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Published online by Cambridge University Press: 11 September 2020
When it was being introduced, there was a concern that the Clergy Discipline Measure 2003 would be a ‘complainant's charter’. While there was a marked increase in complaints after it came into force, this article argues that this concern was on the whole unfounded and as a result complainants have benefited. However, the Measure has had a damaging effect on respondents to the extent that reforming or replacing it is inevitable. It is argued that the current regime is potentially unfair in terms of common law and ECHR requirements to a fair trial. Therefore, any reform or replacement of the current regime must both be legally fair and also address its negative pastoral impact on respondents.
I am grateful to Professor Norman Doe for his comments and to the Venerable Dr Jane Steen and the Reverend Joshua Rey for their perspectives. This article was written before the House of Bishops' meeting on 8 July 2020, at which the bishops discussed the Clergy Discipline Measure Working Group chaired by Bishop Tim Thornton, and also before the publication of the emerging findings from independent research commissioned by Sheldon and conducted by Aston University in collaboration with Sheldon. See <https://www.churchofengland.org/more/media-centre/news/house-bishops-meet-discuss-covid-19-clergy-discipline-and-lambeth-conference> and <https://www.sheldon.uk.com/UserContent/doc/1588/emerging%20research%20findings%20on%20cdm.pdf>, both accessed 26 July 2020.
2 SI/2005/2022; Church of England, Clergy Discipline Measure 2003 Code of Practice, <https://www.churchofengland.org/sites/default/files/2017-10/code-of-practice-as-published-jan-2017_1.pdf>, accessed 27 April 2020.
3 Under Authority: the report of the General Synod working party reviewing discipline and the working of the ecclesiastical courts (London, 1996), p 1Google Scholar.
4 Legal Aid Commission, ‘The ecclesiastical legal aid system’ (GS 1028).
5 Under Authority (Church House Publishing 1996), p 110Google Scholar; F Bridger, ‘A theological reflection’, 2002, in Guidelines for the Professional Conduct of the Clergy, available at <https://publications.parliament.uk/pa/jt200203/jtselect/jtecc/87/8709.htm>, accessed 28 April 2020.
6 HL Deb, 21 May 2003, vol 648, col 917.
7 Iles, A, ‘The Clergy Discipline Measure 2003: a canter through its provisions and procedures’, (2007) 9 Ecc LJ 10–23 at 10Google Scholar.
8 That is to say, proceedings against priests or deacons for offences under the 1963 Measure not involving matter of doctrine, ritual or ceremonial. No proceedings seem to have been made against bishops under Part V of the 1963 Measure. There is speculation that a fourth case would have been heard had the would-be respondent been a freeholder rather than a priest-in-charge; however, his status meant that his licence could simply be terminated. Under Authority, p 4.
9 ‘Tribunal decisions’, <https://www.churchofengland.org/about/leadership-and-governance/legal-services/clergy-discipline/tribunal-decisions>, accessed 24 April 2020.
10 The Clergy Discipline Commission reports in May each year; at the time of writing, 2018 was the most up-to-date report available.
11 Clergy Discipline Commission, ‘Annual report for 2018’ (GS Misc 1226), Appendix 3. It should be noted that these cases may have been instituted prior to 2018.
12 Clergy Discipline Commission, ‘Annual report for 2017’ (GS Misc 1193), Appendix 3, showing the statistics for that year compared to the previous year.
13 These figures from 2006–2012 are taken from Iles, A, ‘The Clergy Discipline Measure 2003: a progress report’, (2014) 16 Ecc LJ 3–17 at 4Google Scholar. A closer analysis of the trends over the whole life of the 2003 Measure would have been undertaken had General Synod papers for the whole period been available. Only the 2017 and 2018 annual reports are available online and the public health emergency means that there is currently no access to libraries with General Synod papers.
14 The power of the diocesan bishop to pronounce sentence by consent.
15 The current public health emergency resulting in the closure of libraries accounts for the lack of research in this area and the consequent assumptions made. These are, nonetheless, considered to be reasonable assumptions.
16 HC Deb, 22 May 2003, vol 405, col 1174; Iles, ‘Clergy Discipline Measure 2003 provisions and procedures’, p 10.
17 Iles, ‘Clergy Discipline Measure 2003 progress report’, p 3. These fears were seemingly expressed by the Bishop of London: see ‘Clergy discipline: will bishops wear a mitre or a judge's wig?’, Church Times, 15 July 2009, <https://www.churchtimes.co.uk/articles/2009/17-july/news/uk/clergy-discipline-will-bishops-wear-a-mitre-or-a-judge-s-wig>, accessed 28 April 2020.
18 HL Deb, 21 May 2003, vol 648, col 930.
19 HC Deb, 22 May 2003, vol 405, col 1174.
20 2005 Rules, Rule 1.
21 These criticisms were addressed by the Clergy Discipline (Amendment) Measure 2013 and the Safeguarding and Clergy Discipline Measure 2016 respectively. In the specific area of clerical abuse, the 2003 regime has been criticised in that such complainants are being faced with ‘a very real psychological obstacle’: see Canon Rupert Bursell QC quoted in ‘Clergy Discipline Measure can cause “further hurt” to victims of abuse’, Church Times, 15 July 2016, <https://www.churchtimes.co.uk/articles/2016/15-july/news/uk/discipline-measure-can-cause-further-hurt-to-victims>, accessed 27 April 2020.
