The Clergy Discipline Commission has recently conducted a consultation on the working of the Clergy Discipline Measure 2003 (the Measure).Footnote ¹ According to this consultation, in the first two years following the full implementation of the Measure,Footnote ² there were 137 complaints,Footnote ³ of which only 18 were referred for formal investigation by the designated officer. Of these, only 10 were ultimately referred to disciplinary tribunals for adjudication.Footnote ⁴ The consultation does not mention any specific cases or decisions that have been made in relation to any of these complaints, but legal questions continue to arise.

COMPLAINANT

One ongoing question relates to who may bring a complaint under the Measure. In this regard, one must bear in mind that matters of clergy discipline are now civil, and not criminal, matters. That being so, it was appropriate that the procedures in the Measure should in part reflect those under the Care of Churches and Ecclesiastical Jurisdiction Measure 1991.

Under section 16(1) of the 1991 Measure:

Newsom and Newsom, Faculty Jurisdiction of the Church of England states, in relation to the law prior to the 1991 Measure:

In defining who has a proper interest under the 1991 Measure, the same authors write that ‘it seems to be generally recognised that a person who is resident in the parish is qualified even if the proposals do not affect his property’.Footnote ⁶ In addition, any person whose name is on the electoral roll of the parish concerned but who does not reside in the parish is deemed to have an interest ‘as though he were a parishioner of that parish’.Footnote ⁷

As to non-parishioners, the same test of ‘personal interest’ as that which was applied prior to the 1991 Measure is now applied in the consistory courts under the 1991 Measure. Yet, as Mark Hill points out, ‘the question of sufficient interest is one of fact and degree’.Footnote ⁸

Turning to clergy discipline, section 10(1) of the 2003 Measure follows a somewhat similar wording to that in the 1991 Measure in relation to who may institute proceedings for misconduct:

It is tempting to assume that those who have a ‘sufficient interest’ under the 1991 Measure must also have a ‘proper interest’ under the 2003 Measure. However, such an assumption appears to be fallacious. The 1991 Measure is concerned primarily with the care of churches and their fabric, although ‘any person or body carrying out functions of care and conservation under [the] Measure … shall have due regard to the role of a church as a local centre of worship and mission’.Footnote ⁹ The 2003 Measure, on the other hand, is concerned with discipline. Therefore, the meaning of the words ‘sufficient interest’ and ‘proper interest’ must respectively reflect the context of the Measures in which they are used. For example, a non-Anglican has a right to be buried in the churchyard of the parish in which he or she lives, even if (for example) he or she is a Muslim.Footnote ¹⁰ That being so, any non-Anglican parishioner (of any other or no religious belief) has a right to object to proposed works in the parish churchyard. However, it is unlikely that the same parishioner would automatically have a proper interest in instituting a disciplinary complaint against the parish priest. To do so, that non-Anglican would have to demonstrate a direct personal interest in what was alleged: for example, sexual misconduct towards a child in the local school that his or her own child also attends.

In fact, there has been a debate whether the words ‘any other person who has a proper interest in making the complaint’ should be widely or narrowly construed, although the former seems to be the correct approach. This is because paragraph 4 of the Code of Practice makes it clear that the administration of clerical discipline has

Nevertheless, this does not mean that everyone automatically has a proper interest in any shortcomings of any cleric. It is worth noting that a churchwarden is specifically given the right to institute proceedings against his parochial clergy, even though, in the past, churchwardens always had a disciplinary role.Footnote ¹² Moreover, although the relatively new body called the Archbishop's Council has as its object, inter alia, ‘to … promote, aid and further the work and mission of the Church of England’,Footnote ¹³ it is the ‘the archbishops' council of the diocese’,Footnote ¹⁴ and not the Archbishops' Council, that may nominate a person to bring proceedings against an archbishop. These two points seem to confirm that it is not everyone who has a sufficient (or ‘proper’) interest to institute proceedings against an Anglican cleric, even if that person is a worshipping member of the Anglican Church. Indeed, were that otherwise, any Anglican in the northern province might institute proceedings against the Archbishop of York and anyone in either the northern or southern provinces against the Archbishop of Canterbury. If that had been the intention of the General Synod when passing the 2003 Measure, it could easily have said so.

