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Published online by Cambridge University Press: 29 April 2022
This article is based on an Ecclesiastical Law Society London Lecture delivered on 17 November 2021. It builds on a previous lecture entitled ‘Safeguarding in church and state over the last 50 years: “from Ball and Banks to Beech via Bell”’, which also formed the basis of an article published in this Journal in 2020. That article, among other things, identified a number of significant cases of sexual abuse by clergy which were/are the subject of ‘lessons learned’ reviews and concluded by suggesting how investigation and fact-finding might take place in the future, independent of the bishops, but under the supervision of a ‘judge’, and argued that effective risk assessments could only be based on findings of fact. The author was subsequently asked to chair a working party for the Ecclesiastical Law Society aimed at addressing how the Clergy Disciplinary Measure 2003 (‘CDM’) should be reformed. This article now deals with events that have occurred since, from the publication of the Independent Inquiry into Child Sex Abuse (IICSA)'s investigative reports into the Anglican Church (inter alia), the Lambeth group's proposals for reform of the CDM, through to General Synod's responses to both sets of recommendations. It also surveys in some detail the approach the church has taken to the assessment of risk within its safeguarding policy in recent years, as well as its historical approach to clergy discipline. The article concludes by drawing some threads together as a result of the author's own work and research into these two subjects over the past two years, and finishes by suggesting some possible directions in which the church ought now to move.
1 Collier, P, ‘Safeguarding in church and state over the last 50 years: “from Ball and Banks to Beech via Bell”’ (2020) 22 Ecc LJ 156Google Scholar.
2 ‘The Final Report of the ELS Working Party Reviewing the Clergy Discipline Measure 2003’, 24 February 2021, available at <https://ecclawsoc.org.uk/wp-content/uploads/2021/02/Final-Report-of-Working-Party-Reviewing-the-Clergy-Discipline-Measure-2003-1.pdf>, accessed 5 January 2022. See also ‘ELS Working Party reviewing the Clergy Discipline Measure 2003: Interim Report’, September 2020, Annex 3 available at <https://ecclawsoc.org.uk/wp-content/uploads/2020/09/ELS-Interim-Report-revised.pdf>, accessed 5 January 2022.
3 ‘General Synod Report of the Lambeth Working Group on the Clergy Discipline Measure 2003’, June 2021 (GS 2219), available at <https://www.churchofengland.org/sites/default/files/2021-06/GS%202219%20CDM%20Workng%20Group%20Report.pdf>, accessed 5 January 2022.
4 ‘IICSA's Terms of Reference’, para 1, available at <https://www.iicsa.org.uk/about-us/terms-reference>, accessed 5 January 2022.
5 Which can be accessed here: <https://www.iicsa.org.uk/reports-recommendations/publications/investigation>, accessed 5 January 2022.
6 IICSA, Institutional responses to allegations of child sexual abuse involving the late Lord Janner of Braunstone QC: Investigation Report (Crown Copyright, October 2021), available at <https://www.iicsa.org.uk/key-documents/27541/view/institutional-responses-to-allegations-csa-involving-lord-janner-investigation-report-oct-2021.pdf>, accessed 5 January 2022.
7 IICSA, Child protection in religious organisations and settings: Investigation Report (Crown Copyright, September 2021), available at <https://www.iicsa.org.uk/key-documents/26895/view/child-protection-religious-organisations-settings-investigation-report-september-2021.pdf>, accessed 5 January 2022.
8 IICSA, Children in the Care of Lambeth Council: Investigation Report (Crown Copyright, July 2021), available at <https://www.iicsa.org.uk/key-documents/26649/view/-children-care-lambeth-council-investigation-report-july-2021.pdf>, accessed 5 January 2022.
9 IICSA, The Anglican Church – Safeguarding in the Church of England and the Church in Wales (Crown Copyright, October 2020) available at <https://www.iicsa.org.uk/key-documents/22519/view/anglican-church-investigation-report-6-october-2020.pdf>, accessed 5 January 2022.
10 IICSA, The Roman Catholic Church – Safeguarding in the Roman Catholic Church in England and Wales (Crown Copyright, November 2020), available at <https://www.iicsa.org.uk/key-documents/23357/view/catholic-church-investigation-report-4-december-2020.pdf>, accessed 5 January 2022.
11 IICSA, Children in the care of Nottingham Councils, (Crown Copyright, July 2019), available at <file:///Users/bha/Downloads/children-care-nottinghamshire-councils-investigation-report-31-july-2019.pdf>, accessed 8 January 2022.
