An earlier post summarized the Clergy Discipline Commission Annual Report 2018, GS Misc 1226 (“the Report”) which was presented to the House of Bishops in May 2019. The Report was circulated to General Synod members, but did not constitute an Agenda item at its July 2019 meeting. Here we consider items of specific interest within the Report; as we noted, it provides an interesting segue to our recent post Different perspectives of the CDM in which we summarized a number of different views of the Clergy Discipline Measure and its application.
Comment on the Report
The Clergy Discipline Commission (“the Commission”) limited its comments to reporting that it was briefed on the work of the IICSA on the Anglican Church, in particular with regard to the inquiry’s interest in the Clergy Discipline Measure 2003 (“CDM”), and that the Designated Officer under the Measure was invited to give written and oral evidence to the Inquiry. With regard to the IICSA’s interest in the CDM, its recent Report did not directly suggest changes to the CDM in its five concluding Recommendations, although it advocated modifications to ecclesiastical law, Canon C30, and also to the Sexual Offences Act 2003. The IICSA’s Recommendation 2 is does not bear close scrutiny, but a challenge by the Commission would have exposed weaknesses in the understanding of the legislation within the Church .
The Commission’s Report does not make reference to the evidence of the Revd Canon Dr Rupert Bursell QC to the IICSA, described by the Inquiry’s counsel. In his oral and written submissions, Dr Bursell expressed his reservations on some aspects of the CDM including inter alia his questioning of the need for the bishop’s involvement in the process, and the threshold which is applied when assessing complaints. These are summarized in our post IICSA: Some legal views.
Furthermore, in relation to complaints against Bishop Benn, the IICSA report said:
“304. This process raised several concerns about the effectiveness of the CDM process. Archdeacon Jones observed that its narrow, fact-based requirements and timescales worked against a satisfactory outcome. [Reference 390]. We question whether issuing a CDM was an appropriate course of action. It is not a suitable tool to deal with ongoing issues of risk management.”
Dr Bursell presented further evidence to the IICSA hearing on 4 July 2019 which is summarized in our post IICSA: Some more legal views, which notes that in his witness statement of 1 May 2019, [A1/2 ACE 26967] Adrian Isles addresses the criticism of the CDM process raised in Dr Bursell’s witness statement [Al-2/1 ACE05279].
Whilst this evidence session focussed on the seal of the confessional, the separation of the judicial and pastoral roles inherent in the Clergy Discipline Measure was also explored [Day 4 46/10 to 49/3]; Dr Bursell suggested that the judicial role of the bishop could be delegated ab initio, “leaving the bishops to deal with the pastoral side, which they are trained to do, experienced in doing. They are certainly not experienced to act judicially, as they accept”, [47/21].
Action undertaken by the Commission included its approval and issue of a pro forma letter that bishops could use to send to those who provided pastoral support on their behalf to respondent clergy, and to the respondent receiving the pastoral support; the letter sets out the scope and expectations of the role (of the bishops).
This touches on two aspects of practice accountability identified by the Sheldon Community: creating a national “your rights under CDM” document; and ensuring all Respondents are notified of their rights as soon as a case is a possibility. However, other concerns, on the manner in which the CDM was being applied within the dioceses, were identified by Dr Sarah Horsman, Warden of the Sheldon Community in her lecture to the Ecclesiastical Law Society on 21 May 2019, and in the subsequent discussions. The Sheldon Hub is one of the groups that have been involved in the development of the Proposed Covenant for clergy care and wellbeing, which gained “overwhelming support” by General Synod on 6 July, GS 2113.
The Commission agreed that the Clergy Discipline Rules would “in due course need to be amended to restrict the right to cross-examine in person”, but gave no indication on the likely timetable. Nevertheless, in May 2018 the Chair, as President of Tribunals, issued a practice direction which Practice Direction directs the Chair of a bishop’s disciplinary tribunal or a Vicar General, as the case may be, to restrict the right of a respondent to cross-examine a witness in person.
Under the Direction , a respondent may not cross-examine a witness in person where:
(a) The alleged misconduct is conduct of a sexual nature towards that witness, or
(b) The alleged misconduct is conduct towards the witness who was a child at the time of the misconduct, or
(c) The witness’s evidence is likely to be impaired if the witness is cross-examined by the respondent in person, or improved if the respondent does not cross-examine the witness in person.