The only other guidance on this question is to be found in paragraph 35 of the Code of Practice:

Its context within the Code shows that this paragraph is concerned with those seeking to institute proceedings against a priest or deacon. More particularly, it does not suggest that all parishioners, or all Anglican worshippers in the relevant parish, have a proper interest. However, although different considerations may come into play when considering complaints against bishops or archbishops, it also gives some help in indicating who may have a proper interest in those circumstances too.Footnote ¹⁵

Of course, in one sense every Anglican has an ‘interest’ in the discipline of the clergy but that does not mean that they have a ‘proper’ interest on each and every occasion. It is therefore impossible to be definitive as to what that ‘proper interest’ may be, because the possible circumstances are so diverse. In practice, the question will always be one of fact and degree. Nonetheless, one would expect that there must be some direct personal interest in the disciplinary matter in question. For example, the complainant should be closely affected by the actual misconduct in question,Footnote ¹⁶ or threatened by the ongoing consequences of that misconductFootnote ¹⁷ or have a close interest in the discipline of the cleric in question.Footnote ¹⁸ As Mark Hill comments in Ecclesiastical Law,

No doubt, in practice, it will be borne in mind that a bishop or archbishop has a greater profile both within the Church and the wider world than a priest or deacon. In addition, an episcopal pronouncement or statement is likely to have a more far-reaching effect than pronouncements or statements by others. However, in spite of a bishop's greater profile, it still does not mean that anyone affected by an episcopal statement has a sufficient locus standi to make a complaint. It is suggested, rather, that an individual would be required to show some individual damage (over and above transient irritation or annoyance) or a special relationship particularly affected by the pronouncement or statement in question.

If this view is right, a non-Anglican does not have an automatic locus standi to bring a complaint against his or her parish priest, diocesan bishop or even archbishop. Indeed, the same would also be true of a regularly worshipping Anglican. But is the same true of, say, a curate in relation to his or her incumbent, or a licensed cleric in relation to a bishop of his or her diocese? A curate would certainly seem to have a proper interest in the doctrinal statements of his or her incumbent, as would any licensed cleric in relation to a bishop of his or her diocese, but such a concern cannot found a complaint under the 2003 Measure.Footnote ²⁰ However, a curate or licensed cleric might well have a special interest in the public behaviour of his or her incumbent or bishop. Behaviour in private, on the other hand, would depend upon whether the cleric was directly affected by that behaviour.

MOTIVE

People may have any of a number of motives for making a complaint against a cleric; these may run from a genuine concern to prurience or even mischief-making. However, although outrage or distress may move someone to make a complaint, it cannot in law be relevant to any locus standi that the complainant may, or may not, have under section 10 of the 2003 Measure. Such distress or outrage must, however, be relevant to the seriousness of any alleged misconduct because it may reflect the effect of the conduct upon the general laity. The same is true of any loss of respect engendered among the laity by the alleged behaviour.Footnote ²¹ This is particularly important when the bishop to whom a complaint is made has to decide whether the complaint should be dismissed on the grounds that it is ‘trivial’ or that the alleged misconduct (if true) would ‘probably not be grave enough to merit a rebuke’.Footnote ²²

EVIDENCE

It is possible that, to found his or her complaint, a complainant might rely upon newspaper reports by journalists that either summarise facts gleaned from others or quote persons who have been interviewed. Equally, the complainant might rely upon matters told to him or her by others.Footnote ²³ In all these cases, the complainant would be relying upon second-hand evidence.

Although it is nowhere specifically stated in either the Measure or the Rules, it is very probable that the only formal rules of evidence that apply to proceedings for clerical misconduct are those set out in the Rules themselves. Form 1a in the Clergy Discipline Rules 2005 has a marginal note telling the complainant that:

Form 3 then has a marginal note that states: ‘You must explain in your statement how you know about each of the matters you describe, unless you know about them because you have personally seen or observed them’.Footnote ²⁴ It is therefore clear that second-hand evidence is admissible. Moreover, rule 39(1)(a) states that ‘The tribunal shall in accordance with the overriding objective … conduct the hearing in the manner it considers most appropriate to the issues before it and to the just handling of the complaint generally’. Although rule 39 does not specifically apply to the bishop considering the complaint, when he comes to make his decision under sections 11(3) and 12 of the Measure, he should proceed upon a similar basis. This being so, what is reported in a newspaper, or in other branches of the media, is evidence that he should properly consider, even if it is the only evidence before him.

