Clergy discipline, former clergy and parochial fees – II

Further consideration of Hawthorne by the secular courts

In 2015 we posted Clergy discipline, former clergy and parochial fees – I which reviewed two related issues: new CofE Guidance on the payment and receipt of parochial fees by the clergy; and a Clergy Discipline Tribunal determination which concerned the retention of such fees by a former clergyman, the Revd Dr Andrew Hawthorne. Four years later, events have moved on, and after a trial in May, the Winchester Crown Court found Dr Hawthorne guilty of fraud by abuse of position and fraud by false representation.

Clergy Discipline Tribunal

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. Two matters had been referred by the President of Tribunals for the decision of the Tribunal [18]:

  • 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 concluded [43] that the Designated Officer had made out the case against the Respondent on each of the 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.

In its determination of the penalty, the Tribunal said:

“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.”

At the time we commented that the penalty reflected the limited ecclesiastical sanctions that can be imposed on someone who is no longer a priest within the Church of England. However, evidence from the Tribunal was passed from the Dorset police to the Hampshire Constabulary and this lead to a further investigation and prosecution.

Winchester Crown Court

On 24 June, Hawthorne was sentenced at Winchester Crown Court, after a trial in May when a jury found him guilty of fraud by abuse of position and fraud by false representation. An outline of the hearing is given in the Press Release of the Hampshire Constabulary. Former Assistant Curate sentenced following fraud investigation. and in the report by the BBC Ex-priest Andrew Hawthorne sentenced for fraud. The Press Release states:

“The trial heard the fraud by abuse of position offence related to a period between December 2009 and August 2013, when Hawthorne was an Assistant Curate in Christchurch, Dorset. The trial was told Hawthorne did not remit fees to the Diocese of Winchester for funerals that he officiated, or declare that he had officiated them, as he was required to do. The court heard he received up to £49,059.25 during that period.”

“The fraud by false representation offence related the period when Hawthorne had been received into the Catholic Church, but still received some £3,097.10 in housing allowance from the Diocesan Board of Finance. He did not notify his previous employers that he was still receiving the allowance and used it to pay off personal debts.”

On 24 June 2019, Hawthorne was sentenced to a total of two years’ imprisonment, suspended for two years. Judge Richard Parkes QC stated that he was being spared jail because of prosecution delays. Hawthorne was also ordered to do 200 hours of unpaid work, and proceedings under the Proceeds of Crime Act 2002 are currently underway.

Comment

Standards of proof in criminal and civil cases

At the CDM Tribunal, one ground of the Respondent’s challenge to the Tribunal’s jurisdiction was that the Dorset police had investigated the complaint against him in 2012, and he had been informed that no action would be taken. However, in view of the different standards of proof used in criminal cases (“beyond reasonable doubt”) and civil cases (“on the balance of probabilities”), the Tribunal 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.

Importance of the Clerical Disabilities Act 1870

A further ground on which Hawthorne challenged the jurisdiction of the Tribunal was that he was “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 Chair commented:

“… 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 [Clerical Disabilities Act 1870]. This he has not done and this tribunal therefore still has jurisdiction in relation to this complaint.”

Nevertheless, regardless of whether Hawthorne sought to institute these procedures subsequent to the Tribunal hearing, defrauding the DBF was subject to secular legislation for which such considerations were not relevant.

Payment of parochial fees

At the Winchester Crown Court, Judge Richard Parkes QC is quoted as saying: [b]ereaved families had their services for their loved ones held by a man… who had no authority to act as a priest”; “the defendant had taken money which should have been spent on ‘good, charitable causes'”. The latter statement appears to miss the point of the payment of fees to PCCs and DBFs, and may be true in only a very general sense. Whilst the PCC and DBF were certainly defrauded, there is no evidence on the effect of this on the bereaved families.

A similar case arose in Liverpool a couple of years ago in which a vicar with an alcohol problem stole more than £100,000 in funeral fees from the Anglican Diocese of Liverpool. In March 2017, we posted Funeral fees pursued in Crown Court. The Archdeacon of Liverpool issued a Statement which said:

“The money [the vicar] obtained was for funeral fees which he was not entitled to keep but should have passed to our diocese. We do not believe that any of the families were defrauded, indeed we are aware that [the vicar] often conducted funerals with care and sensitivity.”

In our post “Freelance clergy”, crematorium funerals and parochial fees, we noted that a potential weakness in the audit trail of parochial fees for funerals is evident from paragraph 39 of the Guide to Church of England Parochial Fees [scroll down to “Payment of Funeral Fees and Expenses”]. This identifies the person in charge of the funeral arrangements (or the burial authority) as being responsible for the payment of the fees for the service performed by a minister in a cemetery or crematorium. Such an individual or organization is pivotal in any funeral but has no specific legal obligations in ecclesiastical law towards the PCC or DFB to whom the parochial fees must be paid.

Cite this article as: David Pocklington, "Clergy discipline, former clergy and parochial fees – II" in Law & Religion UK, 3 July 2019, https://lawandreligionuk.com/2019/07/03/clergy-discipline-former-clergy-and-parochial-fees-ii/

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