12 IICSA, The Anglican Church – Safeguarding in the Church of England and the Church in Wales (Crown Copyright, October 2020), p vi, available at <https://www.iicsa.org.uk/key-documents/22519/view/anglican-church-investigation-report-6-october-2020.pdf>, accessed 5 January 2022.
13 Ibid, pp 116–119.
14 IICSA, Children in the care of Nottingham Councils (Crown Copyright, July 2019), p iii, available at <file:///Users/bha/Downloads/children-care-nottinghamshire-councils-investigation-report-31-july-2019.pdf>, accessed 8 January 2022.
15 Ibid, p 136, paras 4 and 5.
16 Ibid, p vii.
17 cf Lambeth Council: IICSA, Children in the Care of Lambeth Council: Investigation Report (Crown Copyright, July 2021), pp v–x, available at <https://www.iicsa.org.uk/key-documents/26649/view/-children-care-lambeth-council-investigation-report-july-2021.pdf, accessed 5 January 2022.
18 cf The Roman Catholic Church: IICSA, The Roman Catholic Church – Safeguarding in the Roman Catholic Church in England and Wales (Crown Copyright, November 2020), pp v–ix, available at <https://www.iicsa.org.uk/key-documents/23357/view/catholic-church-investigation-report-4-december-2020.pdf>, accessed 5 January 2022.
19 ‘Safeguarding: national projects and workstreams in response to recommendations made in IICSA October 2020 investigation report’ (GS 2204), available at <https://www.churchofengland.org/sites/default/files/2021-04/GS%202204%20Safeguarding%20April%202021.pdf>, accessed 5 January 2021.
20 ‘Archbishop's Council Interim Support Scheme Terms of Reference’, 28 September 2021, available at <https://www.churchofengland.org/sites/default/files/2021-11/ISS%20-%20TOR%20v1.0.pdf>, accessed 5 January 2021.
21 M Brown, ‘Independent Safeguarding Structures for the Church of England Proposed Interim Arrangements – 2021 (Phase 1)’, February 2021, pp 8–9, available at <https://www.churchofengland.org/sites/default/files/2021-02/Independence%20in%20Safeguarding_0.pdf>, accessed 5 January 2021.
22 ‘Practice Guidance: Responding to, assessing and managing safeguarding concerns or allegations against church officers’ (December 2017), available at <https://www.churchofengland.org/sites/default/files/2017-12/Responding%20PG%20V2.pdf>, accessed 5 January 2022.
23 Ibid, §1.6.
24 Ibid, §3.1.
25 Ibid, §3.3; emphasis in original.
26 Ibid, §4.1.
27 Ibid, p 52, n 51.
28 Children Act 1989, s 44. Reasonable grounds for suspecting an offence has been committed by someone is also the basis for their arrest by a constable – Police and Criminal Evidence Act 1984, s 24(2).
29 An example of the phrase ‘evidence capable of belief’ is in the Criminal Appeal Act 1968, s 23(2), where it is part of the test applied when considering whether the Court of Appeal will allow fresh evidence to be adduced on an appeal.
30 ‘Practice Guidance: Responding to, assessing and managing safeguarding concerns or allegations against church officers’ (December 2017), p 52, n 51, available at <https://www.churchofengland.org/sites/default/files/2017-12/Responding%20PG%20V2.pdf>, accessed 5 January 2022.
31 See further M Hill, Ecclesiastical Law (Oxford, 2018), paras 6.38–6.44.
32 For example Re H and R (Child Sexual Abuse: Standard of Proof) [1996] AC 563, at 591D-E, per Lord Nicholls: ‘Thus far I have concentrated on explaining that a court's conclusion that the threshold conditions are satisfied must have a factual base, and that an alleged but unproved fact, serious or trivial, is not a fact for this purpose. Nor is judicial suspicion, because that is no more than a judicial state of uncertainty about whether or not an event happened’. See further Re B (Allegation of Sexual Abuse: Child’s Evidence) [2006] EWCA Civ 773 per Hughes LJ: ‘The fact that one is in a family case sailing under the comforting colours of child protection is not a reason to afford unsatisfactory evidence a weight greater than it can properly bear. That is in nobody's interests, least of all the child’s’ (para 43).
33 T Plucknett, Taswell-Langmead's Constitutional History: from the Teutonic conquest to the present time (London, 1960), p 43.
34 P Clarke, ‘Western Canon Law in the Central and Later Middle Ages’, The Oxford Handbook of European Legal History (Oxford, 2018), chapter 12.