Nonetheless, the weight that the bishop should give to any evidence depends upon the particular circumstances. For example, if a newspaper has paid money for information contained in its report, that would lessen the weight that might be given to such report. Moreover, as newspaper reports are at second hand and are unlikely to be supported by statements of truth under the Measure from the participants themselves, to some extent this adversely affects the weight that the bishop should give to those reports. However, where those reports are corroborated or put in question by other evidence, the weight to be given to them may respectively be enhanced or lessened; however, this is subject to the caution that a statement by the cleric complained about may be self-serving.

BISHOP'S APPROACH IN REACHING HIS DECISION

Section 18(3)(a) of the 2003 Measure states that ‘the standard of proof to be applied by the tribunal or court shall be the same as in proceedings in the High Court exercising civil jurisdiction’. Moreover, as is explained in paragraph 193 of the Code of Practice:

It is to be noted that section 18 is to be applied ‘by the tribunal or court’. However, the bishop does not have to decide whether the complaint is ‘established’; rather, under section 11(3), his first decision is whether he should dismiss the complaint.Footnote ²⁵ In this regard, as paragraph 101 of the Code of Practice makes clear, dismissal would be appropriate where he is satisfied that

Although it is impossible to be definitive, once the bishop has analysed and weighed the evidence it is arguable that he does not have to apply the civil standard of proof when deciding whether there is ‘sufficient’ substance in the complaint. However, it would be entirely inappropriate for him to seek any higher standard of proof because that would undermine the whole structure of the Clergy Discipline procedures; moreover, to apply a lower standard than the civil standard of proof would seem unfair to the respondent. On balance, therefore, it seems that the bishop must indeed apply the civil standard.

What is more, even when applying that civil standard, it is the type of misconduct (for example, adultery) alleged in the complaint that has to be considered before requiring stronger evidence, rather than the actual facts allegedly amounting to the misconduct. Although misconduct may be more serious if committed by an office-holder (such as an incumbent or bishop) than if committed by another cleric, nevertheless, if the flexible standard were to be applied whenever an office holder was the subject of a complaint, it would mean that it would always be more difficult to bring a complaint against them. If this were so, it would be contrary to the overriding objective to deal with disciplinary cases justly.Footnote ²⁷

However, it is arguable that the determination in Mrs A v Okechi runs contrary to this suggestion, as the tribunal stated:

The first sentence of this quotation seems to contradict the argument put forward in this article; however, the next sentence apparently goes on to make it clear that the tribunal's approach is based on its view that there is an inherent unlikelihood of any priest committing adultery. If this latter interpretation is correct, it seems to depend upon the ordained state of the priest rather than the office that he or she holds as parish priestFootnote ²⁹ and, if so, the tribunal's approach does not contradict the present argument. Nevertheless, whatever interpretation of the quotation is correct, the tribunal's view cannot be based on any evidence and it is therefore doubtful to what extent the tribunal should have taken it into account. Indeed, other tribunals might well take a different view from the hope, or gut feeling, upon which it must be based.Footnote ³⁰

Sexual activity, of course, tends to take place in private and the tribunal also went on to consider the position where proof of an adulterous relationship depends upon conflicting evidence of the persons concerned. It stated:

This, of course, is the same position that a court faces in non-ecclesiastical proceedings.

EPISCOPAL INTERVENTION

Paragraph 10 of the Code of Practice states:

The possibilities for problems to arise are obvious. Threats of complaints under the Measure are already being made by partners against clerics involved in divorce proceedings;Footnote ³² if the bishop has been approached by the couple as their Father in God, what should he do if, for example, adultery is alleged against, or admitted by, the cleric? On the one hand, the bishop might wish to continue to give pastoral support himself to the couple in attempting to bring about reconciliation, even though conciliation is itself an option within the proceedings under the Measure. In order not to jeopardise his position under the Measure,Footnote ³³ once the bishop becomes appraised of possible grounds of complaint, he would seem best advised to draw back from direct involvement and to consider whether to initiate further investigations. Such investigations, of course, must be entirely independent of the bishop. As paragraph 11 of the Code states: ‘The archdeacon or other person looking into the matter will need to form his or her own view about the appropriate action to take’.Footnote ³⁴

