Further to the Tribunal Decision The Revd Canon Richard Peers, 21 March 2024, de Mestre Ch. issued a Ruling on paragraph 309 Clergy Discipline Measure 2003: Code of Practice concerning the possession and use of documents relating to the proceedings by third parties and the provision of these documents to them by the Complainant, 8 April 2024[1]. This commenced with a reference to Paragraph 309 Clergy Discipline Measure 2003: Code of Practice (the “Code of Practice”), viz.:

“[309]. Where an allegation has been referred for determination before a tribunal or court, the Chair may certify that an act or omission, in connection with the proceedings or an order, committed by any person is a contempt and refer the matter to the High Court.” [2];

After summarizing the context of the referral [3, 4] in which the Designated Officer stated that no further steps required in this case, whereas Counsel for the Respondents submitted that this amounted to a contempt of court and referral to the High Court was required, De Mestre commented:

“[4]. Although the Code of Practice allows the Chair to certify a contempt in respect of ‘any person’, including third parties to the proceedings, there is no procedure or guidance (in any of the Clergy Discipline Rules 2005 (as amended) (the “Rules”), the Code of Practice, Statutory Guidance or other material) setting out how such a contempt is either to be certified or referred under Paragraph 309”.

She noted that some assistance could be drawn from the broadly analogous process by which the High Court determines whether or not to allow committal proceedings to be brought under the Civil Procedure Rules (the “CPR”) part 81. The decision of Joanna Smith J. in Frain & McKinnon v Reeves & Curnock [2023] EWHC 73 (Ch) (at 19), was cited with approval, from which the following relevant principles could be distilled:

a. When considering the approach to be adopted by the court to applications for permission5 the question at that stage is not whether a contempt of court has in fact been committed, but whether proceedings should be brought to establish whether it has or not;

b. Because proceedings for contempt of court are public law proceedings, when considering whether to give permission the court must have regard to the public interest. That includes consideration of whether the case is one in which the public interest requires that committal proceedings should be brought;

c. The applicable standard of proof in respect of contempt of court is the criminal standard;

d. In assessing the prima facie case the court will take account of all of the circumstances of the case;

e. The court must consider whether it is proportionate to allow committal proceedings to be brought; and

f. The court must also consider whether contempt proceedings would further the overriding objective (in civil proceedings this is the overriding objective of the CPR; in CDM proceedings an overriding objective is articulated in rule 1 of the CDM Rules).

She added that, in the case of an alleged contempt said to be based on breach of rules, codes of practice or guidance materials, the mere fact of a breach of the rules (etc) was not, of itself, enough. More intentional conduct would need to be proven, akin to the “wilful defiance or disrespect” required for contempt in the face of the court [6]. Furthermore, in her view the relevant rules would need to be sufficiently clear as to what is and is not permitted in order for a person alleged to be in contempt to know clearly what he or she had done was or was not permitted [7].

With regard to the question currently before her, this was “not whether a contempt of court [had] in fact been committed, but whether further steps should be taken to. establish whether it [had] or not”, (as in outlined below [3]). As to the possession and/or dissemination of confidential material, she noted “the starting point is the fact that there is some inconsistency in the Code of Practice and the Statutory Guidance as to the precise use to which documents can be put” [10].

Comment

De Mestre Ch. did not consider there was a realistic prospect of demonstrating the required elements of contempt to the appropriate standard in the present case [13]. The proceedings were at an end with the complaint having been dismissed; “it would be disproportionate to investigate further the questions of possession, dissemination and/or use to which documents have been put and it is neither in the public interest nor in furtherance of the overriding objective to do so.”

Nevertheless, she indicated  “It may be necessary in another case to investigate the precise ambit of the Code of Practice and the Statutory Guidance (and the Rules) and how they interact but that is not warranted here” [14]. The Code of Practice states:

“[2]. The Code does not have the force of law, but compliance with its provisions will be assumed to be in accordance with best practice. Using this Code is no substitute for referring to the Measure and to the Clergy Discipline Rules 2005, which together set out the procedures that must be followed…”.

An earlier post noted that unlike CBC Guidance Notes which are “issued under statutory authority”, the Code was also subject to the approval of General Synod.

[1] In the Ruling, the Complainant was Karen Gadd and the Respondent The Reverend Canon Richard Peers. This post considers the general points of law raised by the Ruling, as evinced by de Mestre.

[2] This is repeated at page 15 of the Statutory Guidance issued February 2021 (the “Statutory Guidance”), paragraph 6.

[3] “If I consider that they should, those steps would plainly include, as a minimum, contacting the relevant third parties and providing details and particulars of the alleged contempt, ensuring that they are given a fair chance to answer the allegations and/or to purge the contempt and arranging a process by which they could be heard. If I consider that they should not, then the matter is at an end”, para, [8].