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Lawyers propose triage system to replace Clergy Discipline Measure

11 September 2020

istock

A GROUP of ecclesiastical lawyers have proposed a triage system for dealing with complaints against clergy and church workers.

A working party of the Ecclesiastical Law Society has examined the workings of the Clergy Discipline Measure 2003 (CDM) — which the House of Bishops has admitted needs urgent reform. In an interim report, published on Wednesday, the lawyers identify a string of faults, the chief of which is the inability to filter out quickly minor or vexatious complaints.

The work quotes from a survey carried out by the Sheldon Hub, a support network for clergy and church workers, (News, 17 July), which found that two-thirds of respondents subject to a full CDM investigation has been found not guilty.

The working party has suggested a new system for filtering out minor “service-level” complaints. Diocesan “assessors” would take written statements from the complainant and the accused, interview both, then tell the bishop whether the complaint could be dismissed, resolved locally, or warranted a more serious investigation.

The working party writes: “We hope that it could be possible, whilst waiting for the necessary legislation to introduce these proposed reforms, for all dioceses immediately to adopt the same system for identifying and steering into an informal process the cases that are essentially grievances without a disciplinary element.”

The draft process for assessing minor complaints can be found here.

The working party is chaired by Canon Peter Collier QC, Chancellor of the diocese of York, who retired as Recorder of Leeds in 2018. Having reviewed the history of clergy discipline since 1072, but in detail over the past 180 years, it warns of a repeated pattern: “dissatisfaction with the then current system led to the introduction of a new one, only for that itself to be subject of criticism not long after it was brought into effect.”

Among its many recommendations, the interim report rejects the idea that discipline should be taken out of the hands of bishops. It also believes that the present set of penalties available seems adequate.

The report in more detail:

 

Failings of the present CDM system

The report lists a series of failings in the present disciplinary system that have been identified by people involved it:

a. The high number of cases brought by individuals who were neither parochial nor diocesan officers;

b. the absence of any early enquiry into the allegation or the seeking of a response from the cleric;

c. the absence of any recognition of the need to identify and dismiss allegations of a frivolous or vexatious character;

d. the absence of any filtration process for examining complaints before deciding how to proceed;

e. the high percentage of cases that are dismissed;

f. the frequency with which timetables are not complied with;

g. the delay in bringing cases to a conclusion;

h. the role of the Designated Officer (DO);

i. the anxiety and stress that is caused to many who are complained about who fear loss of home and livelihood;

j. the failure of dioceses to work with prohibited clergy in helping them return to ministry (or into some new walk of life);

k. confusion as to the role of the bishop.

The report describes the time taken to resolve cases as “unconscionable” and “unacceptable”.

 

The exercise of discipline

The report goes back to basic principles of discipline, pulling three objectives from the Bible, none of which is retribution or punishment. Instead they find attempts at reconciliation, moves to encourage repentance, and many examples of forgiveness.

 

The role of the bishop

The report’s historical sweep includes the part played by bishops from the earliest days, leading them to concluded that the episcopate has always been involved in dealing with wrongdoing. “The bishop’s role in discipline does not undermine his or her pastoral ministry: on the contrary, it is an essential part of that ministry.”

The report points out the conflict between two different views of a bishop's involvement: concern that the bishop’s relationship with a priest might undermine impartiality has now been “turned on its head”, it says, as clergy express concern that the CDM process undermines their pastoral relationship with the bishop.

”The current preference is for value-neutral processes, in which judgement drawing on experience and personal acquaintance is minimised. But this outlook is culturally specific and time-bound. It arises from a process of thought in the Western world in the last two or three hundred years.”

There is “great value” in this way of thinking, it says: “Any new measure will need to show that it has the necessary safeguards in place to meet the secular standard of fairness — probably built into the appeal processes.” But it goes on: “Value-neutral processes do not necessarily produce fairer outcomes than those decided by actors who are in some way interested or involved in the process.”

The report has a high theology of the episcopate: “Good judgement requires wisdom and experience, and the ability to acknowledge and discount one’s own inherent bias, and this is why [secular] judicial authority is reserved to individuals of proven professional and personal ability and integrity. The diocesan bishop is in just such a position of trust, with even higher expectations given the mixed functions of their role and the belief that they will be held accountable to God for the exercise of their office.”

For this reason, the report says, “whilst it is, of course, necessary to ensure fairness and proper pastoral support in the disciplinary process, this will not be achieved simply by divesting the diocesan bishop of all disciplinary authority which rather risks undermining the bishop’s role as chief shepherd and guarantor of unity in the diocese.”

 

Comparisons with other professions

The report examines the ways in which other professions deal with complaints. All have developed systems over many years for regulating their memberships, including removing from membership those deemed no longer fit to practise.

“All the professions recognise the difference between what they often call ‘service-level complaints’ which they usually expect to be resolved at a very local level, often within a particular practice team, and matters which are serious enough to call in question whether the member should be allowed to continue to practice, which will be dealt with formally and on behalf of the profession.

“Each has different ways of deciding what falls within the category that can be left for local resolution and what requires to be dealt with by the national body. Some have a third intermediate track. . . Cases at the two ends of the spectrum are easily allocated, others not so. . .

“All of them have rights of review and/or appeal against decisions made, particularly when they are final decisions for one party or the other.”

 

Historical survey

The report points out that the only Canon dealing with general conduct is C26(2): “A clerk in Holy Orders shall not give himself to such occupations, habits, or recreations as do not befit his sacred calling, or may be detrimental to the performance of the duties of his office, or tend to be a just cause of offence to others; and at all times he shall be diligent to frame and fashion his life and that of his family according to the doctrine of Christ, and to make himself and them, as much as in him lies, wholesome examples and patterns to the flock of Christ.”

