is Archbishop Justin Welby. It seems he takes a dim view of his predecessors’ handling of the entire Peter Ball affair. He wrote a letter to Lord Carey in 2017 which is worth quoting. He says as follows:

‘”You make the point that modern processes, cultural attitudes and guidelines may be different now to the way they were in the 1990s. I am unable to accept that you did not have the benefit of any procedures in those pre-Savile days.

The files at Lambeth make clear that there were processes regularly used at the time and that you made firm disciplinary decisions in relation to other clergy who offended. The policies may not have been articulated as clearly as they are now, but they did express something of the abhorrence felt both within and outside the church when clergy were found to be guilty of abuse.

At that time as a newly ordained minister, I was well aware of the need for what today we would call safeguarding and it was the subject of much discussion at deanery level’.

Archbishop Welby’s letter, in my submission, indicates that a culture change at the Anglican Church is not enough. Whether abusers are able to prey upon the vulnerable within the church in the future will depend less, in my submission, on its general culture and more on which individuals are in positions of power. In the 1990s, Archbishop Welby was well aware of the need for what today we would call safeguarding. It seems probable that if he was archbishop in the 1990s, the Peter Ball affair would have been dealt with differently“.

[…]

“So what should be done? Changing the culture and values of an institution such as the Anglican Church, in my submission, does not guarantee a change in that institution’s behaviour. That’s the wrong way around. You force an institution to change through the law and then the culture of that institution will, in my submission, change thereafter.

The Anglican Church must be made subject to externally enforced mandatory reporting. It works elsewhere. It would work here”.

With a different emphasis, Mr Nigel Giffin QC said inter alia ([page 148/2 & seq.) [emphasis added]:

“The safeguarding landscape within the church has changed in many ways since the events upon which the inquiry has been mainly focused this week. There are, for example, much better safeguarding policies and training, there has been greater professionalization and resourcing of safeguarding within the church, there are better processes around recruitment, the church is better at working collaboratively with partners such as the LADO [Local Authority Designated Officer] and the police, and, as the inquiry knows, further changes are under way and all Dame Moira Gibb’s recommendations have been accepted.

It is evident from the events around Peter Ball, however, that culture and attitudes have to change as well. Has the church got better at listening and responding to survivors? We think it has, but it still needs to improve, and commitments to do so were made recently at General Synod. The church must continue to learn from its mistakes.

Has the culture changed? In some respects, yes, but not enough, and not to the same extent in all parts of the church. … if there are those within the church who still doubt the importance of these issues, they need to reflect upon the grim picture revealed this week about what happens when an institution loses its way in dealing with such cases.”

Mr Bourne, who represented Lord Carey of Clifton within this part of the investigation, made his concluding statement, pages 156/9 to 164/15. He stressed [159/8]:

“Lord Carey did not do anything with any improper purpose. He did not engage in any collusion or cover-up and he did not deliberately conceal any letters from the police or from anyone else…Lord Carey is not Peter Ball and has not used his ministry as a cover for sexual gratification or abuse. His distinguished ministry is a known and undoubted fact”.

and refuted Lord Carey’s involvement in the “collusion”, “cover-up” and “deliberate concealment” identified in the Gibb Report, An Abuse of Faith. He said [160/2]:

“The problem is that the public, and especially victims and survivors, seized on the words “collusion” and “cover-up”, as did the present Archbishop of Canterbury in a press statement. They inferred a finding that Lord Carey had engaged in collusion and cover-up. That inference must have caused terrible and wholly understandable anger”.

Comment

An important factor to be taken into the assessment of the above assertions is the role played Lord Carey as Archbishop of Canterbury in the events surrounding Peter Ball, and the approach taken by the Church both then and after the publication Gibb Report. Following its publication, Justin Welby wrote to Lord Carey, and following a meeting between Lord Carey and the Bishop of Oxford, he resigned as an Assistant Bishop of the Diocese on 26 June 2017 (and consequently no longer had permission to officiate). This provided a significant example of the present Archbishop exerting his “role of influence but not power” [Day 2, July 24, page 8, line 3], (but whether such an approach would have been successful in the case of Ball is debatable).

However, this apparently positive development was undermined when at the conclusion of IICSA public hearing on Peter Ball, the Diocese of Oxford issued a statement from the Rt Revd Dr Steven Croft indicating that PTO had been granted to Lord Carey in February; the timing and content of Bishop Steven’s statement attracted adverse comment on social media, within parts of the diocese, and from the Rt Revd Peter Hancock, the Church’s lead bishop on safeguarding.

