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Dean Percy allegation does not warrant a CDM tribunal, judge rules

01 June 2021

Church Times

A SENIOR judge has concluded that the complaint against the Dean of Christ Church, Oxford, the Very Revd Professor Martyn Percy, is not serious enough to merit a tribunal under the Clergy Discipline Measure (CDM).

Dame Sarah Asplin, an Appeal Court judge, acting as President of Tribunals, delivered her Decision on 28 May. A redacted copy has been circulated by friends of Dean Percy, who remains suspended from office and on sick leave.

In it, Dame Sarah considers the report of the Designated Officer, who interviewed all concerned, and whose report remains confidential.

She outlines the allegation that, on 4 October, the Dean approached a woman in the sacristy, asked whether he could touch her hair, “and before receiving a reply stroked it very briefly for approximately ten seconds; there was a conversation about the fact that [the woman] was going to have her hair cut in order to donate it to charity, that very day.” There was also mention of the woman’s age, and the Dean remarked that no one would want his hair.

Dean Percy accepted that he was in the sacristy and that the conversation about donating the hair to charity took place. He denied stroking or touching the woman’s hair.

There was no witness, and the Designated Officer’s report contains statements from witnesses who met the woman and the Dean shortly afterwards.

Dame Sarah concludes: “In essence, therefore, this matter comes down to two versions of events given by two credible witnesses. . . There are two credible accounts. For these purposes, it is sufficient to conclude, therefore, that it is possible that on the balance of probabilities, a finding could be made that the incident occurred as [the woman] alleges.”

She none the less decides that it would not be “proportionate” to refer the matter to a tribunal, the next stage of the CDM process.

“Although I do not intend to trivialise [the woman’s] allegations in any way, it seems to me that it would not be proportionate to refer this matter to a tribunal. The incident itself was extremely short, the alleged hair stroking was even shorter and the language and the conduct as a whole was not overtly sexual.

“If this is put together with: the fact that [the woman] accepts that she was not upset in any way; stated originally that she was not perturbed (albeit she told the police that she was concerned what would happen next); the incident took place in a room which was or could be accessed by others; and [the woman] stated that she would have accepted an apology if the Dean had admitted what she says took place, it seems to me that it is entirely disproportionate that this matter should be referred to a tribunal.”

Dame Sarah mentions the internal inquiry set up separately in Christ Church, which she describes as “another means of redress which is a more proportionate means of addressing alleged incidents”.

The inference is that conciliation is best dealt with at an internal level. The process that Christ Church has instigated, however, is a tribunal set up under statute 39 to judge whether Dean Percy is guilty of “conduct of an immoral, scandalous or disgraceful nature incompatible with the duties of the office” and therefore “good cause” for his removal from office.

Dame Sarah says in her Decision that she has “taken no account” of an email by Alison Talbot of Winckworth Sherwood, the law firm that has been representing Christ Church in its actions against Dean Percy. In the email, Ms Talbot is concerned that the CDM process might give weight to a legal opinion commissioned by friends of the Dean from the human-rights barristers Edward Fitzgerald QC and Paul Harris in March, that the alleged incident “even if true, could not justify the decision to appoint the second tribunal” at Christ Church.

Ms Talbot writes: “In case any weight is being placed on that opinion by either the NST or those conducting the CDM process we would like to make it clear that we consider that opinion to have been based on only part of the facts and ChCh has had several opinions from highly qualified legal experts expressing the contrary view.”

In February, Christ Church commissioned the president of Welsh tribunals, Sir Wyn Williams, to give an opinion on the decision to formulate a tribunal over the alleged incident. He concluded that its actions against Dean Percy were “entirely consistent with the statue and by-laws” of the college.

In an earlier Christ Church tribunal, to consider a complaint lodged in 2018 (News, 9 November 2018), Dean Percy was exonerated of every one of the 27 charges against him (News, 23 August 2019). Dame Sarah also says that she has taken no account of these other allegations against him.

The new Christ Church tribunal will be chaired by Rachel Crasnow QC. Two members of the college’s Governing Body will sit with her, and could potentially outvote her.

Dame Sarah’s Decision ends the CDM process. A spokesperson for the diocese of Oxford said that the Dean remained suspended, and that the diocese awaited the outcome of the Christ Church process. The core group set up by the National Safeguarding Team must meet once more to decide whether the Dean is an ongoing safeguarding risk. In the light of the Asplin Decision, the group is likely to repeat an earlier decision that he is not (News, 8 September 2020).

On Friday, Christ Church put another statement on its website, confirming its intention to proceed with the internal tribunal. A college spokesperson is quoted as saying: “We continue to be appalled at attempts in the media and online to discredit the complainant, question her motives, and to prejudge the proper process. For the sake of all concerned, including the complainant, the respondent, and everyone within our community, the tribunal should now be allowed to take place and reach a conclusion without further external pressure.”

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