22 Lack of access to primary sources owing to the current public health emergency means that it has not been possible to consult synod papers for the period when the 2003 Measure was being debated in General Synod and therefore the criticisms of the Measure at that time have not been considered.
23 Bursell, R, ‘Turbulent priests: clerical misconduct under the Clergy Discipline Measure 2003’, (2007) 9 Ecc LJ 250–263Google Scholar.
24 ‘Clergy discipline: will bishops wear a mitre or a judge's wig?’
25 Iles, ‘Clergy Discipline Measure 2003 progress report’, pp 13–14.
26 General Synod, Report of Proceedings 2013 (vol 44, no 2), p 63 <https://www.churchofengland.org/sites/default/files/2017-10/November%202013.pdf>, accessed 30 April 2020.
27 General Synod, Report of Proceedings 2015 (vol 46, no 1), pp 61–62, available at <https://www.churchofengland.org/sites/default/files/2017-10/RoP%20Feb%202015%20%28final%20indexed%20version%29.pdf>, accessed 26 June 2020.
28 See for example, ‘Archbishop of Canterbury statement on Bishop of Lincoln’, press release, 16 May 2019, <https://www.archbishopofcanterbury.org/news/latest-news/archbishop-canterbury-statement-bishop-lincoln>, accessed 30 April 2020, in which the archbishop emphasised that the Bishop of Lincoln's suspension was a ‘neutral act’.
29 General Synod, Report of Proceedings 2015, pp 99–100.
30 General Synod, Report of Proceedings 2016 (vol 47, no 1), p 82, available at <https://www.churchofengland.org/sites/default/files/2017-10/RoP%20Feb%202016%20%28formatted%20and%20indexed%29.pdf>, accessed 30 April 2020; General Synod, Report of Proceedings 2019 (vol 50 no 2), p 88, available at <https://www.churchofengland.org/sites/default/files/2020-02/General%20Synod%20-%205%20-%209%20July%202019%20%28003%29.pdf>, accessed 30 April 2020.
31 Society of Mary and Martha at Sheldon, ‘Project CDM’, <https://www.sheldonhub.org/resources/topics/cdm>, accessed 3 May 2020.
32 Sarah Horsman, ‘CDM – a sideways look’, lecture for the Ecclesiastical Law Society, 21 May 2019.
33 Society of Mary and Martha at Sheldon, ‘Sheldon briefing paper re CDM’, 14 January 2020, <https://www.sheldonhub.org/usercontent/sitecontentuploads/3/FD6B383FD8CA3E0D1EAD355E8542EC4A/sheldon%20briefing%20paper%20re%20cdm%20january%202020.pdf>, accessed 3 May 2020. For a link to recent findings of Sheldon's research, see note 1 above.
34 For example, General Synod, ‘Questions November 2013’, pp 8–9, <https://www.churchofengland.org/sites/default/files/2019-11/Questions%20Notice%20Paper%20November%202019.pdf>, accessed 8 May 2020.
35 Society of Mary and Martha at Sheldon, ‘Official C of E Review of CDM’, 15 October 2019, <https://www.sheldonhub.org/forums/forum/thread/4318>, accessed 3 May 2020.
36 P Collier QC, ‘ELS working party on the Clergy Discipline Measure 2003’, 12 April 2020, <https://ecclawsoc.org.uk/els-working-party-on-the-clergy-discipline-measure-2003/>, accessed 3 May 2020.
37 ‘Clergy Discipline Measure: comments and explanations’, 1 August 2001, <https://publications.parliament.uk/pa/jt200203/jtselect/jtecc/87/8705.htm>, accessed 5 May 2020.
38 HC Deb, 22 May 2003, vol 405, col 1176.
39 1998 Act s 3; Hill, M, Ecclesiastical Law (fourth edition, Oxford, 2018), para 1(30)CrossRefGoogle Scholar.
40 Kulkarni v Milton Keynes NHS Foundation Trust [2009] EWCA Civ 789; R (on the application of G) v X School Governors [2011] UKSC 30; Mattu v University Hospitals of Coventry and Warwickshire NHS Trust [2012] EWCA Civ 641.
41 Kulkarni at paras 67–68.
42 The Governors of X School v The Queen on the Application of G [2010] EWCA Civ 1 at para 43.
43 R(G) at para 84.
44 Ibid at para 71, referring to Albert and Le Compte v Belgium (1983) 5 EHRR 533; R v Securities and Futures Authority Ltd, ex parte Fleurose [2002] IRLR 297; International Transport Roth GmbH v Secretary of State for the Home Department [2003] QB 728.
45 HL Deb, 21 May 2003, vol 648, cols 927–928.
46 Iles, ‘Clergy Discipline Measure 2003 provisions and procedures’, p 12.
47 R(G) at para 71.
48 2003 Measure, s 18(3)(a).