Bishop Hancock had not been informed of Dr Croft’s decision although he was the “lead bishop” in this area; unlike the Archbishop of Canterbury vis-à-vis Canon C 1(3) and Canon C 17 Of archbishops, he has no vires under which he could formally influence a decision or take subsequent action. Whilst this will not be a surprise to ecclesiastical lawyers, it highlights the difficulties of adopting a common approach between dioceses – a difficulty not exclusive to safeguarding, but including many areas such as the environment, Churchyard Regulations and the CDM, infra

The last paragraph of Dr Croft’s statement of 27 July indicates that whilst Lord Carey’s PTO remains in place at the present time, it will be subject to review. Nevertheless, the reputational damage to the Church of these actions, legal though they may be, should not be underestimated.

On-going work

Although the final report of the IICSA hearings will not be available for some months, progress is being made in a number of relevant areas. Many of these have been covered in the first two parts of this post, and the following is a summary of the major points raised.

Mandatory Reporting

Mandatory reporting is a theme common to all IICSA hearings; it is strongly felt by survivors’ groups and others that legislation should be introduced which would require the Church of England and similar faith groups to be subject to such controls and associated sanctions. Ian O’Donnell’s closing statement asserted that a change in the culture and values of an institution such as the Anglican Church would not guarantee a change and that legislation that externally enforced mandatory reporting was necessary. 

On 5 March 2018, the government published its response to the 2016 consultation in which outlined “strengthened plans to tackle child abuse“, but drew back from the introduction of mandatory reporting. Consequently, it seems unlikely that government itself will introduce such legislation in the short term and whilst there is the possibility of a Private Members’ Bill in this area, the chance of success would be low if the opinion in parliament reflected that in the responses to the consultation.

However, there is a possibility for the Church of England to introduce its own legislation by Measure. Following the Gibb report, in July 2015 General Synod demonstrated its commitment to tightening up on safeguarding in its near-unanimous final approval of the legislative changes to: Safeguarding and Clergy Discipline Measure 2016 and Canon C 30 Of Safeguarding. This would necessarily be restricted to the Church, and unless it involved mandatory external scrutiny, it would give little added value. In addition, consideration would need to be given to the interaction between an external body and the operation of the Clergy Discipline Measure, see below.

As we noted in Part II, the IICSA is holding one-day seminars: on 27 September 2018 to look at the existing obligations in England and Wales, and how it operates elsewhere; and in May 2019 (date t.b.a.) it will consider the arguments for its introduction in England and Wales, and the practical considerations involved in introducing such a law.

Seal of the Confessional

For some religious groups, one contentious aspect of mandatory reporting is the confidentiality associated with the seal of the confessional. Although probably a greater issue for the Roman Catholic Church, in the Church of England it is enshrined in UK legislation through B 29 Of the ministry of absolution and the unrepealed proviso to Canon 113 of the Code of 1603. In his evidence to the earlier proceedings, on 13 March, the Revd Canon Dr Rupert Bursell QC explained the genesis of this provision, and said::

“I believe that government should be passing an Act of Parliament imposing a duty, particularly on the clergy, but actually on other people as well, to notify the relevant authorities – social workers and/or the police – of any suspicions or actual abuse of children. That would be binding on the Church of England, just as the Terrorism Act is…”.

[The sections of the Terrorism Act 2000 referred to in the Annex to Dr Bursell’s Witness Statement ACE025279 (Annex 1, paragraph 11, reference 74) are sections 19(1) Disclosure of information and 38B Information about acts of terrorism].

Subsequently, on 30 May 2018 the Diocese of Canterbury issued Guidance on Confession & Safeguarding based upon House of Bishops’ Safeguarding Children Policy (2015) which includes the advice: 

“Any priest hearing a confession, regularly or otherwise, must say prior to hearing that confession the following statement of confidentiality and safeguarding: ‘If you touch on any matter in your confession that raises a concern about the wellbeing or safeguarding of another person or yourself, I am duty bound to pass that information on to the relevant agencies, which means that I am unable to keep such information confidential’”.

