Penalty of removal from office plus prohibition for life imposed

On 11 October 2018, the Bishop’s Disciplinary Tribunal for the Diocese of Chester handed down its decision and penalty in the matter of the Reverend Simon Robert Marsh. Members of the Tribunal agreed unanimously that the allegations were all proved regarding the serious and grave allegations of sexual misconduct and of an inappropriate relationship between the Respondent and Miss XY. The Tribunal considered that the appropriate penalty in this case in all the circumstances, having particular regard to the gravity of the proven allegations as well as the aggravating features identified in the decision, was removal from office and prohibition for life. 

Decision document

The Tribunal considered whether the conduct of the respondent, the Rev Simon Marsh, vicar of St Michael’s and all Angels, Bramhall, Cheshire was unbecoming or in appropriate to the office and work of a clerk in Holy Orders under section 8(1)(d) of the Clergy Discipline Measure 2003

Allegations

It was alleged [5] that:

(i) From January 2011 to autumn 2013 he, a married man, had a sexual relationship (including adultery and sexual without consent) with a parishioner, [Ms XY], whom he had baptised in October 2009, presented for confirmation in December 2010 and whose date of birth is … April 1994; and/or

(ii) in or after summer 2009 until autumn 2013 he formed a relationship with the said [Ms XY] that was inappropriate between a married clergyman and a parishioner of her age in that he:

• befriended her when she was 15 years old;
• saw her and spent time with her on many occasions including in the  Vicarage;
• bought her various presents including an iPad, perfume, chocolates, clothes and books;
• sent her hugs, love and kisses in emails;
• addressed her using the private pet nickname Raphael, whilst referring to himself as Gabriel;
• frequently gave her physical hugs, love and kisses in emails;
• told her that he loved her;
• encouraged her to send him intimate messages on a Tumblr website known as “Beautiful Expressions”.

Allegations (i) and (ii) were both conjunctive and disjunctive, and it was open to the tribunal to find that both or either Allegations had been proved. On the evidence presented, it found that the case against the Respondent proven in respect of both Allegations in all respects [75].

Course of the Proceedings

Ms XY first complained to the police of the Respondent’s conduct in April 2014, following which he was interviewed under police caution on at least two occasions: on 10 April 2014, on his arrest on suspicion of rape and sexual assault, and again (at his request) on 17 June 2014. The police investigation lasted over a year, after which no charges were brought against the Respondent [12]. A CPS spokesman is reported to have said at the time: “We have reached a decision that there is insufficient evidence to provide a realistic prospect of conviction and therefore consider that no further action should be taken in this case.”

These circumstances necessitated the Complainant, the Archdeacon of Macclesfield, to seek permission to bring proceedings out of time, under S9 CDM. In addition to the witness statements and other materials filed by the Complainant [15] and by the Respondent [16, 17], the Tribunal heard oral evidence from the Complainant, Ms XY, and from the Respondent, all of whom were cross-examined.

Evidence

“This was essentially a well-defined conflict of versions: hers against his”. The burden of proof was on the Complainant, and the Tribunal was reminded by Mark Hill QC, Counsel for the Respondent, that the Allegations were, by their nature, easy to allege but hard to disprove. Whilst the police investigation yielded no charges, “these [i.e. the instant proceedings] are…different proceedings with different considerations” [19].

The Tribunal was unanimous in its view of the oral evidence [20]: it accepted that of the Archdeacon as given of those events of which he has first-hand knowledge in its entirety [21]; and found Ms XY an honest, truthful, and compelling witness, whose account was strikingly consistent with many of the contemporaneous material before it [22]. By way of contrast, it could place little reliance on the Respondent’s evidence, save where is coincided with that of Ms XY [23], and found him “a deeply unsatisfactory witness” [24].

Conclusions

The course of events is described in paragraphs [26] to [62]; the development of the relationship between the Respondent and Ms XY was considered in three phases:

• Phase 1: the opening phase from summer 2009 to about autumn of 2010, during which time the Respondent befriended Ms XY, got to know her (and she him) helped her to baptism and confirmation, listened to her troubled family background and provided proper advice, support, encouragement and pastoral care, [28 to 34];
• Phase 2: from about the autumn of 2010 to December 2012, where the relationship between them became deeper, more personal, passionate and intimate, the latter often against her will, with him projecting blame on her for the relationship, gradually causing her increasing confusion and distress, [35 to 51]; and
• Phase 3: from December 2012 to conclusion by December 2013, where the relationship became increasingly coercive, aggressive, and controlling by him, resulting in her eventually ending it, [52 to 62].

The Tribunal’s Comment and Discussion of the Respondent’s case are in paragraphs [63] to [73], on which it concluded:

“[74]. In short, we do not accept the Respondent’s denials of the sexual improprieties and the fostering of an inappropriate relationship with Ms XY…we found her and the supporting evidence credible, cogent and compelling. She was not…fabricating the allegations against him, nor was she fantasising, nor did she strike us at all as the dishonest, or manipulative and revengeful woman implied.

