The Book of Ecclesiastes tells us that there is nothing new under the sun.Footnote ¹ That is certainly true of allegations of clerical misconduct. Indeed, in 370 AD the Roman emperors Valentinian, Valens and Gratian wrote to Pope St Damasus seeking to prevent the clergy from wheedling money from wealthy women, especially widows.Footnote ² Allegations of clerical misconduct therefore clearly predate both the Ecclesiastical Jurisdiction Measure 1963 and the Clergy Discipline Measure 2003 and it is certain they will continue to be made hereafter. What may be uncertain is the precise ambit of what amounts to clerical misconduct.

THE MEASURE

Section 8(1) of the Clergy Discipline Measure 2003 states:

1. (a) doing any act in contravention of the laws ecclesiastical;

2. (b) failure to do any act required by the laws ecclesiastical;

3. (c) neglect or inefficiency in the performance of the duties of his office;

4. (d) conduct unbecoming or inappropriate to the office and work of a clerk in Holy Orders.

Nonetheless, such misconduct does not include ‘an act or omission … relating to matters involving doctrine, ritual or ceremonial’; allegations of such misconduct must still be made under the Ecclesiastical Jurisdiction Measure 1963.Footnote ³

THE COMPLAINT

A complaint only comes before a disciplinary tribunal when it is referred to it by the President of the Tribunals.Footnote ⁴ It is the duty of the President, having decided that there is a case to answer, ‘to specify in the written decision which allegation or allegations of misconduct are to be determined’.Footnote ⁵ The tribunal has no power to amend this written decision in order to consider an altered, or a different, complaint or complaints; it must reach its decision on the allegations placed before it.Footnote ⁶ If the facts proved fail to amount in law to the misconduct alleged, the tribunal must determine the matter in the respondent's favour.

In Bland v Archdeacon of Cheltenham Footnote ⁷ the appellant argued that some offences had been incorrectly charged and therefore his appeal in relation to them had to succeed. However, the Court of Arches stated.Footnote ⁸

The Court of Arches agreed with Chancellor Garth Moore that the allegation in relation to the refusal to baptise should have been charged not as a serious neglect of duty but as ‘an ecclesiastical offence of refusing to baptise’;Footnote ⁹ nonetheless it did not strike out the charge on that basis. It therefore seems that the formulation of the charge was only a question of best practice rather than a fundamental flaw in the proceedings themselves. Today, however, no such argument could be raised before the tribunal at all.

Nevertheless, the respondent must be entitled to raise matters under the Human Rights Act 1998Footnote ¹⁰ as well as to raise the question whether the Court of Ecclesiastical Causes Reserved has the requisite jurisdiction rather than the tribunal. However, the respondent is under a duty to raise such questions at the earliest opportunity. This is because of rule 2(1), which states: ‘All parties shall co-operate with any person, tribunal or court exercising any function under the Measure in order to further the overriding objective.’Footnote ¹¹ Moreover, it is part of the overriding objective that the rules are, so far as is reasonably practicable, to be applied in accordance with the principle that undue delay and expense are to be avoided.Footnote ¹² The Registrar of Tribunals or the Chair of the relevant tribunal may give directions ‘in respect of all procedural matters’Footnote ¹³ and this necessarily includes Human Rights questions relating to procedure; nonetheless, it seems that they do not have to give such directions. Moreover, non-procedural matters (and any outstanding directions) must be decided by the whole tribunal.Footnote ¹⁴ As proceedings in front of a tribunal are bound to be expensive and those expenses will in all likelihood fall in great part, if not wholly, on the Church, it is essential that any question that might cut short the proceedings is dealt with at the earliest possible time. Therefore the sooner that it is clear that the whole tribunal must be brought together, the shorter the delay.