However, objections were raised by Forward in Faith, which stated:

“Forward in Faith’s position remains as set out in 2015 in our submission to the working party on the seal of the confessional: we will resist as strongly as we can any attack on the integrity of sacramental Confession.

For a diocese to pre-empt synodical discussion of whether any aspect of ecclesiastical law should be changed is unacceptable. Forward in Faith calls for urgent action to bring the Diocese of Canterbury and the Channel Islands deaneries back into conformity with canon law and with the Guidelines for the Professional Conduct of the Clergy so recently issued by the members of the Houses of Bishops and Clergy in the provincial Convocations. If the Diocese of Canterbury is allowed to continue publicly to incite the clergy to breach canon law, that will set a very worrying precedent”.

In his presentation to the IICSA hearing in March 2018, Dr Bursell 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. He 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.

Clergy Disciplinary Measure 2003

In his evidence to Day 7 of the proceedings on 13 March 2018, Dr Bursell commented that although important changes had been made to the Clergy Discipline Measure in 2016, he had some residual concerns [50/12 to 54/12]. He said [emphasis added]:

“It’s too cumbersome. I have come to the conclusion, somewhat reluctantly, that individual bishops should not actually have any participation in the machinery. They never did so before the coming into the effect of the 2003 measure, and I can’t see why it is necessary that they should now. Indeed, I know a number of diocesan clergy who prefer not to.

He also commented on the procedure whereby at the preliminary enquiry stage, the diocesan registrar has to advise the bishop whether there is a sufficient threshold for the complaint to go forward.

Consideration of Lord Carey’s Permission to Officiate

As noted above, the last paragraph of Dr Croft’s statement of 27 July indicates that whilst Lord Carey’s PTO remains in place at the present time, it will be subject to review. No further information has yet been made available.

Law Commission Consultation on “misconduct in public office”

The precise reach of the criminal law in relation to “misconduct in public office” was not tested in Peter Ball’s trial since he pleaded guilty to this offence; but it should be noted that his sentence on the misconduct charge was heavier that his sentence for the separate counts of indecent assault. As we noted in Part II, the Law Commission is currently undertaking a consultation on this issue: a second public consultation was launched 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.

Other issues

At the preliminary hearing on Tuesday 30 January, Fiona Scolding QC stated (page 26, lines 18 to 20) [emphasis added]:

“…the recent report of Lord Carlile in respect of the case of the Bishop of Chichester, George Bell, in order to examine the recommendations within that report and how the church is intending to deal with posthumous allegations of sexual abuse going forward. The inquiry is not, however, going to examine the truth or substance of the allegations made concerning Bishop George Bell“.

The posthumous handling of allegations was referred to on Day 1, 5 March 2018 [page 124/5 & seq.] and in the questioning of Colin Perkins, Diocesan Safety Advisor, Day 10, 16 March 2018 [page 82/1 7 seq.].

The death of John Smyth on 11 August 2018, as the CPS was reported as having given police the go-ahead for his extradition and prosecution, has again raised the issue of the Iwerne Trust and its relationship with the Church of England. Following reports on Channel 4 last year, on 1 February 2017, a Statement on the John Smyth allegations was issued by Graham Tilby, the Church of England’s National Safeguarding Advisor; a further Statement on behalf of the Archbishop of Canterbury was also issued. Tilby commented:

“The report into these horrific activities, drawn up by those linked with the Iwerne Trust, a non-denominational Christian charity, should have been forwarded to the police at the time. When the Church of England was alerted by a survivor, through the diocese of Ely in 2013, the police were immediately informed as was the Anglican Church in South Africa where Mr Smyth was then living”.

This month, the Bishop of Bath and Wells, Peter Hancock, issued Response to reports of the death of John Smyth; there was also a much-criticized statement from the Titus Trust, which took over the activities of the Iwerne Trust in 2014.

A post by Stephen Parsons examines the symbiotic relationship between the Church of England and the Iwerne/Titus Trusts. To date, the activities of the Trusts have not fallen within the remit of the IICSA, although Thinking Anglicans reports that a group of the victims of the abuse has now launched a claim against the John Smyth camp leaders.

David Pocklington

Cite this article as: David Pocklington, "Peter Ball – legislation, then and now (III)" in Law & Religion UK, 21 August 2018, https://lawandreligionuk.com/2018/08/21/peter-ball-legislation-then-and-now-iii/

2 thoughts on “Peter Ball – legislation, then and now (III)

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