The practice direction made provision for such cross-examination to be carried out by a legal representative. Details of the application of the Direction are given in paragraphs 7 to 9.
“Delays in the CDM process” is an on-going theme of these annual reports. The Commission discussed the responses to a questionnaire that it had commissioned to all diocesan registrars consulting them on delays in disciplinary proceedings in relation to priests and deacons. The results suggested that, once a complaint was brought under the CDM, it normally proceeded reasonably expeditiously, but that there were frequently long delays before a formal complaint was made under the CDM.
The Commission considered a number of suggested options, but none were assessed as a satisfactory solution. It suggested that a potential cause of delay could be the time taken to prepare the decision of the Tribunal, and it issued guidance to Tribunal Chairs reminding them to give their written decisions in a timeous fashion following a hearing.
The Archbishop’s List (“the List”) is subject to the provisions under section 38 Clergy Discipline Measure 2003 (“CDM”) which identifies six categories of clergy, reference ; this identifies procedures for the review and possible removal of names from the List, according to their categorization. These procedures are further defined in sections 74 to 80 of the Clergy Discipline Rules (contained in Statutory Instrument number SI 2005/2022), section 77 of which concerns the review of an entry in the list – (a), (b), (c) & (dd), and section 78 for the review of an entry of categories (d) & (e) (See also reference ).
The Commission decided against a proposal to amend the Clergy Discipline Rules which would allow names to be removed from the Archbishop’s List after a period of time where the original penalty was a rebuke – the lowest of the six types of penalty which may be applied, section 24 CDM.
However, it declined to recommend any change to the current practice on the basis that the list existed for the purposes of the appointments process and enabled a receiving bishop to see if a candidate for appointment had been disciplined in the past – the receiving bishop could then find out more from the diocese where the candidate was serving.
Information on the Archbishops’ List it is not open for public inspection but is available to the President and diocesan bishops and registrars, (Clergy Discipline Code of Practice [at 234]). However, “if a penalty is imposed on a priest or deacon other than after a determination by a tribunal, the penalty and brief particulars of the misconduct should be announced publicly” . The practice within the dioceses has not been consistent. The web sites of some dioceses, such as that of Oxford include Notices of findings and penalties given to clergy in the Diocese of Oxford, whereas the approach of the Diocese of London is to maintain a Register of Penalties imposed by the Diocesan and Area Bishops in cases where there has been no Tribunal is kept by the Diocesan Registrar.
This can be accessed upon application to the Diocesan Registry. Most informative was that of the Diocese of Durham which lists penalties imposed by tribunal and by the bishop; in addition to the name of the priest, this identifies: penalty imposed and date; when penalty completed, where relevant; whether Permission to Officiate had been restored: and a summary of the misconduct. The Report states “the Commission’s approach to publication had always been that the Church should be transparent about its disciplinary system”. In the interests of transparency, it would be beneficial if each diocese were to adopt the above Durham format of reporting, reference .
“The Commission considered the important role often played by Archdeacons in presenting complaints, and it wished to encourage the provision of training for Archdeacons in relation to the CDM; it noted that a training day led by the Designated Officer had been laid on in May 2018.”
Analysis of Complaints in 2018
A detailed analysis of complaints in 2018 is given in the earlier post.
. The six categories of names in the list are: a) those on whom a penalty under the Measure has been imposed (or those who were liable to a censure under the Measure’s predecessor, the Ecclesiastical Jurisdiction Measure 1963); (b) those who were deposed from Holy Orders under the Ecclesiastical Jurisdiction Measure 1963; (c) anyone who has executed a deed of relinquishment under the Clerical Disabilities Act 1870; (d) anyone who has resigned following the making of a formal complaint; (dd) anyone whose name is included in a barred list under the Safeguarding Vulnerable Groups Act; and (e) those who, in the opinion of the archbishops, have acted in a manner (not amounting to misconduct) which might affect their suitability for holding preferment (i.e. any office or position requiring the discharge of spiritual duties).
. As at 25 November 2022, the list of Clergy within the Diocese of Durham, subject to discipline under the Church of England’s Clergy Discipline Measure is here.