DOCTRINE, RITUAL OR CEREMONIAL

When a question of jurisdiction is raised, it will be necessary to consider whether the allegation is one ‘involving doctrine, ritual or ceremonial’. For example, is an allegation that a minister has refused to baptise or delayed the baptism of an infant within his cure (save for the purpose of preparing or instructing the parents or godparents) contrary to Canon B 22, paragraph 4, an allegation relating to doctrine or ritual? In the Bland case, the Reverend Michael Bland admitted to having demurred at baptising a child ‘on grounds of doctrine and conscience’; in particular, he stated that to administer the sacrament of baptism would have been an instance of indiscriminate infant baptism, which he believed to be contrary to the true doctrine of the Christian faith and to Holy Scriptures.Footnote ¹⁵ However, the Court of Arches decided that:

This seems clear enough, although there must be cases that are closer to the borderline.Footnote ¹⁸

What, however, of an allegation that a minister has carried out a second (and non-conditional) baptism? It is likely that the motive would be purely doctrinal, but such a rebaptism is nonetheless contrary to ecclesiastical law and would seem equally concerned with pastoral work and activity. Certainly in In re St Barnabas, Kensington, Chancellor Newsom QC said: ‘Baptism can be received only once.’Footnote ¹⁹ Moreover, the rubric in the Ministration of Private Baptism of Children in Houses in the Book of Common Prayer states: ‘And let them not doubt, but that the child so baptised is lawfully and sufficiently baptised, and ought not to be baptised again.’ It is therefore conceivable that any allegation might be specified as being contrary to the rubric and therefore arguably amount to an allegation concerning doctrine or ritual. In fact, however, rebaptism has always been contrary to the laws ecclesiastical and the rubric is only restating the pre-existing law.Footnote ²⁰ Presumably, therefore, the same reasoning would apply as in the case of Bland and any proceedings should be commenced under the Clergy Discipline Measure. It seems likely, too, that an allegation that an Anglican priest has celebrated mass according to the rite in the Roman Missal would be properly laid as a breach of Canon B 3Footnote ²¹ and therefore commenced under the same Measure, even though the motive for such a celebration would almost certainly be doctrinal.

Canon B 5 permits ministers to make and use variations which are ‘not of substantial importance’ in any authorised form of service and to use forms of service ‘considered suitable by him’ where no provision is otherwise made. All such variations and forms of service must be ‘reverent and seemly’ and must be ‘neither contrary to, nor indicative of any departure from, the doctrine of the Church of England in any essential matter’.Footnote ²² Any question concerning the observance of these provisions may (but does not have to be) referred to the diocesan bishop so that he may give ‘pastoral guidance, advice or directions as he may think fit’; however, such guidance, advice or direction is without prejudice to the matter being made the subject matter of proceedings under the Ecclesiastical Jurisdiction Measure.Footnote ²³ This latter provision, of course, presupposes that any proceedings for a breach of this Canon will be brought under the Ecclesiastical Jurisdiction Measure, but in fact the wording of the Canon does not rule out proceedings under any other statutory provision, especially as the Clergy Discipline Measure postdates Canon B 5 and the Ecclesiastical Jurisdiction Measure embraced both types of proceedings. A failure to follow any direction given by the diocesan bishop might always have been laid as a breach of the minister's duty of canonical obedience under Canon C 14Footnote ²⁴ and, as such, might now be the subject of a complaint under the Clergy Discipline Measure; however, this would seem subject to any response from the minister that the direction given by the bishop was itself contrary to the doctrine of the Church of England.

An allegation that a form of service was contrary to, or indicative of a departure from, the doctrine of the Church of England is clearly one to be brought under the Ecclesiastical Jurisdiction Measure. However, an allegation that a variation from an authorised form of service was either irreverent or unseemly might simply be laid as acting contrary to Canon B 5, paragraph 3, although it may also be seen as necessarily raising a question of ‘ritual or ceremonial’. On balance, it may be that the latter view is the better one, although the answer would not seem beyond dispute, particularly as, in an appropriate case, the allegation might be laid as a breach of Canon B 1, paragraph 2. This latter Canon lays down that ‘[A minister] shall endeavour to ensure that the worship offered glorifies God and edifies the people’. Indeed, this Canon only reflects the general canon law.Footnote ²⁵ However, an allegation that a form of service has been authorised by a minister when provision has already been made for the relevant occasion might arguably be brought under either Measure.

