Review of the ecclesiastical court judgments during June 2023 (II)
Ten consistory court judgments were circulated in June, and the seven featured in
the first part of the round-up related to:
This second part reviews the remaining three judgments which concern:
It also includes: CDM Decisions and Safeguarding; Reports from the Independent Reviewer; Privy Council Business; CFCE Determinations; Other legal issues; and Links to other posts relating to ecclesiastical law.
Church Treasures/Sale of Paintings/Loans/Memorials
In Re St Mary Redcliffe [2023] ECC Bri 1 The ELA has posted the following summary of the judgment: “In the aftermath of the death of George Floyd on 25 May 2020 and the Black Lives Matter protests around the world, a statue of Edward Colston, who had been involved in the slave trade in the seventeenth century, was pulled down by protestors from its pedestal in Bristol and thrown into the harbour. The church of St. Mary Redcliffe contains four tall windows in the north transept. The illustrations in the stained glass depict the Corporal Acts of Mercy and the Parable of the Good Samaritan. The panels at the bottom of the four windows showed that the windows were dedicated to Edward Colston. There was concern at the church that protestors might try to damage the windows, and it was decided to remove the commemorative panels, with a view to replacing them with stained glass images which would not connect the windows with Colston. They applied for a confirmatory faculty, which the Chancellor granted: ‘ … the contrast between [Colston’s] own life and the seven Corporal Acts of Mercy is too jarring to be acceptable in a church.'”
[In Re St Mary Redcliffe [2023] ECC Bri 1] [Case Note] [Top of Section] [Top of Post]
Re Streatham Cemetery [2023] ECC Swk 3 The burial authority sought authorisation to reuse two areas of Streatham Cemetery largely free of memorials. The Chancellor considered that the proposals were in principle both acceptable and commendable, to facilitate the economical use of land and to address the continuing shortage of grave space. He therefore granted a faculty. [Re Streatham Cemetery [2023] ECC Swk 3] [Post] [Top of section] [Top of post]
Note: “Streatham Cemetery” is not to be confused with “Streatham Park Cemetery“, reported in Part I under Exhumation.
Designation of closed churchyard
Re St. James Barkham [2023] ECC Oxf 7 The petitioner applied for a faculty to authorize the installation of a dark grey, unpolished, upright granite memorial to mark the grave of his late wife. The proposed memorial fell outside the scope of the churchyards regulations for the Diocese of Oxford [1]. The design is similar, and the memorial would be within three metres of, that of the petitioner’s mother for which a faculty was granted by Chancellor Bursell QC in 2009 [3].
The minister was supportive of this “suitable” memorial [4] and said inter alia:
“[6]. …People who live in and around Barkham know that we have several well established and long-term gypsy families in the area. I believe people recognise that their ‘heart on sleeve’ culture means they prefer more elaborate designs. I have not had heard [sic] any complaints about these designs from churchyard visitors”.
In addition to the memorial to the petitioner’s late mother, Hodge Ch. noted images of two further non-compliant memorials within the churchyard [7]. However, the DAC issued a Notification of Advice stating that it did not recommend the proposed memorial for approval by the court for the following principal reasons [8]:
“The DAC’s concern is based on an additional non-compliant memorial increasing the difficulty of maintaining good order in the churchyard in line with the regulations. In this case, there is only one memorial already in existence of this type and it is felt that the proposed degree of non-compliance is significant.”
However, the DAC advised that the proposed memorial was unlikely to affect either the character of the church as a building of special architectural or historic interest, or the archaeological importance of the church, or any archaeological remains existing within the church or its curtilage. No objections were received in response to the public notices, which were displayed on the external church notice board and inside the church porch.
The minister estimated that the churchyard could accommodate 12-15 further burials, were estimated to provide burial spaces for a further five to eight years. Ashes plots were significantly smaller, and the parish had recently started using a new area which could easily accommodate 25 to 30 new plots [11]. The PCC had considered the matter at its meeting on 20 March 2023 at which it unanimously approved the design for the proposed memorial. In reviewing the applicable law, Hodge Ch. cited the Diocesan Churchyard Regulations, the two differing approaches to their implementation, and the Arches Court determination Re St Giles, Exhall [2021] EACC 1. The Court considered the correct approach to be the “merits-based” one, stating:
“Clearly, any Regulations in place for the parish or diocese concerned will be part of a matrix of relevant considerations, but we do not think that consideration of a faculty petition should start with a presumption against allowing a memorial outside the parameters of the Regulations …
Hodge Ch. summarized the first-instance judgments cited with approval by the Arches Court [16, 17], and issues resulting from the difference between his views and those of the DAC [18, 19]. He concluded:
“21. … the petitioner has discharged the burden … of demonstrating why a faculty should be granted authorising him to install this memorial to commemorate his late wife. Although the general prohibition against such a memorial, contained within the applicable churchyard regulations, is a highly relevant factor, it is not determinative but is only one of the constellation of infinitely variable factors which the court must consider on the facts of the particular case.