However, further episcopal pitfalls remain. In the light of what has been said above, it is not inconceivable that a complaint may be raised that has genuine substance, but that the person making that complaint lacks a ‘proper interest’ in law in making it. In those circumstances, as long as the complaint is not minor or trivial,Footnote ³⁵ the bishop must himself consider instituting an enquiry into the alleged misconduct. Canon C 18, paragraph 7, states:

Moreover, section 1 of the 2003 Measure itself underlines the role of the bishop in discipline. If the bishop fails to institute an investigation in an appropriate case, there is clearly a danger that he will himself become the subject of a complaint of neglect of duty under the Measure.Footnote ³⁷

PARTY TO THE PROCEEDINGS

It is not surprising if a non-legally qualified complainant feels that he or she should continue to have an input into the proceedings once it has been referred to a tribunal other than merely as a possible witness. Section 18 of the Measure states that, in disciplinary proceedings, ‘it shall be the duty of the designated officer or a person nominated by him to conduct the case for the complainant’.Footnote ³⁸ That does not mean, however, that the designated officer is acting on behalf of the complainant and therefore under his or her directions. Indeed, this is made clear by rule 106 of the Clergy Discipline Rules 2005, which states that the designated officer ‘acts independently from the complainant’. Moreover, paragraph 172 of the Code of Practice reads: ‘It is the duty of the complainant and the respondent to co-operate with the Designated Officer when inquiries are made’. In addition, rule 106 continues that ‘“party” and “parties” refer to the complainant and the respondent, except in Parts VI, VII, and VIII where they refer to the Designated Officer and the respondent’: that is, the complainant is not a ‘party’ for the purposes of directions hearings or any hearing before the tribunal.

The complainant is nonetheless entitled to attend any hearing in private of the tribunal,Footnote ³⁹ although they may be excluded if they disrupt the hearing or otherwise interfere with the administration of justice. In criminal proceedings in the lay courts, an injured party is entitled to make a victim impact statement to be taken into consideration by the court when passing sentence.Footnote ⁴⁰ No such provision is made for tribunals in clergy discipline proceedings, although the tribunal is empowered to invite the bishop to give views about the appropriate penalty.Footnote ⁴¹ However, there seems no reason why the designated officer should not place before the tribunal a similar victim impact statement. That apart, there appears to be no mechanism by which the complainant can seek to place his or her views as to the appropriate penalty before the tribunal or, at least, to give evidence as to the trauma or damage caused by the respondent's behaviour. Nonetheless, the complainant will often be a witness in the proceedings themselves.

PENALTIES

After consultation, and pursuant to section 3(3)(a) of the 2003 Measure, the Clergy Discipline Commission issued guidance on the appropriate penalties to be imposed in cases of clerical misconduct.Footnote ⁴² In relation to sexual misconduct, it states, inter alia:

Clearly, other forms of sexual misconduct carry with them similar dangers to those affected by the cleric's behaviour. In the complaint of Byrne v King, the tribunal was concerned with an improper relationship involving ‘some acts of physical intimacy albeit not sexual intercourse’ that went ‘far beyond merely holding hands or kissing’; it was ‘a relationship with a high degree of inclination towards sexual activity and with an overtly expressed sexual desire’.Footnote ⁴⁴ The woman concerned lived in a neighbouring parish but did attend the respondent for bereavement counselling. The tribunal imposed upon the respondent a penalty of four years' prohibition from exercising any functions of his holy orders, as well as removal from any office or preferment that he then held. On appeal to the Chancery Court of York, the respondent showed no repentance or remorse. The appellate court considered that a rebuke was an inadequate penalty but, apart from his previous ‘long and much appreciated service as a priest’, there was no other mitigating factor and the tribunal's penalty was upheld.Footnote ⁴⁵

In the complaint of Cooper v Gair, the tribunal determined that the respondent had ‘on many occasions kissed and touched’ a parishioner ‘in a sexual manner’.Footnote ⁴⁶ The relationship began when the parishioner sought pastoral advice from the respondent in relation to her marriage and continued in spite of the fact that the respondent was also counselling the woman's husband. The respondent admitted unbecoming conduct at the very last moment and expressed remorse in relation to the woman but not in relation to the husband. The tribunal regarded the latter fact as a serious aggravating factor and imposed a prohibition on the respondent for seven years.