Canon B 8, paragraph 1, states:

That does not necessarily mean, however, that there may not be doctrinal significance in a failure to wear robes or vestments prescribed by Canon B 8, paragraph 3. Nonetheless, even if a failure to wear prescribed robes or vestments should not be seen as a matter involving doctrine (as seems likely), is such a failure ‘an … omission relating to matters involving … ritual or ceremonial’? At first sight the answer might seem to be in the affirmative but, bearing in mind the general provisions of Canon C 27 (Of the Dress of Ministers), it may strongly be argued that what a minister wears at any time is a matter of good orderFootnote ²⁷ and that a failure to wear the prescribed attire (even in church) does not itself involve ritual or ceremonial.

LAWS ECCLESIASTICAL

Although it is nowhere specifically stated, it seems that the only formal rules of evidence that apply to proceedings under the Clergy Discipline Measure are those set out in the Rules made under the Measure itself.Footnote ²⁸ Rule 39(1)(a) states: ‘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 … .’ This is of special relevance when questions arise about the definition of the laws ecclesiastical. In the past, what constitutes ecclesiastical law has not been proved by expert evidence but by legal argument founded on legal principles and authorities.Footnote ²⁹ This question is of particular importance because the pre-Reformation canon law was not continued in its entirety as part of the law of England after the Reformation. Rather, only those parts which were not ‘repugnant, contrariant or derogatory’ to the laws and statutes of the realm, or to the prerogatives of the Crown, received statutory recognition.Footnote ³⁰ However, it has never been authoritatively decided precisely which those parts are. In fact, in order to rely upon an ecclesiastical law that pre-dates the Reformation, it is necessary in other ecclesiastical courts both to plead and prove that a pre-Reformation law has been recognised, continued and acted upon in England since the Reformation.Footnote ³¹ This seems to be a procedural convenienceFootnote ³² as well as a safeguard against legal uncertainty. Presumably, therefore, a tribunal under the Clergy Discipline Measure is likely to follow a similar course.

Fortunately, this is unlikely to cause any problems in practice. The standard of proof to be applied by the tribunal is only the civil standard of proofFootnote ³³ and there seems no reason why the tribunal should not accept as evidence the views of eminent text-book writers, subject to legal argument; indeed, ecclesiastical courts have always paid particular attention to the views of leading canonists. In addition, many of the parts of the pre-Reformation law that are likely to be relevant to allegations of clerical misconduct have now been embraced in statutory regulation or one of the current Canons.Footnote ³⁴ If an allegation is laid under such a statutory regulation or Canon, it is irrelevant whether or not the provision relied upon pre-dates the Reformation. For example, in 1476 the rector of St Mary Muntaur was proceeded against, inter alia, for allegedly swearing by the body and limbs of Christ;Footnote ³⁵ now, however, any similar allegation could be laid as a breach of Canon C 26, paragraph 2:

Perhaps surprisingly, one area where a question regarding the content of the laws ecclesiastical may particularly arise is in relation to allegations of clerical sexual misconduct, especially in a society where general mores are rapidly changing.Footnote ³⁶ The nearest any Canon now comes to prohibiting sexual misconduct (whether adultery or otherwise) is, again, Canon 26. However, sexual misconduct – called the offence of incontinenceFootnote ³⁷ – has always specifically been contrary to the laws ecclesiastical, as William Lyndwood's Provinciale makes clear.Footnote ³⁸ The offence of incontinence is wide in its ambit and includes indecent exposure, keeping company with women of ill repute and solicitation of chastity, as well as incest, adultery and sexual intercourse outside the bounds of holy matrimonyFootnote ³⁹ (that is, fornicationFootnote ⁴⁰).Footnote ⁴¹

It is true that in Burridge v Tyler Footnote ⁴² the allegations of adultery were laid as conduct unbecoming rather that as acts of incontinence. It may therefore be argued that, by specifying an allegation as conduct unbecoming rather than as incontinence, the President of Tribunals would circumvent the procedural problems already discussed. However, such a choice might equally open the way to arguments regarding doctrine and changing Christian mores that would not arise under section 8(1)(a).