35 Ibid, p 276.
36 Smith, M, The Church Courts, 1680–1840 From Canon to Ecclesiastical Law (New York, 2006)Google Scholar, chapter 4.
37 Ibid.
38 Peters, E, ‘Prison before Prison: The Ancient and Medieval Worlds’ in Morris, N and Rothman, D (eds), The Oxford History of the Prison (Oxford, 1998)Google Scholar, chapter 1.
39 R Williams (2021) 23 Ecc LJ 127.
40 Ibid, p 135.
41 Ibid, p 136.
42 Ibid.
43 Ecclesiastical Courts Act 1855, s 1.
44 Court of Probate Act 1857, ss 3 and 4.
45 Matrimonial Causes Act 1857, s 2 and 4.
46 Compulsory Church Rate Abolition Act 1868.
47 C Smith, ‘Ecclesiastical Appeals in the JCPC’, available at <https://privycouncilpapers.exeter.ac.uk/contexts/jurisdictions/non-territorial/>, accessed 13 January 2022.
48 Church Discipline Act 1840, s 25. This was highlighted in the ELS WP report (above note 2) at para 2.12. Recent amendments to the Code of Practice to the CDM (it seems as a result of the ELS WP drawing attention to it) now provides for the possibility of a form of ‘rebuke’ even when a case has been dismissed: ‘if the conduct of the cleric in question nevertheless raises cause for concern, the bishop may take appropriate and proportionate action outside of the Measure. This might include advice or an informal warning as to future behaviour’: Clergy Discipline Measure 2003: Code of Practice (revised April 2021), para 147.
49 Church Discipline 1840, s 3.
50 Incumbents (Discipline) Act 1947, s 3.
51 Ecclesiastical Jurisdiction Act 1963, s 19(b).
52 Clergy Discipline Measure 2003, s 10.
53 ELS WP Report, above note 2, Annex 13 – CDC Statistics.
54 Church Discipline Act 1840, s 3.
55 Clergy Discipline Act 1892, s 2.
56 Incumbents (Discipline) Act 1947, s 2.
57 Ecclesiastical Jurisdiction Act 1963, s 14(1).
58 Clergy Discipline Measure 2003, s 8(1)(d).
59 Clergy Discipline Measure 2003, s 8(1)(c).
60 Church Discipline Act 1840, s 4.
61 Church Discipline Act 1840, s 13.
62 Incumbents (Discipline) Act 1947, s 5.
63 Ecclesiastical Jurisdiction Act 1963, s 23.
64 Ecclesiastical Jurisdiction Act 1963, s 28.
65 Clergy Discipline Measure 2003, s 11.
66 Church Discipline Act 1840, s 11.
67 Ecclesiastical Jurisdiction Act 1963, s 31.
68 ‘Under Authority: Report on Clergy Discipline’ (London, 1996), p 68.
69 Ibid, p 69.
70 Clergy Discipline Measure 2003: Code of Practice (revised April 2021), paras 13–21.
71 ‘ELS Working Party reviewing the Clergy Discipline Measure 2003: Interim Report’, September 2020, Annex 3, available at <https://ecclawsoc.org.uk/wp-content/uploads/2020/09/ELS-Interim-Report-revised.pdf>, accessed 5 January 2022.
72 Ibid, Annex 1, para 11.9.
73 S Horsman, L Barley, M Wright, A Nash and C Senior, ‘“I was handed over to the dogs”: lived experience, clerical trauma and the handling of complaints against clergy in the Church of England’, (2021) available at <https://www.sheldonhub.org/usercontent/sitecontentuploads/3/E95769629F73792E9B69BA64F5F10547/handed%20over%20to%20the%20dogs%20final.pdf>, accessed 8 January 2022.
74 Clergy Discipline Measure 2003: Code of Practice (revised April 2021), para 90.
75 ‘Practice Guidance: Responding to, assessing and managing safeguarding concerns or allegations against church officers’ (December 2017), §2.9, available at <https://www.churchofengland.org/sites/default/files/2017-12/Responding%20PG%20V2.pdf>, accessed 5 January 2022.
76 Home Office Guidance: Police Officer Misconduct, Unsatisfactory Performance and Attendance Management Procedures (July 2014), paras 2.124–2.125, available at <https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/330235/MisconductPerformAttendanceJuly14.pdf>, accessed 5 January 2022.
77 This power is additional to the power that existed previously for the President of Tribunals or Chair of a disciplinary tribunal to order the production of documents to a case that has been referred to a tribunal for adjudication.