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QC has doubts over Percy investigation

24 July 2020

Lord Carlile’s remarks refer to safeguarding core group’s meeting

David Hartley/Church Times

The Very Revd Professor Martyn Percy

The Very Revd Professor Martyn Percy

LORD CARLILE, a leading QC, has suggested that the safeguarding investigation into the Dean of Christ Church, the Very Revd Professor Martyn Percy, is potentially unlawful.

His remarks this week relate to the creation of a safeguarding core group containing senior figures from Christ Church College, Oxford, who had complained to the Church’s National Safeguarding Team (NST) about the Dean, who is also the college’s Head of House.

The complaint is the latest move in a long-running dispute, during which, at one point, the Dean was suspended from his duties at both the college and the cathedral. The Dean was cleared of all the original charges in an internal inquiry led by Sir Andrew Smith (News, 23 August 2019), but is not being permitted to chair most of the college’s Governing Body while an employment tribunal is pending for the recovery of the near-£500,000 legal costs of his defence. The college’s legal bill is now alleged to be about £3 million.

Colleagues of the Dean have argued that, by agreeing to investigate the safeguarding accusations lodged by officers of the college, the Church of England is being “played” (News, 19 June). The Dean denies any mishandling of the four incidents under investigation.

A meeting of the safeguarding core group to consider the case was held on 13 March. As is customary, the Dean, as the person accused, was not represented. The group, however, contained three members of Christ Church who had made complaints against him. One left Oxford shortly afterwards; the other two have since been removed (News, 17 July).

That March meeting, however, is the only one that has been held, and approved the basis of the investigation into the Dean.

Lord Carlile, a former president of the Howard League for Penal Reform, became familiar with the C of E’s safeguarding practices through his independent investigation of the posthumous accusations against the late Bishop of Chichester George Bell. He concluded that the Church had “failed to engage in a process which would also give proper consideration to the rights of the bishop” (News, 22 December 2017).

Speaking on Monday, he said: “I do not believe that the Church has got to grips with the fundamental principles of adversary justice, one of which is that you must disclose the evidence that you have against someone, and give them an equal opportunity to be heard as those making the accusation.

“And you cannot give them an equal opportunity if there are conflicts of interest involved. Anyone with a conflict of interest must leave the deliberations and take no further part. This is what lawyers understand as the law of apparent bias. It’s not to say that such people are biased: that’s often misunderstood. It is the appearance of bias that matters.

“Having people on a core group with a conflict of interest is simply not sustainable and is, on the face of it, unlawful.

“And to fail to allow the person accused to represent themselves, or be represented, in the full knowledge of the accusation, is not sustainable, and is, on the face of it, unlawful.”

There are other complications to this case. It seems that no minutes were taken at the 13 March core-group meeting. A later note, circulated by its chair in mid-June, does not record any question about conflicts of interest. Dean Percy contends that further conflicts of interest exist, in that the majority of the group’s members have had dealings with WSLaw (Winckworth Sherwood), the Oxford-based legal firm that has represented Christ Church in its dispute with the Dean.

It further emerges that Chris Smart, the independent investigator appointed by the NST, has Alison Talbot, a partner at WSLaw, as his Christ Church point of contact. She is said to have been “assisting him with his enquiries”, but had not, apparently, disclosed to him that she was involved in the legal dispute. Nor had two of the original complainants on the core group.

Several colleagues of the Dean, as well as other legal experts, have also queried the NST’s jurisdiction. Christ Church is essentially outside the diocesan structure, and the safeguarding concerns were reported to its Dean as Head of House. Dean Percy is currently awaiting a legal justification for the investigation from the secretary-general of the Archbishops’ Council, William Nye.

As it stands, clerics who are employed by bodies other than the Church, such as hospital or college chaplains, must have “due regard” for the Church’s safeguarding protocols. Although Dean Percy is Dean of Christ Church Cathedral, he has no need for permission to officiate from the Bishop of Oxford. It is thought, none the less, that the core group’s report will eventually go to the Bishop.

The Dean has consistently argued that any allegations of past abuse made by adults are subject to clergy codes of conduct, data protection, and college and university codes of confidentiality. All were adults; none was at risk; and none of the alleged perpetrators was in a position to commit any further harm. When Christ Church approached the police, the police declined to investigate further. The University of Oxford has taken a similar line. None of the four alleged survivors has complained about Dean Percy.

In the mean time, senior figures at Christ Church are continuing, in the words of some observers, to “weaponise” the investigation. At a recent meeting, members of the Governing Body were reportedly told by senior figures in the dispute that, with “new students potentially arriving in the autumn, the Dean is a safeguarding risk”, and that they were “constantly monitoring the risks the Dean poses”.

As a consequence, the Dean asked the NST for an unequivocal statement that he was not a safeguarding risk. The NST has complied: a statement has been posted this week on the C of E website: “The safeguarding issues referred to the NST are being looked at by an independent investigator and we would like to stress there is no evidence at this time that the Dean presents a direct risk to any child or vulnerable adult. The referral is about whether safeguarding responsibilities were fulfilled.”

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