It is also worth noting that the ambit of the ecclesiastical law is very wide and also ever changing. Indeed, section 33 of the Clergy Discipline Measure itself creates a new offence:

This provision therefore enacts that it is a failure for which proceedings may be brought under the Measure if, for example, a cleric fails to notify the relevant authority of an arrest for speeding when on holiday in France or a conviction for a parking offence.Footnote ⁴³ The reference in this section to ‘the bishop of the diocese concerned’ must refer to the Anglican diocesan bishop; presumably it also refers to the cleric's own bishop rather than to the bishop of the geographical area where the offence was committed or the arrest carried out.

NEGLECT OF DUTY

Section 14(1) of the Ecclesiastical Jurisdiction Measure 1963 allowed proceedings to be instituted in relation to:

This may be contrasted with the wording of section 8(1) of the Clergy Discipline Measure 2003.Footnote ⁴⁴ Nonetheless, the omission of the word ‘including’ in the 2003 Measure does not seem to restrict the ambit of section 8, subsections (c) and (d) to matters not otherwise embraced within the laws ecclesiastical; indeed, if this were so, it would be more unclear precisely what conduct is to be regarded as falling within these provisions.

In Bland the appellant had been charged with matters predating the present Canons but Canon 68 of the 1603 Canons was (for the present purposes) in similar terms to Canon B 22. As has been seen, the question was raised on appeal whether the refusal to baptise an infant should have been charged as an ecclesiastical offence and not as a serious neglect of duty. However, although the Court of Arches agreed that it should have been so charged,Footnote ⁴⁵ it nonetheless decided that it could still found a charge of neglect of duty.Footnote ⁴⁶ Certainly, in some cases, a charge under the actual Canon might have obviated arguments as to what was ‘serious, persistent or continuous’. However, as has been seen, arguments as to the proper formulation of a complaint cannot be raised before a disciplinary tribunal.

Another difference between the two Measures is that, under the Ecclesiastical Jurisdiction Measure, any neglect of duty had to be ‘serious, persistent or continuous’Footnote ⁴⁷ whereas no such qualification applies to the Clergy Discipline Measure; nevertheless, a complaint should be dismissed by the bishop if it is ‘trivial’ or if the alleged misconduct (if true) would ‘probably not be grave enough to merit a rebuke’.Footnote ⁴⁸ However, the omission of these qualifications of ‘neglect of duty’ clearly widens the ambit of what may be the subject of a complaint. Some neglects of duty may be more than trivial but less than serious; others may be one off rather than persistent or continuous.

Apart from the duties set out in the actual Canons or statutory enactments, the breaches of duties that might be neglected are likely to be in the general fulfilment of a cleric's office;Footnote ⁴⁹ it is in relation to those duties, too, that inefficiency is likely to arise. As paragraph 28 of the Code of Practice states: ‘If sufficiently serious, conduct on a single occasion could be neglect of the duties of office under the Measure, but generally neglect or inefficiency will amount to misconduct only if they occur over a period of time.’ Persistent lateness for the performance of divine service may be one example of neglect or inefficiency; forgetting a funeral or wedding would seem to be another.

The Code of Practice gives as an example a cleric who, on a single occasion, takes money belonging to the church, intending to repay it. Even if the money is repaid quickly and without prompting, the cleric's behaviour is a breach of trust; indeed, disciplinary proceedings could be brought even if the cleric had been acquitted of theft.Footnote ⁵⁰ Such behaviour would seem to be a neglect of duty, as would failure to declare any appropriate fees received.Footnote ⁵¹ Moreover, whereas a breach of the seal of the confessional would be a breach of the unrepealed proviso to Canon 113 of the 1603 Canons,Footnote ⁵² a breach of confidentiality would similarly be a neglect of duty.Footnote ⁵³