“[75]. We find the case against the Respondent therefore proven in respect of both Allegations in all respects”.

Its reasoning is summarised in paragraph [76].

Penalty Document

The decision on the penalty was considered later in the day of 11th October. The Parties made representations on penalty and Mr. Iles, the Designated Officer, pointed out [2] that “even the commission of adultery, as occurred here, merits the most serious penalty”. There were, however, a number of aggravating features in this case including the following:

• Miss XY was a teenager at the time of the misconduct;
• She was a child under the age of 18 when the relationship first began;
• The sexual relationship was not totally consensual, involving the use of force, so there was an element of sexual abuse in the relationship;
• There is no sign that the Respondent accepted Miss XY’s evidence. The Tribunal was asked to assume Miss XY was making it up;
• The emotional damage to Miss XY must have been enormous having regard to her age and the fact that she was cross-examined in intimate detail;
• There has been gross pastoral abuse, which is disgraceful and a disgrace to the profession.

On behalf of the Respondent, Mark Hill QC recognised that a potential penalty of removal from office and prohibition was likely to be imposed and, in the Tribunal’s view, quite rightly conceded that this would be appropriate in the circumstances. The question was how for how long should the prohibition should be? He sought to persuade the Tribunal that the prohibition should not be for life [4].

The Clergy Discipline Commission Guidance on Penalties states:

Prohibition for life:

“This is the most serious penalty that can be imposed. It prevents the respondent without limit of time from exercising any functions as a member of the Church of England clergy. It should be imposed only where there appears to be no realistic prospect of rehabilitating the respondent back into ministry because the misconduct is so grave.”

Limited prohibition:

“This prevents the respondent from exercising any functions as a member of the clergy for a specific period of time. It is suitable for serious cases where there is a realistic prospect that the respondent, with appropriate pastoral and other support, could in the future resume normal duties of ministry.”

Removal from office:

“This penalty removes the respondent from the preferment held at the time, but does not prevent him or her from serving as a clerk in Holy Orders in another post. In serious cases, removal could be combined with prohibition for life or limited prohibition.”

Both sides recognised that in this case, removal from office ought to be combined with prohibition [6]. After considering Mr Hill’s submissions on the length of the prohibition [7, 8], the Tribunal concluded:

“[9]. The Tribunal must, therefore, consider not only the circumstances as proved, and the position of the Respondent but also that of Miss XY, the impact on the wider church and congregation and those for whom the Respondent might be expected to have pastoral care if he returned to ministry. We must also note the clear breach, in this case, of the Respondent’s duties in respect of pastoral care.

“[10]. We take the view that the only right course of action and the appropriate penalty in this case in all the circumstances, having particular regard to the gravity of the proven allegations as well as the aggravating features above-mentioned, is removal from office and prohibition for life. This is the most serious penalty and has regard to the whole of the evidence before us. We consider that there is no realistic prospect of rehabilitation on the evidence and not least because the allegations are so grave. We say this to make the position clear, notwithstanding the statement that the Respondent has no intention of returning to ministry. We have recognised the pressure on the Respondent and have granted the Respondent’s application to exclude the reference to his home address from our written decision.”

Comment

In his lecture Practical Aspects of the Clergy Discipline Measure given to the Ecclesiastical Law Society in London (and later in Newcastle), Sir Mark Hedley DL, Deputy Chair and Deputy President of Tribunals, said of subparagraphs (a) to (d) of subsection (1) CDM,

“The difficulty is that in respect of these sub-paragraphs so much can depend on the spectacles through which they are seen as, for example, whilst the Church of England may be generally united in its opposition to adultery, there is a very wide range of views over almost all other personal relationships”.

The instant case was rooted firmly in sub-paragraph (d), and as the Designated Officer pointed out, the issue of adultery was compounded by a number of aggravating features. On the basis of the allegations, the Tribunal rightly assessed that it must:

“[9]. … consider not only the circumstances as proved, and the position of the Respondent but also that of Miss XY, the impact on the wider church and congregation and those for whom the Respondent might be expected to have pastoral care if he returned to ministry. We must also note the clear breach, in this case, of the Respondent’s duties in respect of pastoral care”.

However, the case raises a number of broader issues in relation to the safeguarding procedures at St Michael’s and all Angels, Bramhall, within the Diocese of Chester and in the CofE as a whole.

Postscript

Readers will find additional background information to the case on the safeguarding web pages of the Diocese of Chester. A safeguarding audit was undertaken by the Social care institute for excellence (SCIE), on which there is a Diocesan Response and a response by the Bishop of Chester. The case of the Rev Simon Marsh is addressed in section 2.10 of the SCIE Report, and in paragraphs 6 and 7 of the bishop’s response.