Can the Clergy Discipline Measure 2003 really provide effective justice for the accused? Paul Benfield offers a personal view of its shortcomings
Tourists in York on 12 October could witness an unusual spectacle. They could see members of the Convocation of York in their convocation robes, the clergy in black and the bishops in scarlet, processing from St William’s College to the Lady Chapel of York Minster. At the end of the procession came the Archbishop of York and Primate of England, vested in chasuble and mitre and preceded by the Primatial Cross. He presided and preached at a Eucharist for St Wilfrid, during which Lionel Lennox was licensed as Registrar of Tribunals for the Province of York. This office is a new one created under the Clergy Discipline Measure 2003, which came into force on 1 January this year. This formal act of licensing set the scene for the day which was to be almost exclusively about clergy discipline.
After a presidential address from the Archbishop we heard four presentations on clergy discipline. We heard an outline of the new system from the Provincial Registrar, on the link between discipline and pastoral care from the Bishop of Chester, on some practical issues from the Archdeacon of Cleveland, and an explanation of his role from Adrian Iles, the Designated Officer.
After lunch we had group work on case studies. These involved scenarios ranging from the Rt Revd Harry Hadenough summarily dismissing the Revd Garry Handsome for sleeping with two members of the 18–21 Youth Group, to a Miss Maniple complaining that the Revd Barnaby Freewheel had wrongly declared Resolutions A & B revoked after a vote without notice under Any Other Business at the PCC. It was not only the men who were in trouble – one case study involved the divorce proceedings against the Revd Tabitha Crisscross on the grounds of her unreasonable behaviour.
It is stated in the Clergy Discipline Rules 2005 that the aim of the new procedures is ‘to enable formal disciplinary proceedings brought under the Measure to be dealt with justly, in a way that is fair to all relevant interested parties and proportionate to the nature and seriousness of the issues raised.’ It is too early to say whether this aim will be achieved. But the case studies raised very clearly how in many situations the Clergy Discipline Measure may not be the only way forward and will often not be the best way forward.
There is a serious difficulty in how matters are handled before formal proceedings start. There are no rules or code of practice to govern what is done before a formal complaint is made and I know from my own personal experience that this can, albeit unintentionally, create injustice. I suffered from unknown people making unknown allegations against me in letters to my bishop. He felt that, because the letters were confidential, he could not show them to me. My attempts to obtain disclosure under the Data Protection Act failed.
In a bid to resolve the situation the bishop came to the parish and invited parishioners to make formal complaints against me under the Measure. Two people attempted to do this but, despite generous extensions of time, failed to produce the necessary particulars to make a valid formal complaint under the Measure. All this took time, so that I was out of the parish for four months.
Under Article 6 of the European Convention on Human Rights (incorporated into English Law by the Human Rights Act 1998) anyone charged with a criminal offence has the right to be informed promptly and in detail of the nature and cause of the accusation against him. It would seem to me that, by analogy, any cleric accused of misconduct ought to be informed promptly of the conduct which is complained of, even before it becomes a formal complaint under the Measure. After all, a person arrested by the police on suspicion of a crime is told the nature of the offence on his arrest, which may be long before he is charged with an offence.
I still do not know what I am supposed to have done wrong so I have no means of putting it right nor amending my ways, if that is possible or appropriate. Furthermore, I was denied the possibility of gathering evidence at the earliest opportunity, evidence which would have been necessary for my defence had the matter come to a disciplinary hearing. That hardly seems just or pastoral.
I understand that complaints to bishops about clergy are becoming more common. That being so, it is imperative that bishops, whether individually or collectively, decide and publicise their practice for dealing with complaints which are not formal complaints under the Measure. The Report on Clergy Discipline [GS1217], which paved the way for the Measure, stated at §3.37 ‘Whilst we do not wish to generate complaints, we do believe that those who feel aggrieved should be able to express their complaint.’ That must be right. But the corollary is that, unless he is to be denied natural justice, the cleric must be told of the complaint and the identity of the complainant.
Addressing the Ecclesiastical Law Society in 2004, Archbishop Hope said this: [The full text can be found in the Ecclesiastical Law Journal at 8 Ecc LJ 32]
‘In recent years we have all become more conscious of the need for even handedness and fair consideration of discipline matters. It is right and just that the priest concerned has every opportunity to put his or her case and to have the assurance that it is heard. The process and procedures need to be transparent, and the rules of natural justice observed. Anything less now that we have the European Convention on Human Rights enshrined in our law is not worthy of the Church of England, and probably not lawful. In any case surely the Church ought to be a model of excellence in such matters and not least those of us entrusted with an episcopal ministry in the Church of God ‘to be merciful, but with firmness and to minister discipline but with mercy.’ Such is the challenge well set out in the Ordinal – a charge and responsibility not only to the bishop but to the whole Church in any matter of discipline for the sake of the Gospel.’
It remains to be seen whether the Church of England, and her bishops in particular, will rise to this challenge.