CONDUCT UNBECOMING

As the Court of Arches pointed out in the Bland case,Footnote ⁵⁴ there may be conduct that amounts to conduct unbecoming that is not embraced within specific laws ecclesiastical. What is more, section 8(1)(d) adds the word ‘inappropriate’ to the description to be found in the Ecclesiastical Jurisdiction Measure 1963, although it is unclear what this may add in practice to the words ‘conduct unbecoming’. The Code of Practice points out at paragraph 30:

A breach of any Canon may be laid under section 8(1) (a) or (b) but, as Canon C 26, paragraph 2, is necessarily concerned with what is a ‘wholesome example’ to others, it is possible that it is more conveniently laid under subsection (d). Nonetheless, the words ‘just cause of offence to others’ are of great importance; unreasonable disagreements about behaviour are not to be the basis of complaints. However, the definition of a ‘just cause’ may not always be clear. Drunkenness (even within the family home) may well be inappropriate or unbecoming conduct, but regularly having a drink in the local public house will presumably not normally be so; however, this may depend upon the locality in which the cleric lives and works. Drink driving is likely always to be contrary to Canon 26, paragraph 2.Footnote ⁵⁵ But what about wheedling money from women? Presumably this may still be inappropriate behaviour in a cleric, especially if it is for the cleric's personal gain rather than for the repair of the chancel roof.

It follows that it may be argued that what conduct is unbecoming or inappropriate will differ depending upon the state of the general mores of the particular day and age. Indeed, Jacqueline Humphreys has argued:

Nonetheless, as the Code of Practice states at paragraph 29:

The Code does not have the force of law, but its purpose is to provide guidance to all who are concerned with formal clergy discipline procedures under the Measure.Footnote ⁵⁷ If this particular guidance is correct, arguments as to the effects of modern mores upon what may be conduct unbecoming will be limited to what is acceptable Christian behaviour, rather than what is acceptable in wider society. Nevertheless, that is not to say that the Church will attempt to discipline its clergy merely for entering into a civil partnership. This is because, as with marriage, a civil partnership does not of itself presuppose a sexual relationship.

However, the matter may be different if it is argued that a sexually active relationship within such a partnership is not amenable to clerical discipline. In such a case, arguments as to what is acceptable in Christian behaviour may lead to a different conclusion as to what is conduct unbecoming or inappropriate. It is even arguable that what is inappropriate in an incumbent is different from that which is expected of a cleric with no such responsibilities. In order to obviate such arguments it may be that proceedings against a cleric who is in an active homosexual relationship (whether or not within a civil partnership) will be specified (if at all) under section 8(1), subsection (a), rather than subsection (d). As has been seen, such proceedings under subsection (a) could be laid as incontinence.Footnote ⁵⁸

CRIMINAL OFFENCES

If a cleric is convicted of a criminal offence and sentenced to a term of imprisonment (even if suspended), he or she is liable without further proceedings to a penalty under the Clergy Discipline Measure.Footnote ⁵⁹ However, it is possible for a cleric to be convicted of a criminal offence but a sentence other than a sentence of imprisonment be imposed, or that a caution be imposed without any criminal proceedings actually being brought. In such cases, a complaint may still be laid against the cleric under the Clergy Discipline Measure.Footnote ⁶⁰ If there has been an acquittal, the Code of Practice suggests that ‘any complaint under the Measure alleging exactly the same matters as the criminal charge should not normally be proceeded with in disciplinary proceedings’.Footnote ⁶¹ Nonetheless, if such a complaint is still proceeded with, the burden of proof remains the civil burden of proof rather than the criminal standard. Having said that, however, the civil standard is flexible and ‘the more serious the complaint the stronger should be the evidence before the tribunal concludes that the complaint is established’.Footnote ⁶² The seriousness should presumably be judged in relation to the ecclesiastical complaint rather than that of the original criminal charge. This is particularly the case where the facts may demonstrate misconduct different from that which was charged in the criminal court.Footnote ⁶³