Mere non-compliance with the applicable churchyard regulations, of itself, can never be the only basis on which to refuse a faculty petition. It is necessary to consider whether the particular memorial is inherently desirable in its proposed location within this churchyard even though it fails to comply with the requirement of the applicable churchyard regulations”.
Accordingly he granted a faculty, with the condition that if the memorial does not precisely reflect the application, it is to be removed forthwith, by or on behalf of the incumbent, the churchwardens and the PCC[21]”. [Re St. James Barkham [2023] ECC Oxf 7] [Top of section] [Top of post]
- Burial Act 1853 (Notice): Order giving notice of the discontinuance of burials in: St Nicholas Churchyard, Brockenhurst, Hampshire.
CDM Decisions and Safeguarding
A new policy came into force on 24 October 2022 although there is a potential lacuna for cases where the penalty was imposed after the change in the Code of Practice, but before this date, as with The Right Reverend Peter Hullah. The page on the CofE website Penalties by Consent records the penalties that have been imposed by a bishop or archbishop with the consent of the respondent under section 16 of the Clergy Discipline Measure 2003 and penalties that have been imposed under section 30 or 31.
CDM Decisions
Written determinations of disciplinary tribunals hearing complaints brought under the CDM, together with any decisions on penalty are published by the Church of England; included are judgments from the Arches Court of Canterbury and the Chancery Court of York where determinations have been appealed. The majority of complaints that are made under the CDM are resolved by the bishop, archbishop, or President of Tribunals, without having to convene a tribunal.
- The Revd Robert Ryan These decisions relate to proceedings in the Court of Arches following a trial before a Bishop’s Disciplinary Tribunal that took place in 2021. By order of the Court of Arches the case has been referred back to the Bishop’s Disciplinary Tribunal and the decision of that tribunal will be published when the proceedings are finally determined.
Appeal Decision – December 2022; Decision on Relief – May 2023
- The Revd Helen Greenham – March 2023
Decision on Penalty
Penalties by consent
A new policy came into force on 24 October 2022 although there is a potential lacuna for cases where the penalty was imposed after the change in the Code of Practice, paragraph 312, but before this date, as with The Right Reverend Peter Hullah. The page on the CofE website Penalties by Consent records the penalties that have been imposed by a bishop or archbishop with the consent of the respondent under section 16 of the Clergy Discipline Measure 2003 and penalties that have been imposed under section 30 or 31.
The Revd TERENCE JOHN GORDON LOW
Diocese: Chelmsford
Date imposed: 1 June 2023
Relevant CDM section: 16(3A)
Statutory Ground of Misconduct: s.8(1)(d): Conduct unbecoming & inappropriate to the office and work of a clerk in Holy Orders
Penalty: prohibition for 10 years with effect from 1 June 2023
The Revd RUPERT EVANS
Diocese: Southwark
Date imposed: 5 June 2023
Relevant CDM section: 30(1)(a)
Statutory Ground of Misconduct: s.8(1)(d): Conduct unbecoming & inappropriate to the office and work of a clerk in Holy Orders
Penalty: Limited prohibition for 4 years and 3 months from 13 June 2023
Safeguarding
- Independent Safeguarding Board (IAB): Safeguarding Case Review – Mr X, (Abridged version of Report). (Report dated 15 March 2023 and issued on 11 April 2023.
Reports from the Independent Reviewer
Individual Reports from the Independent Reviewer are to be found at House of Bishops’ Declaration on the Ministry of Bishops and Priests (Independent Reviewer), scroll down.
“The police matter I referred to in my last updating statement has been concluded. The review is now able to proceed to the next stages, which will culminate in it being handed to the Archbishops’ Council, for subsequent publication. Relevant extracts from the draft report will soon be shared with the victims of John Smyth and with people who are named and criticised. (15 June 2023).
The dates of the Cathedrals Fabric Commission for England may be found by scrolling down to the bottom of the page Cathedrals Fabric Commission. At the time of writing, decisions from the December 2022, February 2023, March 2023 and May 2023 meetings were not available. (There was no meeting in April 2023). The next meeting of the CFCE is scheduled for Thursday 13 July 2023.
- The Gazette: Marriage Acts: The Registrar General has cancelled the registrations as a place of religious worship in accordance with the Marriage Act 1949. (25 May 2023).
Recent summaries of specific issues that have been considered in the consistory courts include:
Church Treasures/Sale of Paintings &c
- “Contested heritage” – St Mary Redcliffe, (15 June 2023).
Churchyards
- A return to unmarked graves?, (14 June 2023).
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Notes on the conventions used for the navigation between cases reviewed in this post are summarized here.