Then, in the complaint of Allsop v Davies, the tribunal determined that the respondent cleric had claimed that ‘she and her husband had an open sexual relationship and engaged in sexual activity with others outside their marriage’.Footnote ⁴⁷ In addition, it determined that the respondent ‘had been under the influence of alcohol’ at three church services.Footnote ⁴⁸ In relation to penalty, the respondent submitted that she had admitted and shown remorse at all times for her conduct and that the appropriate penalty should therefore be one of rebuke. The tribunal did not accept the submission as to the timing of her admissions and paid little regard to her protestations of remorse. Rather, it concluded that these submissions indicated that she still had ‘no appreciation of the seriousness of the findings against her, nor of the damage caused’.Footnote ⁴⁹ The penalty imposed was therefore one of 12 years' prohibition.Footnote ⁵⁰

In the complaint of Mrs A v Okechi,Footnote ⁵¹ the tribunal determined that the respondent, who denied the complaint throughout the proceedings, had committed adultery with a parishioner who was also a parish employee over a period of about two years and imposed a prohibition of ten years upon the cleric. In reaching that length of prohibition, the tribunal took into consideration that the complainant had made false accusations of stalking against the respondent. In addition, the chairman stated that ‘consistency as between tribunals is an important aim. It is for this reason that we have considered penalties that have been imposed by other tribunals, in particular, where the determination involved conduct of a sexual nature’. Unfortunately, however, the chairman did not spell out more of the tribunal's thinking in this regard.

In the complaint of Lock v Tipp and Northern,Footnote ⁵² two clerics deserted their respective spouses in 2008 and set up house together; in so doing, they also deserted their offices as rector and associate rector respectively of the same benefice. No prior notice of their intentions was given by either respondent. Canon Tipp had been in the parish since 1982 and had been rural dean since 1996; the Reverend Elaine Northern was ordained in 2003 and became associate rector in 2007. At the time of the decision, the rector was 63 and the associate rector was 54. Both admitted that their conduct amounted to conduct unbecoming and neglect of duty.

The diocesan bishop had wished to prohibit both respondents for life, arguing, inter alia, that he would not be able in the future to recommend either of them again for ministry. However, each respondent argued for a determinate penalty. In reaching its decision, the tribunal found it difficult to find any mitigating factor other than their apologies and the fact that by admitting their misconduct a contested case had been avoided.Footnote ⁵³ It pointed out the hurt and scandal caused both to the respective spouses and to the Church at large; that forgiveness did not involve pretending that something had not happened; that removal from office did not amount to excommunication; and that

The tribunal determined that Canon Tipp had the greater responsibility as he had the cure of souls, was the rural dean and had longer experience as a priest. Both were removed from office. Canon Tipp was prohibited for life;Footnote ⁵⁵ the Reverend Mrs Northern was prohibited for a period of 12 years, as the tribunal took the view that, with pastoral and other support, it should be possible for her to resume the normal duties of her ministry.Footnote ⁵⁶ In so deciding, the tribunal noted that the guidance on penalties from the Clergy Discipline Commission does not cover misconduct involving desertion from office.Footnote ⁵⁷

These early determinations on penalty raise a number of questions, although each of them followed findings of inappropriate or unbecoming behaviour, as well as findings of neglect of duty in the last complaint. Clearly, in spite of the guidance on penalties already given by the Clergy Discipline Commission, the facts of individual cases mean that it is too early to forecast with any certainty the length of penalty likely to be imposed.Footnote ⁵⁸ More worrying, however, is the anecdotal evidence of surprise in some clerical quarters that matters relating to the ‘private lives’Footnote ⁵⁹ of the clergy should be the subject of any complaint under the Clergy Discipline Measure. If this anecdote is accurate,Footnote ⁶⁰ it raises questions as to the training given to ordinands about Christian morality but also in relation to the standards of behaviour expected of the clergy, and the law applicable to them once ordained.