This, in points out, makes no distinction between trivial and serious offences, and allows vexatious allegations based on the behaviour of other family members. “It shows that we must be very careful about our definitions of misconduct and very conscious of how malicious complainants might seek to misapply them.”

Besides looking in detail at the workings of the 2003 Measure, the working party examined what it replaced. It states: “The complaint about the 1965 Measure was that its procedures were so complex that prosecutions were exceedingly rare — only three people were prosecuted in 30 years.

“On the other hand under the CDM it is easy to bring a complaint, and by the end of 2018 (13 years of operation) there had been 959 complaints.”

 

The need to filter minor complaints

The report notes that, in the Sheldon survey, in 109 out of 197 cases, respondents considered the complaint against them as “trivial or vexatious charges without foundation”. It recounts that, until the present Measure, it had not been possible for an individual to complain: under the 1963 Measure, it took six people to complain effectively unless the bishop agreed.

In Under Authority, the 1996 report that led to the drawing up of the 2003 Clergy Discipline Measure, its authors had considered leaving in place barriers to complaining to be “immoral”. They did, though, see the need to filter out complaints that were “frivolous or malicious”. It was this filter that failed to make it into the final legislation.

The report states: “There has to be a better way of dealing with cases so that while cases of serious misconduct are prosecuted, cases of lesser misconduct and of personal grievance (what would be termed ‘service-level complaints’ in most professions) are dealt with in a simpler and quicker way, and cases that are frivolous, vexatious and malicious or otherwise without substance are quickly dismissed.

“A speedy assessment of the case at the start, including asking the person complained about what they have to say about the allegation, would enable those cases that should be dismissed to be dealt with quickly. Of course there would need to be a right of review of that decision for the complainant.”

 

Serious cases

The report examines the problems with the existing tribunal system, among the chief of which is delay (News, 11 September). It proposes a video-link “case management hearing”, arranged by the chair of the tribunal, to ascertain how much, if any, of the complaint that the respondent accepts, and the grounds of his or her defence concerning the rest.

There is mention of the standard of proof currently employed in tribunals: the panel has to be satisfied that something is more likely to happened than not. The report acknowledges a desire to change this standard to “beyond reasonable doubt”, but points out that this phrase has not been used in the criminal system for many years.

 

Deciding between minor and serious complaints

In an appendix to the report, David Etherington QC writes: “I agree with everyone that the commencement of every complaint with a CDM is wrong.” This approach “supercharges” the complaint in the eyes of the respondent.

On the issue of determining the gravity of a complaint, he considers the prospect of a detailed list of misdemeanours for the clergy. He warns that equivalent lists in other professions have been drawn up over time, and have introduced points of contention. Nor have they eliminated grey areas between minor, intermediate, or major complaints.

He writes: “My fear is that a standards-based approach, as taken (in various degrees) by the secular systems may prove here to complicate the issues rather than clarify them and lead to cul-de-sacs of fierce and interesting debate that do not improve the system of dealing with complaints.”

He favours an informal referral to the diocesan registrar in order to decide the correct pathway for the complaint.

 

Work still to be done

Among other matters, the working party lists:

  • Who should carry out the early assessment — lay people or archdeacons or both being available?

  • What should the priority and procedure be for disciplinary matters when criminal behaviour or safeguarding breaches are identified or are already being investigated?

  • Are we right to exclude lawyers from “disciplinary meetings” with the bishop?

  • Should the bishop be able to impose penalties other than prohibition or removal from office without consent, and should such penalties so imposed be entered on the Archbishops’ List?

  • What should be the role and size of any central administrative structure for dealing with serious misconduct cases? Who should advise on framing charges of serious misconduct? Who should gather additional evidence and witness statements prior to the tribunal hearing? Who should act as the prosecuting advocate?

  • Should the bishop sentence in serious misconduct cases where the misconduct is admitted?

  • What should be done about other related Measures?

  • What review/appeals processes should be put in place?

 

CDM in numbers

IN THE 13 years 2006-18, for which figures have been published, 959 complaints were made under the Clergy Discipline Measure.

  • 628 (65 per cent) were laid by an individual;

  • 285 (30 per cent) by an archdeacon;

  • 30 were by churchwardens;

  • 16 by a PCC nominee.

The Preliminary Scrutiny Report (PSR), to judge whether there is a case to answer, is carried out by the diocesan registrar. The average cost of a PSR in 2019 was said to be £2595.66. The total cost for 2019 was £438,530.56, putting the total cost of PSRs so far at more than £2 million.

  • 277 complaints (33 per cent) were dismissed (“but not before the cleric had been notified that there was a complaint against them with a potential consequence of losing their home and livelihood”).

  • 153 (18 per cent) were resolved with the bishop’s deciding to take no further action (NFA).

  • 42 (five per cent) ended with Conditional Deferment, e.g. an agreement to undergo further training.

  • 32 cases ended with attempts at conciliation, ten of which were successful.

  • 214 cases (26 per cent) led to Penalty by Consent: the respondent admitted at least part of the allegation and accepted one of the range of possible consequences, ranging from a simple rebuke, a rebuke with conditions, to prohibition for a period of years.

  • 101 (21 per cent) of cases were referred for formal investigation. Of these:

    • 34 were “no case to answer”;

    • 37 proceeded to a tribunal;

    • 4 were resolved with a Penalty by Consent;

    • 26 were unaccounted for.

    • 21.5 months: the average time from complaint to tribunal hearing (in eight cases, it was two years or more).
  • 34 were “no case to answer”;

  • 37 proceeded to a tribunal;

  • 4 were resolved with a Penalty by Consent;

  • 26 were unaccounted for.

  • 21.5 months: the average time from complaint to tribunal hearing (in eight cases, it was two years or more).

 

The interim report can be found here; an executive summary can be found here.

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