49 Albeit that the hurdle to meet the civil standard of proof is greater the more serious the issue at hand and, as acknowledged by the Second Estates Commissioner, ‘in the most serious cases, the standard of proof required will be indistinguishable from the criminal standard – beyond reasonable doubt, rather than on the balance of probabilities’. HC Deb, 22 May 2003, vol 405, col 1176.
50 For example, its desire for the draft 2003 Measure to be fully ECHR-compliant and not simply minimally compliant. In addition, the overriding objective of the 2005 Rules is that 2003 Measure proceedings be ‘just’, ‘fair’ and ‘proportionate’ (Rule 1).
51 R v Sussex Justices, ex p McCarthy [1924] 1 KB 256 at para 259 Lord Hewart CJ.
52 S Atrill, ‘Who is the “fair-minded and informed observer”? Bias after Magill’, (2003) 62 Cambridge Law Journal 279–289 at 279.
53 R v Gough [1993] AC 646, 669.
54 R v Inner West London Coroner, ex parte Dallaglio [1994] 4 All ER 139 at para 161.
55 Law v Chartered Institute of Patent Agents [1919] 2 Ch 276; Bradford v McLeod 1986 SLT 244; Millar v Dickson 2001 SLT 988.
56 Piersack v Belgium (1982) 5 EHRR 169; De Cubber v Belgium (1984) 7 EHRR 236; Pullar v United Kingdom (1996) 22 EHRR 391; Hauschildt v Denmark (1989) 12 EHRR 266.
57 R v Webb (1994) 181 CLR 41 at paras 9–10. The Australian test is also formulated with reference to the ‘fair-minded lay observer’ without reference to being ‘informed’: Johnson v Johnson [2000] HCA 48.
58 R v Bow Street Metropolitan Stipendiary Magistrate, ex parte Pinochet Ugarte (No 2) [2000] 1 AC 119 at para 136A–C; Locabail (UK) Ltd v Bayfield Properties Ltd [2000] QB 451 at para 477.
59 In re Medicaments and Related Classes of Goods (No 2) [2001] 1 WLR 700 at para 711 A–B.
60 Porter v Magill [2001] UKHL 67 at para 103.
61 Sengupta v Holmes [2002] EWCA Civ 1104; Taylor v Williamson [2002] EWCA Civ 1380; Hart v Relentless Records [2002] EWHC 1984.
62 Atrill, ‘Who is the “fair-minded and informed observer”?’, pp 280–281.
63 Society of Mary and Martha at Sheldon, ‘Repair or replace’, <https://www.sheldonhub.org/resources/topics/cdm/replace>, accessed 8 May 2020.
64 ‘Clergy discipline: will bishops wear a mitre or a judge's wig?’
65 2003 Measure, s 11(3).
66 Ibid, s 11(4). The president of the tribunals for the purposes of the 2003 Measure is the chairman of the Clergy Discipline Commission (s 4(1)).
67 Ibid, s 12(1)(b)–(d).
68 Ibid, s 12(1)(e).
69 Ibid, s 17(2)–(3).
70 The Rule also gives respondents recourse if they believe members of the tribunal are ‘unsuitable’, including not being impartial.
71 The test for apparent bias is a high bar to reach. See, for example, most recently, Almazeedi v Penner [2018] UKPC 3; Halliburton Co v Chubb Bermuda Insurance Ltd [2018] EWCA Civ 817.
72 Locabail (UK) Ltd v Bayfield Properties Ltd [2000] 2 WLR 870 at para 25. The most obvious examples are the ordination of women as priests and bishops, same-sex marriage and, recently, incumbents publicly protesting the House of Bishops’ guidance/instructions not to enter churches during the public health emergency. However, other local and specific issues would also be relevant.
73 This is not intended to be a criticism of bishops. Rather, it recognises the skill and experience of judges built up over years of day-to-day legal practice. Conversely, it would be an unusual judge who could navigate the intricacies of the Church of England in a way that is required of a bishop.
74 Hoekstra v HM Advocate (No.3) 2000 JC 391. For example, the treatment of clergy who have entered same-sex marriages varies from diocese to diocese and so there is an opportunity for bishops’ own views to influence their decision-making. Would a bishop who has made public his or her conservative or liberal views fall foul of Hoekstra when faced with disciplining a clergyperson in a same-sex marriage?
75 In the secular sphere the Lord Chancellor's lack of independence was addressed in the Constitutional Reform Act 2005, s 3.
76 East of England Ambulance Service NHS Trust v Sanders [2014] 10 WLUK 574. As noted above, Sheldon recognises bishops’ investigative role.
77 This must not be read as suggesting that bishops are by their nature unfair-minded. See the caveat in relation to bishops’ experience (n 73).
78 Locabail at paras 25–26.
79 This is by virtue of the 2003 Measure, s 22(2), and the 2005 Rules, para 37(2).
80 Bryan v United Kingdom (1995) 21 EHRR 342; R (Alconbury Developments Ltd) v Secretary of State for the Environment, Transport and the Regions [2003] 2 AC 295; Albert and Le Compte.
81 Society of Mary and Martha at Sheldon, ‘Sheldon briefing paper re CDM’.
