Recent CDM Determinations – II

Two CDM decisions* were reported in April 2021 – The Revd Graeme Rainey – Determination of Penalty  and The Revd William Bulloch: Decision – Court of Arches. Extracts from the former are reported in an earlier post. The latter is summarized below.

“This is an extraordinary case which is troubling for many reasons…this Appeal against Penalty…took place at the Church of St Mary-le-Bow on 29th March 2021. This is the unanimous Judgment of the Court. [2.1]

“By a complaint dated 22nd November 2017, the Complainant, the Archdeacon of Southend, brought proceedings against the Appellant for misconduct under Section 8(1) (d) of the Clergy Discipline Measure 2003. He alleged that the Appellant had acted in a way unbecoming or inappropriate to the office and work of a clerk in Holy Orders contrary to Canon C26(2) and Section 2 and 10 of the Guidelines for the Professional Conduct of the Clergy 2015. [1.2]

“In the result, the Tribunal held, by a majority, that the disputed part of the complaint (paragraph (i)) was not established. [i.e. (i) from late 2016 to early 2017 he, a married man, had a sexual relationship with AB to whom he had been giving pastoral support] They unanimously found that AB’s “dishonesty and manipulation” of the Appellant and his family had been “egregious”. The Tribunal’s determination of liability deals exhaustively with the details of the pastoral relationship which forms the backdrop to the admitted elements of misconduct with which we are primarily concerned”.  [1.6].

It is, however, impossible to understand that misconduct without a proper appreciation of the Tribunal’s findings as to what went before. This Judgment, in which we state our conclusions and reasons on the disposal of the Appeal on penalty, does not rehearse the full history of the matter…It is not for us to re-try the first paragraph of the complaint or to review the conduct of the investigation or the prosecution of the complaint before the Tribunal. We have not heard any witnesses; the Tribunal did. Those who read this Judgment should bear in mind that the starting point for our deliberations has necessarily been the Tribunal’s determination on liability”. [1.6].

The Court of Arches summarized the history of the case [2.1] to [2.7], and the Tribunal’s Determination on Penalty [3.1] to [3.3]. The Penalty imposed by the tribunal was:

(i) removal from office: it is impossible for the Respondent to continue with a priestly ministry in this parish. The misconduct has fundamentally undermined his work as a priest in this parish.

(ii) an injunction to undertake and complete within 6 months of returning to ministry (a) an anger management course approved by the appropriate diocesan bishop and (b) a course relating to the safeguarding of children and vulnerable adults as approved by the appropriate diocesan bishop and (c) training in appropriate working, supervision and external relationships approved by the appropriate diocesan bishop.

(iii) a rebuke for this misconduct.”

The Appeal was made on the basis that the penalty was “disproportionate” to the admitted offences, and following the Dean’s exploration of these elements with Counsel, the Appeal proceeded against paragraph (i) alone [4.1]. Prior to considering the penalty itself, the Court dealt with two points of law: firstly, the correct test on appeal is whether or not the penalty imposed by the Tribunal was excessive:

“Although both the 2021 Guidance [Guidance on Penalties issued by the Clergy Discipline Commission, January 2021] and its predecessor (updated 2016) refer to proportionality as a sentencing principle, it is correct that the court on appeal should not simply impose a different penalty if the case happens to strike it differently from the impression made upon the tribunal. We bear in mind that the tribunal in such cases will have seen the witnesses, whereas the appeal court will not; what is required to found a successful appeal is something more, akin to the test in other jurisdictions of legal error and/or the imposition of a penalty which no reasonable tribunal could have imposed…[4.8]

Secondly, S.1  Clergy Discipline Measure 2003, on the Duty to have regard to bishop’s role.

“This provision reflects the underlying principle of the current arrangements for clergy discipline which recognises the role of the diocesan bishop in oversight of the clergy with whom he or she shares the cure of souls in the diocese. Disciplinary responsibility is, in appropriate cases such as this one, mediated through and shared with the tribunal and the court, but the diocesan bishop’s role is very important,…The duty of regard relates to the diocesan bishop (or acting diocesan bishop) not, in a case where there is alternative episcopal oversight, that bishop.

In this case, the statutory position and the evidential position operate somewhat in tension. This is because the acting Diocesan Bishop has never had cause to visit the parish and has not met the Appellant, whereas the Bishop of Richborough knows the parish and the Appellant and has been helping to lead worship during the three year period of suspension. Both advocates agreed that the Acting Bishop’s letter attracts the statutory duty articulated in Rule 28 whereas the Bishop of Richborough’s letter does not, but that the latter is material to our determination. Accordingly, we have taken both into account and have paid due regard to the Acting Diocesan Bishop’s letter. We have analysed its reasoning carefully but ultimately, as we are permitted to do, we have decided to depart from the Acting Bishop’s conclusion on the question of removal, although we have sought to develop appropriate injunctions from the thinking rehearsed in his letter. [4.10]

Applying the approach set out at ]4.8] supra, the Court found that the Tribunal’s determination was excessive; “[w]e therefore have jurisdiction to set aside all or part of the penalty which they imposed and to impose a penalty which we consider, having regard to all the circumstances, to be just” [4.12]. The remainder of this section of the Judgment, [4.12] to [4.29], sets out the Court’s our reasons for reaching these conclusions and for the penalty it imposed:

5. DETERMINATION

5.1 Taking all these matters into account, we decide as follows:

(1) The Appeal is allowed as to paragraph (i) of the penalty imposed by the Tribunal. The penalty of removal from office is set aside with effect from the date of this Judgment.

(2) The Court imposes the following penalty for the Appellant’s misconduct:

(i) An injunction to undertake and complete within 6 months of the date of this Judgment: (a) an anger management course approved by the Bishop of Chelmsford; and (b) a course relating to the safeguarding of children and vulnerable adults as approved by the Bishop of Chelmsford.

(ii) An injunction to undertake within the period of 2 years of the date of this Judgment such training in appropriate working, supervision and external relationships as the Bishop of Chelmsford shall, in her absolute discretion, direct.

(iii) An injunction that for the remainder of his incumbency he participate fully in the scheme of Ministerial Development Review prescribed by the Bishop of Chelmsford under Regulation 18(1) of the Clergy Terms of Service Regulations 2009.

(iv) A rebuke for this misconduct.


Note

* In both of these cases, the Tribunal made an order for the anonymity of the person referred to as AB (at [5.2] in the case of Sheffield, and at [110] in the case of Chelmsford. The Arches Court continued permanently the order for anonymity of AB which was made by the Chelmsford Tribunal [at 5.2]). For the avoidance of doubt, it is evident from the respective determinations, that these two persons are in fact different.

This post is based on reported determination of the Court of Arches.  In view of the pastoral sensitivities involved in both of these cases, comments on the posts are closed.

Cite this article as: David Pocklington, "Recent CDM Determinations – II" in Law & Religion UK, 16 April 2021, https://lawandreligionuk.com/2021/04/16/recent-cdm-determinations-ii/

 

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